Under Section 137.1 of the Courts of Justice Act, defendants can move to dismiss proceedings against them that are merely strategic lawsuits against public participation ("SLAPP" lawsuits). Enacted as part of Ontario's Protection of Public Participation Act in 2015, these "anti-SLAPP" motions were intended to promote free expression and debate on matters of public interest while discouraging the use of strategic (and costly) litigation to suppress the same.1
In order to succeed on an anti-SLAPP motion, the defendant has to first prove that the expression at issue relates to a matter of public interest. Importantly, this is described as a "threshold burden" that is supposed to be interpreted in a "generous and expansive fashion"; what constitutes "a matter of public interest" (on a balance of probabilities) is supposed to be defined broadly.2 Even if the expression is established as a matter of public interest, the court will still not dismiss a proceeding if the Plaintiff can then demonstrate that there are grounds to believe (i) their claim has substantial merit, (ii) the defendant has no valid defence, and (iii) the harm likely to have been suffered by the Plaintiff is serious enough that it outweighs the public interest in protecting the expression at issue.
In the recent Echelon Environmental Inc. v Glassdoor Inc., 2022 ONCA 391, the Court of Appeal for Ontario held that this initial "public interest" threshold does not necessarily include online reviews of employment working conditions by departed employees.
Echelon is a Markham-based technology company specializing in stormwater solutions. Glassdoor Inc. is a California-based human resources company that hosts a public online forum for employees to leave anonymous reviews of their current and former employers.
On July 17, 2019, "John Doe" (an anonymous purported former employee of Echelon) posted a negative review of Echelon on Glassdoor's forum that described alleged below-market wages, overwork and lack of work-life balance, and lack of benefits or future progression. Echelon contacted Glassdoor sometime around January of 2020 to object to this review. In accordance with Glassdoor's review policy, this post was reviewed, and the author (John Doe) was asked to reconfirm its contents. John Doe never responded, and so the initial review was taken down.
On April 19, 2020, John Doe submitted another review similar to the first one, again criticizing alleged below-market salaries, overwork and lack of work-life balance, and lack of progression opportunities. Echelon again requested that this review be taken down, but this time Glassdoor refused. In response, Echelon sued Glassdoor and John Doe for defamation.
FAILED ANTI-SLAPP MOTION
Glassdoor's anti-SLAPP motion to dismiss this action under s. 137.1 was dismissed because the subject matter of these employee reviews was deemed not to be "a matter of public interest" but instead simply a "private grievance between the former employee and his/her former employer."4
This characterization was upheld on appeal: Ontario's highest court expressly rejected Glassdoor's argument that employee reviews of workplaces and working conditions should meet the "broadly defined" threshold for a matter of public interest.5 As a result, Glassdoor's motion remained unsuccessful, and Echelon's defamation action was allowed to continue.
NAVIGATING "BROADLY DEFINED" – PUBLIC AS CONSUMERS VS PUBLIC AS EMPLOYEES
In dismissing Glassdoor's appeal, the court tried to limit the scope of their ruling by emphasizing that in some cases, "employee speech about workplace issues may well be a matter of public interest" but that the focus needs to be on the specific expression in question not the general topic of that expression.6
Given the particular expressions at issue in the online reviews in this case, this may be a distinction without a difference.
The Superior Court decision that was upheld in Echelon acknowledged that this "broadly defined" threshold for a matter of public interest includes expressions that "[draw] attention to acts of injustice" and that have "bearing on the rights or obligations of others" in the public; what it did not include was "purely private disputes."7
Within Canada's "post"-pandemic economic climate rife with surging inflation, a worsening cost of living crisis, and clashes over pay equity and workers' rights to disconnect or work remotely (to name just a few), it is difficult to reconcile how public expression criticizing pay and labour conditions fails to meet this low initial threshold. Glassdoor still may well have been unsuccessful in its anti-SLAPP motion under the remaining parts of the test under s. 137.1, but it's notable that the Court of Appeal upheld the dismissal of this motion at the threshold stage.
This decision needs to be considered alongside the recent Raymond J. Pilon Enterprises Ltd. v. Village Media Inc., 2019 ONCA 981 (which the Court in Echelon attempts to distinguish). In Village Media, the Court of Appeal upheld a motion judge's ruling that a customer review posted online describing their experience of "poor customer service at a local Canadian Tire store" did meet the broadly defined threshold for a matter of public interest under s. 137.1 since it related to "issues of customer service and shopping experience at a major retail store."8
As it stands in the wake of Echelon, there is now more likely to be a public interest worth protecting from SLAPP lawsuits in expressions about an individual customer service experience (albeit at "a major retail store") than an individual experience of employment working conditions. One wonders whether the court would decide differently if the "public interest" in these expressions about working conditions was framed not just as an interest to the public as prospective employees but also to the public as consumers wishing to make informed choices about businesses they transact with.
1. CJA, ss. 137.1(1); see alaso 17040604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 [Pointes], para 12, citing Legislative Assembly of Ontario, Official Report of Debates (Hansard), No. 41A, 1st Sess., 41st Parl., December 10, 2014, at p. 1975.
2. Pointes, paras 30-31.
3. See paras 4-10 of Superior Court decision, 2021 ONSC 5701.
4. 2021 ONSC 5701, paras 18-19.
5. 2022 ONCA 391, paras 2-3.
6. 2022 ONCA 391, para 11.
7. 2021 ONSC 5701, para 17; citing Grist v. TruGrp Inc., 2021 ONCA 309.
8. 2019 ONCA 981, para 4.
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