The Ontario Court of Appeal has dismissed a defamation lawsuit against Rubin Thomlinson LLP and one of its lawyers, Katharine Montpetit, following an investigation into a complaint of sexual harassment in the workplace.
The Northern Ontario School of Medicine (NOSM), which has campuses in Sudbury, Ont., and Thunder Bay, Ont., hired the law firm in 2018 to investigate a complaint of workplace harassment and sexual harassment. The complaints were made by a medical resident in the internal medicine training program at NOSM.
Montpetit is a senior investigator with expertise in sexual violence and sexual harassment.
On March 14, 2019, she completed her investigation and submitted her report, along with two executive summaries, concerning the conduct of two doctors at NOSM.
The executive summaries
The summary of the investigation into the conduct of the first doctor preferred his version of events over the intern’s. It found that the intern was “not a credible or reliable witness.” The conclusion was that the doctor did not engage in harassment nor did he breach NOSM policy.
The summary of the investigation into the second doctor reached a similar conclusion. It read, in part:
“First, the (intern) alleged that (doctor two) entered into a bet with (doctor one) to ‘loosen up’ (the intern),” it stated. “Ms. Montpetit found that there was no bet. She based this conclusion on (the intern’s) undermined credibility, the absence of detailed documentary evidence, and (the intern’s) acknowledgment in communications that her knowledge of the bet was hearsay.”
Those summaries were provided to two staff members at NOSM and its lawyer. Doctor one and the intern received the first summary; only doctor two received the second summary. They were not publicly disseminated, but they were ultimately filed with the Human Rights Tribunal of Ontario as part of doctor one’s defence to an application by the intern to that tribunal.
Intern hires publicist
Before that inquiry began, the intern hired a publicist and issued a press release — which resulted in her allegations being seen by the public, in the press and other media.
The CBC, CTV, Postmedia, the Toronto Star and the North Bay Nuggest all picked up on the story as a result.
In March 2021, the intern filed a lawsuit against Rubin Thomlinson LLP and Montpetit. She alleged the summaries produced following the investigation were defamatory.
The case was dismissed by the motion judge for a number of reasons. First, the summaries related to a matter of public interest.
Second, it was a situation of qualified privilege because of the “social utility of NOSM receiving frank communication about an important topic.”
Third, there was no evidence to support a finding of malice against Montpetit. Lastly, a “balancing exercise favoured protection of the expression. The intern appealed.
The Court of Appeal for Ontario said it was “obvious” the executive summaries prepared by Montpetit related to a matter of public interest.
“The public has significant concern over sexual harassment and workplace harassment and, generally, has an interest in investigations into these issues,” it said.
The summaries in this case engaged the public interest, in part, because NOSM is an educational institution, the story garnered a lot of media attention and there were public safety concerns arising from the intern’s allegations.
The intern said the fact that she hired a publicist to “try to shame NOSM into conducting a workplace investigation into her allegations does not convert this private matter into a matter of public interest.”
The Court of Appeal disagreed.
“The act of retaining a publicist to assist in an attempt to “shame” a public education institution in a relatively small community is the antithesis of trying to keep the matter private,” it said.
Public safety issue
Further, the intern raised the issue of public safety.
“In the North Bay Nugget article, she acknowledged the patient safety concerns surrounding her allegations, stating that these matters ‘affect patient care every day,'” it said. “The concern for patient safety in a public institution is not a private matter. It directly engages the interest of the community and is indicative of why the Executive Summaries are within the scope of the public interest.”
Qualified privilege defence
The intern argued the motion judge erred by concluding the executive summaries were protected by the privilege of qualified defence.
The Court of Appeal did not agree. Rubin Thomlinson LLP was retained to investigate allegations of workplace harassment and to prepare investigation reports to NOSM, as required under provincial workplace safety laws.
Moreover, NOSM had a legal duty to provide, in writing, the results of the investigation and any corrective action taken, to the complaint and her alleged harassers, it said. The provision of the summaries by the law firm and Montpetit “falls squarely” within that privilege, it ruled.
The third ground of the intern’s appeal was anchored in malice, which the Court of Appeal called “groundless.”
“The motion judge found that there was no evidence of malice. There is no basis to interfere with that finding,” it said.
The appeal was dismissed.
For more information, see Safavi-Naini v. Rubin Thomlinson LLP, 2023 ONCA 86 (CanLII)