GSB#2004-2855, 2004-2857, 2005-2476

UNION#2004-0582-0062, 2004-0582-0064, 2005-0582-0104

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Samsone)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services )

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Richard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Paul Meier Counsel Ministry of Government Services

HEARING

December 12, 2007, January 8, 2008, March 31, 2008, May 27, 2008, October 1, 2008.

DECISION

1These matters involve an allegation that two statements that libeled the grievor, Robert Samsone, were contained in a letter dated July 20, 2004, signed by then Director of the Ministry of Correctional Services and Community Services, Eastern Region. Both the content of the letter and the breadth of its distribution are grieved.

2Having considered the matter, and for the reasons set out below, I am of the view that the statements are not defamatory, nor, in any event, were they published too widely. However, the grievor has taken strong offence to them and objected to their publication in the letter. I am also of the view that no purpose would be served by further broadcasting both statements. The parties are well aware of the contents of the statements. An exception may be made with respect to the second statement, which I do set out below. Accordingly, my reasons and remarks will be set out more sparely than is usually the case, in deference to the grievor’s expressed concerns.

3The grievor began working for the Ministry in November 1998. He was an unclassified corrections officer at the Whitby Jail. He worked at the Whitby Jail from November 9, 1998 until March 19, 2001, when he was assigned to Millbrook. He worked two shifts at Millbrook, then went off on sick leave. He returned to the Whitby Jail in February 2002. As a result of the consolidation of the jails, Whitby closed and the grievor was transferred to Millbrook. When Millbrook closed he was transferred to the Toronto East Detention Centre. Subsequent to his transfer to TEDC, he was made classified.

4On February 12, 2003 the grievor and others, including Robert Gordon, filed WDHP complaints against the Superintendent of the Whitby Jail, Mr. Dvorak. Mr. Gordon had discovered that Mr. Dvorak was keeping a separate file on certain C.O.’s including him and the grievor. The WDHP complaint was against the keeping of those files. The grievor sent the Complaint to Gary Commeford, the Assistant Deputy Minister. Seemingly, the grievor also sent copies to the Deputy Minister, Correctional Services and the Assistant Deputy Minister, Community Services.

5The complaint was referred by Mr. Commeford to Michael Stevenson, Regional Director, Eastern Region, who appointed Dave Ainsworth, Acting Superintendent, Rideau Correctional and Treatment Centre, to investigate the Complaint.

6Mr. Ainsworth met with the grievor and Mr. Gordon on April 17, 2003. On all accounts there was a free-flowing exchange of information and Mr. Ainsworth conducted himself professionally throughout the meeting. Mr. Ainsworth secured the grievor’s consent to share details of their discussions with Karen Mathews, who was handling one or more of the grievor’s related grievances, and with Mr. Stevenson. Mr. Ainsworth also reviewed the files in question and interviewed other witnesses. He prepared a draft of a letter to Mr. Samsone, which reviewed his fact-finding efforts and dismissed the complaint. He sent that draft to Mr. Stevenson on June 26, 2003. It was his intention that Mr. Stevenson sign it, and amended it if necessary. Mr. Ainsworth was prepared to sign it, if requested. Mr. Stevenson did not send the letter, which included the impugned statements, until July 20, 2004, after the grievor sent an email to Mr. Stevenson on May 16, 2004, enquiring of the status of his complaint. In the meantime, a grievance filed by the grievor on February 13, 2002, dealing with some of the subject matter of the impugned statements, was settled at mediation/arbitration on October 30, 2003.

7The second grievance objects to the breadth of the distribution of the letter. The letter was forwarded to the grievor as an attachment to an email. Although the text of that email is attributed to Mr. Stevenson, Erin Sloboda sent the email. It was copied to Gary Commeford, Susan Coker, Jan Jeffrey, Silva Minassian and Gary Hogarth. Erin Slobada was Mr. Stevenson’s Administrative Assistant. Mr. Commeford was the ADM who referred the Complaint to Mr. Stevenson. Susan Coker was Mr. Commeford’s Administrative Assistant. Jan Jeffrey was the WDHP Co-ordinator and Silva Minassian was the Ministry’s WDHP advisor. Mr. Hogarth was the Deputy Regional Director, Eastern Region. As noted above, Mr. Stevenson was the Regional Director, Eastern Region. Further, after Mr. Ainsworth’s stint as the Acting Superintendent at Rideau, in 2004 he held Mr. Hogarth’s position in an acting capacity.

8As set out above, there are two grievances before me. One relates to the breadth of the distribution of the letter, the other to its content. As is evident above, Mr. Commeford received the WDHP complaint and referred it to the Director of the Eastern Region. The letter dismissing the Complaint came from him, through his administrative assistant. It went to Mr. Commeford, to Mr. Commeford’s administrative assistant, to Mr. Stevenson’s Deputy and to the two senior Ministry WDHP advisors. In my view, this was a perfectly reasonable scope for the distribution of this letter.

9All of the recipients had a legitimate business purpose in receiving that letter. Mr. Ainsworth described the role of an administrative assistant. The description would include sending or receiving this letter. Mr. Stevenson sent the letter to the person above him and the person below him in the chain of command. Finally, one could only expect that the Ministry’s senior WDHP consultants would receive the results of a WDHP complaint. Assuming, without deciding, that the impugned words in the letter were defamatory, Mr. Ainsworth had a duty to report them to Mr. Stevenson and Mr. Stevenson had a duty to circulate them as he did. Those receiving the document were obliged to receive it. Accordingly, the words are sheltered by qualified privilege. Where words are defamatory, the law infers maliciousness. Where there is qualified privilege, that inference is rebutted. To overcome the defence of qualified privilege, the union here bears the onus of proving malice.

10Qualified privilege is described in Litster v. British Columbia Ferry Corp., [2003] B.C.J. No. 817; (2003) BCSC 557 at paragraphs 124 to 132 as follows:

124 A person making a statement to another, which statement is reasonably appropriate to the occasion, in order to discharge a legal, social or moral duty concerning a subject in which both the maker and recipient have a legitimate common interest, enjoys a “qualified privilege”. The qualified privilege attaches to the occasion on which the communication is made, not to the communication itself.

As stated by the Supreme court of Canada in Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 at [paragraph] 144:

The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice.

125 Management and other employees who make defamatory statements to an employee in a termination letter and copy that letter to other employees in the course of effecting the employee’s ultimate dismissal can be protected by qualified privilege. See Peck v. Canada, 1964 CanLII 1144 (CA EXC), [1964] Ex. C.R. 966 at 991.

126 Capt. Taylor had a legitimate interest in the course of his employment duties in advising all the recipients of Ms. Litster’s dismissal letter about the dismissal. Each recipient had a corresponding interest in receiving the information in discharging their employment duties. Therefore, they received the communication on an occasion of qualified privilege.

127 Ms. Litster argued that the publication was broader than necessary, and exceeded the occasion of qualified privilege. For example, she argued that Ms. Zilke did not need to know all the information in the letter, and that as payroll manager, she only needed to know that Ms. Litster had stopped working for B.C. Ferries.

128 The publication of Ms. Litster’s dismissal letter did not exceed the occasion. With respect to Ms. Zilke, it was relevant for her to know that the dismissal was on the basis of an allegation of just cause, in connection with her preparation of forms relating to Employment Insurance. With respect to the other recipients of the letter, they were involved with the decision-making, and the letter did not exceed the occasion.

129 Where a defamatory statement is published on an occasion of qualified privilege, the presumption of malice is rebutted. As a result, Ms. Litster can succeed in the defamation claim only if she can prove that Capt. Taylor was not using the occasion honestly for the purpose for which the law gives protection, but was activated by some indirect motive not connected with the privilege, and in that sense, acted maliciously.

130 Ms. Litster argued that Capt. Taylor acted recklessly, because he failed to make a reasonable investigation into the correctness of what he said in the letter. She relied on Ramsey v. Pacific Press et al., [2000] B.C.J. No. 2422(SC). Mr. Ramsey was a member of the Legislative Assembly. The offending statement falsely quoted Mr. Ramsey as suggesting that Prince George residents were too lazy to get out of their chairs to go to the polls. The Prince George residents included Mr. Ramsey’s constituents. The Court held that the defendant broadcaster was not able to rely on the defence of qualified privilege, because he failed to do a reasonable investigation to determine the truth of the quote he attributed to Mr. Ramsey. The Court concluded that he could not be said to have had an honest belief in what he said because of the recklessness of his approach.

131 Capt. Taylor’s investigation into the correctness of what he said in the dismissal letter was reasonable in the context of the letter and its intended and actual publication. The Ramsey case, where the publication was made broadly in the media, raises a different situation requiring a different analysis of what investigation would be reasonable. Capt. Taylor was not reckless in making the statements he did in the dismissal letter.

132 Accordingly, Ms. Litster has not defeated the defence of qualified privilege by establishing malice. Her claim against Capt. Taylor for damages for defamation is accordingly dismissed.

11In Litster, the Court found that the letter of dismissal had defamed Ms. Litster by incorrectly implying she was a thief. Nonetheless, qualified privilege was a defence to the defamation. That is the case here. Those who received Stevenson’s letter had a legitimate interest in receiving it and both Ainsworth and Stevenson had a legitimate interest in drafting and sending it. For the defence of qualified privilege to be defeated, the onus is on the union to establish malice. As suggested in the excerpt above, recklessness may be an indicator of malice. The recklessness that grounded malice in Ramsey was of such a magnitude that “the Court concluded that he could not be said to have had an honest belief in what he said.”

12In the instant matter, there is no question but that Mr. Ainsworth honestly believed the contents of his draft. One of the two statements is entirely benign: that the grievor did not know where he would be going after Millbrook closed. Further, the grievor agreed in his testimony to the truth of that statement at that time. As to the other statement, it does not matter if it was true or not since Mr. Ainsworth’s communication to Stevenson was covered by qualified privilege. Mr. Ainsworth was cross-examined at length about the meeting at which he said he recorded in writing a particular statement made by the grievor. He reiterated that statement in his draft letter and Mr. Stevenson included it in his letter. The grievor denies having made such a statement to Mr. Ainsworth. He says that Mr. Ainsworth and Mr. Stevenson defamed him by publishing such an untrue statement.

13It is not necessary to for me to decide whether Mr. Ainsworth or the grievor is correct in their recollection of what was said at the meeting. What clearly came out of Mr. Ainsworth’s testimony is that he honestly and firmly believed the grievor made that statement, and I so find. Stevenson wholly adopted the statements in circulating the final letter. There is no evidence that Mr. Stevenson had any reason to doubt the veracity of the statements. There is no evidence of actual or express malice.

14In Transit Windsor v. A.T.U. Local 616 (2003), L.A.C. (4th) 27 (Brandt), the following excerpt at paragraphs 67 and 68 deals with the type of misconduct that is an indicator of malice:

67 It is instructive to examine the case law with a view to understanding what kinds of motivation have been treated by the courts as indicative of malice. The following passage from Brown, The Law of Defamation in Canada, Second Edition, (supra), section 16.3(1) states:

The privileged occasion must not be abused by a defendant. The publication must be made in good faith. The defendant must not seize upon an incident as a pretext to injure a person’s name or reputation, or take advantage of an occasion merely “to give utterance to an unfounded charge”. Nor should the occasion be used solely to advance a defamatory imputation in order to annoy, discredit, harass, harm, humiliate, hurt, injure, punish, ruin or undermine someone, or as a “a cloak to cover an attack upon a plaintiff which is unrelated to the occasion”.

A defendant must not use a privileged occasion out of hatred, animosity, vindictiveness or revenge, or in order to gratify his or her anger, hate, spite or personal ill will and ill-feeling, or to obtain satisfaction for some personal resentment or grudge, or to pursue some “gross and unreasoning prejudice” or to discredit someone for a reason unconnected with the occasion. It cannot be used to as a cloak to vent private malice. Neither should it be used to satisfy the urge to gossip or to secure a private advantage unrelated to the duty or interest raised by the occasion.

68 It appears from this passage that the standard of “misconduct” that will support a finding of malice is quite high. At the time that she concluded that the grievor had been engaging in fraudulent activity Ms. McMillan did not know the grievor and had not yet met him. There was, thus, no prior “history” between them that might suggest the existence of some personal grudge or resentment; that might feed an act of revenge or personal vendetta against the grievor. Admittedly, having viewed the tapes she had an unfavourable impression of the grievor and, acting in her capacity as Director of Administration responsible for human resources, she took it upon herself to commence a process that led ultimately to the termination of the grievor’s employment. Again, however, that was in pursuit of a legitimate business concern and had, in my view, nothing at all to do with any of those motivations listed by Professor Brown as indicative of malice.

15The union does rely upon certain aspects of the investigation, as being so wanting that malice ought to be inferred. It described the investigation as unresponsive and dilatory. It relied upon the fact that Ainsworth destroyed his handwritten notes after typing them up. It also relied upon the fact that, contrary to policy, no opportunity was given to the grievor to review Ainsworth’s findings prior to the preparation of his draft letter. It also said the conclusions reached that there was no violation of the WDHP policy was itself a contemptuous conclusion. The union relies in particular on the inordinate delay from the time when Mr. Ainsworth sent the draft to the date of release of the letter.

16It must be remembered that these grievances are quite specific in alleging that the content and distribution of the letter were defamatory. The adequacies or inadequacies of the investigation process are only relevant to the extent that they factor into the defamation claim. Those purported inadequacies must sink to the level of malice to have any effect, and they do not. Mr. Ainsworth was not dilatory in advancing the investigation. The largest delay was in the release of the letter thirteen months later. Although there is no overt explanation for that delay, it has not been established by the union that it was malicious. Further, the delay seems to have had no relevant effect on the content of the final letter, which was largely the same as the draft.

17As to Mr. Ainsworth having typed up and then destroyed his handwritten notes, I am not persuaded anything turns on that distinction in these circumstances. He described his typed notes as having been made at the time. The grievor kept no notes of the meeting at all. There was no indication in the evidence that there was any nefarious intention in proceeding as he did to type his handwritten notes. That is also the case with respect to the failure to give the grievor a chance to review the draft and to the union’s characterization of Mr. Ainsworth’s conclusions as contemptuous.

18Mr. Ainsworth was closely cross-examined on all of these points. I accept that it is appropriate to consider all of the problems with the investigation together, rather than dealing with them one by one, the whole being greater than the sum of its parts. Taking that approach, and considering Mr. Ainsworth’s evidence as a whole, he presented as a forthright individual who had been given a task to complete. He conducted himself professionally in his discussions with the grievor and he encouraged a complete discussion of the grievor’s concerns. He prepared a draft letter, the contents of which he believed to be true. There was simply no indication on the evidence, of any malice towards the grievor. He did not even know the grievor prior to the investigation.

19As to Mr. Stevenson, he did not testify. The Board heard some evidence of an illness that prevented his attendance. That is of no moment. He was not required to come and establish that he bore no malice towards the grievor because he sent his letter in circumstances of qualified privilege. It was for the union to establish malice and it has not done so.

Accordingly, the grievances are denied.