Court of Appeal for Ontario

Date: 2022-05-16 Docket: C69987

Huscroft, Thorburn and George JJ.A.

Between:

Echelon Environmental Inc. and Robert Rainford Plaintiffs (Respondents)

And:

Glassdoor Inc. and John Doe Defendants (Appellant)

Counsel: Linda R. Rothstein, Amrita V. Singh, and Ren Bucholz, for the appellant Christine Lonsdale and William Main, for the respondents

Heard: May 2, 2022

On appeal from the order of Justice Grant R. Dow of the Superior Court of Justice, dated October 6, 2021.

Reasons for Decision

[1] The appellant, Glassdoor Inc., appeals the motion judge’s order denying his request to dismiss the respondent’s defamation action under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c C.43. The appellant argues that the motion judge erred in finding that the expression at issue – publication of an anonymous critical review on the appellant’s website by John Doe about his employer, the respondent Echelon Environmental Inc. (“Echelon”) – did not relate to a matter of public interest as required by s. 137.1(3).

[2] The appellant argues that this was a workplace review, not a private dispute between two parties, and that employee reviews of employers and working conditions that are communicated on a public site are of public interest to a segment of the public, namely, potential employees. The appellant says that there is no meaningful distinction between customer reviews of businesses, which have been held to be a matter of public interest, and employee reviews of workplaces, and that the motion judge erred in not following the customer review cases. The appellant argues, further, that the motion judge erred in making a qualitative assessment of the expression by criticizing the fact that it was an anonymous reviewer.

[3] We do not accept these arguments.

[4] It is well established that on a motion under s. 137.1, expression is to be assessed as a whole. The question is whether “some segment of the community would have a genuine interest in receiving information on the subject”: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 27; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 102. Although the public interest is to be interpreted broadly, not everything in which some members of the public are interested is a matter of public interest for the purpose of s. 137.1: Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, at para. 19.

[5] The essential question is this: Understood in its context, what is the impugned expression really about? The motivation behind the expression is not legally relevant, nor are the merits of the expression and the manner in which the expression is conveyed, as there is no qualitative assessment of expression at this stage: Pointes, at para. 28; Sokoloff at para. 20.

[6] Whether expression relates to a matter of public interest involves a question of mixed fact and law that attracts a deferential standard of review. Provided that the motion judge made no extricable errors of law and no palpable and overriding errors of fact, the decision is entitled to deference.

[7] The appellant has failed to establish that the motion judge made any such errors, and as a result there is no basis for this court to interfere with his decision.

[8] The motion judge determined that the anonymous review on Glassdoor’s website concerned an individual’s complaints about such things as the respondent company’s pay and benefit levels, work requirements, and the company’s infrastructure. These were complaints that, while anonymous, reflected a private dispute with no real impact on others. The respondent company was not engaged in providing services to the public; it was providing specialized services to a small number of customers. In these circumstances, it was open to the motion judge to conclude that the employee review did not relate to a matter of public interest.

[9] The motion judge did not make qualitative assessments about the expression at issue. He acknowledged this court’s instruction in Sokoloff that no such assessment was to be made. His comments about the anonymity of the reviewer were made in the context of describing the expression. His finding that the expression did not relate to a matter of public interest was not based on whatever value or merit the review held but rather on the evidence outlined above.

[10] The motion judge was not required to conclude that expression about workplaces is a matter of public interest simply because some courts have concluded that reviews of businesses by consumers are a matter of public interest. This court’s decision in Raymond J. Pilon Enterprises Ltd. v. Village Media Inc., 2019 ONCA 981 upholds one such decision on the basis of the deferential standard of review. It does not determine the outcome in this case.

[11] In some cases, employee speech about workplace issues may well be a matter of public interest. But in every case, the burden is on the moving party to establish that its expression relates to a matter of public interest. Whether expression relates to a matter of public interest is determined by consideration of the particular expression in question, not the topic of that expression.

[12] The motion judge’s reasons in this case were brief but they were adequate. Given his findings on the public interest threshold question, it was not necessary for the motion judge to proceed to the merits-based hurdle under s. 137.1(4)(a) and the public interest weighing exercise under s. 137.1(4)(b), and the motion judge’s reasons cannot be said to be insufficient for failing to do so. That said, in the normal course motion judges should go on to apply the test in the event that their analysis on the threshold question is overturned on appeal.

[13] The appeal is dismissed.

Costs

[14] The appellant seeks leave to appeal the motion judge’s costs order, awarding the respondents $76,750 in costs.

[15] It is well established that the award of costs is a discretionary decision that is entitled to deference. Leave to appeal a costs order is granted only where there are strong grounds upon which the court could find that the motion judge made an error in principle or the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

[16] The legislation reverses the ordinary presumption that the successful party is entitled to costs. Section 137.1(8) empowers the motion judge to award costs to the successful party if the motion judge finds that costs are appropriate in the circumstances. Thus, the decision to award costs is discretionary and the same deferential standard applies on appeal.

[17] We see no error that would allow this court to disturb the motion judge’s costs award. It was open to the motion judge to find that an award of costs was appropriate, and we note that he awarded substantially less than the respondents claimed on a partial indemnity basis – approximately one-third of what was requested. That was a reasonable exercise of his discretion.

Conclusion

[18] Accordingly, the appeal is dismissed. Leave to appeal costs is dismissed.

[19] The respondent is entitled to costs in the agreed amount of $25,000, all inclusive.

“Grant Huscroft J.A.”

“J.A. Thorburn J.A.”

“J. George J.A.”