COURT FILE NO. CV-20-00640340-0000

DATE: 20211006

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ECHELON ENVIRONMENTAL INC. and ROBERT RAINFORD

Plaintiffs/ Responding Parties

– and –

GLASSDOOR INC. and JOHN DOE

Defendants/ Moving Party (Glassdoor Inc.)

Counsel:

Christine L. Lonsdale and William L. Main, lawyers for the Plaintiffs

Jonathan Colombo and Amrita V. Singh, lawyers for the Defendant, Glassdoor Inc.

Julia Lefebvre, lawyer for the Defendant, John Doe

HEARD: AUGUST 16, 2021

REASONS FOR DECISION

G. DOW, J.

[1] The defendant, Glassdoor Inc. (“Glassdoor”) seeks dismissal of this action, both for itself and by virtue of the submissions it seeks to have accepted, the co-defendant John Doe, under Section 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43. That is, the defendants claim this action is an attempt to limit its freedom of expression on a matter of public interest.

[2] This matter was originally before me on June 7, 2021 at which time it was adjourned to July 28, 2021. My endorsement included that I was not seized of it. As part of my endorsement, I heard submissions from counsel for John Doe, who had not filed a Notice of Intent to Defend or revealed his/her identity, about participating in the proceedings. I ruled John Doe had no standing nor may be heard in this matter subject to serving and filing a formal, on the record appearance by his/her counsel.

[3] On July 26, 2021, the matter was again adjourned to August 16, 2021 in order for it to be heard by me. I was advised at the commencement of submissions the status of counsel for John Doe had not changed other than his/her service of a Notice of Motion to extend the time to appeal my order of June 7, 2021.

Background

[4] The defendant, Glassdoor is a California based human resources company that maintains an internet accessible platform for prospective, current and former employees of businesses to anonymously review their current or former employer.

[5] The corporate plaintiff sells stormwater solutions technology for municipal, commercial and industrial use and is based in Markham. It is owned by its General Manager, the plaintiff, Robert Rainford. Despite the evidence of having less than 10 employees, it does millions of dollars in revenue each year.

[6] On July 17, 2019, John Doe submitted an initial review of his/her former employer (as a purported less than one year employee) being the plaintiff, Echelon Environmental Inc. (“Echelon”) and its owner, Robert Rainford. The review was “moderated” according to Glassdoor to confirm compliance with Glassdoor’s policies and made available to internet users. It stated:

“SCHEDULE “A”

Review 1

July 17, 2019 Helpful [1]

“Keep’em overworked and underpaid” philosophy!”

■□□□□■ Former Employee – Project Manager in Markham, ON

■ Doesn’t Recommend ■Negative Outlook

I worked at Echelon Environmental full-time (Less than a year)

Pros

Good decent employees who deal with work load and lack of benefits very well!

Cons

Terrible owner and manager who expects people to deal with low wages, lack of orientation, no benefits and no future in the job and yet stay longer and work harder. By the way, the picture of happy people in a bright room on the webpage is fake (talk about copyright!). The real office is a dark building with green walls loaded with tired people!

Advice to Management

Stop washing toilets and start focusing on expanding your business (if there’s any hope, for expansion)!”

The first review was objected to by the plaintiff in January, 2020. In accordance with Glassdoor’s policies, it was reviewed to confirm compliance. As part of the process, John Doe was required to reconfirm his/her statements and failed to do so. As a result, the initial review was removed from the website.

[7] On April 19, 2020, John Doe submitted another review which was similarly vetted and put on the website. It stated:

“Review 2

April 19, 2020

“Low payments, high expectations, no future”

1.0 ★☆☆☆☆  Former Employee – Project Manager in Markam, ON

■ Doesn’t Recommend ■Negative Outlook

I worked at Echelon Environmental full-time for less than a year

Pros Employees are decent, helpful and have modest expectations out of their work.

Cons Salaries are much lower than that of the market and there’s no evaluation of performance and raise opportunity.

There’s no orientation for the new hires and it’s up to others to squeeze training to their schedule.

There’s no benefit system.

There’s no work-life balance. It’s expected that you stay longer than work hours and even using lunch hour for your personal work will raise eyebrows.

There’s no engineering or project management aspect to the work, the work is basically selling a limited range of storm water management products which have no differentiation compared to other brands.

The manager’s philosophy is to lower the costs by doing it all, from the product pricing, accounting, repairs and janitorial works including washing the washroom.

Women don’t have a separate washroom.

Infrastructure is definitely the weakest point. The internet speed is extremely low, the laptops that are provided are very old and take 10 minutes to open an excel sheet, the phones that are provided are outdated blackberries (!), and the office is dim with dirty green walls.

Advice to Management

Being an entrepreneur is all abut providing the best service to the clients and the society not exploiting every opportunity to increase financial gains.”

[8] A request by the plaintiff to remove the review was refused. The Statement of Claim was issued May 1, 2020 and served on Glassdoor on May 28, 2020. The original Motion Record is dated January 13, 2021.

[9] Glassdoor considers it fundamental to its business to provide anonymity to its “users” and defends efforts to disclose the identity of those that post reviews. It generates revenues by selling advertising to companies on the website. In addition, it sells a “branding service” to employers. It also offers, at no charge to employers, responses to content posted by it. It offered such services to Echelon which noted that accepting such a request required acceptance of Glassdoor’s terms of use. This including holding Glassdoor harmless from all claims, waiving its rights with regard to identifying users and pursuing any claim against Glassdoor except through arbitration. Further, in the alternative, all legal proceedings were required to be commenced in California.

[10] The nature of the allegedly defamatory comments listed above were subject to cross-examination of various employees of Echelon who submitted affidavits and resulted in the impressions posted by John Doe to have some basis in the actual working conditions and work place environment.

Analysis

[11] Under Section 137.1 of the Courts of Justice Act, supra, the first step to achieve dismissal of this action is for the defendant to establish this litigation arises out of its expression on a matter relating to the public interest. It is clear the law in this area requires, to paraphrase the Supreme Court of Canada in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 (at paragraphs 20-31), the comments made may be assessed as a whole and whether a segment of the community would have general interest in receiving the information. It is to be given a broad interpretation with a focus on what the expression is really about.

[12] In this matter, the care which needs to be taken is separating how Echelon may treat members of the public such as customers with the working conditions and employment practices it utilizes. As the number of decisions on this issue grows, the court has found a customer account of how a business treats its customers as being of public interest (see Raymond J. Pilon Enterprises Ltd. v. Village Media Inc., 2019 ONCA 981). This compares to an occupational therapy business raising a concern over the failure by a law firm to protect its accounts regarding individuals the law firm was acting for and whom the occupational therapy business treated as a private matter (see Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730).

[13] As part of examining the contextual nature of the comments “no qualitative analysis of the expression in question is to be made” (Sokoloff v. Tru-Path Occupational Therapy Services Ltd., supra at paragraph 20).

[14] Each of the allegedly offending specific statements in the July 17, 2019 review were alluded to or repeated in the April 19, 2020 review. While both reviews are contained in the action, given the repetition and fact the July 17, 2019 review was removed, the focus is on the comments of possible concern in the April 19, 2020 review.

[15] Regarding low salaries and lack of opportunities for raises, the material and submissions confirmed some evidence from Mr. Rainford himself as well as employees of Echelon that they were unaware of salaries being paid at competitor companies and thus not in a position to challenge the accuracy of such statements. The statements by John Doe and facilitated by Glassdoor speak to an issue that is between Echelon and the defendants, rather than the customers of Echelon and would not give rise to a matter of public interest.

[16] Similarly, the nature of other aspects of remuneration at Echelon such as benefits, expected work output and its infrastructure does not appear to extend into matters of public interest. Further, the comments about Mr. Rainford’s management approach, including janitorial work, was shown by the evidence to be largely accurate. The evidence of one bathroom for the group was admitted. Finally, it was admitted the walls at Echelon were indeed green and the image used on the webpage was a stock photo as opposed to an actual photo of Echelon employees in their actual work environment.

[17] The Court of Appeal recently addressed statements which the public would have substantial concern over and must be assessed for the reason for that concern (Grist v. TruGrp Inc., 2021 ONCA 309 (at paragraphs 18 and 19)). It went on to detail examples of the public interest to include “maintaining peaceful relationships between persons in society and in drawing attention to acts of injustice” and concluded that purely private disputes “that have no immediate bearing on the rights or obligations of others – can seldom be a matter of public interest”.

[18] In this regard, this action is not regarding a complaint by a customer of Echelon. Glassdoor attempts to frame and elevate the issue to be fair treatment for all employees and an employee’s right to share their “authentic” experience in the workplace without fear. However, to that end, Glassdoor accepts the employees’ word on the authenticity of the content. Anonymity it claims, is used to foster honesty. It does not, however, guarantee it. The concern is that the opposite can occur.

[19] I agree with the position put forth by counsel for the plaintiffs that the posts are a private grievance between the former employee and his/her former employer. As such, this is not a matter of public interest.

Conclusion

[20] As a result, the motion by the defendant, Glassdoor is dismissed. I was asked by counsel for Glassdoor to complete the analysis as if this matter was related to the public interest. I decline to do so as comments or findings may impede the parties and/or the trier of fact as this matter progresses.

Costs

[21] As required by Rule 57.01(6), the parties prepared and had Costs Outline available. In addition, counsel for the plaintiffs prepared a separate Costs Outline for the events and adjournments on June 7 and July 28, 2021 where I endorsed costs of the first appearance were reserved to the Judge deciding the motion. The endorsement on July 28, 2021 makes no reference to the issue of costs.

[22] The amounts sought for preparation and attendance on June 7 as well July 28, 2021 totaled $25,413.05 for substantial indemnity fees inclusive of HST. The plaintiffs’ Costs Outline for conducting the motion was in the amount of $107,215.33 for substantial indemnity fees (inclusive of HST and disbursements of $16,704.75). The Costs Outline of the defendant, Glassdoor in defending the action and for the motion was in the amount $341,324.25 for substantial indemnity fees (inclusive of HST and disbursements of $43,063.05).

[23] Both counsel advised offers to settle had been made and wished to make submissions upon learning of the result. I urge the parties to agree on costs in the next 15 days. If they cannot, the plaintiffs shall forward to me by emailing my assistant its written submissions, not to exceed seven (7) doubled spaced typed pages in a readable font excluding copies of any Offers to Settle being relied upon on or before November 3, 2021. The defendant, Glassdoor shall respond, similarly limited within fourteen (14) days or on or before November 17, 2021.

Mr. Justice G. Dow

Released: October 6, 2021

COURT FILE NO. CV-20-00640340-0000

DATE: 20211006

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ECHELON ENVIRONMENTAL INC. and ROBERT RAINFORD

Plaintiffs/ Responding Parties

– and –

GLASSDOOR INC. and JOHN DOE

Defendants/

Moving Party (Glassdoor Inc.)

REASONS FOR DECISION

Mr. Justice G. Dow

Released: October 6, 2021