In Franchuk v Schick, 2014 ABQB 249, Justice Lee of the Court of Queen’s Bench of Alberta assessed whether a sexual harassment complaint made in 2004 by the Defendant (“Schick”), about the Plaintiff (“Franchuk”), was defamatory. Schick, the sole administrator of the Lakeland Rural Electric Association (“REA”), claimed that Franchuk, a Director for REA, sexually harassed her when he allegedly told her that he would “take her out” or that he would “do more than discuss work.” In response to these advances Schick approached the President of the REA for assistance. Upon the President’s request for a written complaint Schick sent the Board of Directors a letter outlining the alleged sexual harassment. Franchuk later began an action claiming $10,000 in damages against Schick on the basis that the letter was false and defamatory.

Analysis: Three Requirements for Defamation Claims

The Court outlined what is required to obtain damages for defamation:

  1. That the impugned words were defamatory. This means that a “reasonable” person would find that the impugned words lowered or discredited the Plaintiff's reputation;
  2. That the words in fact referred to the Plaintiff; and
  3. That the words were published (communicated to one or more people other than the Plaintiff).

To fulfill these requirements the Plaintiff is not required to show that the Defendant meant to do them any harm, or even that the Defendant was careless in their actions. The Court found that the Plaintiff did make out the three elements required for defamation, and thus turned to the Defendant for her defense.

The Scope of Qualified Privilege as a Defamation Defense

Schick raised two defenses to the defamation action: truth of the statements and qualified privilege. The Court concluded that there was little evidence, other than Schick’s word, that the events actually happened, and therefore could not determine whether or not the statements were true. Schick also raised the defense of “qualified privilege”, which means that the occasion in which she made the statements protects their defamatory nature. In Adam v Ward, [1917] A.C. 309 (H.L.), it was explained that such an occasion is one where the individual making the statement has a legal, social, or moral duty to make it, and in turn that the person who receives the statement has a corresponding interest or duty to receive it. If the occasion is in fact proven to be privileged than the Defendant is allowed to publish otherwise defamatory remarks. However, if the Plaintiff can show that the motive behind the statements was malicious or dishonest, qualified privilege will be found not to apply.

Ultimately, the Court found that Schick, being under instruction from the President, had a qualified interest to make her complaint in writing to the Board of the Directors and that the Board in turn had the duty to receive it. As malicious or dishonest intent could not be proven the Court accepted Schick’s defense of qualified privilege and she was found not liable for any damages.

Note to Employers

Although the decision suggests that complaints made in accordance with internal procedure will be protected by qualified privilege, employers should ensure that the receipt of such complaints are treated in the utmost confidence, and disseminated only to those who have a duty to receive it.

Elise Calvert