In a recent Ontario case, the owners of a company sought an injunction against a former employee after she accused them of racism in social media posts.
Employee Alleges Racism in Social Media Posts
The employee began working for the employer company on August 1, 2019. The employer and its two owners specialize in shoe and handbag restoration.
On June 11, 2020, and in the context of Black Lives Matter (“BLM”) protests in the United States and around the world, the owners decided to post a statement to the company’s website in support of BLM.
The employee expressed concern about the statement because it contained spelling errors and appeared “tone deaf”. She expressed her concerns to the owners and she offered to help re-write the statement.
According to the employee, the owners were not pleased with her speaking up and commenting on the initial statement in support of BLM. Additionally, the employee claimed that after she spoke up about the BLM statement, she was targeted and harassed at work. She alleged that she was increasingly micro-managed by the owners and they began examining her work, which they had never done before.
On June 30, 2020, following an incident surrounding the quality of the employee’s work, one of the owners decided to speak to the employee. According to the owner, the employee’s attitude during the meeting was extremely hostile and angry. He claimed that her behaviour during the conversation was so shocking and disproportionate that he felt it was necessary to terminate her employment.
Following her termination, the employee made a series of social media posts on Twitter and Instagram alleging that she had been terminated for supporting the BLM movement; that the two owners were racists and had used racist epithets; that the company did not care about Black people and only wanted to profit off of Black culture; and that the employer treated its employees poorly.
The owners commenced an action seeking damages from the employee alleging defamation based on the statements posted by her on social media.
The owners also sought an interim injunction requiring the employee to remove the social media postings and to refrain from republishing the postings pending the trial of the main action. They claimed that they had lost employees and business as a result of her postings and allegations of racism.
Court Refuses to Order Injunction Against Employee
The court set out to determine whether the owners had met the test for an interim injunction in the context of a defamation action.
The court explained that the test for injunctive relief in defamation actions is as follows:
- The publication complained of must be clearly defamatory;
- If the defendant states an intention to justify or to rely on fair comment, the injunction must be refused unless it is clear that any such defence will inevitably fail; and
- The plaintiff must establish irreparable harm if the injunction is refused.
The court explained that the test is a very high one that recognizes the importance of protecting free speech, particularly in matters of public interest. It observed that granting interim injunctive relief in defamation cases is rare and should only be ordered in the clearest of cases.
After the court reviewed allthe evidence, which it found to be contradictory, the court concluded:
“Calling an individual or corporation a racist has been found to be defamatory [in previous cases]…. However, on a motion for an interlocutory injunction, a finding that the words are defamatory is not sufficient to grant the injunction where the defendant raises the defence of justification or fair comment. When those defences are raised, the injunction will only be granted where the plaintiff has satisfied the court that it is clear that the defences will inevitably fail. This is a stringent test that is much higher than showing a prima facie case that the defences will not succeed. If the plaintiffs only had to establish that there was a prima facie case that the defences will not succeed, they might have met that onus. In my view, however, they have not met the onus of demonstrating that the defences will inevitably fail.”
As a result, the court refused to issue an injunction and dismissed the motion.
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However, where needed, we do successfully represent clients in litigation at all levels of court and before various tribunals, including the Human Rights Tribunal of Ontario, the Canadian Human Rights Tribunal, and the Workplace Safety and Insurance Appeals Tribunal.
At Bader Law, our knowledgeable employment lawyers can counsel you on your rights, advise you on your options, and help you create a plan for moving forward. We represent employees in Mississauga and areas west of Toronto. Contact us online or at (289) 652-9092 to learn how we can help.