So, your employment has come to an end. However, you believe that your former employer owes you money. There are several options for collecting. You can bring a claim under the Employment Standards Act, 2000 or you can sue in civil court. Or, what if, instead of focusing on the legal route, you threaten to reveal secrets that would hurt the company’s reputation? And what could happen if you follow through on this threat?
Your former employer would likely sue you for defamation. In response, you could argue that this information is in the public interest, and that the claim is an attempt to stifle public disclosure.
This situation may seem far-fetched. However, this did happen, and in Diverse Transportation v Chen the Court addressed this situation. Unsurprisingly, threatening to “expose” your former employer “or else” was found not to be in the public interest.
The Facts
Mr. Chen, a former employee of Diverse Transportation (“Diverse”), a trucking company, claimed that Diverse owed him money, and sued in Small Claims Court. Mr. Chen obtained default judgment (the employer disputed the fact that it had been served with the plaintiff’s claim); the parties settled for $20,000.00, without Diverse admitting liability.
This was not enough for Mr. Chen, who claimed that Diverse still owed him $1,116.55 in interest and vacation pay. Mr. Chen contacted Diverse seeking payment, accusing the company of numerous wrongful business practices. These wrongful practices included:
- altering documents,
- failing to properly clean its tanker trucks between uses for food and non-food grade liquids, and
- cheating its employees with poor payroll practices.
Mr. Chen advised Diverse he would share these stories with “the Media, Facebook, Twitter, and newspapers”, if Diverse did not pay him in ten days.
Diverse refused, and Mr. Chen sent damaging information to several of its major clients. Diverse’s lawyers then sent Mr. Chen a cease and desist letter that instructed him to cease contacting the client and stated that his actions were “an attempt to extort money you are not owed”.
Mr. Chen responded and by reiterating his threats. Diverse obtained an injunction against Mr. Chen that prevented him from making similar communications, but it did not prevent him from contacting the police or regulatory agencies about the matter.
The Court noted that Diverse had been in business for twenty years without an incident of contaminated cargo or a customer complaint. Diverse then sued Mr. Chen for defamation.
Mr. Chen brought a motion to strike the claim as Strategic Litigation Against Public Participation (“SLAPP”), claiming that the public (which he identified as Diverse’s best customers) had a need-to-know that Diverse was a “bad company who should not be hired”.
The Law
The Anti-SLAPP law ensures that a party does not use its resources to block discussion about it. Without it, someone complaining of misconduct against a larger entity could be sued for defamation and must spend all their resources defending it, likely leading to the smaller party abandoning their claim. The party who has been sued for defamation can bring an anti-SLAPP claim, asking the Court to strike the defamation claim for attempting to quell public discussion.
To succeed, the moving party (the defendant) must show that the proceeding arises from an expression relating to a matter of public interest. If this threshold is met, the responding party (the plaintiff) must show that there are grounds to believe that the matter has substantial merit, and that the defendant has no defence to the claims.
The Verdict
The Court noted that Mr. Chen’s message was internally contradictory: It contained details about a safety concern, but also stated that the problem could be remedied by paying him the money he was owed. If there was a matter of public interest at stake, how could it be negated by giving an individual money?
The Court also noted that Mr. Chen’s monetary dispute was not a matter of public interest; if it was, then any claim of money owing could be made into a matter of public interest by saying that the public had a right to know.
The Court found that there was no public interest aspect to Mr. Chen’s assertions and dismissed his motion.
Conclusion
Anti-SLAPP laws can permit speaking truth to power. Without the remedy it provides, a responding party with more resources can sue a complainant for defamation. This means that the complaining party needs to focus on the defamation claim and may run out of money before prosecuting the initial complaint.
Whether there is a right way to go about collecting money from one’s employer is not entirely clear; this case demonstrates that there is a wrong way to do it. Mr. Chen now owes Diverse its costs associated with defending the motion. while still facing the ongoing defamation claim. A debt owed from employer to employee, while possibly a crucial matter for both parties, is not always going to be in the public interest, particularly when an attempt to collect it is carried out by defamation and the threat of further defamation.
There are ways to address an employee’s complaints about their former employer, and for an employee to seek repayment of a debt. Rudner Law can assist with both. We regularly assist both employers and employees navigate the various challenges that arise during the course of the employment relationship. As we always say, if you think you need an Employment Lawyer, you probably do!
