Executive Summaries of Investigation Protected by Freedom of Expression

How does the freedom of expression apply to investigation reports and executive summaries? A recent Ontario Court of Appeal decision provides insight.

What happened?

Dr. Safavi-Naini was a medical resident in the Northern Ontario School of Medicine’s (NOSM) internal medicine training program. In 2018, she brought complaints of workplace harassment and sexual harassment against the program’s director and a faculty member. Before NOSM investigated the complaints, Dr. Safavi-Naini hired a publicist and issued a press release that put her allegations in the public eye.

NOSM hired a well-known law firm to investigate the complaints and the firm assigned the file to a senior investigator with expertise investigating incidents of workplace violence and sexual harassment. In March 2019, the investigator submitted her final report and two executive summaries containing her findings. The summaries stated that Dr. Safavi-Naini failed to provide detailed evidence to support her allegations and was not credible or reliable.

In March 2021, Dr. Safavi-Naini sued the law firm and investigator on the basis that the summaries were defamatory. In response, the law firm and investigator argued that the summaries were not defamatory because they contained information about matters of public interest. A superior court judge agreed with the law firm and investigator and dismissed Dr. Safavi-Naini’s action. She appealed the judge’s decision, but the Ontario Court of Appeal upheld the decision for the following reasons.

The summaries dealt with a matter of public interest

The Court of Appeal agreed that the summaries discussed matters of public interest because: 

• “the public has a significant concern over sexual harassment and workplace harassment” and a general interest in how such matters are investigated
• the allegations arose in an educational institution and received media attention
• Dr. Safavi-Naini told a news outlet that the issues she experienced at NOSM affected public safety and patient care

The summaries were protected by qualified privilege

The court also found that the summaries were protected by qualified privilege. Qualified privilege exists when an individual has a legal, social, moral or personal duty to communicate information to a recipient who has a corresponding interest or duty in receiving that information. In accordance with Ontario’s Occupational Health and Safety Act (OHSA), NOSM investigated Dr. Safavi-Naini’s allegations of workplace harassment and sexual harassment. They did so by hiring the law firm to investigate the matters and provide written findings. So, the law firm and investigator had a duty to provide the summaries to NOSM and NOSM had a duty to receive them.

In addition, the OHSA also required NOSM to provide Dr. Safavi-Naini and her alleged harassers with the written results of the investigation.

No malice

The court found that the investigator had no malice towards Dr. Safavi-Naini when preparing the summaries, and that the public interest in preparing the summaries outweighed any potential harm they could have caused.

For those reasons, Dr. Safavi-Naini’s appeal was dismissed.

Takeaways

Workplace investigators are routinely called upon to investigate serious allegations and incidents that affect all parties involved. While participating in an investigation can be a difficult process, learning the results of an investigation can be equally tough and frustrating. This is especially true when a participant learns that their version of events was not accepted by the investigator or that they lacked credibility or reliability in the investigator’s eyes.

The decision summarized above provides reassurance that employers can write investigation reports and summaries of the findings without fear of a defamation lawsuit. But to do so, employers should ensure their reports and summaries:

• follow recommendations in the OHSA and Code of Practice
• are free of malice toward the parties
• are communicated on a need-to-know basis to those who have “an interest or duty” to receive the information