Glassdoor: Closing The Blinds On A Public Interest In Working Conditions?

• Published date: 10 June 2022
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Employee Benefits & Compensation, Employee Rights/ Labour Relations, Trials & Appeals & Compensation, Libel & Defamation
• Law Firm: Lerners
• Author: Mitchell C. Brown

Under Section 137.1 of the Courts of Justice Act, defendants can move to dismiss proceedings against them that are merely strategic lawsuits against public participation ("SLAPP" lawsuits). Enacted as part of Ontario's Protection of Public Participation Act in 2015, these "anti-SLAPP" motions were intended to promote free expression and debate on matters of public interest while discouraging the use of strategic (and costly) litigation to suppress the same.¹

In order to succeed on an anti-SLAPP motion, the defendant has to first prove that the expression at issue relates to a matter of public interest. Importantly, this is described as a "threshold burden" that is supposed to be interpreted in a "generous and expansive fashion"; what constitutes "a matter of public interest" (on a balance of probabilities) is supposed to be defined broadly.² Even if the expression is established as a matter of public interest, the court will still not dismiss a proceeding if the Plaintiff can then demonstrate that there are grounds to believe (i) their claim has substantial merit, (ii) the defendant has no valid defence, and (iii) the harm likely to have been suffered by the Plaintiff is serious enough that it outweighs the public interest in protecting the expression at issue.

In the recent Echelon Environmental Inc. v Glassdoor Inc., 2022 ONCA 391, the Court of Appeal for Ontario held that this initial "public interest" threshold does not necessarily include online reviews of employment working conditions by departed employees.

QUICK FACTS³

Echelon is a Markham-based technology company specializing in stormwater solutions. Glassdoor Inc. is a California-based human resources company that hosts a public online forum for employees to leave anonymous reviews of their current and former employers.

On July 17, 2019, "John Doe" (an anonymous purported former employee of Echelon) posted a negative review of Echelon on Glassdoor's forum that described alleged below-market wages, overwork and lack of work-life balance, and lack of benefits or future progression. Echelon contacted Glassdoor sometime around January of 2020 to object to this review. In accordance with Glassdoor's review policy, this post was reviewed, and the author (John Doe) was asked to reconfirm its contents. John Doe never responded, and so the initial review was taken down.

On April 19, 2020, John Doe submitted another review similar to the first one, again criticizing alleged below-market salaries, overwork...