In Joshi v. Allstate Insurance Company of Canada, an Ontario Superior Court judge ruled that when companies are alleged to have violated human rights and when employee whistleblowers call attention to discriminatory policies and practices, public interest trumps the interests of private corporations.
Ms. Joshi was terminated by Allstate after six years of employment. She sued Allstate for wrongful dismissal. Further, Ms. Joshi spoke to the media about the action and, in particular, her claim that Allstate terminated her after she spoke out to the CBC about a potentially discriminatory practice. More specifically, Ms. Joshi spoke about unwritten rules at Allstate to make selling car insurance policies to drivers who live in Brampton, Ontario, more difficult than in other Toronto neighbourhoods.
In response, Allstate launched a counterclaim against Ms. Joshi for $700,000, plus legal costs, for what they claimed were “damages to Allstate’s reputation and goodwill.”
In response to Allstate’s counterclaim, Ms. Joshi invoked the summary procedure under section 137 of the Courts of Justice Act, which is sometimes referred to as Ontario’s Anti-SLAPP (Strategic Lawsuit Against Public Participation)] legislation. It provides a mechanism for individuals who are sued on account of an expression they made, related to the public interest, to dismiss the lawsuit quickly. The rationale behind the legislation is to encourage discourse on matters of public interest and to limit lawsuits that attempt to restrict same.
In order for a Court to dismiss a lawsuit that was brought on account of an individual’s expression it must find that:
- The lawsuit arises from an expression made by the person that relates to a matter of public interest;
- The defendant has no valid defence in the lawsuit; and,
- The harm suffered by the plaintiff as a result of the expression(s) is sufficiently serious that the public interest in permitting the lawsuit to continue outweighs the public interest in protecting that expression.
Madam Justice Kimmel wrote that “qualified privilege” means that “…Ms. Joshi had a legal, social or moral duty” and that Ms. Joshi “…felt compelled to speak about what I have concluded is a matter of public interest. She would be one among a relatively small group of people who has knowledge, information and belief about the particular Allstate policy or practice in question.”
This decision is one of the first under the new Anti-SLAPP legislation and effectively expands whistleblower protections in the private sector, especially when it comes to human rights abuses in the public interest. While the decision affirms that employers cannot intimidate employees who have spoken out about wrong-doing with a counterclaim, Justice Kimmel did warn that her decision did not give employees “free licence” to say whatever they want about their employers. If you encounter what you believe to be a whistleblower situation in your workplace, it is important to speak to employment counsel immediately.