By Lewis Waring, Paralegal and Student-at-Law, Editor, First Reference Inc.
In Sole Cleaning Inc v Chu (“Chu”), an individual’s disparaging social media statements about her former employer were found not to be defamatory. Chu illustrates the way the legal system may from time to time, respond to digitally published statements that disparage an organization that may indeed have negative effects on that organization’s business. In short, Ontario law may allow individual disparaging comments about the former employer and only prohibit such statements in rare cases. This high standard reflects the value that Ontario places on protecting free speech, particularly in matters of public interest. Chu illustrates Ontario’s protection of free speech in the context of publications that allege racism and result in substantial financial and reputational damage to employers.
The employer in Chu, Sole Cleaning Inc, specialized in shoe and handbag restoration and heavily marketed themselves to black, indigenous, and people-of-colour communities. Furthermore, while the owners of Sole Cleaning were not racialized minorities themselves, all of their staff were members of racialized minority groups. The employee, Margaret Chu, worked for Sole Cleaning as a shoe restoration and painting specialist and identified as an Asian-Canadian woman.
According to the employee, a number of co-workers had witnessed the owners using words such as the “N-word” and “faggot.” However, a manager working for the employer, who also allegedly supported the Black Lives Matter movement, denied witnessing any racism on the part of the owners.
The BLM statement
The employee and a number of her co-workers suggested that Sole Cleaning should put out a statement in support of the Black Lives Matter movement and the employer agreed to do so. The statement which the employer produced contained significant spelling errors and was viewed by some staff members, including Ms. Chu, as performative, tone deaf and careless. Ms. Chu reached out to the employer, sharing her views and offering to rewrite the statement. The employer agreed to incorporate Ms. Chu’s revisions and did publish a revised statement. However, that revised statement also contained spelling errors which were pointed out to the employer after it was published. Allegedly, the employer had stated that it “really [didn’t] care about it.”
The employee’s dismissal
After the publishing of the revised statement, the employee claimed to experience micro-management and harassment at work while the employer maintained that, instead, her work performance had slipped. The employee reached out to a manager about concerns that she was being targeted for her support of the Black Lives Matter movement. During that conversation, she referred to the owners as “ignorant, racist, egotistical and privileged white men.” Soon after, one of the owners of Sole Cleaning arranged a meeting with Ms. Chu which ultimately resulted in her dismissal.
The employee’s social media statements
After her dismissal, the employee published a slew of statements on Twitter and Instagram which alleged that she was dismissed for supporting the Black Lives Matter movement; that the owners of Sole Cleaning were racists; that Sole Cleaning’s only concern with the black community was profiting off marketing to that community; and that it treated its employees poorly. The employer alleged that, as a result of these statements, it had received a number of negative, threatening and hateful comments and messages on its social media account and the accounts of its individual owners, and it became the subject of a blog post and a social media post by a well-known Toronto musician. Additionally, the employer has lost employees and business relationships.
Defamation is a notorious cause of action often featured in the media. In law, defamation is “a publication which tends to lower a person’s reputation in the estimation of right-thinking members of society, or to expose them to hatred, contempt or ridicule.” However, not every publication which harms an individual or corporation’s reputation or exposes them to hatred, contempt or ridicule qualifies as defamatory. On the contrary, when such publications are substantially true, the legal system considers them to be justified and thus not defamatory. Also, when harmful publications are a statement of opinion that any person could honestly express based on what occurred and are not made in malice, such statements are “fair comment” and not defamatory. In order to qualify as fair comments, harmful publications must also be in the public interest and based on proven facts.
Referring to an individual or corporation as racist has been recognized as defamatory in Ontario. However, as stated, claims of racism will not be defamatory if they are justified or if they are fair comments. Overall, in Chu, the Superior Court of Justice considered whether Ms. Chu’s statements, which were undoubtedly harmful to Sole Cleaning’s reputation, were either justified or “fair comment.”
The defence of justification
In Chu, the employer’s failure to deny using the “N-word” and intentional reference to the former employee by the wrong name, as well as co-workers’ overhearing of the use of racial epithets and the employee’s feelings of belittling, humiliation, punishment and targeting in the workplace all served to justify the truth of the statements she had published over social media. Also, the fact that the former employee had been dismissed shortly after expressing her support for the Black Lives Matter movement further justified the truth of her statements.
The defence of “fair comment”
In Chu, the statements made by the former employee were deemed to be in the public interest and not a matter of private interest. Although the comments made were personal in nature, they revealed information which was valuable to the public at large. The public value of Ms. Chu’s statements derived from their ability to allow members of the public to learn something about a company that offers the services. By increasing one’s knowledge about a company, consumers are better able to decide whether or not they want to purchase goods or services from that company.
Honestly held belief
As stated, any harmful publication which is a fair comment must be a comment that viewed objectively, a person could honestly express based on what occurred. In Chu, the employee’s experiences of systemic racism were relevant to an objective perspective of her workplace environment. This is because the objective reality of an individual categorized as a racialized minority includes an ability to perceive or an increased sensitivity to explicit and implicit acts of racism. In this sense, understanding the objective reality of an employee requires acknowledging the way in which their racial status affects their lived experiences.
The former employee in Chu had clear beliefs about the issues she commented upon. Considering that, prior to her termination, she had referred to the supervisors as “egotistical privileged white men,” these beliefs were firmly established before she had been dismissed. Any anger which may have arisen as a result of the former employee’s dismissal, in this sense, was separate from her beliefs about the supervisors’ racism which she had held during her period of employment.
Responding to social media allegations of racism
In the modern context of social media platforms, cases like Chu are crucial for employers to review. In 2021, published allegations of racism specifically can become extremely powerful and can easily become harmful to an employer’s reputation and business relationships. Chu demonstrates that, overall, the Ontario legal system takes notice of the objective reality of racism. Thus, the fact that an employee has published statements on social media that allege that an employer has engaged in racism, even if those statements do significant damage to the employer’s reputation and relationships, is not sufficient to ground a claim of defamation.
Employers should take from Chu a word of caution when responding to publications alleging racism with defamation lawsuits which, like all lawsuits, come with substantial costs regardless of the outcome. It is crucial to understand that allegations of racist conduct can easily result in reputational and financial damage. When employers engage in expressly racist conduct or conduct that is influenced by systemic racism, such conduct can quickly result in significant business losses. The Ontario legal system is not designed to reimburse such losses and, as Chu illustrates, employers who attempt to recover damages from employees who publish social media statements revealing racist conducts or beliefs may be left with nothing beyond substantial legal costs on top of pre-existent financial and reputational costs.