In the recent judgment of William v. Kelowna (City) et al, 2012 BCSC 421, Mr. Justice Rogers dismissed an action in defamation and negligence against the City of Kelowna. The plaintiff, Ms. William, alleged that an employee of the City had unlawfully disclosed her criminal record check to Interior Health, causing damage to her reputation in the healthcare community, and resulting in Interior Health revoking a conditional offer of employment.
Ms. William attended at the Kelowna RCMP office and completed a form authorizing the criminal record check. A City of Kelowna employee undertook a search of police files, which revealed that Ms. William had been involved in a police incident where she was found outside of her apartment in a semi-dressed, intoxicated state. The police report also noted that she wanted to fight a police officer and that she had been placed in cells overnight.
The record check required all police incidents to be recorded regardless of disposition. The City employee testified that where a police report revealed negative information about an applicant it was proper procedure to contact the applicant and confirm that they were involved in the incident, before forwarding the form to the potential employer. If the applicant did not want the information to be disclosed, they could revoke the authorization, and the form would be shredded.
Ms. William alleged that the City employee failed to contact her before disclosing the information. The City employee had no specific recollection of the telephone call but testified that he believed he contacted her, as this was his general practice.
Justice Rogers accepted Ms. William’s evidence that she was not contacted by the City employee, but found that the employee’s failure to call her was not causative of any loss. Justice Rogers pointed out that while Ms. William took issue with some of the details of the incident, she did not dispute that it related to her. Therefore, had she received a telephone call from the City, her options would have been to allow the information to be disclosed, or to have the form shredded. Testimony from the Interior Health employee responsible for revoking the offer confirmed that under either scenario, the job offer would have been revoked. On this basis, Justice Rogers concluded that the failure to call did not result in Ms. William losing the position, and accordingly, the negligence claim was dismissed.
With respect to the claims in defamation, Justice Rogers found that while the information disclosed was capable of being defamatory, the City employee had a duty to disclose the information and the Interior Health employee had a duty to receive the information. Given these reciprocal duties, and the lack of any evidence of malice, the defence of qualified privilege applied and the claim for defamation could not succeed.
For a full copy of the Reasons for Judgment click here: http://canlii.ca/t/fqr60
The City of Kelowna was defended by David T. McKnight and Scott R. Harcus.
Mr. McKnight is a group leader of Alexander Holburn Beaudin + Lang LLP’s Defamation + Publication Risk Management Practice Area. For a link to Mr. McKnight’s Professional Bio please click here: /people/lawyers/david-mcknight/
Scott Harcus is also a member of Alexander Holburn Beaudin + Lang LLP’s Defamation + Publication Risk Management Practice Area. For a link to Mr. Harcus’ Professional Bio please click here: /people/lawyers/scott-harcus/