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The Facebook firing cases – can it happen in Canada?

There was a lot of press in the U.S. last week over the so-called “Facebook firing case”. An employee of the American Medical Response of Connecticut (“AMRC”) filed a complaint with the National Labour Relations Board after she was fired from her job because she posted negative comments about her boss on her Facebook page. The NLRB issued the complaint, alleging that the firing was illegal because the Facebook posting constituted “protected concerted activity” under the U.S. National Labour Relations Act. This week, AMRC settled the case by agreeing to revamp its rules to ensure they do not restrict workers’ rights. AMRC also agreed not to discipline or discharge employees for engaging in discussions about wages and other work issues when not on the job.
Could something like this happen in Canada? It can, and it has – but with very different consequences.

In Canada, a person’s freedom of expression is constitutionally protected, so long as the expression does not go as far as to defame another person. When an employee badmouths his or her boss online, these comments may be defamatory and may potentially reach millions of readers. The boss’s reputation and, consequently, the employer’s reputation and goodwill, may be significantly damaged by the comments.

In direct contrast to the U.S. case, in a case where a unionized employee was fired over his disparaging Facebook postings, the B.C. Labour Relations Board upheld the firing because the comments were offensive and harmful to the employer’s reputation . Moreover, in Canada, if an employer fires an employee over defamatory comments posted online, in certain circumstances, the employer may not be required to provide the employee with reasonable notice, as such behaviour may constitute “just cause” for dismissal.

Additionally, the employer would likely have a cause of action against the employee for defamation. The employer would need to demonstrate to a court that the employee wrote negative comments about his or her boss online, and that those comments tended to lower the boss’s reputation in the minds of reasonable readers. Once that is established, the legal onus would shift to the employee to prove that: the comments were true, or that they were reasonably held opinions, which were based on facts.

So, to all Canadian employees – beware! Do not badmouth your boss online. If you do, you may find yourself without a job and defending a legal action for defamation. And to Canadian employers – if an employee has posted defamatory comments about you online, talk to your lawyer to find out how you can effectively address the problem.

Maanit Zemel, Associate
Miller Thomson LLP

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Maanit Zemel

Internet and Social Media lawyer, commercial litigator at MTZ Law
Maanit Zemel is a commercial litigator admitted to practice in Ontario and New York, with substantial experience and expertise in Internet and social media law, including Canada’s Anti-Spam Legislation (CASL), privacy, online defamation, cyberbullying and cyber-security. Read more.
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