2017 November 20

Greening v. Canadian Nuclear Safety Commission, 2017 ONSC 6746

The Ontario Superior Court of Justice dismissed a motion for partial summary judgment brought by the individual defendant who was sued for defamation, breach of confidence and breach of privacy over a letter which was published on the CNSC website, together with other correspondence. The material on the website was also sent by email to about 2,000 email addresses.  The CNSC removed the entire federal posting, including the letter, after the Office of the Privacy Commissioner ruled the ongoing publication violated the Personal Information Protection and Electronic Documents Act.  The Court rejected submissions that the statutory immunity provided in s. 18(1) of the Nuclear Safety and Control Act and the law relating to the personal liability of employees and officers made it possible for the Court to grant partial summary judgment.  Based on the disclosed evidence, the Court was not satisfied that it was in the interests of justice to make a summary determination on the issue of the defendant’s alleged good faith, which the Court considered was tied up with the determination whether there was malice on the part of the individual defendant. The Court noted that liability of an individual employee could depend on whether his or her actions were themselves tortious.  In this connection, the Court noted that because defamation is an intentional tort, an individual employee could be held liable.   Accordingly, there was a significant issue which should not be determined on a summary judgment basis.  “[The defendant] must give evidence at the trial.  He will be cross-examined.  There may be other witnesses giving evidence with respect to the circumstances surrounding the publication on the website.”