Ex-employee waged 'ongoing campaign' of harassment, defamation
A recent decision out of Ontario is a good reminder of the risks and consequences of employee misconduct after dismissal, particularly when it involves confidential information and defamatory actions.
The case, which resulted in an interlocutory injunction and an Anton Piller order — a civil search warrant — against a former employee, also serves as a cautionary tale about access controls within organizations.
It’s a reminder of the consequences for employees who are departing and want to take revenge or damage their ex-employer’s reputation online, says Tahir Khorasanee, a senior associate at Steinbergs in Toronto who represented CleanMark.
“That's not something that they could do, just because they feel that they've been wronged, and the court will protect the employer’s reputation and their confidential information and grant these broad, sweeping, civil search warrant and all of that, and also costs,” he says.
Campaign of ‘harassing and defaming’
The employee worked at CleanMark from October 2021 to April 2024, where he managed key accounts, Apple and Best Buy, for the U.S. and Canada, which accounted for a considerable percentage of the company’s annual revenue.
He reported to the vice president of client experience and had access to confidential and sensitive information and proprietary trade secrets with respect to clients.
On April 16, 2024, CleanMark terminated the individual’s employment without cause. The company complied with its obligations under the Employment Standards Act (ESA) and provided him with a reference letter.
However, the ex-employee went on to wage an “ongoing campaign of harassing and defaming” CleanMark and the vice president, found the Ontario Superior Court. This included sending “anonymous, disparaging emails” to Apple and Best Buy and other company employees.
Scope of post-employment misconduct
Khorasanee described the range of misconduct that justified the court’s intervention.
“Underpinning this whole case was the main issue that he had downloaded confidential information… and there was a confidentiality clause in his employment agreement,” he says.
“And post-employment, there was conduct which was outrageous, essentially, and part of it was calling with blocked numbers or creating different numbers. And over time, he had created 63 aliases and left negative reviews on my client’s Google business page to the tune of five, six a day… for months.”
The court’s response was to grant an injunction and, subsequently, an Anton Piller order requiring the ex-employee to return and destroy all of CleanMark’s confidential information and prohibiting further harassment.
“The order they gave was wide enough to say, ‘You can't directly or indirectly defame my clients or cause other individuals to do the same.’ So, finding him liable, even though he's using these aliases, they prohibited him from doing similar behaviour,” says Khorasanee.
Ultimately, the court order meant Google and Glassdoor had to take down all of the disparaging content online, which were persistent, he adds.
Privacy rights and confidential information
The court was also required to balance the ex-employee’s privacy rights against CleanMark’s interest in protecting its confidential information.
“He was saying that he was a whistleblower, and that Anton Piller would constitute an unreasonable invasion of his privacy. And he was also claiming that we have breached his Charter rights,” says Khorasanee, but the court explained that this case didn’t involve government, so the Charter wouldn’t apply.
Because the ex-employee had taken confidential information, and there was an employment agreement in place, the court said “it would be a reasonable invasion of privacy rights for us to have the Anton Piller,” says Khorasanee.
Role of confidentiality agreements and common law
A key factor in the case was the presence of a confidentiality clause in the employment agreement, he says, adding that “even if there's no confidentiality clause, every employee has a common law obligation to keep confidence with their employer.”
But these obligations are broad and some confidentiality agreements are too limiting, while CleanMark’s agreement was general, says Khorasanee.
“[It] said, ‘Look, here's a list of documents that are considered confidential, but it's a non-exhaustive list’… and that's usually a good way of doing it,” he says.
“The key there is even if there was no employment agreement, you cannot just start defaming your company using some of their confidential information.”
Consequences for bad behaviour
One notable aspect of the decision is the recognition that a company, not just individuals, can be the victim of harassment by a former employee, says Khorasanee.
“This is the first case directly on point where a court found that a company was harassed, essentially by a former employee.”
The decision “is a cautionary tale for departed employees thinking of misbehaving,” say David Cassin, partner, and Madison Stemmler, associate, in a Bennett Jones blog, and serves as an example of the relief available to employers if former employees engage in damaging conduct post-departure.
“Injunctive relief remains a powerful tool in an employer’s arsenal to swiftly curb post-employment misconduct, protect confidential information and prevent reputational harm.”
Risks of unrestricted access to confidential info
The case also serves as a cautionary tale about access controls within organizations, considering the level of the ex-employee.
“This was a very straightforward dismissal, and this was not a senior employee. He was assisting the senior vice president… so there was a bit of an oversight in maybe allowing too much access to documents,” says Khorasanee.
“It's very common for companies to make this mistake.”
