Defamation and Release of Criminal Record Check Information

In the case of William v. Kelowna (City), 2012 BCSC 421, the plaintiff, William, brought an action against the City of Kelowna and one of its employees, O’Reilly, on the basis that the Defendants were negligent in processing a criminal record check and had defamed her by advising her prospective employer of the content of the criminal record check.

The facts of this case revolve around the plaintiff’s application for employment with the Interior Health Authority.  The Interior Health Authority asked the City of Kelowna RCMP to process a criminal record check on the plaintiff.  The plaintiff had agreed to submit to a criminal record check as part of her application for employment with the Interior Health Authority.  When she attended at the RCMP detachment to request the check, she signed a consent form allowing the RCMP to release certain information to the Interior Health Authority, including records of any convictions, and records of any police investigation of the plaintiff. The RCMP policy with respect to releasing information that related to a police investigation was to confirm with the person requesting the record check (the plaintiff in this case) that the record in question did in fact pertain to the requester.  The police investigation file involving the plaintiff contained a description of an event where the police were dispatched to an apartment building to find the plaintiff outside the apartment building semi-dressed and intoxicated.   She had been in a verbal and physical dispute with a male person inside the building and refused to go to a shelter.  She had an altercation with the police and spent the night in the RCMP cells.

O’Reilly (a City employee who worked as an information clerk at the RCMP detachment and who was responsible for processing criminal record checks) read out the contents of the investigation file to a representative of the Interior Health Authority.  The Interior Health Authority withdrew the offer of employment to the plaintiff.

The plaintiff claimed that O’Reilly had defamed her and was negligent in releasing the information, causing her to lose the offer of employment.

The court reviewed the circumstances and found that as a matter of fact O’Reilly did not follow RCMP policy to confirm with the requestor that the file information was about her. However, the court found that this would have made no difference, since having confirmed that the file was about her, he would nevertheless have had the obligation to advise the Interior Health Authority about the existence of the investigative record, unless the plaintiff had withdrawn her request for a criminal records check.  However, in that event, the plaintiff would not have been offered employment either.

The court determined that O’Reilly did owe the plaintiff a duty of care and that he did breach his duty of care by prematurely releasing the record to the Interior Health Authority.  However, the court found that having done so did not make a difference as to whether or not the Interior Health Authority withdrew the employment offer.  Consequently, the plaintiff had failed to show that she suffered damage as a consequence of O’Reilly’s breach of the duty of care owed to her.

The plaintiff also claimed that O’Reilly had defamed her by reading out to the Interior Health Authority a part of the file that the plaintiff denied; since the defendants had not proved that the disputed statement was true, the court found that this statement made by O’Reilly was defamatory.  However, O’Reilly was protected by qualified privilege.

“A qualified privilege occurs when the person making the statement had an interest or duty to make the statement and the person receiving the statement had a corresponding interest or duty to receive it.”

In this case, O’Reilly had a positive duty to provide the Interior Health Authority the details of the police investigation and he had no discretion to edit or redact the information contained in the police record.  Further, the Interior Health Authority had a corresponding duty to receive the police record information.  That duty arose from the legislative requirement that persons who apply for jobs with the Interior Health Authority must supply a criminal record check, together with the fact that Interior Health had an interest in ensuring its employees were reliable, trustworthy people capable of working with vulnerable clients.  The court concluded that the defence of qualified privilege applied and that O’Reilly was not liable for defaming the plaintiff.