Coote v. Ontario (Human Rights Commission), 2010 ONCA 337 holds that complaints made to the Human Rights Commission are subject to absolute privilege:
[7] Moreover, we agree with the motions judge’s conclusion that responses to complaints made to the OHRC are subject to absolute privilege. In Penedo v. Fane, [2000] O.J. No. 3950, leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 161, this court held that a letter sent as a formal response on behalf of a union to a complaint made against a union to the Canada Labour Relations Board, was privileged. MacPherson J.A., speaking for this court, stated that “the letter was clearly sent in the context of a quasi-judicial proceeding before the CLRB and was entitled to absolute privilege.”
4 comments:
As Mr. Morton is a lawyer, I'm sure he just forgot to reveal a very important aspect about his blog. Since I'm here anyway, why don't I just complete it for him for lay persons. When Mr. Morton says: "Complaints to the OHRT as in Tribunal are subject to absolute privilege," he means that complainant cannot be sued for defamation for anything he/she says about the respondent during the course of the complaint. That means a respondent cannot bring a lawsuit against complainant for any of the allegations in the complaint against him,anything said in a hearing, letters to the Tribunal,Requests etc. No matter how rude, offensive, malicious, misleading, dishonest it may be, and even if the Tribunal finds that the complainant was all the above. The respondent will likely be angry something awful because it was forced to pay for a lawyer which is not cheap for a respondent at the HRTO, also because the respondent was forced to answer to allegations like discrimination, or sexual harassment, he will likely have an appetite for blood. No matter what, the respondent cannot file a lawsuit against a complainant for any thing he/she said or on just the sole basis that the complaint was filed. A respondent cannot counter-file a human rights complaint, he can't call the police and bring criminal charges. Because they are usually corporations, employers, landlords, business owners, the only thing they can do is sue an individual in court, but not because of a human rights complaint, or an application file with the Landlord and Tenant Board. Remember, there is no such lawful thing as absolute privilege "from" human rights proceedings. (Remember the word "from")absolute privilege protects a person "from" a lawsuit, "from" being sued. That is very important to remember, especially now. I'm sure Mr. Morris would agree.
It is appalling to read the case and that flowing from a quasi judicial proceeding, the Court of Appeal of Ontario advocates that absolute privilege follows. No legal text book states that absolute privilege flows from quasi-judicial proceedings nor is this supported anywhere else in the common law world!
Furthermore, the OHRC is not a Tribunal; there was no proceeding in the files in question; and since privilege flows from proceedings,in the absence of any proceeding, this is terrible law and offensive.
To state that all of the above then morphs into absolute privilege runs contrary to established case law universally.
Even if the OHRC is deemed a Tribunal, which is absolutely wrong, and such proceedings before both attracts absolute privilege, there was no decision from the OHRC to attract privilege in this case, based on the files in question.
This was nothing but a political decision hell bent on protecting the OHRC and government agencies, even when the Code itself stated that the Crown was liable. It is well established that the Code supersedes the common law, even if the decision is from the Court of Appeal; it is a fact that statutes takes precedence over common law; hence a careful reading of the Code itself states otherwise.
Without the Court of Appeal being asked whether decision-makers are immune under common law, if such is correct, doesn't mean under statute (ie the Human Rights Code) the Crown in the Right of Ontario is not vicariously or dually vicariously liable, which was what the pleadings and case was about! This is supported by the various internal treaties binding on the province as well as the federal government.
Finally, even if there is absolute privilege flowing from a civil matter, there is no absolute privilege flowing from criminal matters. This is evident from members of parliament not immune from criminal contempt of court charges, as an example.
Again, lets keep in mind that privilege flows from proceedings!
As the person who litigated such matter, rather than ignoring the pleadings and going by the specious decision,I emphatically state that this is not good law whatsoever, unsupported by legal texts anywhere in the world.
As a follow up to the fact that international treaties binds the OHRC staff and the Court of Appeal as well, and all courts, privilege may or may not apply where regulatory negligence is concerned as well as breach of fiduciary duties, malfeasances, misfeasance of public office, among other torts.
Intertwined with privilege are principles of jurisdictional errors, conflicts of interests,and other torts.
Again, where decision makers are alleged to have conflicts of interests or there are allegations of bias, privilege doesn't apply.
We hope someday some serious forethought will be given to such matters, and serious challenges made to these laws which are easily distinguishable and ripe for overruling.
The denial of leave to the SCC does not mean that the law is good law, as there are many reasons why leave to appeal is denied at the SCC.
In Mr Morton stating or repeating the following 'Complaints to the OHRT as in Tribunal are subject to absolute privilege' is not only inaccurate but troubling.
There is nothing called 'OHRT'; there is no critique by the former law professor, since even if he is referring to the "OHRC", under law, the HRTO and OHRC are different bodies, and while the latter has absolute privilege in Canada, where such absolute privilege can be defeated, absolute privilege doesn't apply to the OHRC, since the Court of Appeal stated proceedings before the OHRC are quasi-judicial in nature.
From a drafting perspective, there seems to be confusion with common law and statute, as well as international treaties. As well, one cannot overlook that the OHRC lost many of its privileges during the transitional phase when the complaints occurred, all of which was transferred to the HRTO.
To have the Court of Appeal ignore such material and fundamental differences in relying on a 1990 decision, where the facts are totally different, totally ignoring the Code itself, is fundamentally flawed reasoning.
Former law professors or part-time law professors ought to have an eye for such details and critique findings since law professors or former law professor have a unique role to play in fostering the development of law in this country, and to teach their students how to critically and logically think.
Such constructive feedback or critique I hope will not be taken negatively.
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