Saturday, November 17, 2012

Even an express allegation of corruption may not be defamatory if qualified privilege applies

Lake v. Vaughan 2003 CarswellOnt 633 upheld 2004 CarswellOnt 5045 is a good example of a case where a claim for defamation where corruption was alleged was defeated by qualified privilege:

34     The Ontario Court of Appeal in the decision of RTC Engineering Consultants Ltd. v. Ontario (Ministry of the Solicitor General & Correctional Services - Office of the Fire Marshall) (2002), 58 O.R. (3d) 726 (Ont. C.A.) has comprehensibly dealt with the parameters of that defence as follows at pp. 731-733:

[14] Qualified privilege is a defence to a defamation action. The privilege attaches to the occasion when a defamatory statement is made, not to the statement itself. But on an occasion of qualified privilege a person may defame another — either orally or in writing  honestly and in good faith.

[15] The rationale for the defence is that the interest sought to be protected by the statement is considered important enough to justify a limited immunity from an action for defamation. Immunity is limited because it extends only to statements that are germane and reasonably appropriate, and that are made honestly and in good faith or without malice. Thus, the defence of qualified privilege reflects a balancing of competing interests: the interest the maker of the statement seeks to serve and the interest in reputation that the defamed party seeks to protect.

[16] At the heart of the defence of qualified privilege is the notion of reciprocity or mutuality. A defendant must have some interest in making the statement and those to whom the statement is made must have some interest in receiving it. "Interest", however, should not be viewed technically or narrowly. The interest sought to be served may be personal, social, business, financial, or legal. The context is important. The nature of the statement, the circumstances under which it was made, and by whom and to whom it was made are all relevant in determining whether the defence of qualified privilege applies.

[17] Two examples are relevant here. First, a lawyer may have a qualified privilege in trying to protect the legitimate interests of a client. And second, a person attacked by another may respond in kind, in the same way and to the same audience chosen by the person making the attack: Netupsky v. Craig, [1971] 1 O.R. 51, 14 D.L.R. (3d) 387 (C.A.), affd [1973] S.C.R. 55, 28 D.L.R. (3d) 742; Falk v. Smith, [1941] O.R. 17, [1940] 4 D.L.R. 765 (H.C.J.). And see generally Brown, The Law of Defamation in Canada, 2nd ed. (Toronto: Carswell, 1999), Vol. 2, Ch. 13; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129; Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, 126 D.L.R. (4th) 609.

[18] Not everything said or written on an occasion of qualified privilege is protected. As is evident from the term "qualified privilege" itself and from the previous discussion, the privilege is not absolute. It may be lost in one of two ways. First, it may be lost if the dominant motive for making the statement was malice. In this context, malice means not just ill will towards another but any ulterior motive that conflicts with the interest or duty created by the occasion. And it includes recklessness. Both dishonesty and a reckless disregard for the truth may amount to malice. Second, a privilege may be lost if the statement is not commensurate with the occasion, either because the statement is not germane and reasonably appropriate to the occasion or because the recipients of the statement have no interest in receiving it. Put differently, to maintain privilege a defendant must communicate appropriate information to appropriate people. See Hill v. Church of Scientology, supra, and Douglas v. Tucker, [1952] 1 S.C.R. 275, [1952] 1 D.L.R. 657.

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