Tuesday, April 15, 2014

Qualified privilege

Merit Consultants International Ltd. v. Chandler, 2014 BCCA 121:

[29]        Qualified privilege, however, is not limited to the contents of documents filed in judicial or quasi-judicial proceedings. As Brown writes (supra, at §13.1), the privilege protects a communication made by a person "in the discharge of some public or private duty, or for the purpose of pursuing or protecting some private interest, provided it is made to a person who has some corresponding interest in receiving it." As Brown also observes, the privilege does not extend to statements that go beyond the "exigency of the occasion" (§13.1) and offers protection only where the communication is "reasonably necessary to achieve the purpose for which the privilege is given." (§13.2(1).) Elsewhere the author elaborates:
To be privileged, a publication must not exceed the limits of the duty or interest created by the occasion. A person must be careful to go no further than his or her duties or interests require. The communication must be "reasonably germane and appropriate to the occasion". If a person goes beyond the necessities of the occasion, the communication may not be protected. The privilege may be lost both for excessive distribution and inappropriate content. [At §13.7.]
[30]        Other authorities have stated that the privilege may be defeated where the "information communicated was not reasonably appropriate to the legitimate purposes of the occasion" (see Botiuk v. Toronto Free Press 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3 at para. 80); that there must be a "significant connection between the defamatory material and the privileged occasion" (see Bennette v. Cohen [2009] NSWCA 60 at para. 19); and that the communication must have "some relationship to the discharge of the duty or the exercise of the right which creates the privilege" (see Brown, §13.7(4), citingAdam v. Ward [1917] AC 309 (H.L.)). At the same time, there is longstanding authority for the proposition that courts do not take a narrow approach to determining the ambit of the "occasion": see Stuart v. Bell [1891] 2 Q.B. 341 (C.A.) at 346, citingToogood v. Spyring (1834) 1 C.M. & R. 181.
[31]        It is also now undisputed that the court must consider the entire context in which the communication was made, including in particular any "special relationship" between the publisher and the recipient of the communication: see, e.g.,Martin v. Lavigne 2011 BCCA 104 (CanLII), 2011 BCCA 104 at para. 36. Although it has been said that a plea of qualified privilege cannot succeed where the words complained of have been published "to the world" (see Jones v. Bennett 1968 CanLII 126 (SCC), [1969] S.C.R. 277 at 284), the relationship between a publicly-held company and its shareholders certainly reinforces the statutory duty on the former to comply with applicable disclosure requirements, and the requirement that the information be published in a news release recognizes the obvious "interest" that shareholders and prospective shareholders would have in its contents.

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