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Absolute Privilege Exception: Irrelevant Defamatory Statements
Question: What are the exceptions to absolute privilege in court proceedings?
Answer: Absolute privilege in judicial proceedings is generally comprehensive, but exceptions exist, particularly for statements deemed irrelevant to the case at hand. Legal frameworks, such as those outlined in landmark cases like Drabinsky v. Kepinski, indicate that while statements made during judicial proceedings are granted immunity, those that stray from the relevance to the inquiry may not receive such protection. At Debly Law, we can guide you through understanding how these nuances impact your legal situation.
Exception to Absolute Privilege Involves Irrelevant Statements or Documents
Many lawyers, paralegals, and even some judges, will proclaim that absolute privilege always applies to statements made, or documents submitted, within a court proceeding and as such a defamation case is barred and bound to fail if brought on the basis of what was spoken or written during a court proceeding. It is unknown why the incorrect perception that absolute privilege always applies to what was spoken or written in a court proceeding whereas the case law on the issue is extensive and readily available.
The Law
The absolute privilege that is said to apply to what is spoken or written within court proceedings is less than absolute and is subject to the exception for irrelevant statements. Cases confirming this exception include:
[16] The concept of absolute privilege accepts that statements made on certain limited occasions should be immune from legal attack. As a general rule, absolute privilege applies to statements made in the course of judicial or quasi-judicial proceedings.[6] As a result, statements made in litigation are generally exempt from actions for libel or slander.[7] The protection of counsel extends to statements contained in documents such as written pleadings,[8] factums,[9] and other written submissions.[10]
[17] The Canadian decision that addresses absolute privilege most comprehensively is that of the Saskatchewan Court of Appeal in Duke v. Puts.[11] In Duke, the court began by referring to the policy behind the privilege as being rooted in the need for participants in the justice system to speak without fear of consequences.[12] Broad application of the principle promotes that value, protects the search for truth and secures the “free and fearless conduct of judicial proceedings.”[13]
[18] Duke also noted, however, that exceptions to the privilege have been long recognized. By way of example, it quoted from the 1876 case of Seaman v. Netherclift[14] where Lord Cockburn stated:
If there is anything as to which the authority is overwhelming it is that a witness is privileged to the extent of what he says in course of his examination. Neither is that privilege affected by the relevancy or irrelevancy of what he says; for then he would be obliged to judge of what is relevant or irrelevant, and questions might be, and are, constantly asked which are not strictly relevant to the issue. But that, beyond all question, this unqualified privilege extends to a witness is established by a long series of cases, the last of which is Dawkins v. Lord Rokeby, Law Rep, 7 H.L. 744, after which to contend to the contrary is hopeless. It was there expressly decided that the evidence of a witness with reference to the inquiry is privileged, notwithstanding it may be malicious; and to ask us to decide to the contrary is to ask what is beyond our power. But I agree that if in this case, beyond being spoken maliciously, the words had not been spoken in the character of a witness or not while he was giving evidence in the case, the result might have been different. For I am very far from desiring to be considered as laying down as law that what a witness states altogether out of the character and sphere of a witness, or what he may say dehors the matter in hand, is necessarily protected. I quite agree that what he says before he enters or after he has left the witness box is not privileged, which was the question in the case before Lord Ellenborough in Trotman v. Dunn, 4 Camp. 211. Or if a man when in the witness-box were to take advantage of his position to utter something having no reference to the cause or matter of inquiry in order to assail the character of another, as if he were asked.: Were you at York on a certain day? and he were to answer: Yes, and A.B. picked my pocket there; it certainly might well be said in such a case that the statement was altogether dehors the character of witness, and not with in the privilege.[15] (emphasis added)
[19] At this point, then absolute privilege protects statements that are legally irrelevant to the litigation but are somehow made “with reference to the inquiry.” As Lord Bramwell J. A. explained later in the same case
...the words “having reference to the inquiry” ought to have a very wide and comprehensive application, and ought not to be limited to statements for which, if not true, a witness might be indicted for perjury, or the exclusion of which by the judge would give ground for a new trial; but ought to extend to that which a witness might naturally and reasonably say when giving evidence with reference to the inquiry as to which he had been called as a witness.[16] (emphasis added)
[20] The court in Duke went on to trace the test of “with reference to the inquiry” and its broad application into more modern authorities[17] and provides a further example of its application quoting More v. Weaver:[18]
.. Suppose a client, who has quarrelled with the builder who is building a house for him, goes to his solicitor to discuss the position, and in the course of the interview he makes statements regarding the builder which are untrue. Those statements would ... be absolutely privileged. But suppose in the middle of the conversation the client, being of a gossipy nature, says, “Have you heard that Jones has run off with Mrs. Brown?” that would not be relevant to the discussion.[19]
[21] The approach of the Saskatchewan Court of Appeal in Duke has been followed by courts in Canada[20] and other common law jurisdictions.[21]
[22] The concept of absolute privilege raises additional concerns when statements are made about non-parties to the litigation. When a statement is made about a party, the judge in that proceeding can make a finding about the allegation and thereby exonerate the party if appropriate. A party also has the ability to move to strike portions of a pleading and can seek cost consequences.[22] A non-party has no such remedies. Although, on the one hand courts understandably want to protect freedom of expression in litigation in order to get at the truth, at the same time, they do not want to have litigation used as a free-for-all to make defamatory statements against non-parties without allowing the non-party any recourse. This would run contrary to the point of the privilege which is to promote the pursuit of truth.[23]
[23] The issue then is whether the impugned statements were made “with reference to the inquiry” …
[8] In Salasel v. Cuthbertson, 2015 ONCA 115, 124 O.R. (3d) 401, at para. 35, the Ontario Court of Appeal summarized the doctrine of absolute privilege as follows:
The doctrine of absolute privilege contains several basic elements: no action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognised by law; the privilege extends to documents properly used and regularly prepared for use in the proceedings; and, a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings: Amato v. Welsh, 2013 ONCA 258, at para. 34.
[34] It is settled law that statements published on an occasion of absolute privilege are not actionable, see Admassu v. Macri, 2010 ONCA 99 at para. 19 and Big Pond Communications 2000 Inc. v. Kennedy, 2004 CarswellOnt 872 (ONSC). Lawyers, parties and witnesses, are all protected by the privilege.
[35] The privilege seeks to create a zone of protection for lawyers acting in pursuit of their clients’ interests. Lawyers are to be free to present their clients’ cases without fear of a lawsuit. The privilege is not simply confined to statements made in court. It also extends to all preparatory steps taken with a view to judicial proceedings so long as the step in question is directly concerned with actual or contemplated proceedings, see Dingwall v. Lax, 1988 CarswellOnt 1070 (ONSC) at para. 16. The privilege extends to statements that are incidental or preparatory to judicial proceedings, see Salasel v. Cuthbertson, 2015 ONCA 115 at para. 36. Determining whether a statement is preparatory to or intimately connected with a judicial proceeding involves an assessment of remoteness. A statement that is only remotely connected to a judicial proceeding may fall outside the scope of absolute privilege.
[20] The Syed Group submits that the common law defence of absolute privilege provides complete immunity for defamatory expression and that this defence applies to all pleadings and evidence produced for proceedings before a regularly constituted judicial tribunal, including a court of superior jurisdiction such as the Court of Queen’s Bench of Alberta.
[21] The Rizvi Group replies that there is a limitation to absolute privilege expressed in the following quotation from Liboiron v. Majola, 2007 ABCA 18 at para 10:
Even if a statement is defamatory, it may be protected by absolute privilege. For absolute privilege to apply, the statement must "take place during, incidental to, and in the processing and furtherance of, judicial or quasi-judicial proceedings": Raymond E. Brown, The Law of Defamation in Canada, 2nd ed., looseleaf (Scarborough: Carswell, 1999) vol. 2 at para. 12.4(1). See also Patrick Milmo & W.V.H. Rogers, eds., Gatley on Libel and Slander, 9th ed. (London: Sweet & Maxwell, 1998) at para. 13.1. The purpose of the absolute privilege defence is to ensure that those involved in the administration of justice, including litigants, witnesses, advocates and judges, can speak freely without fear of an action in defamation; it is not intended to protect those who have made malicious statements: Brown at para. 12.4(2); M. (M.J.) v. M. (D.J.), 2000 SKCA 53, 189 Sask. R. 303 (Sask. C.A.) at para. 6; Dechant v. Stevens, 2001 ABCA 39, 281 A.R. 1 (Alta. C.A.), at para.33. (emphasis added)
[22] The underlined portion of the above quote is not as broad as it might seem at first glance.
[23] Generally speaking, absolute privilege does protect those who make malicious statements in court proceedings. See paragraph 12.4(1) of Raymond E. Brown, The Law of Defamation in Canada, 2nd ed., looseleaf (Scarborough: Carswell, 1994) vol. 2, cited in the Liboiron decision, which states that absolute immunity applies to statements made in judicial proceedings and:
… it makes no difference that the words may be totally and knowingly false and spoken mala fide and with actual malice
[24] What the underlined portion of the above quote is meant to remove from the protection of absolute privilege are statements which are malicious in that, while they may have been made in the context of litigation, were not made during, incidental to, and in the processing and furtherance of, judicial or quasi-judicial proceedings.
[25] A hypothetical example of this more narrow type of malice is in the following quote from the judgment of Lord Cockburn in Seaman v. Netherclift, (1876), 2 C.P.D. 53, where, after noting that absolute privilege applies to statements notwithstanding that they may be malicious, he observed:
Or if a man when in the witness-box were to take advantage of his position to utter something having no reference to the cause or matter of inquiry in order to assail the character of another, as if he were asked.: Were you at York on a. certain day? and he were to answer: Yes, and A.B. picked my pocket there; it certainly might well be said in such a case that the statement was altogether dehors the character of witness, and not within the privilege. (emphasis added)
[26] And so statements of a witness may be malicious and still be subject to absolute privilege, provided they are made in circumstances connected with the advancement of the litigation.
[35] The doctrine of absolute privilege contains several basic elements: no action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognized by law; the privilege extends to documents properly used and regularly prepared for use in the proceedings; and a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings: Amato v. Welsh, [2013] O.J. No. 1857, 2013 ONCA 258, at para. 34.
[8] In Ontario, absolute privilege may be extended to occasions that are ‘preparatory’, ‘preliminary’, ‘intimately connected’, ‘necessary or incidental to the institution of proceedings’ provided the communications on such occasions are intimately connected to the litigation.
[9] In Sussman v Eagles, [1986] O.J. No.317, the Ontario Court of Appeal held a letter of complaint to the Royal College of Dental surgeons “incidental to the initiation of quasi judicial discipline proceedings” was subject to absolute privilege. (The same letter sent to the professional association did not attract the privilege.) In Fabian v Margulies, 1985 CanLII 2063 (ON CA), [1984] O.J. No. 1023 (H.C.J.), aff’d 53 O.R.(2d) 380, leave to appeal to the Supreme Court of Canada denied (1986), 21 O.A.C. 78n, absolute privilege attached to the preparation of a pre-litigation medical-legal report by a psychiatrist who was subsequently called to testify in a motor vehicle action.
[10] Ontario courts have applied absolute privilege to occasions where communications were made ‘preparatory’ or ‘preliminary’ or ‘investigatory’ with a view to litigation. In Dingwall v Lax, [1988] O.J. N0.61 at para. 16, Potts J. found it applied when a lawyer wrote a letter attaching a Statement of Claim and advising that it would be issued on a certain date if the dispute had not been resolved. Potts J. found the letter and the draft Statement of Claim were preparatory steps and intimately connected to a judicial proceeding. In G.W.E. Consulting Group v Schwartz et al, 1990 CanLII 6831 (ON SC), [1990] O.J. No. 208 at para. 17, the solicitor was communicating with a person from whom he anticipated obtaining potentially relevant information, after the decision to litigate had been made and the Statement of Claim had been drafted.
[11] In Moseley-Williams v Hansler Industries Ltd., 2004 CanLII 66313 (ON SC), [2004] O.J. No. 5253, Cullity J. analyzed Ontario cases and concluded that the principles in Sussman still apply in Ontario and subsequent cases have further developed where to draw the line. He held that in order to determine whether or not a particular occasion is one of absolute privilege, all the facts, including the purpose of the communication, must be considered to determine whether an impugned communication was “for the purpose of, or preparatory to, the commencement of judicial proceedings”. The approach of the Ontario courts is consistent with the often cited passage from the text Fleming on Torts:
The privilege is not confined to statements made in court, but extends to all preparatory steps taken with a view to judicial proceedings….but the statement or document must be directly concerned with actual contemplated proceedings; not just remotely so, like a factual report containing allegations which merely might provide a ground for future prosecution.
The privilege attaches to any utterance reasonably related to the subject of the judicial inquiry…
[10] Even if a statement is defamatory, it may be protected by absolute privilege. For absolute privilege to apply, the statement must “take place during, incidental to, and in the processing and furtherance of, judicial or quasi-judicial proceedings”: Raymond E. Brown, The Law of Defamation in Canada, 2nd ed., looseleaf (Scarborough: Carswell, 1999) vol. 2 at para. 12.4(1). See also Patrick Milmo & W.V.H. Rogers, eds., Gatley on Libel and Slander, 9th ed. (London: Sweet & Maxwell, 1998) at para. 13.1. The purpose of the absolute privilege defence is to ensure that those involved in the administration of justice, including litigants, witnesses, advocates and judges, can speak freely without fear of an action in defamation; it is not intended to protect those who have made malicious statements: Brown at para. 12.4(2); M. (M.J.) v. M. (D.J.), 2000 SKCA 53, 189 Sask. R. 303 at para. 6; Dechant v. Stevens, 2001 ABCA 39, 281 A.R. 1 at para. 33.
[11] For absolute privilege to apply, it must be possible to characterize this matter as a judicial or quasi-judicial proceeding. To make that determination, it is necessary to examine the statutory context. Majola was issued a violation ticket under s. 31 of the Provincial Offences Procedure Act, R.S.A. 2000, c. P-34 for contravening s. 70(1) of the Highway Traffic Act, which triggered a deadline for entering a plea. Majola then had three options to choose from when deciding how to proceed under the Provincial Offences Procedure Act:
(1) Under s. 33, he could plead not guilty and set a trial date to contest the violation ticket before a judge;
(2) Under s. 35, he could plead guilty and appear before a judge to make representations with respect to the penalty; or
(3) Under s. 36, he could plead guilty by making the specified voluntary payment to the specified court office (with no appearance before a judge).
[12] Majola selected the third option and therefore, did not appear before a judge. He simply mailed his voluntary payment to the court clerk. Having regard to the statutory scheme for Highway Traffic Act offences, Majola’s guilty plea and voluntary payment are part of a judicial proceeding that was initiated by the issuance of a violation ticket.
[13] Although this situation may be a judicial proceeding, it does not automatically follow that all communications are protected by absolute privilege. The communication must also fall within a recognized step of the proceeding. In other words, it must take place during, incidental to, and in the processing and furtherance of the proceeding. The existence of a lawsuit or a criminal prosecution does not attract absolute privilege for every statement made to anyone during its course. Whether the statement is privileged depends upon the occasion on which it is made and the facts surrounding the statement: Dechant at para. 49. It is therefore necessary to consider exactly how the statement fits into the judicial proceeding, and whether it was “made within a step recognized as affording the privilege”: Dechant at paras. 49 and 51.
[49] Understanding the facts surrounding the alleged defamatory statements is key in determining whether the occasion could constitute a step in the discipline proceeding. For instance, in the case of judicial proceedings, the mere fact of an ongoing law suit does not attract absolute privilege for every statement made to anyone during the course of the law suit. It is the occasion on which the statements are made that attracts the privilege. The statement must be made within a step recognized as affording the privilege. A statement made during an examination for discovery would be privileged, but if defamatory statements are repeated outside of the discovery room and in circumstances not part of the judicial proceeding, those statements would not receive the benefit of the privilege. Thus, facts and how they fit in the particular process are critical.
As per the above shown cases, it appears clear that absolute privilege for statements made within the context of judicial proceedings or quasi-judicial proceedings is almost absolute subject to whether such was reasonably relevant to the proceeding. Accordingly, it appears that where a verbal statement is or a written document is submitted within a proceeding, the statement or document must contain commentary that is relevant to the matter at hand. If a statement or document is irrelevant and contains defamatory content, the doctrine of absolute privilege may fail to apply.
“A statement that is only remotely connected to a judicial proceeding may fall outside the scope of absolute privilege.”
~ Justice J. Di Luca
Wickham v. Hamdy, 2019 ONSC 1960
Other Exceptions Possibly Apply
In addition to the exceptions to absolute privilege as shown above, the case of Thelwell v. Toronto Police Services Board, 2020 ONSC 1803, states and suggests that the boundaries of absolute privilege remain unclear. Specifically, it was said:
[91] While the doctrine of absolute privilege is well-established at common law, its precise boundaries are not firmly set.[27] Not only does it preclude civil actions for words spoken in the ordinary course of proceedings, it extends to documents properly used and regularly prepared for use in the proceedings.[28] However, a statement will not be protected unless it is made for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings.[29] Moreover, because access to the courts for the vindication of legal rights is an essential element of the rule of law, any extension of the privilege of absolute immunity should be “viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated.”[30]
Conclusion
Absolute privilege protects all persons involved in a legal proceeding from the risk of liability for defamation arising from statements made within the course of the legal proceeding subject to the requirement that, among other things, the statement was reasonably relevant without being too distantly remote from the issues within the legal proceeding.
