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Simon Shields, LLB

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Torts - Defamation - Absolute Privilege

Statutes - Interpretation

D'Mello v The Law Society of Upper Canada (Ont CA, 2014)

This case turned on whether a statutory tort immunity provision protecting a public body for 'good faith' actions ousted by implication the common law defamation protection of absolute privilege. The Court of Appeal commented as follows on the interaction between statutes and the common law:
[13] ..... The construction of statutes presumes that legislatures do not intend to interfere with the common law except insofar as the statute clearly and unambiguously does so. The effect of the presumption is to enhance the stability of the law by favouring certainty and fair notice over vague and inadvertent change that could otherwise result. See Sullivan on the Construction of Statutes, 6th ed., (Markham, Ont.: LexisNexis, 2014), at pp. 504, 538-39; and Evans v. Gonder, 2010 ONCA 172 (CanLII), 54 E.T.R. (3d) 193, at para. 40.

....

[15] Inasmuch as there is no express indication from the legislature that s. 9 of the Act is meant to be an exhaustive code, or meant to preclude resort to the common law in actions for defamation, the legislation should be read as supplementing the common law in two respects. First, with respect to any action or proceeding for damages, including an action for negligence or abuse of process, s. 9 extends the common law immunity from prosecution for those performing quasi-judicial functions to officials of the Law Society conducting an investigation while acting in good faith. Thus, s. 9 is a rights-granting measure and not, as the appellant contends here, a rights-limiting measure. Insofar as defamation actions are concerned, it does not detract from the common law defence of absolute privilege in respect of an action for defamation in any way.

[16] Second, s. 9 also supplements the common law in actions where defamation is alleged. The common law defence of absolute privilege applies only if the alleged defamatory statement is related to the investigation. If Mr. McClyment had made a defamatory statement that was unrelated to the investigation, that statement would not be protected by absolute privilege at common law. But it could still potentially be protected by s. 9 if it was done in good faith.

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