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Absolute Privilege

. Collins v. Canada Post Corporation

In Collins v. Canada Post Corporation (Ont CA, 2022) the Court of Appeal considered a claim of 'absolute privilege':
[10] The motion judge found that the claims against Norton Rose in the Superior Court action relate entirely to their participation as counsel in the Federal Court proceedings and include allegations that Norton Rose commissioned a misleading affidavit and omitted to advise the Federal Court of material facts. He held that the claims against Norton Rose were barred by the doctrine of absolute privilege, which provides that no action can be brought against (among others) counsel for statements made in the ordinary course of a judicial proceeding: Salasel v. Cuthbertson, 2015 ONCA 115, 124 O.R. (3d) 401, at para. 35.
. Salasel v Cuthbertson

In Salasel v Cuthbertson (Ont CA, 2015) the court stated this with respect to absolute privilege:
Absolute privilege

[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 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.

[36] At issue in this case is a communication made by counsel for the respondent physicians before the actual commencement of legal proceedings. As noted by Cullity J. in Moseley-Williams v. Hansler Industries Ltd. (2004), 2004 CanLII 66313 (ON SC), 38 C.C.E.L. (3d) 111 (Ont. S.C.), aff’d [2005] O.J. No. 997 (Ont. C.A.), Ontario has adopted a broader application of the rule of absolute privilege to such pre-suit statements than jurisdictions such as British Columbia, Alberta and England. The scope of the Ontario rule was summarized comprehensively by the Divisional Court in 1522491 Ontario Inc. v. Steward, Esten Professional Corp., 2010 ONSC 727, 100 O.R. (3d) 596, at paras. 37 and 39 to 44:
[37] In Ontario, absolute privilege may extend to communications by a party's solicitor made before the actual commencement of proceedings.

[39] As Cullity J. points out in Moseley-Williams, the following statement from Fleming has been referred to with approval in Ontario decisions:
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.
[40] However, Cullity J. also found that the authorities do not appear to support an extension of the privilege to all occasions when the possibility of litigation is contemplated, or even when a threat of litigation is made, or when a lawyer is endeavouring to assert and protect a client's rights.

[41] Thus, when a defendant in these circumstances moves to dismiss the claim on the ground of absolute privilege, the decision the court has to make is whether the communication was made “for the purpose of, or preparatory to, the commencement of [judicial] proceedings”.

[42] Something more than merely a contemplation of the possibility of litigation is required. The court must decide whether the occasion is “incidental” or “preparatory” or “intimately connected” to judicial proceedings and not one that is too remote.

[43] It is in this sense that Cullity J. accepted that “... some inquiry into the purpose of their publication would appear to be unavoidable”… That case dealt with a motion for judgment under rule 20. On a rule 21.01(1)(b) motion, the “inquiry” is made on the assumed truth of the facts pleaded in the statement of claim.

[44] It must be stressed that “it is the occasion, not the communication, that is privileged. The privilege belongs to the occasion by reason of the setting.” [Citations omitted; emphasis in original.]
Determining whether an occasion is preparatory to, or intimately connected with, judicial or quasi-judicial proceedings involves, as Cullity J. aptly put the matter in Moseley-Williams, at paras. 57 and 58, an exercise of ascertaining where a line is to be drawn so that the degree of connection between the occasion and the judicial proceeding is not too remote.


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