Simon's Megalomaniacal Legal Resources

Torts - Defamation - Absolute Privilege

. Aukema v. Peters

In Aukema v. Peters (Ont CA, 2026) the Ontario Court of Appeal dismissed a joint consent motion for the "determination of a question of law by way of a special case under r. 22 of the Rules of Civil Procedure".

Here the court considered the defamation defence of 'absolute privilege', here in contrast to that of qualified privilege:

[10] The defendants acknowledge that Ontario courts have previously held that complaints to police are covered by qualified privilege and not absolute privilege. For example, in Cusson v. Quan, 2007 ONCA 771, 87 O.R. (3d) 241, at paras. 39-40, this Court held that “complaints to police … are classic examples of occasions of qualified privilege”. It reasoned that implementing an absolute privilege standard would unduly restrict freedom of speech and outweigh the harm arising from the infliction of private injury. Meanwhile, qualified privilege can still be defeated “upon proof of malice” or “proof that the defendant either knew the statement was false or was reckless as to its falsity”.

[11] In Marcellin v. London (Police Services Board), 2024 ONCA 468, 498 D.L.R. (4th) 438, at paras. 67-68, 71, leave to appeal refused [2024] S.C.C.A. No. 350, this Court acknowledged the application of qualified privilege to police complaints. It overturned a finding that there was no defamation, holding that, in that specific case, “the motion judge's analysis of the defence of qualified privilege in respect of the police complaint was incomplete” and was defeated by evidence of malice

While there is an obvious public interest in members of the public feeling free to report conduct which is of concern to the police … the motion judge did not consider whether there was a basis in the evidence to believe that the defence of qualified privilege would be lost because of the timing of the police report and the circumstances in which it was made.

....

The motion judge erred by not considering evidence of Dr. Young’s motive and malice in making the complaint. On the record in this case I am satisfied that there are grounds to believe that the defence of qualified privilege will not succeed in relation to this impugned expression. See also Haight v. R.B., 2017 ONSC 5359.

[12] Nonetheless, the moving parties contend that this court’s treatment of the issue is not explicit and does not conclusively demonstrate that qualified privilege attaches to complaints made to police. Furthermore, to the extent that these cases suggest qualified over absolute privilege, the moving parties argue that a special case should be heard under r. 22.03(1)(c) because the cases are incorrect and should not be followed.

[13] The parties refer to the English Court of Appeal’s decision in Westcott v. Westcott, [2008] E.W.C.A. Civ. 818, which extended the absolute privilege defence to initial reports to law enforcement. The court in Westcott reasoned at para. 36 that:

The police cannot investigate a possible crime without the alleged criminal activity coming to their notice. Making an oral complaint is the first step in that process of investigation. In order to have confidence that protection will be afforded, the potential complainant must know in advance of making an approach to the police that her complaint will be immune from a direct or a flank attack. There is no logic in conferring immunity at the end of the process but not from the very beginning of the process. [The] distinction between instigation and investigation is flawed accordingly. In my judgment, any inhibition on the freedom to complain will seriously erode the rigours of the criminal justice system and will be contrary to the public interest. In my judgment immunity must be given from the earliest moment that the criminal justice system becomes involved. It follows that the occasion of the making of both the oral complaint and the subsequent written complaint must be absolutely privileged. [Emphasis added.]

[14] Westcott was rejected by the British Columbia Court of Appeal in Caron v. A., 2015 BCCA 47, 382 D.L.R. (4th) where the court considered whether privilege could shield complaints made to police from defamation claims. It concluded at para. 54 that, “[s]tatements to police prior to the commencement of judicial proceedings are protected by qualified privilege, not absolute privilege, under Canadian law.”