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Torts - Defamation - Qualified Privilege

. Kohlenberg v. Canada (Attorney General)

In Kohlenberg v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismisses an appeal from a labour JR, which in turn dismissed an earlier defamation damages grievance.

In these quotes the court considered defamation law, here regarding 'qualified privilege':
[31] ADM Eid relied on Bent v. Platnick at paragraph 121 for the proposition that an occasion of qualified privilege exists if a person making a communication has a duty to publish the information to the person to whom it is published, and the recipient has a corresponding duty or interest in receiving it. ...

....

[33] Following an analytical framework consistent with that laid out by the Supreme Court in Bent v. Platnick at paragraphs 128 and 136, ADM Eid found that the qualified privilege was not defeated because the appellant had failed to establish 1) that the scope of the privilege was exceeded because the statements were irrelevant to the work description grievance, or 2) that their author was motivated by malice.

[34] In Bent v. Platnick, the Supreme Court noted, at paragraph 128, that qualified privilege may be defeated when the limits of the duty or interest have been exceeded. This may occur "“when the information communicated in a statement is not relevant to the discharge of the duty … giving rise to the privilege, or when the information is not reasonably appropriate to the legitimate purpose of the occasion”" [citations omitted]. It explained, at paragraph 136, that another way to defeat the defence of qualified privilege is to establish malice on the part of the person making the statement by showing an actual, express motive to speak dishonestly or reckless disregard for the truth.

[35] The appellant submits that ADM Eid erred in dismissing his claim that the defence of qualified privilege was defeated because the statements were irrelevant to the work description grievance or because he had established malice on the part of the senior LRA who made the statements.

[36] Before addressing this submission, I pause to note that at paragraphs 129 and 130 of Bent v. Platnick, in determining whether the publisher’s inclusion in her communication of specific libellous references to Dr. Platnick exceeded the scope of qualified privilege, the majority asked whether naming Dr. Platnick in the communication was necessary to discharge the duty giving rise to the privilege. This has raised questions as to the place of "“relevance”" as distinguished from "“necessity”" in the analysis of the scope of qualified privilege: see e.g. Thatcher-Craig v. Clearview (Township), 2023 ONCA 96, 480 D.L.R. (4th) 639 at para. 75, n. 2.

[37] It is not necessary to canvass this issue further here. Firstly, the parties did not raise the question of necessity before this Court and took no issue with ADM Eid’s focus on the relevance of the statements. Secondly, ADM Eid found that, in the specific labour relations context of this case, to fulfill the duty giving rise to the occasion of qualified privilege, the senior LRA was "“required to give more information rather than less”" [emphasis added] to the final level decision maker. Since the senior LRA was duty-bound to give ADM Thivierge as much evidence as may be relevant to adjudicate the grievance in an informed manner, the requirements of relevance and necessity were coextensive. Accordingly, in light of ADM Eid’s finding that evidence with respect to the PREA objectives and ratings was "“generally relevant to understanding duties performed in the context of a work description grievance,”" its publication became necessary. I am therefore satisfied that, while ADM Eid invoked the language of relevance rather than necessity in defining the scope of qualified privilege, her decision was nevertheless justified in relation to the relevant legal constraints that bore on her decision: Vavilov at para. 100.
. Marcellin v. London (Police Services Board)

In Marcellin v. London (Police Services Board) (Ont CA, 2024) the Ontario Court of Appeal allowed a SLAPP appeal, here focussing on if there were 'valid defences' to a s.137.1(3) motion dismissal [under CJA s.137.1(4)(a)(ii)]:
(i) The Question of Valid Defences

[59] Pursuant to s. 137.1(4)(a), it is the responding party’s onus to establish that there are grounds to believe that (i) the proceeding has substantial merit, and (ii) the moving parties have no valid defence to the proceeding. “Grounds to believe” means something more than mere suspicion, but less than proof on a balance of probabilities: Hansman, at para. 94, citing Pointes Protection, at para. 40. Any basis in the record and the law is sufficient to meet this standard, so long as it is “legally tenable and reasonably capable of belief”: Bent, at para. 88.

....

[62] The other defence that was “in play” with respect to the impugned expressions was qualified privilege. As I will explain, while the motion judge correctly applied the relevant principles in determining that there were grounds to believe that the defence of qualified privilege would not apply in respect of the expressions at the April 26 meeting, his consideration of the defence of qualified privilege in relation to Dr. Young’s police complaint was incomplete and he applied an incorrect legal standard in concluding that Mr. Marcellin had not met his burden in respect of the defence of qualified privilege in relation to the letters. I will also briefly address Ms. Walker’s “Cosby tweet” in respect of which the motion judge found malice. In my view, on the record available at this early stage in the proceedings, Mr. Marcellin has met his burden under s. 137.1(4)(a)(ii) with respect to all of the impugned expressions.

(a) Qualified Privilege

[63] I will begin by setting out a summary of the relevant legal principles respecting qualified privilege as discussed in Bent, at paras. 121-28, and in Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at paras. 143-47:
. The threshold for qualified privilege is high. The privilege is grounded not in free expression values, but in the social utility of protecting particular communication occasions from civil liability;

. The focus is on the circumstances in which the communication was made. A precise characterization of the occasion is essential;

. The privilege is “qualified” because it can be lost if the communication exceeds the legitimate purposes of the privilege or where the dominant motive for publishing the defamatory expression is actual or express malice. The focus is on the “content of the communication, and on the conduct and motives of the speaker”;

. A defendant cannot rely on qualified privilege if the information communicated is “not reasonably appropriate to the legitimate purposes of the occasion”. A statement cannot be “reasonably appropriate” unless it is “relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege”; and

. Malice includes spite or ill-will, as well as any indirect motive or ulterior purpose that conflicts with the sense of duty or mutual interest the privileged occasion created, and is also established by showing the defendant spoke dishonestly or in knowing or reckless disregard for the truth.
....

[67] With respect, the motion judge’s analysis of the defence of qualified privilege in respect of the police complaint was incomplete. He did not go on to consider, as he had in respect of the April 26 meeting, whether there were grounds to believe that the privilege had been exceeded and that the defence would be defeated by malice.

....

[71] Again, the burden under s. 137.1(4)(a)(ii) is not high. Mr. Marcellin’s onus was not to establish conclusively that Dr. Young had an improper motive and acted with malice. It was to show that there were grounds to believe that any defence to the impugned expressions, including the making of the police complaint, would not succeed. 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.

....

[77] In my view the repeated references to the sufficiency of the evidence suggests that the motion judge applied a standard that exceeded the “grounds to believe” standard under s. 137.1(4)(a)(ii). As noted earlier, “grounds to believe” means something more than mere suspicion, but less than proof on the balance of probabilities: Pointes Protection, at para. 40. Having regard to the stage of the proceedings when an anti-SLAPP motion is brought, any basis in the record and the law is sufficient to meet this standard, so long as it is “legally tenable and reasonably capable of belief”: Bent, at para. 88.

[78] The central question with respect to malice was whether there were grounds to believe that, in sending the letters, Dr. Young was acting out of spite or ill-will, or had any “indirect motive or ulterior purpose” that conflicted with the sense of duty or mutual interest the privileged occasion created. In my view, in considering the question of malice, the motion judge failed to give proper consideration to the content of the letters (apart from Dr. Young’s stated purpose), their timing, and the context in which they were sent.

....

[81] There was plainly a basis in the record and the law to support a finding that the letters were motivated by malice sufficient to defeat the defence of qualified privilege. I find that Mr. Marcellin has met his burden to show that there are grounds to believe this defence will not succeed with respect to the letters to community leaders that were sent out by Dr. Young.

[82] Finally, the motion judge did not complete his analysis of the defences raised in respect of Ms. Walker’s tweets. After concluding that the defence of qualified privilege would not apply to the tweets, which were made to the public at large, he stated only that the tweet that advised of Mr. Marcellin’s charges was not actionable as defamation because it was true, and that, in relation to Ms. Walker’s tweet about Mr. Marcellin that followed her “Cosby tweet”, it was not necessary to determine on the motion whether the two tweets were merely coincidental or deliberately coordinated, but that in any event there was some basis in the evidence to determine that Ms. Walker acted with malice.

[83] In my view, Mr. Marcellin met his onus under s. 137.1(4)(a)(ii) in respect of Ms. Walker’s tweet. There are grounds to believe that the two tweets were deliberately coordinated, and that Ms. Walker was communicating that Mr. Marcellin was, like Bill Cosby, supported as a “great guy” but had abused women. No arguable defence was raised, and, as the motion judge observed, there was a basis to conclude that Ms. Walker was animated by malice.


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Last modified: 01-07-24
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