Qualified Privilege (Defamation)

Cable Assembly Systems Ltd. et al. v. Ben Barnes et al., 2019 ONSC 97 (CanLII)

[64] In this case, I find that the words spoken by Barnes to the Belden representative, Earl, in the meeting of September 30, 2014 were defamatory. A reasonable person would consider the reputation of CAS Ltd. to be lowered by the constant reference to the poor quality of work alleged by Barnes.

[65] The issue now is whether the City of Brantford can satisfy the shifted onus to be successful in their defence. In essence, was there a qualified privilege that applied when the statements were made? If qualified privilege is established the onus shifts back to the Plaintiffs to establish malice on the part of the Defendants.

[66] The September 30, 2014, meeting was requested by Earl so he could introduce himself to the City of Brantford, his function with Belden and to see if further business between Belden and the City of Brantford was possible. Earl stated that it was Barnes who continuously geared the conversation toward the poor workmanship of CAS Ltd. Earl also stated that Barnes continued this theme despite his multiple attempts to divert the conversation to other topics.

[67] I agree with the submission of counsel for the Plaintiffs’ that Barnes comments in the meeting with Earl were not germane or reasonably appropriate to the occasion of the September 30, 2014, meeting. I also find that Barnes had an ulterior motive. He was responding to the many complaints Manese had made about him to his superiors. As a result, he acted in a malicious manner by attempting to malign the reputation of CAS Ltd. and Manese. Given this finding the Defendants cannot rely on a defence of qualified privilege.

Spencer v. Equifax Canada Inc., 2011 ONSC 7284 (CanLII)

[26] Thus, I accept that Equifax, as a consumer reporting agency, has a recognized legal duty to Spencer, as a consumer. Based on the Haskett decision, the claim in the present case is properly characterized as a negligence claim.

[27] The applicable standard of care, as described in the Haskett case at paragraph 29, is that Equifax is required “…to carry out their functions not only honestly, but accurately, with skill and diligence and in accordance with statutory obligations”. More specifically, the statutory standard of care expected of Equifax upon receipt of a consumer dispute is set out in the aforementioned s.13(1) of the CRA.

[28] Regarding defamation, in my view such a claim is not applicable in the present case because the provision of a credit report falls within the realm of qualified privilege. In the case of Cusson v. Quan, 2007 ONCA 771, at paragraphs 38, 39, and 40, the OCA found that communications such as employee references, business reports, credit reports, and complaints to public authorities are subject to qualified privilege as they are statements made by persons who have a duty or interest in making the statements and the persons to whom they are made have a corresponding duty or interest to receive them. Where there is qualified privilege, the plaintiff can only succeed if the plaintiff proves malice. There is no evidence of malice in this case.

[29] Therefore, this action may proceed only as a negligence claim, and I will analyze it in that context.

Haskett v. Equifax Canada Inc., 2003 CanLII 32896 (ON CA)

[53] Another issue raised by the respondents in opposing recognition of a duty of care in these circumstances is, I believe, best addressed at this stage of the analysis in the context of policy considerations. The issue was also raised and addressed by the Law Lords in Spring, supra: that recognition of such a cause of action would be an encroachment on the law of defamation and would preclude reliance on certain defences available in that cause of action such as qualified privilege. The argument is that the policy of the law should be to preserve the common law cause of action for defamation which has been developed, and, in many ways has become, in effect, codified within the common law. The [page596] Law Lords rejected this argument. Lord Woolf reasoned that the subject of an inaccurate letter of reference is not protected by the law of defamation because where qualified privilege applies, the person would have to prove malice, placing a disproportionate burden on the employee. He concluded that the law of defamation provided an inadequate remedy to such an employee and therefore, extending the law of negligence was justified in the circumstances (p. 172 All E.R.).