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.).

AA v. BB and CC, 2018 ONSC 4173 (CanLII)

[67] Qualified privilege was explained by the Supreme Court of Canada in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, [1995] S.C.J.:

143 Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. As Lord Atkinson explained in Adam v. Ward, [1917] A.C. 309 (H.L.), at p. 334:

. . . a privileged occasion is . . . an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.

[68] In Cusson v. Quan, 2007 ONCA 771, the Ontario Court of Appeal recognized some of the contexts in which a qualified privilege may arise.

[39] Employment references, business and credit reports, and complaints to police, regulatory bodies or public authorities are classic examples of occasions of qualified privilege. The rationale for qualified privilege is that on such occasions, "no matter how harsh, hasty, untrue, or libelous the publication . . . the amount of public inconvenience from the restriction of freedom of speech or writing would far outbalance that arising from the infliction of private injury" (Huntley v. Ward (1859), 6 C.B. (N.S.) 514, at p. 517).

[40] The privilege is said to be qualified as it can be defeated upon proof of malice, that is spite or ill-will, ulterior purpose, or, more commonly, proof that the defendant either knew the statement was false or was reckless as to its falsity: see Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, at para. 145 ("Hill v. Scientology"). The privilege can also be lost where the limits of the duty or interest are exceeded by the use of words not reasonably appropriate to the occasion.

...

[80] Communication with child welfare agencies responsible for protecting children in the course of their investigations is, in my view, but another “classic example” of an occasion of qualified privilege as referred to by the Court of Appeal in Cusson v. Quan. To find otherwise, would make it impossible for such public agencies to carry out their difficult but very necessary responsibility of protecting vulnerable children. I have no doubt that most interviews conducted in the course of such investigations will include statements that tend to lower another’s reputation in the eyes of a reasonable person. CC spoke to Ms. Cooper about AA on the promise from Ms. Cooper that she would not disclose what CC told her. This expectation was reasonable. Her discussion with Ms. Cooper was protected by qualified privilege, even if it included CC making admissions about what she said to others at work.

[81] I was provided with no authorities dealing with the quantum of damages in these circumstances. In determining the appropriate amount, I have considered how long it took the Society to complete its investigation, the nature of the allegation, the number of people and who heard the false allegation and the fact that the Society records show it as an unverified referral noting a concern that it may have been malicious. It impossible to know if this lowers or improves AA’s reputation in the eyes of the Society.

[82] On the evidence before me, AA is entitled to general damages for slander in the amount of $10,000.00 for which BB and CC are jointly and severally liable.

d) Punitive damages

[83] Given the malicious nature of the false referral, AA is entitled to punitive damages in the amount of $5,000.00 for which BB and CC are jointly and severally liable.