COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
Caron v. A., |
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2015 BCCA 47 |
Date: 20150211
Docket: CA042034
Between:
Simon Caron
Respondent
(Plaintiff)
And
A., an infant by her Litigation Guardian,
The Public Guardian and Trustee, and Diane Reimer
Appellants
(Defendants)
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Before: |
The Honourable Madam Justice Garson The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Savage |
On appeal from: An order of the Supreme Court of British Columbia, dated July 18, 2014 (Caron v. A., 2014 BCSC 1351, Prince George Docket 1343032).
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Counsel for the Appellants: |
D.W. Burnett, Q.C. J. Zaitsoff |
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The Respondent: |
In Person |
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Place and Date of Hearing: |
Vancouver, British Columbia January 6, 2015 |
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Place and Date of Judgment: |
Vancouver, British Columbia February 11, 2015 |
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Written Reasons by: |
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The Honourable Madam Justice Garson |
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Concurred in by: |
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The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Savage |
Summary:
The issue raised by this appeal is whether an initial complaint made to police, prior to the commencement of judicial proceedings is protected by absolute privilege or qualified privilege. The underlying facts concern a defamation claim in which the plaintiff (respondent on appeal) sued the appellant for falsely accusing him of sexually assaulting her in a complaint to the police. No charges were laid. The appellant applied for judgment dismissing the claim at a summary trial on the grounds that it was plain and obvious the defamation claim could not succeed because the statement alleged to be defamatory was protected by absolute privilege and the remainder of the pleadings disclosed no reasonable cause of action against the appellant. The chambers judge rejected the appellant’s argument that absolute privilege applied, and therefore refused to strike the paragraphs in the pleadings that refer to the statement to the RCMP. The chambers judge struck the remainder of the pleadings as disclosing no reasonable cause of action.
Held on appeal: Appeal dismissed. Statements made to police prior to the commencement of judicial proceedings are protected by qualified, not absolute privilege.
Reasons for Judgment of the Honourable Madam Justice Garson:
[1] This appeal raises the issue of whether an initial complaint made to police, prior to the commencement of judicial proceedings, is protected by absolute privilege.
[2] In his Amended Notice of Civil Claim, the respondent pleads:
2. [The appellant] accompanied by Sherry Dupuis went to the RCMP where [the appellant] falsely accused me of rape. I then got proven innocent in light of the following reasons; I was working 1500 km [sic] in Alberta on the day the event was said to have occurred, (moreover, I was away for the for [sic] the whole month). It was proven by work records, credit card statements, credit card records, and courses I attended there.
[3] The pleadings make further, unspecified assertions about this alleged defamation being repeated to others.
[4] The appellant defends the defamation through her Guardian ad Litem, the Public Trustee. The appellant pleads in her response to civil claim, inter alia:
…if [the appellant] made any communication to law enforcement officials regarding the plaintiff, it is protected by absolute privilege, being a communication made in or concerning a potential judicial or quasi-judicial proceeding.
[5] The appellant applied for judgment dismissing the claim at a summary trial on the grounds that it was plain and obvious the defamation claim could not succeed because the statement alleged to be defamatory was protected by absolute privilege and the remainder of the pleadings disclosed no reasonable cause of action against the appellant. The chambers judge rejected the appellant’s argument that absolute privilege applied, and therefore refused to strike the paragraphs in the pleadings that refer to the statement to the RCMP. The chambers judge struck the remainder of the pleadings as disclosing no reasonable cause of action.
[6] The appellant appeals to this Court, seeking an order that the action against her be dismissed, as the statement to the RCMP is protected by absolute privilege and the remainder of the pleadings disclose no reasonable cause of action against her. There is also a collateral issue, raised during the oral hearing, as to whether the statements in the pleadings referring to a co-defendant were erroneously struck by the chambers judge.
[7] For the following reasons, I would dismiss the appeal in respect to the claim of absolute privilege.
[8] The chambers judge was asked to dismiss the entirety of the claim against the appellant because her statement to the RCMP was protected by the defence of absolute privilege and the remainder of the respondent’s pleadings disclosed no cause of action. The appellant primarily relied on two decisions of this Court, Hung v. Gardiner, 2003 BCCA 257 and Schut v. Magee, 2003 BCCA 417, as establishing that absolute privilege protects all “preparatory steps taken with a view to judicial proceedings”. The appellant argued that this absolute privilege applied to statements made to police officers, and public policy demanded that such statements be completely protected from subsequent defamation claims.
[9] The chambers judge rejected the appellant’s submission that her statement to the RCMP was protected by absolute privilege. In coming to this conclusion, the chambers judge relied on Rajkhowa v. Watson, 167 N.S.R. (2d) 108, a decision of the Nova Scotia Supreme Court, which held that statements to the police by a complainant are only protected by absolute privilege after the laying of an Information: Rajkhowa at para. 46. The chambers judge distinguished Hung and Schut on the basis that those decisions pertained to complaints made to a quasi-judicial body. The RCMP is not a quasi-judicial body in this context, and therefore absolute privilege did not apply.
[10] After determining that absolute privilege did not apply, the chambers judge found that it was therefore not plain and obvious that paragraphs 2 and 4 of the Amended Notice of Civil Claim disclosed no reasonable cause of action. The chambers judge ordered the remainder of the pleadings to be struck as they failed to disclose a reasonable cause of action.
[11] I will note here that paragraphs 3, 5, and 6 contain allegations concerning a co-defendant, as well as some general statements that amount to pleadings of evidence. At the hearing of the appeal, counsel for the appellant acknowledged that there was no application on behalf of the co-defendant to strike the pleadings concerning her in paragraphs 3, 5, and 6, and for that reason, the paragraphs ought not to have been struck.
[12] Before moving on, I also note that the decision below was ostensibly made pursuant to an application for a summary trial under r. 9-7 of the British Columbia Civil Rules.
[13] In this case, the chambers judge acknowledged that the application was made pursuant to r. 9-7; however, the chambers judge concluded his reasons for judgment by stating that “it is not plain and obvious that paragraphs 2 & 4 of the Amended Notice of Civil Claim disclose no reasonable cause of action”: at para. 31. This is language more consistent with an application pursuant to r. 9-5(1)(a), rather than r. 9-7. The same conflation of rr. 9-5 and 9-7 appears in the language of the appellants’ original application that led to the order under appeal. Regardless, the parties do not raise this discrepancy as an issue in this appeal. Therefore, I will assume for the purposes of this appeal that the chambers judge found that, because the appellant could not rely on the defence of absolute privilege, the defamation claim pertaining to the statement to the RCMP could not be resolved either on the pleadings or on the evidence before him and was more appropriately the subject of a full trial.
[14] I begin this analysis with a brief description of two possible defences to claims of defamation—qualified privilege and absolute privilege.
[15] Qualified privilege applies when there is a “duty, legal, social or moral, to publish the matter complained of to persons with a corresponding duty or interest to receive it”: Pressler v. Lethbridge (2000), 86 B.C.L.R. (3d) 257 at 296 (C.A). The legal effect of the defence of qualified privilege is to “rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. . . . However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice”: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 144. In short, where there is a public or shared interest in support of the statement both being made and received, a defendant cannot be held to have defamed a plaintiff unless the plaintiff can show that the defendant made the alleged publication for a malicious purpose.
[16] Absolute privilege, on the other hand, provides a complete defence in cases of alleged defamatory publications, even if the defendant published the statement with actual malice. Traditionally, absolute privilege was granted to any “communications which take place during, incidental to, and the processing and furtherance of, judicial or quasi-judicial proceedings”: Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115 at para. 112, citing Raymond E. Brown, The Law of Defamation in Canada, (Toronto: Carswell, 1999) at para. 12.4(1).
[17] The appellant submits that the trial judge erred in concluding that the defence of absolute privilege did not apply to her statement to the RCMP. She relies primarily upon Hung, a decision of this Court, for the argument that such statements are protected even if made maliciously. In my view Hung does not support the argument made by the appellant.
[18] In Hung, this Court was asked to determine whether a person who gave information to a professional disciplinary body about the conduct of one of its members is protected by absolute privilege when the complaint did not lead to disciplinary proceedings. This Court determined, for public policy reasons, that the initiation of proceedings was irrelevant for the purposes of the defence, as the “purpose of the immunity would be undermined if absolute privilege only applied where the complaint leads to proceedings”: Hung at para. 32.
[19] Madam Justice Levine, writing for this Court, began by describing the application of absolute privilege, and adopting the following statement of Smith J. in Sussman v. Eales:
The issue is whether the defendants enjoy immunity. The general rule is clear. No action will lie for defamatory statements contained in a document properly used in the course of any proceedings before a court of justice or tribunal recognized by law. The rule is well enough settled. The need for citing jurisprudential support has virtually disappeared. However, the following passage in Fleming, Law of Torts 4th ed. (1971) p. 489, always bears repetition:
“Freedom of speech without fear of consequences is considered indispensable for the proper and effective administration of justice ... The privilege is incident to the proceedings of all courts of justice and, though analogically applied to other tribunals exercising equivalent functions, has not been extended to those wielding administrative rather than judicial powers ... Though it is perhaps not easy to justify the inclusion of military courts of inquiry, as distinct from courts martial, no one would cavil at the extension of the privilege to ... disciplinary proceedings by the Law Society ... The privilege is not confined to statements made in court, but extends to all preparatory steps taken with a view to judicial proceedings.”
[Hung at para. 6. Emphasis added by Levin J.A., citing Sussman v. Eales (1985), 33 C.C.L.T. 156 at 157 (Ont. H.C.J.), appeal allowed in part (1986), 25 C.P.C. (2d) 7 (C.A.)]
[20] Madam Justice Levine then quoted the following explanation of the rationale for the immunity from Sussman:
. . . . It is a question of balancing two interests. The public interest should outweigh that of the individual for at least two reasons. Firstly the immunity will only be conferred upon a citizen complaining in a confidential way to a body created by statute. A communication of that kind can hardly be said to be a publication of the kind that is apt to harm one’s reputation in the community to a degree sufficient to attract an award of compensation.
Secondly, the right to engage in professional activities must be the subject of rules governing them. These rules cannot be enforced without a corresponding right in the members of the public to complain uninhibited and without fear of being found wrong and as a result being subject to actions in defamation. Surely it is a small price for a professional person to pay.
[Hung at para. 7, citing Sussman at 159–60.]
[21] Madam Justice Levine reviewed much of the Canadian case law in this area. One of the decisions she reviewed was Rajkhowa (relied on by the respondent and the chambers judge in this matter), which concluded that statements to police officers were not protected by absolute privilege if made prior to the laying of an Information.
[22] In Rajkhowa the defendant, Dr. Watson, applied to strike out a claim in defamation brought against him by Dr. Rajkhowa on grounds of absolute privilege. Dr. Watson had been employed to audit Dr. Rajkhowa’s billing practices. Dr. Watson subsequently turned over information about Dr. Rajkhowa’s billing practices to the RCMP. No charges were ever laid by the RCMP. On an application to strike the claim in defamation, Dr. Watson argued that his complaint to the RCMP was protected by absolute privilege. The application to strike was dismissed. In doing so Hood J. distinguished between the various steps of a criminal investigation and held that:
In Sussman, the court found that the letter of complaint to the Royal College of Dental Surgeons was “the necessary first step in one entire process”. That is in my view analogous to the laying of the Information in a criminal proceeding. That being the case, anything that happens before it is not protected as there is no court proceeding until that step is taken. I conclude that it goes too far back in the process to say that, when Dr. Watson gave the information to the police, the court proceeding started. A judicial or quasi-judicial proceeding does not commence each time the police commence an investigation. If the question is asked: Do the police exercise quasi-judicial or administrative functions? to ask the question is to answer it. The police investigate, they do not adjudicate. Or to paraphrase Adams, J. in Boyachyk: they do not have the duty and authority to determine guilt or innocence nor the disciplinary powers to enforce sanctions. The police are therefore in a position similar to that of the Bar Council in the Lincoln case: they do not exercise judicial or quasi-judicial functions.
[At para. 46. Emphasis added.]
[23] In Hung, after reviewing Rajkhowa, Levine J.A. said the case “actually supports the respondents’ defence of absolute privilege”: Hung at para. 20. Madam Justice Levine explained Hood J.’s judgment in Rajkhowa by quoting him as follows: “If the question is asked: Do the police exercise quasi-judicial or administrative functions? To ask the question is to answer it. The police investigate, they do not adjudicate”: Hung at para. 23, citing Rajkhowa at para. 46.
[24] Madam Justice Levine then used the reasoning of Hood J. in Rajkhowa in fashioning the correct test for determining whether absolute privilege applies to statements to a tribunal as follows: The existence of absolute privilege will depend on “whether the [recipients of the complaint], exercising their disciplinary powers, have attributes similar to a court of justice or act in a manner similar to that in which such courts act”: Hung at para. 29. If so, a confidential complaint is absolutely privileged: Hung at para. 30.
[25] In Hung, since the disciplinary body exercised quasi-judicial powers, it was unlike a police force, and therefore absolute privilege applied: Hung at paras. 20–29.
[26] The appellant argues that the decision in Hung should be analogized to the current case under appeal. In essence, she argues that there is no logical reason to distinguish between initial complaints made to a tribunal and complaints made to the police. She argues that, for public policy reasons, the law should not allow a chilling effect to exist for complaints in a criminal context when the law does not allow such a chilling effect in a professional-complaint context.
[27] In Hung, Levine J.A. expressly considered the decision in Rajkhowa, which stated that absolute privilege did not protect complaints made to the police prior to the commencement of judicial proceedings, and endorsed it as affirming the conclusion this Court ultimately came to: Absolute privilege protects the initial complaint when the recipient of the complaint is acting in a judicial or quasi-judicial manner: Hung at para. 29.
[28] While the application of absolute privilege to complaints made to the police was not at issue in Hung, and this Court may therefore be at liberty to make a determination either way in the case at bar, I am not persuaded that the test as enunciated in Hung can be used to, essentially, overrule the foundations of its own reasoning.
[29] In brief reasons in Schut v. Magee this Court applied Hung in a similar case involving a complaint made to the British Columbia College of Physicians and Surgeons. The Court found the case indistinguishable from Hung.
[30] For the same reasons, I am not persuaded that the subsequent decisions of this Court applying Hung are of assistance to the appellant.
[31] The appellant also cites Hanisch v. Canada, 2003 BCSC 1000, in which Harvey J. suggested, in obiter, that absolute privilege did not apply to defamatory statements made when initiating a criminal investigation that was “wrongly set in motion”: Hanisch at para. 142. The appellant argues that this statement should not be given any weight because it was expressly disapproved by this Court in McDaniel v. McDaniel, 2009 BCCA 53. The appellant writes in her factum:
. . . in McDaniel v. McDaniel, 2009 BCCA 53, this court said at paras. 34–35 that Hanisch is “hardly strong support” for the proposition that absolute privilege does not apply to statements made to police investigators . . .
[32] With respect, that is not what this Court said in McDaniel. To be precise, the exact quote referred to by the appellant is as follows:
[34] I should note here that Brian McDaniel placed some reliance on the trial decision in Hanisch v. Canada, where Mr. Justice Harvey considered an issue of absolute privilege advanced by a defendant who made statements to police investigators. At para. 141 of his reasons, the learned judge said:
[141] Thus, it is not clear to me that absolute privilege would apply where information was maliciously proffered, as I have found to be the case here. As well, I have found the defendants liable for the false arrest and imprisonment of the plaintiff. I am unable to see how they can rely on the existence of a criminal investigation, which they wrongly set in motion, as the basis for protecting their defamatory statements made against the plaintiff.
[35] This is hardly strong support for the proposition advanced by Brian McDaniel and it was clearly said by way of obiter dictum. As well, this position of the judgment was not commented upon by this Court on the appeal in Hanisch. Hanisch, on its facts, is not the case at bar.
[Citations removed. Emphasis added.]
[33] Brian McDaniel was the appellant in McDaniel. The case involved, inter alia, an accusation of defamation by Brian McDaniel against his brother Jack McDaniel, regarding statements made by Jack McDaniel to Brian McDaniel’s insurer, which was engaged in “existing insurance litigation” with Brian McDaniel: McDaniel at para. 7. The “proposition advanced by Brian McDaniel” referred to in paragraph 35 of McDaniel was not that “absolute privilege does not apply to statements made to police officers”, as the appellant asserts in her factum; rather, it was that absolute privilege does not apply to statements made by possible witnesses to a party in ongoing litigation regarding the subject matter of that litigation. This is a completely different proposition. McDaniel should not be seen as disapproving the obiter statements of Harvey J. in Hanisch; McDaniel merely distinguished Hanisch. As such, McDaniel is also of no assistance to the appellant.
[34] I note that, subsequent to the order under appeal, the British Columbia Supreme Court released another decision, in an unrelated case, that again stated that complaints to the police are protected by a qualified, and not absolute, privilege: Popat v. MacLennan, 2014 BCSC 1601 at para. 21. In this province, at the trial level at least, there appears to exist consistent, if not numerous, precedents supporting the notion that qualified, and not absolute, privilege applies to statements made to the police prior to the commencement of judicial proceedings.
[35] The appellant also cites Kazas v. Peterson, [1992] O.J. No. 1666 (C.J. Gen. Div.), rev’d on other grounds, [1996] O.J. No. 3229 (C.A.). In Kazas, a trial judge of the Ontario Court of Justice (General Division) applied the case of Canada v. Lukasik (1985), 37 Alta L.R. (2d) 170, for the proposition that absolute privilege applied to complaints made to police officers.
[36] However, four years later, that same court reconsidered Lukasik and said that its comment that absolute privilege applied to complaints made to police was “obiter dicta and not a very strong statement of the law”: Mullins v. Beneteau, [1996] O.J. No. 2784 at para. 25 (C.J. Gen. Div.). Instead, the Ontario court in Mullins determined that “a statement to a police officer is subject to a qualified and not an absolute privilege”: at para. 26. The application of qualified privilege, rather than absolute privilege, to complaints made to police prior to the commencement of judicial proceedings has been subsequently endorsed in Ontario on at least two other occasions: see Gittens v. Brown, 2003 CanLII 40565 (Ont. S.C.) and Baker v. T.P., [2004] O.J. No. 4839 at paras. 16–18 (S.C.) (where the court applied Starkman v. Canada, [2000] O.J. No. 3764, for the proposition that the relevant point for determining when absolute privilege is found to apply is when the judicial proceedings are commenced). Therefore, Kazas is no longer good authority in Ontario.
[37] In summary, the law in Canada, at least at the trial level, appears to be quite consistent that only a qualified, and not an absolute, privilege applies to initial complaints made to the police before the commencement of judicial proceedings. Trial level decisions in Nova Scotia, Ontario, and British Columbia, while not binding on this Court, have all reiterated this principle.
[38] The appellant can therefore only succeed on the issue of absolute privilege if this Court were to expand the defence so as to include complaints to the police. This is a step further than any jurisdiction in Canada has, as of yet, gone. The appellant argues that such an expansion is justified on the basis of public policy.
[39] The appellant’s argument, as I understand it, can best be described as follows: The law as it exists in Canada has developed so as to protect the initial complaints made to a quasi-judicial tribunal under absolute privilege. From the point of view of the complainant, there is no good reason to distinguish complaints made to the police merely on the notion that the police do not hold quasi-judicial powers themselves. The police, in this context, are an extension of the judicial system, and complaints are made with an eye to judicial proceedings in the same way that complaints to tribunals are made with an eye to quasi-judicial proceedings. For reasons of public policy, complaints made by alleged victims of rape should be given at least the same protections given to complaints to professional bodies because the state has a strong interest in locating and punishing violent criminals and protecting members of society.
[40] Before discussing this public policy argument, I shall briefly summarize the development and expansion of absolute privilege in two other common law jurisdictions: the United Kingdom and the United States.
[41] Historically, from the 19th through the 20th century, the United Kingdom had previously also imposed only a qualified privilege on complaints to the police: see Stuart v. Bell, [1891] 2 Q.B. 341 at 360 (in the English Court of Appeal, where Kay L.J. stated that the privilege attaching to statements to the police “will be lost if the defendant was actuated by malice”; i.e., qualified privilege); see also Lightbody v. Gordon (1882), 9 Sess. Cas. R. 934 at 940 (in the Scottish Court of Sessions, where Lord Shand said if a complainant “applies to the authorities the law will assume that his information was given in good faith and will shield him in an action of damages unless the pursuer undertakes and proves an issue of malice and want of probable cause”).
[42] Recently, however, English courts have adopted a different approach to the privilege placed on complaints to police officers. In Westcott v. Westcott, [2008] EWCA Civ 818, the English Court of Appeal determined that, for public policy reasons, absolute privilege should be extended to complaints made to police officers. In coming to this conclusion, Lord Justice Ward said the following:
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 . . . . 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.
[At para. 36.]
[43] Westcott appears to now be the leading case in England on this issue, and it supports the notion that public policy arguments weigh in favour of expanding absolute privilege in a modern context.
[44] U.S. jurisdictions have taken divergent approaches to this question, with some States applying a qualified privilege and other States applying an absolute one. Courts in, for example Ohio, Illinois, and Arizona, have applied an absolute privilege to any complaints made to law enforcement: see Lasater v. Vidahl, 2012 Ohio 4918, 9th Dist. No. 26242; Morris v. Harvey Cycle and Camper, Inc., 199 N.E. (2d) 1049 (Ill. C.A. 2009); Ledvina v. Cerasani, 146 P (3d) 70 (Arizona C.A. 2006). At the same time, courts in, for example, New Jersey, Wisconsin, Florida, and Nevada have applied a qualified privilege: see Dikjstra v. Westerink, 401 A. (2d) 1118 (NJ S.C. 1979); Heggy v. Grutzner, 456 N.W. (2d) 845 (Wisconsin C.A. 1990); Fridovich v. Fridovich, 598 So. (2d) 65 (Florida S.C. 1992); Pope v. Motel 6, 121 Nev. 307 (Nevada S.C. 2005).
[45] In Morris v. Harvey Cycle and Camper, Inc., the Sixth Division of the Illinois Court of Appeal described this demarcation in U.S. law as follows:
Illinois is among a minority of states that afford absolute privilege to statements to law enforcement officials. . . . While Florida recognizes only qualified privilege for private-citizen reports to the police, states in addition to Illinois that recognize absolute privilege include Kentucky, Idaho, Alabama, Oregon and Texas.
[At 1056.]
[46] There is therefore no clear approach to this issue in the United States.
[47] The appellant argues that failing to protect complaints to the police with an absolute privilege could lead to a chilling effect, as victims could be deterred from reporting crimes through the threat of possible defamation litigation if those crimes are difficult to prove. She argues that public policy dictates that such a chilling effect should be avoided if possible, and absolute privilege should therefore apply to any statements made in the reporting of a crime. From the previous discussion, it is clear that this argument has won favour in some courts outside Canada, but has not yet been adopted in this country.
[48] The gradual expansion of absolute privilege, and the concerns this raises, was discussed by Justice Cromwell (as he then was) in Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115. In Elliott, the Nova Scotia Court of Appeal was asked to apply absolute privilege to the comments made by an insurance investigator after investigating a fire. The defendant claimed that “witness immunity” applied to statements by anyone who “investigates anything which might result in the investigator becoming a witness in possible future litigation”: Elliott at para. 1. Justice Cromwell described this as a “considerable extension of witness immunity”: Elliott at para. 1.
[49] Justice Cromwell eventually rejected the argument that absolute privilege should be expanded so as to protect the defendant in Elliott. In doing so, Cromwell J.A. emphasized that, in determining whether the current scope of absolute privilege should be expanded, the question should not be “why not”, but rather, “is this necessary”. He discussed the rationale for witness immunity (as a form of absolute privilege) and the importance of restraint in expanding that immunity as follows:
[116] The absolute immunity of witnesses exists because it is necessary to protect the proper functioning of the administration of justice. . . . . Extension beyond that ‘occasion’ are made when necessary in order to make the immunity for testimony effective.
. . .
[118] The absolute immunity of witnesses, therefore, negates the usual rules of civil liability. But such a sweeping exemption from liability is only justified when demonstrably necessary to achieve important objectives. As has been said, “. . . the general rule is that the extension of absolute privilege is ‘viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated’. Thus the test for the extension beyond the well-settled core of the immunity is a strict one: Necessity must be shown. Consistent with the usual rules about the burden of proof, the burden of proving a defence based on immunity is on the defendant.
[Citations removed. Emphasis Added.]
[50] I will pause here to note that, in his reasons for judgment, Cromwell J.A. briefly discussed the previous Canadian case law on “[w]hether witness immunity applies to complaints to the police”: at para. 196. He acknowledged that this area has been “controversial”, and noted the differing results in Kazas, where absolute privilege was applied, and subsequent cases like Rajkhowa and Teskey v. Toronto Transit Commission, [2003] O.J. No. 5314, which did not apply absolute privilege.
[51] Justice Cromwell expressed disagreement with the result in Kazas, and he implicitly approved Rajkhowa saying, “subsequent case law suggests that this formulation [in Kazas] is unduly broad”: Elliott at para. 197, referring to Rajkhowa and Teskey. He cited Teskey v. Toronto Transit Commission, [2003] O.J. No. 5314 to the same effect. He summarized the current distinction in Canada between statements to police prior to and after the commencement of proceedings as follows:
It is clear, however, that immunity does not extend to all steps in the investigation of a matter that may result in litigation. There is a distinction between the functions of investigators and witnesses even though the same person may, in the end, be both. To decide whether the immunity applies, the case law has looked to whether the action is based on the “judicial phase” of the proceedings, whether it relates to “matters of advocacy” or whether the “principal purpose” was to prepare evidence for court. These are primarily questions of fact and the burden is on the parties claiming the immunity to prove facts which bring them within it.
[At para. 211. Emphasis added.]
[52] In my opinion, the appellant is asking this Court to expand the defence of absolute privilege beyond its current borders in Canadian law. There is some precedent for such an expansion in English and U.S. law. The onus for justifying such an expansion is on the appellant, and the test the appellant must meet is as described by Cromwell J.A. in Elliott: The expansion must be found to be necessary in order to protect the proper administration of justice.
[53] In my opinion, it would not be appropriate for this Court to make such a determination at this time, without the benefit of an evidentiary record.
[54] Statements to police prior to the commencement of judicial proceedings are protected by qualified privilege, not absolute privilege, under Canadian law. In order to expand the defence of absolute privilege, the appellant must show that such an expansion is necessary in order to protect the administration of justice. The appellant cannot meet that onus in the current appeal, as there is no evidentiary record with which to support her argument or suggest that an expansion to absolute privilege, rather than an application of qualified privilege, is necessary in order to protect the proper administration of justice: Northwest Organics v. Maguire, 2014 BCCA 454.
[55] I would dismiss the appeal on this issue.
[56] The second ground of appeal concerns paragraph 4 of the Amended Notice of Civil Claim which provides:
[The appellant] circulated horrible rumours about a rape that never occurred, and even claimed that SHE had dropped the criminal charges, at that point my life was in danger and I left Vanderhoof to go in hiding in Prince George. My vehicle was sabotaged, a friend of mine was threatened to be hurt if he was to be seen in my presence. [The appellant] also told Hailey Gatacre who filed an affidavit to attest that [the appellant] directly told Hailey that I had raped her. The rumor including names is still circulating, so that my brother Adam heard of it in his wielding class in Fort St. James in December 2013. Moreover, I received treatments for depression. I have forgone opportunities as a leasehand in Alberta for winter drilling and other opportunities.
[Underlining removed.]
[57] The appellant concedes that the sentence, “[the appellant] also told Hailey Gatacre who filed an affidavit to attest that [the appellant] directly told Hailey that I had raped her” is a valid plea. However she argues that the remainder of paragraph 4, containing inadequately specified allegations, should be struck out.
[58] The appellant argues that there are particular rules with respect to pleadings in a defamation case. They must be precise and particular. She says pleadings that fail to specify the alleged defamatory words, or to whom the allegedly defamatory words were published, disclose no cause of action: see Shannon v. King, [1931] 4 D.L.R. 438 at 439, per Macdonald C.J.B.C. (B.C.C.A.); Alastair Mullis et al., eds., Gatley on Libel and Slander. 12th ed. (London, Eng.: Thomson Reuters, 2013) at 26.2–26.3. It is well-accepted that, in defamation claims, “the actual words complained of must be set out verbatim so that the defendant will know with certainty the words which are alleged to be defamatory”: Pootlass v. Pootlass (1999), 63 B.C.L.R. (3d) 305 at 319 (S.C.). The person complaining must be able to say what the words were, failing which the pleading should generally be struck: see Lawrence v. Wallace (2002), 203 N.S.R. (2d) 197 at paras. 6–8 (C.A.), per Cromwell J.A. (as he then was).
[59] I agree with the appellant that the language “circulated horrible rumours …” discloses no cause of action. Some portions of paragraph 4 do not contain the specificity that is necessary for pleadings in defamation.
[60] However, in these circumstances, noting in particular that the respondent is a self-represented, very young man, I would not at this time order that any part of paragraph 4 be struck. This Court has previously said that, when considering whether a portion of the pleadings should be struck, a court should consider whether it discloses some question fit to be tried “as it stands or as it may be amended”: Minnes v. Minnes (1962), 39 W.W.R. 112 (B.C.C.A.), quoted with approval in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 978 [emphasis added]. The respondent should seek leave from the Supreme Court to amend his pleading as needed to state the required particularity.
[61] The respondent applied to introduce fresh evidence. The evidence concerned more particulars about statements made by the appellant. It may be that this evidence might assist the respondent in providing further particulars in his pleadings or as evidence at trial. I find it unnecessary to consider this evidence for the purposes of this appeal. I would dismiss the application for fresh evidence.
[62] I would dismiss the application for fresh evidence.
[63] The appellant agreed during oral submissions that the trial judge should not have struck those portions of the pleadings concerning the co-defendant. There was no application on behalf of the co-defendant before him. Accordingly, I would order by consent, that those paragraphs, 5 and 6 of the Amended Notice of Civil Claim (at page 3 of the Appeal Record), be reinstated.
[64] Any part of paragraphs 3, 4, 5, and 6 requiring further particulars, should be addressed through an application to amend the pleadings by the respondent.
[65] To be clear, this would mean that paragraphs 2, 3, 4, 5, and 6 remain and paragraphs 1, 7, and 8 are struck as ordered by the trial judge.
[66] I would dismiss the appeal.
“The Honourable Madam Justice Garson”
I agree:
“The Honourable Madam Justice MacKenzie”
I agree:
“The Honourable Mr. Justice Savage”