This article was previously published in the Canadian Bar
Association's BarTalk on August 1, 2014.
Absolute privilege outside the courtroom
Absolute privilege is one of the most powerful defences in the
law of defamation. The privilege is "absolute" because it
cannot be defeated even if the plaintiff proves that the defendant
spoke the words with actual malice and knowing them to be false.
The occasions on which the privilege arise include communications
made by executive officers of state, parliamentary and legislative
officials (e.g., Guergis v. Novak, 2012 ONSC
4579), or persons – including lawyers –
involved in the furtherance of judicial or quasi-judicial
proceedings (e.g., Monument Mining Ltd. v. Balendran Chong &
Bodi, 2012 BCSC 1769).
In two very recent decisions, our courts have had the
opportunity to test how far the defence will be extended to
administrative tribunals and regulatory bodies. In deciding whether
the tribunal is sufficiently judicial to warrant the privilege, the
court will consider (1) under what authority the tribunal acts (is
it "recognized by law"); (2) the nature of the question
into which it has a duty to inquire (is the subject matter similar
to what comes before the courts); (3) the procedure adopted by it
to carry out the inquiry (does it operate in a manner similar to
the courts); and (4) the consequences of the conclusions reached by
the tribunal as a result of the inquiry (does it make binding
determinations with respect to the rights of a party or
In Wilson v Williams, 2013 BCCA 471, the
court held that absolute privilege did not apply to statements made
in letters submitted by persons who had registered as interveners
in a review conducted by the British Columbia Utilities Commission
under section 71 of its enabling statute. The Commission conducted
a review of an energy supply contract. The trial judge had held
that the Commission's review was an occasion of absolute
privilege but held that the letters fell outside the scope of that
privilege. The Court of Appeal dismissed the appeal, finding that a
section 71 review was not an occasion of absolute privilege at all
(though the court noted that it should not be taken as deciding
whether absolute privilege might apply to other proceedings before
the Commission). The court considered, in detail, the framework to
be applied in determining whether the proceedings of an
administrative tribunal will be an occasion of absolute privilege.
The court held that, while a section 71 review has some
characteristics similar to that of a court, its process lies closer
to the administrative end of the spectrum because, in such a
review, the Commission weighs public interest considerations and
does not determine legal rights or impose sanctions.
Fouad v. Longman, 2014 BCSC 785, was
a defamation case arising from an acrimonious dispute among a group
of medical doctors who lived and worked in Port Alberni. The court
held that several of the statements were made on an occasion of
absolute privilege. These included communications to the College of
Physicians and Surgeons of British Columbia concerning the conduct
of its members, and letters sent to the Health Professions Review
Board, which is an independent tribunal tasked with reviewing the
adequacy of investigations conducted by the inquiry committee of
the College and the reasonableness of its decisions. Finally, the
court held that proceedings before the Residential Tenancy Branch
attract an absolute privilege, as its core function is to
adjudicate disputes in which parties present evidence and make
submissions, appeals are heard and orders enforced, and the
principle of judicial independence applies.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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