Defences To The Tort Of Defamation

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 parties).

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.

Note: This is a reprint of an article by Marko Vesely of Lawson Lundell LLP.