Hill v. Johnston et al., 2006 ABQB 212

• Judge: Slatter, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 15, 2006
• Citations: 2006 ABQB 212;(2006), 398 A.R. 147 (QB)

Hill v. Johnston (2006), 398 A.R. 147 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. MR.129

James Gregory Hill (plaintiff) v. Claudia Johnston and Canada Safeway Ltd. (defendants)

(9803 22182; 2006 ABQB 212)

Indexed As: Hill v. Johnston et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Slatter, J.

March 21, 2006.

Summary:

The plaintiff sued the defendants for damages for defamation. At issue was whether the defamatory words were made on an occasion of qualified privilege, and, if so, whether there was evidence of malice to go to the jury.

The Alberta Court of Queen's Bench held that the defamatory words were made on an occasion of qualified privilege and there was no evidence of malice to go to the jury. The plaintiff's action was therefore withdrawn from the jury and was dismissed.

Libel and Slander - Topic 2983

Defences - Qualified privilege - When available - Johnston, a supervisor in a pharmacy, became concerned that a prescription which was presented by the plaintiff was suspicious and might be a forgery - Johnston decided to send a "fan-out" about the plaintiff and faxes were sent to other pharmacists in the Edmonton area advising them of the problem - The prescription was not a forgery and the plaintiff sued Johnston and her employer for defamation - The plaintiff argued that the defence of qualified privilege was lost because Johnston was negligent - The plaintiff submitted that Johnston should have made additional inquiries or waited for the plaintiff's doctor to return from Europe before sending out the fan-out - The Alberta Court of Queen's Bench rejected the argument - Mere negligence did not defeat a qualified privilege - See paragraphs 25 to 26.

Libel and Slander - Topic 2988

Defences - Qualified privilege - Loss of - Lack of honest belief or existence of malice -  Johnston, a supervisor in a pharmacy, became concerned that a prescription which was presented by the plaintiff was suspicious and might be a forgery - Johnston decided to send a "fan-out" about the plaintiff and faxes were sent to other pharmacists in the Edmonton area advising them of the problem - The prescription was not a forgery and the plaintiff sued Johnston and her employer for defamation - The trial was to be by civil jury - The plaintiff argued that the defence of qualified privilege was defeated by the existence of malice - Specifically, the plaintiff submitted that there was a reckless disregard for the truth - The Alberta Court of Queen's Bench held that there was no "probable case" of malice to go to the jury - See paragraphs 28 to 37.

Libel and Slander - Topic 2988.1

Defences - Qualified privilege - Loss of - Where limits of privilege exceeded - Johnston, a supervisor in a pharmacy, became concerned that a prescription which was presented by the plaintiff was suspicious and might be a forgery - Johnston decided to send a "fan-out" about the plaintiff and faxes were sent to other pharmacists in the Edmonton area advising them of the problem - The prescription was not a forgery and the plaintiff sued Johnston and her employer for defamation - The plaintiff argued that the defence of qualified privilege was lost through over-publication where the defamatory words were excessive and went beyond what was required for the qualified occasion - The plaintiff submitted that Johnston should not have used the words "This individual brought in a great forgery" and that the fan-out fax should not have named the plaintiff - The Alberta Court of Queen's Bench held that the words used in the fan-out fax did not exceed the requirements of qualified privilege - See paragraphs 17 to 20.

Libel and Slander - Topic 2988.1

Defences - Qualified privilege - Loss of - Where limits of privilege exceeded - Johnston, a supervisor in a pharmacy, became concerned that a prescription which was presented by the plaintiff was suspicious and might be a forgery - Johnston decided to send a "fan-out" about the plaintiff and faxes were sent to other pharmacists in the Edmonton area advising them of the problem - The prescription was not a forgery and the plaintiff sued Johnston and her employer for defamation - The plaintiff argued that the defence of qualified privilege was lost through over-publication where the fan-out fax was sent to non-pharmacists who had no duty to receive the information - For example, the plaintiff testified that he knew of one pharmacy where the fax machine was located in the post office, so that the fan-out fax might have been read by clerks or other employees - The Alberta Court of Queen's Bench rejected the argument - The possibility of employees of the pharmacist reading the fax did not defeat the privilege - See paragraphs 21 to 23.

Libel and Slander - Topic 4066

Malice - As a bar to defence of fair comment or qualified privilege - Jury - Question for - Requirement of evidence of probable malice - [See Libel and Slander - Topic 2988 ].

Cases Noticed:

Tucker v. Douglas, [1952] 1 S.C.R. 275, refd to. [para. 12].

Adam v. Ward, [1917] A.C. 309, refd to. [para. 12].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 13].

Teamsters Local Union 987 v. O'Halloran - see Pope et al. v. O'Halloran.

Pope et al. v. O'Halloran et al. (2005), 371 A.R. 137; 354 W.A.C. 137; 2005 ABCA 263, refd to. [para. 16].

B.M.P. Global Distribution Inc. et al. v. Bank of Nova Scotia et al., [2005] B.C.T.C. 1091; 8 B.L.R.(4th) 247; 2005 BCSC 1091, consd. [para. 19].

Pullman v. Hill (Walter) & Co., [1891] 1 Q.B. 524, consd. [para. 22].

Edmondson v. Birch & Co., [1907] 1 K.B. 371, refd to. [para. 22].

Lacarte v. Board of Education of Toronto, [1959] S.C.R. 465, refd to. [para. 22].

Horrocks v. Lowe, [1975] A.C. 135; [1974] 1 All E.R. 662 (H.L.), consd. [para. 26].

Botiuk v. Toronto Free Press Publications Ltd. - see Botiuk v. Bardyn et al.

Botiuk v. Bardyn et al., [1995] 3 S.C.R. 3; 186 N.R. 1; 85 O.A.C. 81, refd to. [para. 26].

London Association for Protection of Trade v. Greenlands Ltd., [1916] 2 A.C. 15 (H.L.), refd to. [para. 26].

Davies & Davies Ltd. v. Kott, [1979] 2 S.C.R. 686; 27 N.R. 181, consd. [para. 29].

Taylor v. Despard, [1956] O.R. 963 (C.A.), refd to. [para. 29].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 36].

Counsel:

S. Tensfeld and J. Keller, for the plaintiff;

L. Hurl and S. Myskiw (student-at-law), for the defendants.

This matter was heard on March 15, 2006, before Slatter, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on March 21, 2006.