Kelsie v. Canada (Attorney General), (2003) 230 Nfld. & P.E.I.R. 255 (NFTD)

• Judge: L.D. Barry, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: October 15, 2003
• Jurisdiction: Newfoundland and Labrador
• Citations: (2003), 230 Nfld. & P.E.I.R. 255 (NFTD);2003 NLSCTD 139

Kelsie v. Can. (A.G.) (2003), 230 Nfld. & P.E.I.R. 255 (NFTD);

    682 A.P.R. 255

MLB headnote and full text

Temp. Cite: [2003] Nfld. & P.E.I.R. TBEd. OC.019

Wayne Morris Kelsie (plaintiff) v. The Attorney General of Canada (defendant)

(1998HV-GB90; 2003 NLSCTD 139)

Indexed As: Kelsie v. Canada (Attorney General)

Newfoundland and Labrador Supreme Court

Trial Division

L.D. Barry, J.

October 15, 2003.

Summary:

The plaintiff was a former Legal Aid solicitor practising as defence counsel on the coast of Labrador. Internal memoranda written by R.C.M.P. officers commented negatively on the plaintiff's method of prac­tice and its impact on the administration of justice. The plaintiff sued for damages for defamation, submitting that he was dismissed from his Legal Aid position as a result of the defamatory comments.

The Newfoundland and Labrador Supreme Court, Trial Division, allowed the action in part. All of the statements made were not true but were, with the exception of an imputation of sexism and greed, made with­out malice and protected by the defences of fair comment and qualified privilege. Given the limited publication, the public interest in promoting free and open communication of concerns about the administration of justice, and the fact that the statements played no part in the plaintiff's dismissal, the plaintiff was limited to nominal damages of $1,000. Notwithstanding the lack of significant damages, the plaintiff was entitled to costs.

Libel and Slander - Topic 644

The statement - What constitutes defama­tory statements - General principles - Disparagement of reputation - R.C.M.P. officers responsible for court matters on the Labrador coast wrote memoranda to their superior critical of the manner of practice by the plaintiff legal aid solicitor and its impact on the administration of justice - The plaintiff sued for damages for defamation, submitting that he was dis­missed from his Legal Aid position as a result of the defamatory comments - The Newfoundland and Labrador Supreme Court, Trial Division, allowed the action in part - The untrue statements were defama­tory by alleging the solicitor engaged in dishonourable and unprofessional conduct in his practice before the court - However, the statements, with the exception of an imputation of sexism and greed, were made without malice and protected by the defences of fair comment and qualified privilege - The gratuitous imputation of greed and sexism fell outside the defence of fair commented and exceeded the qual­ified privilege of the occasion - Given the limited publication, the public interest in promoting free and open communication of concerns about the administration of jus­tice, and the fact that the statements played no part in the plaintiff's dismissal, the plaintiff was limited to nominal damages of $1,000 - Notwithstanding the lack of significant damages, the plaintiff was awarded costs, because if the R.C.M.P. had supplied the plaintiff with a copy of the statements and given him an opportunity to respond to them, the action would have been unnecessary.

Libel and Slander - Topic 2988

Defences - Qualified privilege - Loss of - Lack of honest belief and existence of malice - [See Libel and Slander - Topic 644 ].

Libel and Slander - Topic 2988.1

Defences - Qualified privilege - Loss of - Where limits of privilege exceeded - [See Libel and Slander - Topic 644 ].

Libel and Slander - Topic 3114

Defences - Fair comment - What consti­tutes fair comment - [See Libel and Slan­der - Topic 644 ].

Libel and Slander - Topic 4425

Damages - General damages - Measure of - Nominal or contemptuous damages - [See Libel and Slander - Topic 644 ].

Cases Noticed:

Hill v. Church of Scientology of Toronto and Manning (1995), 184 N.R. 1; 84 O.A.C. 1; 126 D.L.R.(4th) 129 (S.C.C.), refd to. [para. 18].

Peter Walker Ltd. v. Hodgson, [1909] 1 K.B. 239, refd to. [para. 31].

Authors and Works Noticed:

Gatley on Libel and Slander (7th Ed. 1974), pp. 5 [para. 20]; 31 [para. 19]; 73 [para. 18]; 152 [para. 23]; 292, 293 [para. 24].

Counsel:

Wayne Morris Kelsie, on his own behalf;

Kevin F. Stamp, Q.C., for the defendant.

This action was heard on June 16-30, 2003, at St. John's, Nfld. & Lab., before L.D. Barry, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following judgment on October 15, 2003.