Prefontaine v. Veale,

• Judge: Berger,Slatter,Wittmann
• Neutral Citation: 2003 ABCA 367
• Court: Court of Appeal (Alberta)
• Date: 15 December 2003
• Citation: 2003 ABCA 367,(2003), 339 A.R. 340 (CA),[2004] 6 WWR 472,24 Alta LR (4th) 223,339 AR 340,[2003] CarswellAlta 1773,312 WAC 340,312 W.A.C. 340,(2003), 339 AR 340 (CA),339 A.R. 340

Prefontaine v. Veale (2003), 339 A.R. 340 (CA);

    312 W.A.C. 340

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. JA.001

Maurice Prefontaine (appellant/plaintiff) v. Harold Veale, Rod Wasylyshyn, Ogilvie and Company, Patrick Bendin, Her Majesty The Queen as represented by the Minister of Justice for Canada, Steve Hrynchuk, the City of Edmonton, a Municipal Corporation (respondent/defendants)

(0103-0018-AC; 0003-0571-AC; 0003-0572-AC; 2003 ABCA 367)

Indexed As: Prefontaine v. Veale et al.

Alberta Court of Appeal

Berger and Wittmann, JJ.A., and Slatter, J.(ad hoc)

December 15, 2003.

Summary:

Prefontaine had an action dismissed by a Master. Lawyers corresponded to settle the proper wording of the Master's order to be filed with the court. A "doctored" version of the order, prepared by Prefontaine, which fraudulently indicated that the action had not been dismissed, was filed with the court. A lawyer noted the incident and reported the matter to the Crown prosecutor, who contacted the police to investigate. Prefontaine, who denied any fraudulent attempt, brought a defamation action for damages against the lawyer, his firm, the police officer and others. The statement of claim was summarily dismissed against all defendants. The plaintiff appealed.

The Alberta Court of Queen's Bench dismissed the appeal. The plaintiff appealed.

The Alberta Court of Appeal dismissed the appeal.

Libel and Slander - Topic 2928

Defences - Absolute privilege - Statements made in the course of judicial, quasi-judicial or legal proceedings - Prefontaine had his action dismissed by a Master - Lawyers corresponded to settle the proper wording of the Master's order to be filed with the court - A "doctored" version of the order, prepared by Prefontaine, fraudulently indicated that the action had not been dismissed and was filed with the court - A lawyer noted the incident and reported the matter to the Crown prosecutor, who contacted the police to investigate - Prefontaine, who denied any intent of having a fraudulent order filed, brought a defamation action for damages against the lawyer, his firm, the police officer and others - The statement of claim was summarily dismissed against all defendants by a Master - The Alberta Court of Appeal affirmed the dismissal of an appeal from the Master's order - There was no error in finding it plain and obvious that the claim could not succeed - The lawyer was protected by absolute privilege in the context of judicial proceedings in reporting the incident - The officer had reasonable and probable grounds to investigate a suspected crime and was exercising his duty, without malice, in doing so (qualified privilege) - Finally, reporting a possible crime, without pointing the finger directly at Prefontaine, was not defamatory.

Libel and Slander - Topic 2988

Defences - Qualified privilege - Loss of - Lack of honest belief or existence of malice - [See Libel and Slander - Topic 2928 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Libel and Slander - Topic 2828 ].

Cases Noticed:

Prefontaine v. Gosman et al. (2002), 317 A.R. 160; 284 W.A.C. 160 (C.A.), refd to. [para. 2].

Blomme v. Herman et al. (1993), 145 A.R. 16; 55 W.A.C. 16 (C.A.), refd to. [para. 8].

Paragon Controls Ltd. v. Valtek International et al. (1998), 299 A.R. 373; 266 W.A.C. 373 (C.A.), refd to. [para. 8].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 8].

Boudreault v. Barrett et al. (1998), 219 A.R. 67; 179 W.A.C. 67 (C.A.), refd to. [para. 9].

German v. Major (1985), 62 A.R. 2; 39 Alta. L.R.(2d) 270 (C.A.), refd to. [para. 9].

Allied-Signal Inc. v. Dome Petroleum Ltd. et al. (1991), 122 A.R. 321; 81 Alta. L.R.(2d) 307 (Q.B.), refd to. [para. 9].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 9].

Poland v. Maitland (1994), 27 C.P.C.(3d) 334 (N.W.T.S.C.), refd to. [para. 10].

Reagan v. Guardian Life Insurance Co. (1942), 140 Tex. 105; 166 S.W.2d 909, refd to. [para. 10].

Tasse v. Hoveland et al. (1992), 132 A.R. 117 (Q.B. Master), refd to. [para. 16].

Rosario v. Gladney et al., [1998] B.C.T.C. Uned. I29 (S.C.), refd to. [para. 16].

Rosario v. Royal Canadian Mounted Police - see Rosario v. Gladney et al.

Klein et al. v. Board of Police Commissioners of Regina et al. (1995), 130 Sask.R. 203 (Q.B.), refd to. [para. 16].

Yee v. Reimer et al. (1997), 202 A.R. 63 (Q.B. Master), refd to. [para. 16].

Presley v. Royal Canadian Mounted Police, [1998] Y.J. No. 139, refd to. [para. 20].

Padmore v. Lawrence (1840), 113 E.R. 460, refd to. [para. 20].

Schultz v. Porter et al. (1979), 26 A.R 61 (T.D.), refd to. [para. 23].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 27].

Devon Canada Corp. v. Energy and Utilities Board (Alta.), [2003] A.R. Uned. 183 (C.A.), refd to. [para. 27].

Continuing Care Employers' Bargaining Association et al. v. Alberta Union of Provincial Employees et al. (2002), 303 A.R. 137; 273 W.A.C. 137 (C.A.), refd to. [para. 28].

Authors and Works Noticed:

Brown, Raymond E., The Law of Defamation in Canada (2nd Ed. 1999), pp. 12-31 [para. 10]; 13-244 [para. 21]; 13-252 [para. 22].

Counsel:

Maurice Prefontaine, on his own behalf;

C.R. Ontkean, for the respondents, Veale, Wasylyshyn and Ogilvie and Co.;

D.S. Debrinksi, for the respondents, Hrynchuk and the City of Edmonton;

B.F. Hughson, for the respondents, Bendin and Her Majesty the Queen as represented by the Minister of Justice.

This appeal was heard on October 30, 2003, before Berger and Wittmann, JJ.A., and Slatter, J.(ad hoc), of the Alberta Court of Appeal.

On December 15, 2003, the following memorandum of judgment was delivered by the Court.