Qualified and Statutory Privilege

• Author: Roger McConchie; David Potts
• Profession: Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario
• Pages: 363-423

CHAPTER liic ii M:!-:N :

Qualified

and

Statutory

Privilege

A.

INTRODUCTION

At

common law, there

are

privileged occasions

when

the

public interest

in

free

and

candid

speech

trumps

the

public

and

private interest

in

protecting

individual

or

corporate reputation.

In

addition,

the

federal

Parliament,

the

provinces

and the

territories have enacted certain statutory privileges

which

codify

or

extend

the

common law.

A

crucial

feature

of a

privilege defence

is

that

it

protects defamatory

errors

of

fact

which

are not

excused under

the

defences

of

justification

or

fair

comment.

Privilege defences, whether arising

at

common

law or

based

on

statute,

generally

fall

into three categories:

i)

absolute;

ii)

qualified;

and

iii) fair

and

accurate report.

When

defamatory expression

is

protected

by

absolute privilege,

the

mind-set

and

purpose

of the

speaker

are

irrelevant. Qualified privilege,

on

the

other hand, will

not

protect statements made with actual

or

express

malice,

or for an

indirect

or

improper purpose. Fair

and

accurate report

privilege

is

defeated

if the

content

of the

defamatory expression does

not

satisfy

certain standards.

The

parameters

of

absolute privilege

are

well defined

in the

jurispru-

dence.

The

defence

is

therefore

relatively easy

to

recognize, plead,

and

adju-

dicate.

See

Chapter

20

"Absolute Privilege."

The

jurisprudence concerning common

law

qualified privilege lays

down

general guidelines

for

determining whether expression

on a

given

363

364

CANADIANLIBEL

AND

SLANDER ACTIONS

occasion will enjoy

the

protection

of

this defence. Certain categories

of

occasion

are

described

but

they

are not

exhaustive:

the

existence

of a

qual-

ified

privilege defence

in a

particular case depends

on the

facts.

Recogniz-

ing, pleading

and

assessing

a

qualified privilege defence therefore

often

demands considerable care.

The

circumstances giving rise

to

fair

and

accurate report privilege

at

common

law are

reasonably defined

in the

jurisprudence.

The

determina-

tion

of

fairness

and

accuracy

may

require rigorous scrutiny

of the

facts

of

the

particular case. Many

of

these privileges have been codified.

There

are

instances

where

the

expression

of

defamatory imputations

is

privileged under provincial, territorial,

or

federal

statutes. This chapter will

also discuss these provisions.

A

separate chapter also addresses recent jurisprudence

of

courts

in the

United Kingdom, Australia,

and New

Zealand which

is

shaping

the

com-

mon law of

qualified privilege

in

terms

of the

public interest.

See

Chapter

19,

"Qualified Privilege

and

Publication

to the

World

at

Large:

Develop-

ments

in

Australia, Britain

and New

Zealand."

B.

QUALIFIED

PRIVILEGE

AT

COMMON

LAW

1)

The

Elements

of The

Defence: Duty

and

Interest

This defence applies

to an

occasion where

the

defendant

has (i) an

interest

or

(ii)

a

duty

-

legal, social,

or

moral

- to

communicate

the

defamatory

expression

and its

recipients have

a

corresponding duty

or

interest

to

receive that communication.

Presskr

v.

Lethbridge

(2000),

86

B.C.L.R.

(3d) 257,

per

Southin

J.A.

at 295

(C.A.).

Haight-Smith

v.

Nedcn

(2002),

211

D.L.R.

(4th) 370,

per

Levine J.A.

for the

court

at 383

(B.C.C.A.),

citing

Lord

Atkinson

in

Adam

v.

Ward,

[1917]

A.C.

309 at 334

(H.L.)

and

Mcloughlin

v.

Kutasy,

[1979]

2

S.C.R.

311

at

321.

Stopforth

v.

Goyer

(1979),

97

D.L.R.

(3d) 369,

per

Jessop

J.A.

at 372

(Ont.

C.A.),

adopting

the

description

of the

defence

contained

in

Halsbury's

Laws

of

England,

3d

ed., vol.

24

(London:

Butterworths,

1952-64)

at

56-57.

Reciprocity

of

duty

and

interest between

the

communicator

and the

recipient

is

essential

to

this

defence.

Sapiro

v.

Leader Publishing

Co.,

[1926]

3

D.L.R.

68, per

Lament

J.A.

for the

court

at

68-69

(Sask. C.A.),

citing

Adam

v.

Ward, [1917]

A.C.

309

(H.L.).

Chapter

Eighteen:

Qualified

and

Statutory

Privileges

365

The

burden

is on the

defendant

to

prove each

of the

elements

of the

defence.

Although

a

communication occurred

on an

occasion

of

qualified

privi-

lege,

the

protection

of

this

defence

is

lost

if:

1)

the

plaintiff

proves that

the

dominant motive

for

publishing

the

defamatory

expression

is

actual

or

express malice;

or

ii)

the

limits

of the

duty

or

interest have been exceeded. This occurs

when:

a.

the

speaker includes anything which

is not

relevant

or

pertinent,

or

in

other words,

not

reasonably appropriate

in the

circumstances

existing

on the

occasion when

the

information

is

given;

b.

the

manner

and

extent

of

communication

is

excessive.

Hill

v.

Church

of

Scientology

of

Toronto,

[1995]

2

S.C.R.

1130,

per

CoryJ.

at

1189-90.

Botiuk

v.

Toronto

Free

Press,

[1995]

3

S.C.R.

29 at

29-30,

per

CoryJ.

(La

Forest,

LHeureux-Dube,

Gonthier, McLachlin

and

lacobucci

JJ.

concur-

ring).

Wade

and

Wells

Co. v.

Laing

(1957),

11

D.L.R.

(2d)

276 at

279,

282-83

(B.C.C.A.),

Per

Sheppard

J.A.

(Sidney Smith

J.A.

concurring), citing

Clark

v. Molyneux (1877), 3 Q.B.D. 237 at 247.

Kelsie

v.

Canada

(Attorney

General), [2003]

NJ.

No.

232,

2003

NLSCTD

139 per

Barry

J. at

para.

33.

The

burden

of

proving

actual

or

express

malice

rests

on the

plaintiff.

Netupsky v. Craig, [1973] S.C.R. 55 per Ritchie J. for the court at 61-63.

Mclaughlin

v.

Kutasy,

[1979]

2

S.C.R.

311 at

324-25.

2)

Foundation

in

Public

Policy

The

defence

of

qualified

privilege

is

intended

to

serve "the general interests

of

society"

and

"the common convenience

and

welfare

of

society" rather

than

the

interests

of

individuals

or a

class.

Halls

v.

Mitchell,

[1928] S.C.R.

125 at

147,

per

Duff

J.

(Anglin C.J.C., Mignault,

and

Lamont

JJ.

concurring).

Sapiro

v.

Leader

Publishing

Co.

Ltd., above,

at 70.

Macintosh

v.

Dun,

[1908]

A.C.

390

(EC.)

per

Lord Macnaghten

at 398 and

399,

citing Toogood v. Spyring (1834), 1 C.M & R. 181 at 193 where Parke B. stated: