We have previously written about what a plaintiff must establish to bring a claim for the tort of defamation successfully. Various defences are available to parties sued for defamation, including fair comment and qualified privilege. The Superior Court of Justice recently considered another defence to such a claim: “absolute privilege.” The case offers a useful overview of what is required to establish this defence.

Case Involved a Lawyer’s Letter Containing Allegedly Defamatory Statements

The case of Neve v. Adams concerned a letter written by a lawyer to an accountant that contained allegedly defamatory comments. The defendants, Adams and Cronin, were shareholders of two companies and the plaintiff, Neve. In April 2023, the lawyer for Adams and Cronin sent a letter to the companies’ bookkeeper/accountant concerning a dispute between the parties. The letter stated that Adams and Cronin were “in the process of commencing a Court proceeding” against Neve and that the allegations against Neve related to, “amongst other things, payments and transactions improperly taken and entered into by him.” The letter also indicated that Neve had denied the allegations by Adams and Cronin.

After that, Adams and Cronin were served with a Libel Notice referring to this letter. Neve issued a Statement of Claim against the defendants in August 2023.

Defendants Brought a Motion For Determination of a Question of Law

The defendants brought a motion before the Superior Court of Justice to determine a question of law before trial. The plaintiff brought a motion for particulars and sought the production of various documents. Since the defendants’ motion might dispose of the whole action, the Court proceeded with it first.

The defendants argued that the Statement of Claim plainly stated that the defamation action should be dismissed since it was based on comments subject to “absolute privilege,” specifically the comments included in the letter to the bookkeeper/accountant.

Court Set Out the Legal Test for Considering Whether “Absolute Privilege” Applied

The Court began by citing authority, indicating that “absolute privilege” precludes an action “for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognized by law.” This protection applies to “judges, counsel, jury, witnesses [and] parties” and extends to “documents properly used and regularly prepared for use in the proceedings.” It also applies to evidence spoken, “with reference to the matter before the court.” Statements not uttered “for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings” are not covered by the privilege.

The Court cited an earlier decision of the Superior Court in Wickham v. Hamdy. In that case, the Court stated that absolute privilege creates “a zone of protection for lawyers acting in pursuit of their client’s interests” since it relieves them of the fear of a lawsuit resulting from that pursuit. The Court in Wickham also noted that the privilege is not confined to statements made in court but also extends “to all preparatory steps taken with a view to judicial proceedings so long as the step in question is directly concerned with actual or contemplated proceedings.”

The Court in Neve also referenced a decision of the Court of Appeal in Salasel v. Cuthbertson, which concerned a communication made before the actual initiation of legal proceedings. The Court of Appeal, in that case, noted that absolute privilege does not necessarily extend “to all occasions when the possibility of litigation is contemplated, or even when a threat of litigation is made, or when a lawyer is endeavouring to assert and protect a client’s rights.” “Something more” than a mere contemplation of litigation is needed. Instead, a court has to decide whether the occasion is incidental, preparatory or “intimately connected” to a judicial or quasi-judicial proceeding and is not too remote.

The Court in Salasel also observed that the “occasion” is privileged, not the statements, since the privilege relates to the occasion “by reason of the setting.”

Court Summarized the Factors to Consider in Making its Determination

In Neve, the Court commented that courts generally consider five factors when determining whether an out-of-court statement made by a lawyer is an occasion to which absolute privilege applies:

  1. At the time the communication was delivered, steps had already been taken to prepare for litigation;
  2. The decision to litigate had been made already;
  3. Legal action had been initiated by the defendant shortly after the publication of the allegedly defamatory statements;
  4. The defamatory statements “were made for the purpose of obtaining evidence;” and
  5. The communications in question were made in the course of a lawyer’s investigation of their client’s case “with a view to litigation” and were made to a “limited audience” from whom the lawyer expects to obtain potentially relevant information.

The Court considered these factors in light of the facts at hand. It noted that steps had been taken to prepare for litigation since Adams and Cronin had already retained the lawyer to assist them in the dispute with Neve. The decision to litigate had been made, as confirmed by the letter’s wording indicating Adams and Cronin were “in the process” of commencing a proceeding and intended to seek orders against him. Adams and Cronin had not yet commenced that proceeding, and the defamatory statements “were clearly made for the purpose of obtaining evidence” since the letter listed the documentation being sought. Lastly, the Court noted that the statements were made during the lawyer’s investigation of her client’s case and “with a view to litigation.”

Accordingly, the Court found that the letter’s contents and the occasion on which it was sent caused the communication to be subject to absolute privilege.

For this reason, the Court concluded that it was “plain and obvious” that Neve’s action could not succeed and ordered that the Statement of Claim be struck.

Milosevic & Associates: Toronto Defamation Lawyers Assisting Clients In Their Defamation Disputes

At Milosevic & Associates, our experienced Toronto defamation lawyers specialize in defending individuals and businesses against false and damaging claims. With a deep understanding of defamation law and proven strategies, we can help you navigate complex commercial proceedings and emerge victorious. Contact us today for a confidential consultation to discuss your defamation matters at (416) 916-1387.

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