Alberta Court of Appeal Rules that Absolute Privilege Means Absolute

In Tuharsky v. O’Chiese First Nation and Poole Lawyers, the Alberta Court of Appeal reversed and set aside a lower court decision, which ruled that it is a triable issue as to whether a third party can commence a defamation action arising from statements in pleadings and in a fee review hearing. Our previous Blakes Bulletin discussed the King’s Bench decision in Absolute Privilege: Does It Protect Against Defamatory Comments About Third Parties? In overturning the King’s Bench decision, the Alberta Court of Appeal reaffirmed that absolute privilege protects any communication made within a “step” of a judicial or quasi-judicial proceeding. 

Background

The plaintiff in this action was the former General Counsel for the O’Chiese First Nation (O’Chiese). O’Chiese had engaged a law firm to pursue litigation that was not successful. It had then ceased using that law firm and had retained another law firm to commence an action against the former firm, claiming negligent representation, an alleged conflict of interest and excessive fees in their retainers with O’Chiese. The former firm denied the claims in its Statement of Defence. 

O’Chiese’s Reply to the Statement of Defence focused on the relationship between O’Chiese, its former law firm and the General Counsel, who was not a party to the proceeding. The Reply named the General Counsel personally, impugned her legal abilities and alleged that she was acting without authority in instructing O’Chiese’s former law firm, that she conspired with another person to mislead O’Chiese, and that her relationship with that other person was suspect and improper.

O’Chiese’s new counsel also applied for an appointment to review all legal accounts rendered by its former law firm. The Review Officer found the fees charged by O’Chiese’s former counsel were reasonable and stated that O’Chiese’s new counsel came “extremely close” to making “inappropriate and unfounded allegations” that the General Counsel and another person had an “improper” relationship. The General Counsel thereafter filed a claim for defamation against, among others, O’Chiese and their new counsel. The defamation claim was based on the pleadings against the former law firm and the fee review hearings. 

The defendants brought an application to strike the General Counsel’s Amended Statement of Claim on the basis that the claim was defeated by the doctrine of absolute privilege. The Applications Judge agreed and struck the Amended Statement of Claim, but that decision was initially overturned by the Alberta Court of King’s Bench.

The King’s Bench Decision

The Court of King’s Bench chambers judge reversed the applications judge. It held that it was not plain and obvious that absolute privilege applied in this case because, in the circumstances, it was arguable that not all statements about the General Counsel were made during, incidental to, and in the processing and furtherance of O’Chiese’s claim against its former law firm. Specifically, the chambers judge held that the making of the statements should be examined holistically and contextually to determine if there is an underlying connection between the making of the statement and the judicial or quasi-judicial proceeding.

Appeal Decision

The Alberta Court of Appeal allowed the appeal and reversed the King’s Bench decision. It noted at the outset that the chambers judge acknowledged that there was no dispute that the statements in question were made in “judicial or quasi-judicial proceedings.” 

The Court of Appeal held that absolute privilege attaches to the occasion on which a statement is made, not the words used to make it. In other words, communications made within a protected occasion, regardless of the words used, are protected and may not form the basis of an action in defamation, whether malicious, defamatory or otherwise.

The Court of Appeal indicated that, from a policy perspective, providing immunity for statements made in court, regardless of their content, ensures that defamation actions do not deter parties and their counsel from participating in court proceedings. It allows those involved in the administration of justice, including litigants, witnesses, advocates and judges, to speak freely without fear of being sued and protects the vigorous and undistracted advocacy that is essential to our adversarial system.

In this case, the Court of Appeal held that it was clear that the communications involved a pleading filed in court and oral submissions before a court-designated review officer and were made in circumstances that fall within the core of recognized protected occasions. As a result, it held that examining the motivations behind the statements was inappropriate and that a statement need not be “during” and “incidental to” and “in the processing and furtherance” of a proceeding for absolute privilege to apply. 

Summary

The Alberta Court of Appeal held that absolute privilege should not have been fettered away by an unnecessary analysis of extraneous considerations such as the purpose or motivation of the statements in question, or their connection to the proceedings in this case. Instead, absolute privilege applies absolutely if a communication was made within a “step” of a judicial or quasi-judicial proceeding that has been recognized as affording absolute privilege. Absolute means absolute.

For more information, please contact the author or any other member of our Litigation & Dispute Resolution group.