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The Court of Appeal for Ontario recently upheld an Ontario Superior Court of Justice decision to dismiss a defamation claim made by a lawyer against the Law Society of Upper Canada (“LSUC”) and a LSUC investigator.

In this case, 2014 ONCA 912 (CA), the appellant, Roy D’Mello, made a defamation claim, alleging malice, regarding the LSUC investigator’s emails to two financial institutions in relation to a LSUC disciplinary proceeding against the appellant. The LSUC successfully brought a summary judgment motion to the Ontario Superior Court of Justice to dismiss the action and relied on the defence of absolute privilege. Absolute privilege is a complete defence against defamation claims with respect to statements made in the context of legal proceedings.

The issue on appeal was whether the LSUC could rely on the defence of absolute privilege. In dismissing the appellant’s arguments, the Court of Appeal reaffirmed the common law defence of absolute privilege and clarified its relationship with section 9 of the Law Society Act, R.S.O., c. L.8 (the “Act”). Section 9 provides individuals performing duties under the Act protection against claims when carrying out such duties in good faith. Contrary to the appellant’s submission that section 9 of the Act superseded the common law defence of absolute privilege, the Court of Appeal concluded that:

 [15]       Inasmuch as there is no express indication from the legislature that s. 9 of the Act is meant to be an exhaustive code, or meant to preclude resort to the common law in actions for defamation, the legislation should be read as supplementing the common law in two respects. First, with respect to any action or proceeding for damages, including an action for negligence or abuse of process, s. 9 extends the common law immunity from prosecution for those performing quasi-judicial functions to officials of the Law Society conducting an investigation while acting in good faith. Thus, s. 9 is a rights-granting measure and not, as the appellant contends here, a rights-limiting measure. Insofar as defamation actions are concerned, it does not detract from the common law defence of absolute privilege in respect of an action for defamation in any way.

[16]       Second, s. 9 also supplements the common law in actions where defamation is alleged. The common law defence of absolute privilege applies only if the alleged defamatory statement is related to the investigation. If Mr. McClyment had made a defamatory statement that was unrelated to the investigation, that statement would not be protected by absolute privilege at common law. But it could still potentially be protected by s. 9 if it was done in good faith.

The Court of Appeal also examined the circumstances in which the emails were sent and determined that absolute privilege applied for the following reasons:

[22]       Although the words used to give the update must be presumed to be libellous, they provided the context or grounds for the request and, in that sense, were required in connection with a proceeding under the Act. In making this determination, the purpose of the communication as a whole must be considered as opposed to each phrase without context and in isolation. As found by the motion judge, the communications from Mr. McClyment were for the purpose of preparing evidence for discipline proceedings that existed at the time. 

[23]       I also agree with the motion judge that in this case, Mr. McClyment was acting in his capacity as an investigator for the Law Society and was not acting outside the scope of his duties. Giving the information to the two banks was within the statutory exception found in s. 49.12(2)(b) of the Act as being required in connection with a proceeding under the Act,[4] and within s. 7(3)(d) of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5.[5]

[24]       The circumstances of the communication here are protected by absolute privilege.

This case provides some insight into the common law defence of absolute privilege and its relationship with section 9 of the Act. The Court of Appeal found that section 9 was not intended to replace the common law but rather to supplement it since section 9 of the Act may apply to certain situations that would not be covered by absolute privilege.