Back
1934 Supreme(SC) 52
Privy Council At Canada
Sir Lancelot Sanderson, Wright , Macmillan, Tomlin, Justice Lords Atkin, JJ.
William Francts O’Connor -Appellant
Versus
Gordon Waldron -Resopndent
Appeal No. 43 of 1933
Decided On : 08-11-1934
Ronald Smith, J.W.G. Barry, A.J. Miller
Absolute privilege against slander is limited to courts and tribunals with similar attributes. Statutory commissioners performing administrative inquiries that do not determine legal rights or guilt are not entitled to absolute privilege, but only to qualified privilege.
Headnote:(A) Combines Investigation Act - Absolute privilege - Slander - Whether a commissioner appointed under the Act acts in a manner similar to a court of justice - Absolute privilege applies wherever there is an authorized inquiry which, though not before a court of justice, is before a tribunal which has similar attributes. The doctrine is limited to courts of justice and tribunals acting in a manner similar to that in which such courts act. (Paras 5, 6)
(B) Administrative functions - A tribunal exercising administrative functions, even if it must act judicially or possesses powers to summon witnesses, administer oaths, and punish disobedience, does not necessarily acquire absolute privilege. If the tribunal's function is merely administrative machinery for inquiry, it does not possess attributes similar to a court of justice. (Paras 8, 9)
Facts of the case:
A legal practitioner brought an action for slander against a government commissioner who made derogatory remarks concerning the practitioner's professional conduct during an investigation. The commissioner moved to dismiss the action, contending that the words were spoken while acting in an official capacity as a commissioner and were therefore protected by absolute privilege.
Findings of Court:
The court found that the commissioner's role was to investigate and report on whether offenses had been committed. Because the commissioner's conclusions were expressed in a report that determined no rights, nor the guilt or innocence of any person, and did not initiate proceedings, the role was administrative rather than judicial.
Issues: Whether a commissioner appointed under a statutory investigation act possesses attributes similar to a court of justice such that statements made during the inquiry are protected by absolute privilege.
Ratio Decidendi: Absolute privilege is reserved for courts of justice and tribunals acting in a manner similar to such courts. Where a statutory officer's function is administrative—specifically, where the outcome is a report that does not determine legal rights or guilt—the officer is not entitled to absolute privilege, regardless of the power to summon witnesses or administer oaths. Such officers are only protected by qualified privilege, provided there is no express malice.
Result: Appeal allowed.
Legal Category Hierarchy
-
tort
-
defamation
-
slander
- absolute privilege
-
slander
-
defamation
-
administrative law
-
tribunals
- judicial functions
-
tribunals
Lord Atkin:-
This is an appeal from a judgment of the Supreme Court of Canada affirming a judgment of the First Appellate Division of the Supreme Court of Ontario affirming a judgment of Orde, J. The original judgment was given on a motion by the defendant to dismiss the plaintiff's action for slander on the ground that it was frivolous and vexations. The question is whether the defendant in uttering the words was protected by the absolute privilege which is given to words spoken by a Judge. The statement of claim alleges that the plaintiff is a barrister-at-law of the provinces of Ontario and Nova Scotia, and that the defendant published, concerning the plaintiff in relation to his profession and practice, to seven named persons the words following:
A very odious counsel. A lawyer cannot advise a wrong or a crime any more than anybody else. He has no privilege to do that. Well, then, you had full knowledge of the scheme. Was it you who gave to O'Conor the contrivance of effecting a crime without effecting a crime, of making a false pretence to the public and to the law? Was it you who gave that to O'Conor or did he give it to you? I will describe it more clearly. Did you give to O'Conor the idea that you might beat the law by false pretence? I say it is a thing any lawyer ought to be ashamed of. I do not care who he is. It is an outrageous, scandalous exhibition. It ought to be reported to the Law Society. Anybody who had an evil mind or disposition to commit crime would be completely carried away by the eloquence of Mr. O'Conor."
The defence admits that the words alleged were spoken except "it ought to be reported to the Law Society," and alleges that when speaking the words the defendant spoke them in his office of a Commissioner appointed by the Governor-General in Council under the Combines Investigation Act , E. S. C., C. 26, while he was acting judicially and that the speaking the said words was absolutely privileged. The statement of claim did not allege the defendant's office: and it is obvious that the pleading could not be struck out as disclosing no cause of action. The plaintiff, however, on examination for discovery admitted that the words were spoken by the defendant while purporting to act under his commission. On that admission the motion in question was made and dicided. Their Lordships are of opinion that the words uttered were not protected by absolute privilege, and the order dismissing the action should be set aside. The result will be that the action may come on for trial, and in these circumstances it is desirable that their Lordships should confine their opinion strictly to the matter in issue so as to avoid prejudicing the case of either party on a future occasion. The law as to judicial privilege has in process of time developed. Originally it was intended for the protection of Judges sitting in recognised Courts of justice established as such. The object no doubt was that Judges might exercise their functions free from any danger that they might be called to account for any words spoken as Judges. The doctrine has been extended to tribunals exercising functions equivalent to those of an established Court of justice. In their Lordships' opinion the law on the subject was accurately stated by Lord Esher in Royal Aquarium v. Parkinson , (1892) 1 QB 431=61 LJ QB 409=56 JP 404=40 WR 450 =66 LT 513 at p. 442, where he says that the privilege,
"applies wherever there is an authorized inquiry which though not before a Court of justice, is before a tribunal which has similar attributes . . . The doctrine has never been extended further than to Courts of justice and tribunals acting in a manner similar to that in which such Courts act."
The question therefore in every case is whether the tribunal in question has similar attributes to a Court of justice or acts in a manner similar to that in which such Courts act? This is of necessity a differentia which is not capable of very precise limitation. It is clear that
