Marc Andre Duquette (Plaintiff)
v.
George Joseph Belanger and The Queen
(Defendants)
Trial Division, Heald J.—Ottawa, October 12,
1972.
Practice—Motion to strike out statement of claim—Action
for defamation before Appeals Officer under Public Service
Employment Act, R.S.C. 1970, c. P-32—Whether Board
equivalent to court of justice—Whether statements made
thereat absolutely privileged—Substantial issues to be deter
mined at trial.
Plaintiff, a civil servant, brought action for damages
against an official of his Department and the Queen claim
ing damages for defamation by the official whilst testifying
at plaintiff's appeal before an Appeals Officer of the Public
Service Commission from the refusal of a promotion.
Defendants moved to strike out the statement of claim on
the ground that the alleged defamation occurred on an
occasion of absolute privilege.
Held, the substantial issues raised by the statement of
claim should not be disposed of summarily.
MOTION.
K. Binks, Q.C. for plaintiff.
P. Mclnenly for defendants.
HEALD J.—This is an application by notice of
motion on behalf of the defendants for an order
striking out plaintiff's statement of claim.
The action herein is one for defamation. The
plaintiff is a federal civil servant employed with
the Department of National Revenue, Taxation
Division. Plaintiff was refused a promotion and
appealed this refusal pursuant to the Public
Service Employment Act and Regulations. His
appeal was heard by an Appeals Officer of the
Public Service Commission. At this Appeals
hearing, the defendant, Belanger, the Personnel
Administrator of the Department of National
Revenue (Taxation), allegedly made defamatory
statements concerning the plaintiff, falsely and
with malice. The statement of claim further
alleges that the said Appeal Officer's published
report of the hearing contains the alleged
defamatory statements made by the defendant
Belanger which were circulated amongst plain
tiff's supervisors and superiors and have been
included in his "personal file" with the
Department.
The statement of claim alleges serious injury
to the plaintiff's character, credit and reputation
and asks for damages for libel and slander in
the sum of $50,000.
No defences to the action have as yet been
filed.
The basis of this motion to strike is that the
alleged defamation occurred on an occasion of
absolute privilege and that accordingly, the
statement of claim discloses no cause of action.
The privilege here claimed by the defendants
is a judicial privilege and counsel referred me to
the case of O'Connor v. Waldron [1935] A.C.
76 and more particularly at page 81 where Lord
Atkin said:
The law as to judicial privilege has in process of time
developed. Originally it was intended for the protection of
judges sitting in recognized 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 accu
rately stated by Lord Esher in Royal Aquarium, etc., Ld. v.
Parkinson ([1892] 1 Q.B. 431, 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 . .. This 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."
Counsel then referred me to section 21 of the
Public Service Employment Act, R.S.C. 1970, c.
P-32 which gives the plaintiff his right to appeal
to a Board to be set up which Board conducts
an inquiry at which the person appealing and
the deputy head concerned are given an oppor
tunity to be heard and/or represented. The sec
tion further provides that the decision of the
Board of Inquiry is binding on the Public Serv
ice Commission. It was at this hearing where
the alleged defamatory remarks were allegedly
made.
Counsel's argument is that this "Board of
Inquiry" has "similar attributes" to a court of
justice and "exercises functions equivalent to
those of an established court of justice".
Counsel did concede, however, that subject
Board of Inquiry had no authority to subpoena
witnesses or to administer oaths. It thus seems
to me to be seriously arguable whether this
Board has similar attributes to a court of jus
tice. In any event, I should think that the whole
question of the nature of the Board and the
proceedings before it is an issue to be deter
mined at the trial. The Court will refuse to
strike out a statement of claim that raises sub
stantial issues (see Joyce & Smith Co. v. Attor
ney General of Ontario [1957] O.W.N. 146).
The Court will also refuse to strike out a state
ment of claim where, at that stage of litigation,
the Court could not conclude that the plaintiff's
action could not possibly succeed and beyond
all doubt no reasonable cause of action had
been shown (see Gilbert Surgical Supply Co. v.
F. W. Horner Ltd. [1960] O.W.N. 289).
It seems to me that the statement of claim in
this case does raise substantial issues which are,
at the very least, triable and which should not
be disposed of in a summary way on a motion
of this kind.
The motion is therefore dismissed with costs
to the plaintiff, in any event of the cause.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.