Marc André Duquette (Plaintiff)
v.
George Joseph Bélanger and the Queen
(Defendants)
Trial Division, Collier J.—Ottawa, April 26, 27
and 30, 1973.
Public Service—Appeal tribunal—Defamation by witness
at hearing—Whether privilege absolute.
An unsuccessful candidate for promotion in the Public
Service brought action for damages, alleging that he was
defamed by a witness at the hearing of his appeal before an
Appeal Board pursuant to section 21 of the Public Service
Employment Act, R.S.C. 1970, c. P-32.
Held, dismissing the action, while the Appeal Board is not
a tribunal where absolute privilege applies, the defamatory
statements were made on an occasion of qualified privilege
and actual malice had not been established.
ACTION for damages.
COUNSEL:
K. C. Binks, Q.C., and J. McCulloch for
plaintiff.
P. T. Mclnenley for defendants.
SOLICITORS:
Binks, Chilcott, Lynch and Simpson,
Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendants.
COLLIER J. (orally)—In this case the plaintiff
claims damages for slander and libel. He alleges
the defendant Bélanger, a personnel administra
tor with the Department of National Revenue,
Taxation Division, uttered the words com
plained of during the hearing of an appeal pur
suant to the provisions of section 21 of the
Public Service Employment Act, R.S.C. 1970, c.
P-32. It is further contended that the written
decision of the Appeal Board in respect of the
appeal contains defamatory words.
After consideration of the whole of the evi
dence and the arguments of counsel for the
respective parties, I have concluded the action
must be dismissed.
Jurisdiction to hear the claim against the
defendant Bélanger is found in paragraph
17(4)(b) of the Federal Court Act.
The plaintiff had been employed in the
Department of National Revenue at first on a
part time basis beginning in 1967 and subse
quently on a permanent basis. In the fall of
1971, he was a computer operator. His position
was described as a DA-2. In October of 1971,
he and others applied by competition for promo
tion to jobs shortly described as DA-3 and
DA-4. He was unsuccessful in these two compe
titions. The Rating Board, under the heading
"Potential for Effectiveness", awarded the
plaintiff only 10 out of 20 marks. Some of the
requirements under this heading of the competi
tions were "personal suitability, dependability
and maturity". The plaintiff then launched the
appeals I have referred to.
They were heard before a one-man Appeal
Board, Mr. R. A. Green, commencing on Janu-
ary 18, 1972 and continuing the following morn
ing. The plaintiff was not present at the hearing.
He was on his honeymoon. He was represented
by Miss E. Henry of the Public Service
Alliance. The department or department head
was represented by the defendant Bélanger.
In preparation for the appeals, the defendant
Bélanger had reviewed the plaintiff's personnel
file, his leave or attendance record, a shift diary
which contained some written references to the
plaintiff, and the competition files. He saw the
Chairman of the Rating Board to find out if the
proper procedures had been followed in the
carrying out of the competitions. The Chairman,
Mr. Gratton, had at one time been a shift super
visor on the plaintiff's shift. Bélanger had
noticed in his review that there was obviously a
serious absenteeism record on the part of the
plaintiff. From April 1, 1971 to the date of the
hearing the plaintiff had been absent from work
662 days. That figure included 15 days annual
leave, 322 days sick leave, 2 days special leave
and 17 days leave without pay. Bélanger dis-
cussed the plaintiff's work record with Gratton
who told him that the plaintiff had come to
work a number of times smelling of alcohol, that
he would go missing at work, and did not tele
phone in to say he was sick and unable to work.
Bélanger spoke with another shift supervisor
who told him substantially the same things. One
entry in the shift diary reads "affected by
alcohol". A number of other entries record that
the plaintiff had not telephoned in to say he was
not coming to work.
Bélanger had had previous experience with
one or perhaps two employees where absentee
ism and alcohol were connected.
The hearing of the appeal (called in the stat
ute an inquiry) was carried out in the usual way.
The representative of the Department explained
the competitions, the procedures followed and
the results. Mr. Gratton described how the
Rating Board had proceeded and why the plain
tiff was not, in the view of the Board, qualified
for promotion. The absenteeism record, shift
diary, and the plaintiff's failure to telephone
when he was not coming in were all brought out.
Miss Henry had the right to cross-examine
anyone who gave "evidence" for the Depart
ment, and she asked questions of Mr. Gratton. I
put quotation marks around the word evidence
because the oral statements to the Appeal Board
are not under oath. Miss Henry did not produce
any witnesses on behalf of the plaintiff, but
made submissions to the Appeal Board.
It had been brought out earlier that the plain
tiff frequently fell asleep on the night shift. Miss
Henry during the course of her submissions
contended that many workers on the night shift
fell asleep. In regard to his failure to telephone
when he was absent by reason of sickness, she
contended that the supervisor was often unable
to answer the telephone and messages were not
relayed to him.
The defendant Bélanger replied to all the con
tentions made by Miss Henry, including the
ones I have just specified. In the course of his
reply, the defendant testified that he said words
to this effect: I told the Appeals Officer that
Duquette had a problem, I told him that we felt
alcohol was at least a factor and if that were the
case we would refer him to Health and Welfare.
In replying to the contention re the failures to
telephone in, Bélanger testified he said some
thing to this effect: Perhaps he hadn't tele
phoned in on one occasion because it would
have been imprudent to do so. As I understood
the testimony, this comment may originally
have been made by Gratton, either before or at
the hearing.
The report of the Appeal Board, in summariz
ing the contentions put forward by the defend
ant Bélanger, reads as follows:
The Department had reason to believe that the appellant's
difficulty in remaining awake stemmed from causes other
than fatigue and evidence was being collected with a view to
encouraging him to seek medical advice within the Public
Service for suspected alcoholism.
Later in the report, the following appears:
The Department was entirely satisfied from testimony and
from entries in the shift diary that on numerous occasions
the appellant had failed to phone and explain that he would
not be reporting for duty. In the opinion of the Department,
his repeated failure to follow instructions in this matter was
due to the fact that he considered it would be imprudent to
disclose his condition.
Mr. Green did not give evidence before me
and I do not say that in a critical way. I think it
a fair assumption to make that Mr. Green was
merely summarizing in his own words and was
not attempting to record exactly the words or
statements made.
Miss Henry gave evidence before me. She
said Mr. Green's report is close enough to what
took place. She understood Bélanger to say that
Duquette was to meet with Health and Welfare
to go to a plan for helping alcoholics; that the
Department was thinking of having him do that.
She took notes at the time and some days later
transcribed them into a sheet headed "rebuttal".
Her note reads:
The Department is planning to put Mr. Duquette on a
program for rehabilitation for alcoholics developed by the
Department of National Health and Welfare.
Neither she, nor another witness called on
behalf of the plaintiff, made any reference to
the other remark made by the defendant Bélan-
ger in respect of the plaintiff's failure to tele
phone in.
That other witness, Hrehoriak, a fellow
employee and friend of the plaintiff was present
at the hearing. He said Bélanger said something
to the effect that the Department was consider
ing that the plaintiff report to Health and Wel
fare for an alcoholic problem.
The defendant Bélanger agreed that he did
not know for a fact whether or not the plaintiff
had a problem related to alcohol. The plaintiff,
his wife, and his friend Hrehoriak all say there
was never any such problem.
It is difficult to determine the exact words
used by the defendant Bélanger. He himself is
relying on his own memory, but after anxious
consideration I am inclined to accept his version
of what was said. In my view, the evidence of
the two other witnesses, Miss Henry and Mr.
Hrehoriak, is more of a summary or conclusion
they drew rather than recall of the precise
words. I hasten to add that I think both these
witnesses were genuinely endeavouring to assist
this Court on the point as much as they were
able. In my view, therefore, the words uttered
by the defendant Bélanger were not defamatory,
and the action can be dismissed on that ground
alone. I shall assume, however, the words used
were defamatory in the sense they indicated
that some part of the plaintiff's difficulties were
related to immoderate use of alcohol and there
fore conveyed an imputation that was disparag
ing or injurious to the plaintiff in his occupation.
I think it right to say that any suggestion of
misuse of alcohol by the plaintiff is false, and
prima facie this action, on the assumption I
have made and, but for other defences I shall
deal with, could succeed.
I do not propose to deal with the thorny
subject of slander and proof here of special
damage.
It is contended for the defendants that what
ever was said by Bélanger or written by Green
was said or written on a privileged occasion.
It is argued this is a case where absolute
privilege applies and therefore this action
cannot succeed. It is true that the doctrine of
absolute privilege is not confined to the
administration of justice in the courts. It has
been extended to tribunals or bodies having
judicial or quasi-judicial functions, which act in
a manner similar to that in which courts act.
In my opinion, the Appeal Board proceedings
in this case, are not sufficiently similar to the
manner in which courts act, to warrant designat
ing it as a tribunal where the doctrine of abso
lute privilege applies. There are a number of
differences which I need not here set out.
It is then contended that the words com
plained of were said on an occasion of qualified
privilege. With this submission I agree. I adopt
the definition of what is a privileged occasion as
set out in Halsbury's Laws of England, 3rd ed.
p. 56, paragraph 100. The alleged defamatory
words are not then actionable unless the plain
tiff proves actual malice on the part of the
defendant Bélanger. It was agreed there was no
malice in the sense of spite or ill-will or some
other improper motive.
Counsel for the plaintiff argued that there was
malice in the sense that Bélanger's remarks
were gratuitous and unnecessary and therefore
reckless. I do not agree. There were in my view
some facts on which the defendant Bélanger
could reasonably rely to bring himself to the
honest belief that the plaintiff might have had a
problem with alcohol. That turned out not to be
the case. I find that malice, as required by law,
has not been proved and this action must there
fore fail.
The defendants are entitled to their costs.
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.