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DEFAMATION - Qualified privilege - When qualified privilege arises - Where maker and audience in common enterprise

Wednesday, March 14, 2018 @ 8:42 AM  


Lexis Advance® Quicklaw®
Appeal by Frank D’Addario from the dismissal of his malicious prosecution action against Smith and Napior, Smith’s nephew. Frank and his wife Ferne appealed from a decision by the trial judge to withdraw their defence of qualified privilege from the jury in Napior’s counterclaim for damages for defamation. Ferne appealed from the decision permitting the jury to consider the allegation of joint liability for the allegedly defamatory statements made by Frank. Frank and Ferne founded EMS in 1995. In 2005, Frank lost control of the company and his employment with EMS was terminated. Frank then got into business with Smith and Napier, enlisting their support to regain control of EMS. Their relationship became acrimonious. In 2006, Smith complained to police that she had been sexually assaulted by Frank. A police officer investigated the complaint and laid a charge against Frank. Frank and Ferne met with Napior’s priest to tell him that Napior was an alcoholic, was abusing his position with the church, was dishonest and could not be trusted, and had falsely advised police that Frank had sexually assaulted Smith. The charges against Frank were stayed prior to trial. Frank sued Smith and Napior for malicious prosecution. Smith counterclaimed for damages for sexual assault, while Napior sought defamation damages from Frank and Ferne. In dismissing the malicious prosecution action, the judge found no evidence that the police officer who charged Frank was unable to exercise discretion or judgment in so doing as a result of the actions of Smith and/or Napior. The judge found that the D’Addarios’ statements to the priest were not made on an occasion of qualified privilege. Although the priest had an interest of duty to receive information about a member of his parish, the D’Addarios did not have a corresponding duty to make their statements to him. The communications were not spiritual in nature and they did not meet the priest for a religious purpose. Accordingly, the defence of qualified privilege was withdrawn from the jury. The judge went on to charge the jury on joint liability for defamation. The jury found that Frank did not sexually assault Smith, that Frank told the priest that Napior was an alcoholic and that Ferne was jointly liable in the amount of $10,000 for the statement, that the D’Addarios were jointly liable for $10,000 for Frank’s statement that Napior was dishonest, and for $5,000 for both telling the priest that Napior made a false statement to the police.

HELD: Appeal dismissed. The tort of malicious prosecution was not made out in the absence of evidence that Smith or Napior interfered with or undermined the independence of the investigation. Proof of a false statement was not sufficient to meet the test of initiating a prosecution. It was the police officer who decided that there was sufficient evidence to charge Frank. Speaking to a priest was not a recognized occasion of qualified privilege. The D’Addarios, strangers to Napior’s church, had no duty to make statements to his priest. The charge on joint liability was not the result of a late change in Napior’s strategy. It was clear from his pleadings that he claimed damages against Frank and Ferne jointly and severally. It was open to the jury to conclude that the D’Addarios acted in furtherance of a common plan to cause harm to Napior.

D'Addario v. Smith, [2018] O.J. No. 863, Ontario Court of Appeal, K.N. Feldman, J.C. MacPherson and G. Huscroft JJ.A., February 20, 2018. Digest No. TLD-Mar122018007