1934 JTR(SC) 52
1935 AIR(PC) 3
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
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.
Act
Referred
:Combines Investigation Act
Friendly Societies Act
(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.
(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.
Privilege - Established that absolute privilege applies to tribunals that have attributes similar to a Court of justice and act in a similar manner.
Administrative - Determined that the investigation by Commissioners under the Combines Investigation Act was administrative machinery rather than a judicial proceeding.
Military - Cited as an example of a military Court of inquiry that was held to have attributes similar to a Court of justice.
Ecclesiastical - Cited as an example of an ecclesiastical commission that was held to have attributes similar to a Court of justice.
Administrative - Confirmed that a tribunal exercising administrative functions does not become judicial simply by possessing powers to summon witnesses or administer oaths.
Statutory Inquiry - Held that an inquiry by an inspector under statutory powers is not a judicial proceeding, and thus privilege is qualified rather than absolute.
Ronald Smith, J.W.G. Barry, A.J. Miller
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 the functions of some tribunals bring them near the line on one side or the other; and the final decision must be content with determining on which side of the line the tribunal stands. There must be rembembered on the one hand the public policy which protects the independence of the Judge; and on the other the public policy which requires that a citizen's reputation must be protected against false and malicious defamatory statements.
Has then a commissioner appointed under the Combines Investigation Act attributes similar to those of a Court of Justice; or does he act in a manner similar to that in which such Courts act? In their Lordships' opinion the answer must be in the negative. Their Lordships had occasion recently to examine the provisions of the Act in question in Proprietary Articles Trade Association v. Attorney General for Canada , (1931) AC 310= 100 LJ PC 84=47 TLR 250=144 LT 577 and find it unnecessary to review in detail its provisions. The constitutional validity of the Act was in that case expressly impugned on the ground that is constituted an interference with the administration of justice. The Judicial Committee negatived that contention, and it seems clear from the judgment that they came to the conclusion that the sections dealing with the investigation by Commissioners and others were merely administrative machinery for inquiring whether offences had been committed. It is only necessary to remember that the Commissioner by the Act is empowered to enter premises and examine the books, papers and records of suspected persons to see how far his functions differ from those of a Judge. His conclusion is expressed in a report; it determines no rights, nor the guilt or innocence of anyone. It does not even initiate any proceedings, which have to be left to the ordinary criminal procedure. While it is true that some tribunals charged with the duty of inquiry whether an offence or breach of duty has been committed have been held entitled to judicial immunity, such as a military Court of inquiry, Dawkins v. Rokeby , (1873) 8 QB 255=7 HL 744=45 LJ QB 8, or an investigation by an ecclesiastical commission, Barratt v. Kearns , (1905) 1 KB 504=74 LJ KB 318=21 TLR 212=53 WR 356=92 LT 255, there were in those cases conditions as to the way in which the tribunal exercised its functions, and as to the effect of its decisions which led to the conclusion that such tribunals had attributes similar to those of a Court of justice. On the other hand, the fact that a tribunal may be exercising merely administrative functions though in so doing it must act "judicially" is well established and appears clearly from the Royal Aquarium v. Parkinson , (1892) 1 QB 431=61 LJ QB 409=56 JP 404=40 WR 450 =66 LT 513 above cited. If it is exercising such functions it seems to be immaterial whether it is armed with the powers of a Court of justice in summoning witnesses, administering oaths and punishing disobedience to its orders made for the purpose of effectuating its inquiries : see Shell Co. of Australia v. Federal Commissioner of Taxation , (1931) AC 275=100 LJ PC 55=47 TLR 115=144 LT 421.
Smith, J., in the Supreme Court, found his view confirmed by the decision in the Court of Appeal in Hearts of Oak Assurance Co. v. Attorney General , (1931) 2 Ch 370=100 LJ Ch 340=47 TLR 579=75 SJ 615= 145 LT 662. That decision was reversed in the House of Lords Hearts of Oak Assurance Co. v. Attorney General , 1932 AC 392=101 LJ Ch 177=147 LT 41=48 TLR 296 since the decision in the Supreme Court. That was a case of an inquiry by an inspector under statutory powers given by the Friendly Societies Act . It seems to their Lordships probable that if the learned Judges of the Supreme Court had had the advantage of considering that decision and the statement therein of Lord Dunedin that such an inquiry was not a judicial proceeding, and that privilege in it would be qualified not absolute they might have come to a different conclusion. In the result their Lordships find themselves in agreement with the reasoning and decision of the late Hodgins, J., in the appellate division of the Supreme Court of Ontario. The defendant in this case will be protected if he establishes that he spoke the words complained of on a privileged occasion, and the plaintiff fails to prove express malice. This is the measure of protection given to other administrative officers exercising similar duties, and their Lordships know of no legal principle which affords any further or better protection. The appeal should be allowed, and the orders in the Court below discharged with costs; and their Lordships will humbly advise His Majesty accordingly. The appellant must have his costs of the appeal.
Appeal allowed.