John Bruce PLAINTIFF And: Nicholas Avis First Defendant And: Browne, Fitzgerald, Morgan & Avis Second Defendant, 2023 NLSC 62

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Bruce v. Avis , 2023 NLSC 62 Date : April 26, 2023 Docket : 202101G6823 Between: John Bruce PLAINTIFF And: Nicholas Avis First Defendant And: Browne, Fitzgerald, Morgan & Avis Second Defendant Before: Justice Peter N. Browne Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 13, 2023

Summary: The Plaintiff, John Bruce, Esq., commenced a legal action against the First Defendant, Nicholas Avis, K.C., and the Second Defendant, Browne, Fitzgerald, Morgan & Avis, for the tort of defamation. The action arises from allegations of criminal collusion made by Avis, K.C. against Bruce, Esq. that he and his clients knowingly filed false affidavits with the intent to mislead the Court. Avis, K.C. applied for a

summary trial under Rule 17A for the action to be dismissed on the basis of the doctrine of absolute privilege.

The Court held that the matter was suitable for a

summary trial and that the doctrine of absolute privilege applied to the allegations. Itfound they were incidental to and intimately connected to the subject matter of a legal proceeding in which Avis, K.C. and Bruce, Esq.were legal counsel. Costs were awarded to the First Defendant only on a Column III basis. Appearances: John A. Bruce, Esq. Appearing on his own behalf R. Barry Learmonth, K.C. Appearing on behalf of the Defendants Authorities Cited: CASES CONSIDERED: Henley v. Henley, 2021 NLCA 46; Brook Construction

(2007) Inc. v. North Atlantic Cement and ConstructionLtd., 2020 NLCA 42; Noton Enterprises Ltd. v. Philpott's Realty Co., 2022 NLCA 38; Georgeson v. Moodie (1917), (AB CA), 38 D.L.R. 105 (Alta. C.A.); Lincoln v. Daniels, [1962] 1 Q.B. 237, [1961] 3 All E.R. 740 (Eng. C.A.); Prefontaine v. Veale,2003 ABCA 367; Salasel v. Cuthbertson, 2015 ONCA 115; Hamouth v. Smart Video Technologies Inc., 2005 BCCA 172; Sussman v.Eales (1986), 25 C.P.C. (2d) 7, 1986 CarswellOnt 529 (C.A.); Vachon v. Canada Revenue Agency, 2015 ONSC 6096; Boyachyk v.Dukes (1982), (AB KB), 136 D.L.R. (3d) 28, A.J.

No. 1030 (Alta Q.B.), aff'd [1983] A.J. No. 86 (CA); Munster v.Lamb (1883), L.R. 11 Q.B.D. 588 (Eng. C.A.); 1522491 Ontario Inc. v. Stewart et al., 2009 CarswellOnt 1829, 177 A.C.W.S. (3d) 549(Sup. Ct. J. (Div. Ct.)); Admassu v. Macri, 2010 ONCA 99; Samuel Manu-Tech Inc. v. Redipac Recycling Corp. (1999), (ON CA), 124 O.A.C. 125, 1999 CarswellOnt 2764 (C.A.); Razzell v. Edmonton Mint Ltd. (1981), (AB KB), 4W.W.R. 5, 1981 CarswellAlta 248 (Q.B.); Duke v. Puts, 2004 SKCA 12; M.J.M. v. D.J.M., 2000 SKCA 53; Seaman v. Netherclift(1876), 2 C.P.D. 53; Henderson v. Broomhead (1859), 157 E.R. 964 (Ex. Ch.); More v.

Weaver (1928), [1928] 2 K.B. 520 (Eng. C.A.);Pillar Resource Services Inc. v. PrimeWest Energy Inc., 2017 ABCA 19 STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D TEXTS CONSIDERED: Raymond E. Brown, The Law of Defamation in Canada 2nd ed., loose-leaf (Toronto: Carswell, 1999);Salmond & Heuston, The Law of Torts, 19th ed. (London: Sweet & Maxwell, 1987) REASONS FOR JUDGMENT Browne, J.: INTRODUCTION [1] The Defendants apply under Rule 17A of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D for a

SummaryTrial. The singular issue before the Court is whether the common law doctrine of absolute privilege applies to statements made by theFirst Defendant (“Avis, K.C.”) about the Plaintiff (“Bruce, Esq.”) during the course of preparing an appeal on behalf of Avis, K.C.’sclient. FACTUAL BACKGROUND [2] The factual circumstances that give rise to this application relate to estate litigation involving several siblings. At times, thelitigation became extremely acrimonious between some of the siblings.

Avis, K.C. represented one sibling and Bruce, Esq. two siblings. [3] During the course of the main proceeding (an application for directions regarding the administration of the Estate) this Courtissued a production order and Bruce, Esq.’s clients appealed. His clients retained alternate counsel to argue the appeal.

Bruce, Esq.assisted alternate counsel in providing background information relevant to the preparation of the appeal but did not participate directly inthe appeal itself. [4] Bruce, Esq. alleges that in an email to alternate appellate counsel dated January 31, 2021, Avis, K.C., defamed Bruce, Esq.’scharacter and professional reputation. In this email, Avis, K.C. stated that Bruce, Esq. committed criminal conduct by colluding with his

clients in knowingly filing false affidavits with the intent to mislead the Court. The email was copied to counsel for the other remaining sibling. These allegations were repeated in documents filed with the Court of Appeal and included references to the Criminal Code of Canada, R.S.C. 1985, c. C-46 , specifically

section 131 (perjury);

section 134 (corroboration); and sections 136 and 138 regarding false affidavits. [ 5 ] Paragraphs 27 to 28 and 32 to 33 of the subsequent decision rendered by the Court of Appeal on August 6, 2021, referenced the substance of the allegations of criminal conduct filed by Avis, K.C.’s client (see Henley v. Henley , 2021 NLCA 46 ): Allegations of Criminal Conduct Second Respondent's Request 27 The second respondent, in oral and written submissions, made allegations of criminal conduct against the appellants. The first respondent does not join with those submissions.

Accordingly, this portion of the decision applies only to the second respondent. 28 The allegations relate to the affidavits submitted by the appellants in the court appealed from. The second respondent submits that the affidavits are false, states that they amount to criminal conduct, and specifies provisions in the Criminal Code which are said to be applicable. In particular, reference is made to sections 131 (perjury), 134 (corroboration), 136 (contradictory evidence by a witness), and 138 (false affidavit).

For the following reasons, I am satisfied that the allegations of criminal conduct are inflammatory, reprehensible, and without foundation. … 32 The second respondent also submits that Christopher Henley's affidavit was false because it refers to the affidavit that was "filed" by John Henley when, in fact, that affidavit had not yet been filed when Christopher's affidavit was sworn. Again, this is a matter going to the weight to be given to Christopher's affidavit. It is not a basis on which to conclude that there was criminal conduct. 33 In

summary, the second respondent's position that the appellants were guilty of criminal conduct regarding their affidavits is without foundation and should not have been raised on the appeal. Accordingly, the allegations cannot support an award of costs against the appellants. [ 6 ] Later at paragraphs 39 to 41 of the decision, the Court of Appeal addressed the conduct of Avis, K.C.’s client: 39 In this case, the second respondent made unfounded allegations of criminal conduct against the appellants.

From the outset, the first respondent refused either to make similar allegations or to support the second respondent's position. During the first hearing, the allegations of criminal conduct were the subject of discussion which should have caused the second respondent to carefully review her position. Indeed, the second respondent had an opportunity to withdraw the criminal conduct allegations at either of the hearings before this Court.

Instead, counsel became more insistent in pursuing the allegations during the second hearing dealing with costs. 40 Further, it is apparent that these unfounded allegations were an issue of some importance to the appellants who advised the Court that this was the basis on which they were seeking solicitor-client costs against only the second respondent. The allegations were made in open court in both written and oral submissions, and were potentially damaging to the appellants' reputations. The allegations were inflammatory and without foundation.

The second respondent and her counsel were in a position to consider the effect of the strongly-worded allegations. 41 In the circumstances, I am satisfied that the second respondent's conduct is worthy of rebuke or reproof such that a departure from an award of costs on the usual scale is appropriate. ISSUES 1. Does Avis, K.C.’s application meet the threshold requirements of Rule 17A as per the Brook Construction

(2007) Inc. v. North Atlantic Cement and Construction Ltd. , 2020 NLCA 42 decision tree? 2. Are the allegations of criminal conduct made by Avis, K.C. protected by the common law doctrine of absolute privilege? POSITION OF THE PARTIES Avis, K.C.

[ 7 ] Avis, K.C. does not deny he made the allegations. His counsel strongly emphasized to the Court that these statements were made on instruction from his client and are protected by the doctrine of absolute privilege, thereby making it a pure question of law for the Court’s consideration.

He drew the Court’s attention to the wording contained in Rule 17A.03 (4) which states: “where the Court determines that the only issue before it is a question of law it may determine the question and grant judgment”. [ 8 ] According to Avis, K.C.’s legal counsel, the only facts necessary for consideration by this Court are those contained in the filings and submissions to the Court of Appeal and the email authored by Avis, K.C. on January 31, 2021.

Beyond this, there is no additional evidence necessary for the consideration of this very narrow issue, namely: Does the common law doctrine of absolute privilege immunity apply to these facts? [ 9 ] The relevant materials are attached to the two affidavits filed by Avis, K.C. (dated July 13, 2022 and February 13, 2023). [ 10 ] Counsel for Avis, K.C. submits that Bruce, Esq.’s arguments regarding Issue 2.3 (waiver of solicitor-client privilege and acting without instructions) are not before the Court, nor is their defence of qualified privilege.

Bruce, Esq. [ 11 ] In his Memorandum of Fact and Law and during oral submissions, Bruce, Esq. argued for the dismissal of the Rule 17A application. However, during oral submissions, he conceded that the criminal conduct allegations made by Avis, K.C. in his written and oral submissions before the Court of Appeal did come “under the cloak of absolute privilege”, whereas the January 31, 2021 email did not.

This is because the email referenced Bruce, Esq.’s name in association with an allegation of criminal conduct by his clients on an occasion when it was not necessary or appropriate to do so. [ 12 ] Under Issue 1 of his Memorandum of Fact and Law, Bruce, Esq. argues that Avis, K.C. and his law firm have not met the threshold requirements as set out by the Court of Appeal in Brook Construction. He states the only relevant evidence filed with the Court is the Affidavit sworn by legal counsel for Avis, K.C., and this is improper because it does not contain any statements regarding the material facts.

Accordingly, it does not meet the first step of the threshold analysis. [ 13 ] I addressed this issue during oral submissions and ruled that the July 13, 2022 Affidavit was still before the Court, even though technically it related to an application that was subsequently withdrawn.

This affidavit was simply a compilation of the relevant records necessary for the Court’s consideration under Rule 17A , and included a copy of the email of January 31, 2021 and the factum filed by Avis, K.C. with the Court of Appeal. [ 14 ] Under Issue 2.1, assuming the Court decides the threshold requirements have been met, then this matter is not appropriate to deal with by way of

Summary Trial. Here, the issue with the January 31, 2021 email is that the statements relate to an extension of time for filing the appeal, as opposed to advancement of the appeal and, therefore, place them outside the protection of the doctrine of absolute privilege. In other words, the comments were not incidental to the furtherance of the appeal. Bruce, Esq. urged the Court to take a close examination of the facts and circumstances surrounding this email communication and draw this conclusion. [ 15 ] Under Issues 2.2-2.4, Bruce, Esq. argues a full trial is required because: (

a) The statements made in the January 31, 2021 email were not necessary, not properly incidental, and were not material or pertinent to the appeal; (

b) Avis, K.C.’s client waived solicitor-client privilege in an October 18, 2021 email and this waiver extends to communications prior to May 12, 2021; (

c) The release of selected emails after Avis, K.C.’s client’s email of May 12, 2021 constitutes waiver of solicitor-client privilege. [ 16 ] Under Issue 2.5 Bruce, Esq. argues the allegations of criminal conduct on his

part cannot be afforded the protection of absolute privilege because in the subsequent decision from the Court of Appeal it acknowledged the allegations were inflammatory and without foundation. [ 17 ] Finally, under Issue 2.6, Bruce, Esq. says Avis, K.C. made the allegations of criminal conduct in the January 31, 2021 email without the knowledge or consent of his client. THE LAW Rule 17A 17A.01.

(1) A plaintiff or defendant may, after defence has been filed and at any time prior to the proceeding being placed on a trial list, apply to the Court with supporting affidavit material or other evidence for

summary trial seeking judgment on or dismissal of all or part of the claim in the statement of claim, as the case may be. … 17A.03.

(1) Where the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant

summary judgment accordingly.

(2) Where the Court decides that there is a genuine issue with respect to a claim or defence, a judge may nevertheless grant judgment infavour of any party, either upon an issue or generally, unless (

a) the judge is unable on the whole of the evidence before the Court on the application to find the facts necessary to decide thequestions of fact or law; or (

b) it would be unjust to decide the issues on the application.

(3) Where the Court is satisfied that the only genuine issue is the amount to which a party is entitled, the Court may order a trial of thatissue or grant judgment with a reference to determine the amount.

(4) Where the Court is satisfied that the only genuine issue is a question of law, the Court may determine the question and grantjudgment accordingly.

(5) Where a party claims an accounting and the responding party fails to satisfy the Court that there is a preliminary issue to be tried, theCourt may grant judgment on the claim with a reference to take accounts. Threshold Questions - per the Brook Construction decision tree [18] There are two threshold questions to be answered on a

summary trial application as per the decision tree in Brook Construction(see the synopsis contained at paras. 48-51 in Noton Enterprises Ltd. v. Philpott's Realty Co., 2022 NLCA 38). [19] The first is: Has [the] applicant complied with the formal requirements of rule 17A and put forward an evidentiary basis for his or her positionwhich, if unanswered will potentially establish all or part of the claim? (Brook Construction, Schedule) [20] The second is: Is there any apparent reason (other than considerations that can be properly dealt with under rule 17A.03(2)) evident at this stage makingit inappropriate to deal with some or all of the issues by

Summary Trial? (Brook Construction, Schedule) [21] Some additional comments from Brook Construction, at paragraphs 91 and 96, inform the exercise of discretion at thethreshold stage of a

summary trial application: [91] The purpose of applying a threshold test to an application for

summary trial is to weed out at a preliminary stage those caseswhich, because of the way in which the application has been made, or the nature and complexity of the case, in terms of issues or parties,or its timing, it is clear that the purpose of the rule will not be met by allowing the application to proceed. … [96] At the threshold question stage, the focus is on the more general question of whether the

summary trial, as a process, isappropriate to be invoked at all. Thus, for example, it might be suitable to have a

summary trial for one discrete issue but the presence ofa substantial number of other interconnected issues that would likely not be capable of being resolved other than by a conventional trial,might nevertheless lead to the conclusion that the

summary trial process would not result in resolution of enough of the outstandingissues to make it efficacious to invoke the

summary trial process at all, or, as mentioned in Hryniak, it might "run the risk of duplicativeproceedings or inconsistent findings of fact" (para. 60). The Doctrine of Absolute (Immunity) Privilege [22] “Absolute privilege” is a common-law concept that provides immunity from liability for the tort of defamation for statementsmade as part of a legal proceeding (see Georgeson v. Moodie (1917), (AB CA), 38 D.L.R. 105 (Alta. C.A.); Lincoln v.Daniels, [1962] 1 Q.B. 237, [1961] 3 All E.R. 740 (Eng. C.A.), at para. 257; Prefontaine v. Veale, 2003 ABCA 367, at para. 10; Salaselv.

Cuthbertson, 2015 ONCA 115, at para. 35). This privilege also extends to complaints made to disciplinary bodies in order to initiateproceedings and to communications made in the course of their investigations (see Hamouth v. Smart Video Technologies Inc., 2005

BCCA 172, at para. 23; Sussman v. Eales (1986), 25 C.P.C. (2d) 7, 1986 CarswellOnt 529 (C.A.); Vachon v. Canada Revenue Agency,2015 ONSC 6096, at para. 10; Boyachyk v. Dukes (1982), (AB KB), 136 D.L.R. (3d) 28, A.J. No. 1030 (Alta. Q.B.),aff'd [1983] A.J. No. 86 (Alta. C.A.)). [23] Several Canadian jurisdictions have advanced the English common law privilege that flowed from Munster v. Lamb (1883),L.R. 11 Q.B.D. 588 (Eng. C.A.) per Brett, M.R. at pp. 602-603. Of these jurisdictions, Ontario and Saskatchewan seem to have the mostabundant jurisprudence on the topic.

By way of example, the comments of Brown, J.A. in Salasel, at paragraph 35, have often beenquoted by many courts: The doctrine of absolute privilege contains several basic elements: no action lies, whether against judges, counsel, jury, witnesses orparties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognised by law; the privilegeextends to documents properly used and regularly prepared for use in the proceedings; and, a statement will not be protected if it is notuttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings: Amatov.

Welsh, 2013 ONCA 258(Ont. C.A.), at para. 34. [24] Further in Salasel Brown, J.A. defined the phrase “in the ordinary course of any proceedings”. He said: The scope of the Ontario rule was summarized comprehensively by the Divisional Court in 1522491 Ontario Inc. v. Stewart, EstenProfessional Corp., 2010 ONSC 727, 100 O.R. (3d) 596(Ont. Div.

Ct.), at paras. 37 and 39 to 44: [37] In Ontario, absolute privilege may extend to communications by a party's solicitor made before the actual commencement ofproceedings. . . . [39] As Cullity J. points out in Moseley-Williams, the following statement from Fleming has been referred to with approval in Ontariodecisions: The privilege is not confined to statements made in court, but extends to all preparatory steps taken with a view to judicialproceedings...

But the statement or document must be directly concerned with actual contemplated proceedings. (Emphasismine). [40] However, Cullity J. also found that the authorities do not appear to support an extension of the privilege to all occasions when thepossibility of litigation is contemplated, or even when a threat of litigation is made, or when a lawyer is endeavouring to assert andprotect a client's rights. [41] Thus, when a defendant in these circumstances moves to dismiss the claim on the ground of absolute privilege, the decision thecourt has to make is whether the communication was made "for the purpose of, or preparatory to, the commencement of [judicial]proceedings". [42] Something more than merely a contemplation of the possibility of litigation is required.

The court must decide whether theoccasion is "incidental" or "preparatory" or "intimately connected" to judicial proceedings and not one that is too remote.(Emphasis mine) [43] It is in this sense that Cullity J. accepted that "... some inquiry into the purpose of their publication would appear to beunavoidable"... That case dealt with a motion for judgment under rule 20. On a rule 21.01(1)(

b) motion, the "inquiry" is made on theassumed truth of the facts pleaded in the statement of claim. [44] It must be stressed that "it is the occasion, not the communication that is privileged. The privilege belongs to the occasionby reason of the setting." [Citations omitted; emphasis in original.] [25] Another important aspect of the doctrine is that the privilege is “absolute”. This component was emphasized in 1522491Ontario Inc. v. Stewart et al., 2009 CarswellOnt 1829; 177 A.C.W.S. (3d) 549 (Sup. Ct. J. (Div.

Ct.)), at paragraph 16, (during the leaveto appeal to the Divisional Court stage): While it may well be that the decision was correct based upon the pleadings in this case, the statement of the law in para. 14 appears todepart from and conflict with the principle that if the occasion is one of absolute privilege, it cannot give rise to an action indefamation regardless of malice or knowledge that the statements were themselves false. It appears to confuse the considerationsrelevant to occasions of absolute privilege with those relevant to qualified privilege and opens the correctness of the decision to serious

debate (Emphasis mine) [26] When 1522491 Ontario Inc. was before the Divisional Court on appeal, Ferrier, J. adopted the language of Karakatsanis, J. andfurther emphasized that false statements that were made with ill intent are protected by the doctrine of absolute privilege. Speaking forthe court, he said: 33 Absolute privilege applies even though counsel, in communicating the words, has been guilty of malice or misconduct, or had anindirect motive: Munster v. Lamb (1883), L.R. 11 Q.B.D. 588 (Eng. C.A.) per Brett, M.R. at pp. 602-603. The privilege applies eventhough the statements were made falsely: Hall v.

Baxter, [1922] O.J. No. 525 (Ont. H.C.) per Orde J., para.10; (1922), 22 O.W.N.207 (Ont. H.C.) . 34 Absolute privilege applies to false or malicious statements in pleadings and factums: Big Pond Communications 2000 Inc. v.Kennedy, (ON SC), [2004] O.J. No. 820 (Ont. S.C.J.); Web Offset Publications Ltd. v. Vickery, (ON SC), [1998] O.J. No. 6478(Ont. Gen. Div.), aff'd (Ont.

C.A.), leave to appeal to Supreme Court of Canada denied (2000) (S.C.C.). 35 It makes no difference that the words may be totally and knowingly false and spoken mala fides and with actual malice andwithout justification or excuse: Brown, supra, at 12-36 to 12-37; Web Offset, supra, per Kruzick J. at para. 38-39. [27] The Court of Appeal for Ontario has also confirmed that absolute privilege applies to false affidavits (see Admassu v.Macri, 2010 ONCA 99; Samuel Manu-Tech Inc. v.

Redipac Recycling Corp. (1999), (ON CA), 124 O.A.C. 125, 1999CarswellOnt 2764 (C.A.)). [28] In “absolute terms” the privilege provides a cloak of protection (to borrow the phrase of Bruce, Esq.) to any words spoken orwritten by lawyers in preparation for a court proceeding, or whether or not they were true and whether or not they were said or written tomaliciously cause damage to another.

Most important however, is that it is not the communication that is protected by privilege, but theoccasion of preparing for a proceeding that is protected. [29] Consequently, Courts have acknowledged that the broad application of the doctrine will have unintended consequences suchthat while not created to protect the wrongdoer who maliciously causes damage to others, it sometimes will operate to do just thatbecause of the public policy reasons behind the doctrine. [30] In Razzell v.

Edmonton Mint Ltd. (1981), (AB KB), 4 W.W.R. 5, 1981 CarswellAlta 248 (Q.B.), atparagraph 8, Dea, J. stated that public policy and convenience require that in the following circumstances a person should be free fromresponsibility for publication of defamatory words and that an absolute privilege attaches to the following statements: 1. Statements made in the course of judicial proceedings; 2. Statements made in the course of quasi-judicial proceedings; 3.

Statements contained in documents made in judicial or quasi-judicial proceedings. [31] Finally, in The Law of Defamation in Canada 2nd ed., loose-leaf (Toronto: Carswell, 1999) by Raymond E. Brown, at page 1-34, the author states: There is also an absolute privilege for all those communications made in the course of, or incidental to, the processing of and furtheranceof judicial and quasi-judicial proceedings.

ANALYSIS Does Avis, K.C.’s application meet the threshold requirements of Rule 17A as per the Brook Construction decision tree? [32] Rule 17A.03(4) allows for a Court to examine all or some aspects of the Statement of Claim. The Applicants argue that the onlyissue for this Court to decide is whether the law of absolute privilege applies because if they are successful it would end the action fordefamation.

The parties conceded that as part of this application the Court is not addressing the issue of qualified privilege, or whetherthe allegations made by Avis, K.C. constitute defamation. [33] The first threshold question is: Has [the] applicant complied with the formal requirements of Rule 17A and put forward an evidentiary basis for his or her position,which, if unanswered will potentially establish all or part of the claim? Answer: Yes, Avis, K.C. has filed two affidavits with exhibits containing the allegations of criminal conduct attributed to Bruce, Esq.

Noother evidence is required. [34] The second threshold question is:

Is there any apparent reason (other than considerations that can be properly dealt with under Rule 17A.03(2)) evident at this stage making it inappropriate to deal with some or all of the issues by

Summary Trial? Answer: No, the sole question I have to decide is whether the doctrine of absolute privilege applies to the January 31, 2021 email. The purpose of applying a threshold test is to weed out at a preliminary stage those cases in which it is clear that the purpose of the rule will not be met by allowing the application to proceed. [ 35 ] That is not the case here; the allegations that constitute the claim of defamation are before the Court by way of affidavit, and were directly commented upon by the Court of Appeal when granting solicitor-client costs to Bruce, Esq.’s clients. [ 36 ] At the threshold question stage, the focus is on the more general question of whether the

summary trial, as a process , is appropriate to be invoked at all . [ 37 ] In the present case, this is a

summary trial on one discrete issue. It is not a case where the

summary trial process might “run the risk of duplicative proceedings or inconsistent findings of fact” (see para. 96, Brook Construction ). Instead, it involves

summary trial on the application of the doctrine of absolute privilege, which, if successful, will end the matter.

Are the allegations of criminal conduct made by Avis, K.C. protected by the common law doctrine of absolute privilege? [ 38 ] Bruce, Esq.’s claim relates to the words used in the email of January 31, 2021 (see Exhibit “A” of affidavit sworn July 13, 2022, at paragraph 7): “The exception to S-C privilege here is the criminal conduct committed by John, Chris and Bruce…our issue is collusion”. [ 39 ] He argues that under the doctrine, the context or the nexus of the alleged defamatory comments must be examined closely.

In his view, the allegations contained in the January 31, 2021 email from Avis, K.C. are, unlike his written and oral submissions to the Court of Appeal, “fraught with allegations that were unnecessary to the pursuit of the appeal”. So, when I determine whether I should permit Avis, K.C. to avail of the cloak of absolute privilege, I must look to the purpose for which the allegations were made. In the context of this case, the allegations were gratuitous and not necessary to the litigation because at this point in the proceeding he was not counsel of record for the appeal.

It is on this basis I should not afford Avis, K.C. this protection. [ 40 ] I note in passing that this email also contains references to continuing settlement discussions.

At paragraphs 6 and 8 of the email, Avis, K.C. says “I am also going to file an offer of settlement in the COA … we are still willing to have you accept our offer … if you extend the deadline … allowing us time to sort this out and meaningfully discuss settlement”. [ 41 ] While the parties agree the factum and the oral submissions during the appeal fall squarely within the scope of the doctrine, they disagree as to whether it extends beyond these circumstances.

In this regard, I note the following passage from The Law of Defamation in Canada , at paragraph 12.4(4)(d): The privilege should not be confined to proceedings in court, if the statements made outside the court are made to achieve the objects of the litigation.

Thus discussions between opposing counsel regarding a possible basis for settlement of an action, or a letter sent by defendant's lawyer in a pending case to the plaintiff suggesting settlement, or a letter sent by one lawyer to another lawyer reflecting in defamatory language on the latter's client, or a letter sent by a lawyer to investors to secure information necessary to prove his case after a remand by an appellate court for further proceedings, or a letter sent to known or suspected creditors of a company, after it was precipitated into bankruptcy, advising them of the nature of the bankruptcy court proceedings in order to secure evidence for that proceeding and another action for fraudulent conveyance against the same company, ... should be protected by an absolute privilege. [ 42 ] Bruce, Esq. argues he was an innocent third party at this point in the litigation because he was not appellate counsel, nor was he copied on the email.

Given his capacity, these allegations constitute defamation and the doctrine of absolute privilege does not apply, as they were not relevant to the inquiry to be made by the Court. [ 43 ] Counsel for Avis, K.C. argues that such a narrow

interpretation of the doctrine runs counter to the existing jurisprudence. In support of his position, he drew the Court’s attention to the decision of the Saskatchewan Court of Appeal in Duke v. Puts , 2004 SKCA 12 where the Court examined the public policy reasons behind the doctrine.

In Puts one of the issues involved statements made against a third party physician who was not the subject of a College complaint investigation and were found to be “gratuitous and irrelevant … and had no connection or nexus to the complaint”. [ 44 ] At paragraph 51, the majority noted that in a previous decision of the Court, M.J.M. v. D.J.M. , 2000 SKCA 53 , it had left open the issue of whether absolute privilege extends to irrelevant statements made against third parties.

In undertaking to determine whether it did, the Court began with an examination of the public policy reasons behind the doctrine as canvassed extensively by the English Court of Appeal in Munster (see paras. 56-61 of Puts ). [ 45 ] It also cited with approval the following reasons of Bramwell, J.A. in Seaman v.

Netherclift (1876), 2 C.P.D. 53, and The Law of Defamation in Canada (see paras. 57-58 of Puts ): As to the first proposition [what the defendant said was said as a witness and was relevant to the inquiry], I am by no means sure that the word "relevant" is the best word that could be used; the phrases used by the Lord Chief Baron and the Lord Chancellor in Dawkins v.

Lord Rokeby, would seem preferable, "having reference," or "made with reference to the inquiry." [Footnote omitted] [ 46 ] Lord Bramwell went on to state: ... the words "having reference to the inquiry" ought to have a very wide and comprehensive application, and ought not to be

limited to statements for which, if not true, a witness might be indicted for perjury , or the exclusion of which by the judge would give ground for a new trial; but ought to extend to that which a witness might naturally and reasonably say when giving evidence with reference to the inquiry as to which he had been called as a witness. ( Emphasis mine ) [ 47 ] In The Law of Defamation in Canada , the author states that: ... the general rule is that the privilege is an absolute one without regard to the relevancy or materiality of the publication to the subject- matter of the proceedings. [ 48 ] In Puts , the Court cited the above statement but acknowledged that there was case law that suggests relevancy is a criteria, however, it went on to note that the overwhelming authority is to the contrary.

In so doing, it qualified the rule was not made in relation to a defamatory remark affecting a third party, noting the authority of Henderson v. Broomhead (1859), 157 E.R. 964 (Ex. Ch.) that it makes no difference that the remarks are made about persons who are not parties to the proceedings. [ 49 ] Henderson , however, did not deal with the situation where the irrelevant statement was about a third party. There the court found the statements were relevant and, therefore, were reasonably related to the proceedings and subject to absolute privilege.

Similarly, The Law of Defamation in Canada does concede that: Undoubtedly, however, a remark by a judicial participant, whether it be a judge, juror, party, counsel or witness, that has absolutely no relationship to the proceedings, would lead a court to conclude that an absolute privilege did not apply. (Emphasis mine) [ 50 ] The authority for this proposition is found in Salmond and Heuston on the Law of Torts , 19th ed., (London: Sweet & Maxwell, 1987) where the authors state: The statement, in order to be privileged, need not be relevant, in the sense of having a material bearing upon the matter in issue in the case.

Thus the statement of a witness is privileged, even though inadmissible as evidence, and even though so immaterial that no prosecution for perjury would be possible in respect of it. Nevertheless the statement, though it need not be relevant in this sense, must, it would seem, be made in the course of and with reference to the case in hand.

A judge who from the Bench made a defamatory observation in respect of some entirely extraneous matter would no longer be speaking in his capacity as a judge, and would have no privilege. [Footnote omitted] [ 51 ] A footnote to the final sentence from the above quote cites More v. Weaver (1928), [1928] 2 K.B. 520 (Eng. C.A.) , which contains the following scenario: ... Suppose a client, who has quarrelled with the builder who is building a house for him, goes to his solicitor to discuss the position, and in the course of the interview he makes statements regarding the builder which are untrue.

Those statements would ... be absolutely privileged. But suppose in the middle of the conversation the client, being of a gossipy nature, says, "Have you heard that Jones has run off with Mrs. Brown?" that would not be relevant to the discussion. [ 52 ] Thus, there is authority for the proposition that although comments made in the context of judicial or quasi-judicial proceedings need not be relevant in the sense that they contribute to the resolution of the matter, they must have some nexus or be connected to the proceedings.

The scope of the words “have some nexus or be connected to the proceedings” [ 53 ] It appears clear from the authorities cited above, that the key to determining whether the cloak of absolute privilege applies to Avis, K.C.’s email is whether his allegations were made in the context or nexus of the litigation, or were simply gratuitous and irrelevant statements surrounding Bruce, Esq.’s conduct generally. [ 54 ] The email sent by Avis, K.C. on January 31, 2021 also included passages that referenced the possibility of continuing with settlement discussions, although I do also make the observation that Avis, K.C. made it very clear that he would not engage in any such discussions should Bruce, Esq. become involved. [ 55 ] That said, The Law of Defamation in Canada at paragraph 12.4(4)(

d) indicates the privilege should not be confined to proceedings in court but also apply to statements made outside the court that are made to achieve the objects of the litigation. Thus, comments made during discussions between opposing counsel regarding a possible basis for settlement of an action are protected. [ 56 ] This, however, is not the main basis for this Court’s determination of whether the allegations fall within the meaning of the words “have some nexus or be connected to the proceedings”.

Indeed, I am persuaded that an analysis of this nature would be best achieved by the use of a hypothetical analogous to that employed by the court in More . [ 57 ] During oral submissions, counsel for Avis, K.C. posited that had Avis, K.C. worded his email to state that he heard that Bruce, Esq. was involved in an international terrorist ring, then this would be entirely gossipy and irrelevant to the litigation discourse, taking it outside the cloak of protection afforded by the doctrine. [ 58 ] Instead, Avis, K.C.’s allegations point to the stage in the litigation when Bruce, Esq. was solicitor of record.

According to Avis, K.C., Bruce, Esq.’s clients swore affidavits that Avis, K.C. (upon instruction from his client) felt were false. He went further and clearly expressed his intention to raise this issue on appeal and, in fact, did so. [ 59 ] Using a very wide and comprehensive application to Avis, K.C.’s email allegations, I cannot escape the inevitable conclusion that they were made in the context of the subject matter of the proceedings and were “incidental to” or “intimately connected” to judicial proceedings. They were not too remote.

[ 60 ] It is on this basis I conclude that the comments of Avis, K.C. concerning the unfounded allegations of criminal conduct against Bruce, Esq. in the January 31, 2021 email relate to a point in the litigation when both parties were acting in the capacity as solicitor of record. [ 61 ] I believe this is supported further by the comments and actions of the Court of Appeal at paragraphs 40 to 41 of Henley , when it held that Avis, K.C. and his client were in a position to consider the effect of these strongly-worded allegations throughout the entirety of the appeal process, and did not. [ 62 ] This finding by the Court of Appeal, however, does not translate into providing Bruce, Esq. with a factual or legal foundation for an action in defamation.

The law on absolute privilege is very clear; it applies to false or malicious statements contained in correspondence between counsel that include references to third parties. [ 63 ] Accordingly, I determine that the affidavit evidence provided to the Court supports the application of the doctrine of absolute privilege. Its application to the facts of this case is a question of law, which is amenable to a

summary trial under Rule 17A.03(4). Because the doctrine is absolute,

summary judgment is entered for the Defendants and the proceeding is dismissed in its entirety. CONCLUSION [ 64 ] In view of these reasons, I conclude there is no legal basis for an action by Bruce, Esq. in defamation against Avis, K.C. for the allegations contained in the January 31, 2021 email. These comments are protected by the doctrine of absolute privilege.

Summary judgment is granted to the Defendants pursuant to Rule 17A.03(4). COSTS [ 65 ] In the ordinary course the successful litigant(

s) should receive costs and, in fact, counsel for Avis, K.C. has requested this Court grant costs on a Column III basis should they be successful. Bruce, Esq. disagrees. [ 66 ] An award of costs is not meant to be punishment for past behavior (see Pillar Resource Services Inc. v. PrimeWest Energy Inc. , 2017 ABCA 19 , para. 66 ), per Wakeling, J.A: [C]ost orders are made to indemnify the successful party for a portion of its lawyer's fees. This has been a central feature of the common law for over 700 years. ...

They are not granted as a sanction for the purpose of punishing past misconduct and altering the future behaviour of the litigants or the community subject to the court's jurisdiction. [ 67 ] Despite the background between the parties, this is a case where the Defendants have properly employed the use of Rule 17A and successfully established an evidentiary and legal basis for the defence of absolute privilege. Accordingly, I award costs on a Column III basis, but as part of the exercise of my discretion, I award them to the First Defendant only. _____________________________ Peter N. Browne Justice