HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Emanuela Ornelas
Applicant
-and-
Casamici Restaurant and Dino Sciulli
Respondents
RECONSIDERATION DECISION
Adjudicator: Sheri D. Price
Indexed as: Ornelas v. Casamici Restaurant
WRITTEN SUBMISSIONS
) Emanuela Ornelas, Applicant ) Bay Ryley, Counsel ) ) Casamici Restaurant and ) Leah Simon, Counsel Dino Sciulli, Respondents ) )
INTRODUCTION
1On June 15, 2010, the applicant filed a Request for Reconsideration pursuant to s. 45.7(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), asking that the Tribunal reconsider that part of its Decision in this matter which relates to absolute privilege: 2010 HRTO 1078, paras. 90-109 (the “Decision”).
2Rule 26.5 of the Tribunal’s Rules of Procedure states that reconsideration will not be granted unless the Tribunal is satisfied that:
a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or
c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
3The applicant submits that the Tribunal ought to reconsider the part of its Decision which relates to absolute privilege pursuant to Rule 26.5(c) because it is in conflict with established jurisprudence and the proposed reconsideration involves a matter of general or public importance.
BACKGROUND
4In her December 2008 Application under s. 34 of the Code, the applicant alleged that the respondents infringed her rights under the Code to be free from sexual harassment and discrimination in respect of employment.
5On June 18, 2009, approximately two months before the hearing of the Application was to commence, the respondents’ (then) legal counsel wrote the applicant’s counsel a letter in which, among other things, he asserted that the applicant was slandering the respondents in the community with a negative impact on the respondents’ business and on the personal respondent. The respondents’ former counsel proposed a resolution of the proceedings before the Tribunal pursuant to which the applicant would “discontinue” the Application and provide a written apology to the respondents confirming there was no basis for her sexual harassment allegations. The respondents’ counsel stated that if the proceedings were not resolved on that basis, he had instructions to commence a civil action for defamation and other causes of action against the applicant. The letter also threatened to seek costs against the applicant in the proceeding before the Tribunal.
6The applicant successfully sought leave from the Tribunal to amend her Application to include the allegation that the threat of civil litigation in the June 18, 2009 letter constituted a reprisal and/or threat of reprisal against the applicant by the personal respondent, contrary to s. 8 of the Code.
7At the hearing of the Application, the respondents argued that absolute privilege attached to the statements in the June 18, 2009 letter because it was a preparatory step taken in contemplation of legal proceedings (i.e. a proposed civil action for defamation) and/or because it was written in the course of ongoing litigation (i.e. before the Tribunal). The respondents argued that since the statements in the letter were made on an occasion of absolute privilege, they could not form the basis of a claim of reprisal under the Code. In the alternative, the respondents argued that settlement privilege attached to the statements in the June 18, 2009 letter, such that it could not form the basis of a claim under the Code. Even if the statements in the June 18, 2009 letter were not privileged, the respondents submitted that they did not constitute a reprisal or a threat of reprisal within the meaning of the Code and that the applicant’s claim should be dismissed on the merits. The respondents also argued that for public policy reasons, the applicant should not be permitted to rely on the respondents’ lawyer’s actions to establish a breach of the Code, since the defence of such a claim would require the respondents to call their lawyer as a witness and waive solicitor-client privilege.
8The applicant, who was represented by counsel, had advance notice of the respondents’ argument that the June 18, 2009 letter was absolutely privileged and therefore could not form the basis of a claim under the Code and a full opportunity to make submissions on this issue at the hearing. In fact, on the second-last day of hearing, after having the respondents clarify what their arguments in relation to the June 18, 2009 letter would be, I specifically instructed the applicant’s counsel to be prepared to address those arguments during final submissions on the last day of hearing.
9Despite this, the applicant’s counsel did not submit any case law on absolute privilege at any point either during the hearing or before the Decision was released, nor did she respond in any meaningful way to the respondents’ submissions that the June 18, 2009 letter was written on an occasion of absolute privilege such that the statements therein could not form the basis of a claim under the Code.
10In my Decision, and having carefully considered all of the submissions which were put before me, I found that the respondents’ lawyer threatened in his June 18, 2009 letter to commence a civil action against the applicant based on her alleged defamatory remarks about the respondents in the community; and that the June 18, 2009 letter was directly related to a proposed civil action against the applicant such that absolute privilege attached to the statements in the letter. I found that the statements in the letter could therefore not form the basis of a claim under the Code and dismissed the applicant’s reprisal claim accordingly. I did not consider the respondent’s other arguments in respect of the June 18, 2009 letter because it did not appear necessary to do so.
REQUEST FOR RECONSIDERATION
11In her Request for Reconsideration, the applicant asks that the Tribunal reconsider and reverse its Decision that the statements in the June 18, 2009 letter were absolutely privileged; find that the threat of civil litigation contained in the letter constituted a reprisal or a threat of reprisal against the applicant; and grant the applicant monetary compensation in the amount of $20,000.00 in respect of the infringement of her rights under s.8 of the Code. In the alternative, the applicant asks that the Tribunal “re-hear” the part of the case relating to the June 18, 2009 letter to determine whether the threat of civil litigation contained therein constituted a reprisal against the applicant contrary to the Code; and, if so, to determine the appropriate remedy.
12The applicant submits that the Tribunal’s decision that the June 18, 2009 letter was written on an occasion of absolute privilege is in conflict with established court jurisprudence, and especially, the Ontario Superior Court’s 2004 decision in Moseley-Williams v. Hansler Industries Ltd., [2004] O.J. 5253, 2004 CanLII 66313 (S.C.J.), (“Moseley-Williams”), which she submits is “dispositive” of the present case.
13In Moseley-Williams, the Ontario Superior Court confirmed the well-established principle that in order to determine whether communications made prior to the commencement of a judicial proceeding are made on an occasion of absolute privilege, the court ought to consider all of the facts in order to determine “whether [the] occasion is preparatory or incidental to – or intimately connected with – judicial or quasi-judicial proceedings”: para. 58. The decision is noteworthy in that it stands for the proposition that communications that are accompanied by threats of litigation should not, by reason only of that fact, be considered to be preparatory, incidental to or intimately connected with legal proceedings, and therefore absolutely privileged: para. 59. Moseley-Williams was cited with approval by the Ontario Superior Court in Jamal v. Jamal, 2010 ONSC 2362 and by the Ontario Divisional Court in 1522491 Ontario Inc. v. Stewart, Esten Professional Corp., 2010 ONSC 727 (“Stewart”), both of which were released after the hearing in this matter concluded, but before the Decision was released.
14The applicant contends that the Tribunal’s Decision is in conflict with the established jurisprudence because the Tribunal did not undertake the necessary factual inquiry into whether the June 18, 2009 letter was “necessarily or properly incidental to” the initiation of civil litigation by the respondents before determining that absolute privilege attached to the statements in the letter. The applicant submits that the threat of litigation in the June 18, 2009 letter was not “necessary or properly incidental” to the commencement of civil litigation against the applicant and was not absolutely privileged.
15In addition, the applicant submits that the Tribunal’s decision is in conflict with the Tribunal’s own established jurisprudence on when absolute privilege applies, namely its decision in Carlos v. 1174364 Ontario, 2009 HRTO 311, as well as established jurisprudence regarding the reprisal section of the Code.
16Finally, the applicant submits that whether human rights applicants may be threatened by respondents with litigation without recourse under the Code is a matter of general or public importance within the meaning of Rule 26.5(c).
RESPONDENTS’ RESPONSE TO REQUEST
17For their part, the respondents submit that the applicant’s Request for Reconsideration ought to be dismissed.
18The respondents submit that the applicant is seeking, on reconsideration, to put forward arguments and jurisprudence which the applicant could have, but failed to, put before the Tribunal at the time of the hearing. The respondents submit that the applicant ought not to be permitted to use reconsideration as an opportunity to repair deficiencies in the presentation of her case in this manner and submit that the Request ought to be dismissed pursuant to the Tribunal’s Practice Direction #4 on Reconsideration which states, in relevant part, that:
Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.
19The respondents further submit that the Decision as it pertains to absolute privilege is not in conflict with established jurisprudence on when pre-litigation communications will be absolutely privileged. The respondents submit that the Tribunal applied the applicable legal principles – including those enunciated in Moseley-Williams – to the facts of the case at hand and properly found that the June 18, 2009 letter was directly related to a proposed civil action against the applicant and therefore written on an occasion of absolute privilege. Without prejudice to this position, the respondents deny that Moseley-Williams and the cases citing it represent an “established line of jurisprudence” on the issue of when pre-litigation communications will be subject to absolute privilege.
20Finally, the respondents deny that the proposed reconsideration involves a matter of general or public importance.
21The respondents ask that the Tribunal dismiss the applicant’s Request for Reconsideration. In the alternative, should the Tribunal decide to reconsider the part of its Decision relating to absolute privilege and the June 18, 2009 letter, the respondents submit that the applicant’s reprisal claim ought to be dismissed by the Tribunal on the basis of one or more of the other arguments they made in relation to the June 18, 2009 letter at the hearing, which have not yet been considered by the Tribunal.
ANALYSIS AND DECISION
22The issue is whether the part of the Tribunal’s Decision relating to absolute privilege is in conflict with established Tribunal or court jurisprudence and involves a matter of general or public importance, such that the Tribunal ought to exercise its discretion to reconsider that part of the Decision.
Jurisprudence on Reprisals
23The applicant contends that the Decision as it relates to absolute privilege is inconsistent with established jurisprudence on reprisals under the Code. Specifically, the applicant submits that the Decision as it relates to absolute privilege is in conflict with:
a. Established jurisprudence recognizing the importance of the reprisal section (s.8) in the overall scheme of the Code: Jones v. Amway of Canada Ltd., [2002] O.J. No. 1504 (Div. Ct.), at para. 4; Ketola v. Value Propane Inc. (No. 1) (2002), 2002 CanLII 46510 (ON HRT), 44 C.H.R.R. D/20 (Ont. Bd. Inq.) at p. 38 (“Ketola”).
b. Established jurisprudence that the initiation or threat of civil proceedings may constitute a reprisal contrary to s.8 of the Code: Ketola, supra; Curling v. Torimiro (No. 2), (1999), 1999 CanLII 35167 (ON HRT), 36 C.H.R.R. D/468 (Ont. Bd. Inq.) (“Curling”); and Ontario Human Rights Commission v. Motsewetsho, 2003 HRTO 21 (“Motsewetsho”)
c. Jurisprudence establishing that the elements of reprisal are (1) that the respondent acted against or threatened the applicant; (2) that such actions or threats were related to the applicant having claimed or attempted to enforce her rights under the Code; and (3) an intention on the part of the respondent to retaliate against the applicant for claiming or enforcing her rights under the Code.
Importance of Reprisal Section
24The Decision is not in conflict with jurisprudence regarding the importance of s.8 in the overall scheme of the Code. The reprisal section’s importance was not a factor one way or the other in the Tribunal’s Decision on absolute privilege.
25Moreover, I agree with the respondents that what the applicant is really urging the Tribunal to do is to take the nature of the respondents’ impugned conduct into account when determining whether the respondents are protected by absolute privilege from the applicant’s reprisal claim. In my view, this would be wrong in law.
26Throughout her submissions, the applicant repeatedly refers to the fact that the Tribunal’s Decision on absolute privilege “gives respondents permission” to retaliate against human rights applicants with impunity. She submits that the June 18, 2009 letter cannot be regarded as incidental to a proposed civil proceeding because it was written for the purpose of “scaring” the applicant into withdrawing her Application. The applicant submits that it is imperative that applicants be able to seek redress under the Code for this sort of retributive conduct in order to prevent the “gutting” of anti-discrimination human rights legislation.
27It is well-established that motive, bad faith, malice, deceitfulness and improper conduct are irrelevant to the determination whether communications have been made on an occasion of absolute privilege: Stewart, supra, at paras. 33-35.
It is critical to understand that it is not the nature of the conduct or the words which is the focus of the immunity, but the occasion on which the words are said or the conduct is performed. Saying exactly the same words will be either actionable or not depending on the occasion on which they are said. (Elliott v. Crime Prevention Bureau, 2005 NSCA 115, [2005] N.S.J. No. 323, at para. 114, as cited in Stewart, supra, at para. 45)
28That this approach will sometimes serve to immunize respondents from otherwise actionable conduct – including conduct which violates the Code – comes as no surprise. The courts have often recognized that the immunity from litigation afforded by absolute privilege “does not exist to protect the wrongdoer, but it will sometimes do so.” (Elliott, supra, at para. 117, as cited in Stewart, supra, at para. 46).
29Having regard to the applicable authorities, I must reject the applicant’s apparent suggestion that the Tribunal ought to have taken either the nature of the respondents’ conduct and/or the importance of s.8 of the Code into account in determining whether or not absolute privilege prevented the applicant from pursuing a reprisal claim based on the June 18, 2009 letter; and that its failure to do so was in conflict with established jurisprudence. On the contrary, the law is clear that whether the immunity afforded by absolute privilege deprives the applicant of a remedy for retributive conduct which might otherwise violate the Code is not a factor in determining whether the immunity exists in the first place.
Threat of litigation as reprisal
30I do not agree that the Decision is in conflict with the Tribunal’s decisions in Ketola, Curling and Motsewetsho. As I explained in the Decision, the issue whether absolute privilege prevented the complainants in those cases from pursuing reprisal claims based on actual or threatened civil litigation does not appear to have been before the Tribunal in the above-noted cases. These cases do not stand for the proposition that threatening litigation and/or commencing legal proceedings may form the basis for a claim under the Code, even when done on an occasion of absolute privilege, which is the issue which was before me.
Elements of reprisal
31I do not agree that there is anything in the Decision which conflicts with established jurisprudence regarding the elements which an applicant needs to prove in order to succeed in a reprisal claim.
32In putting forward this argument, the applicant refers to some comments I made, in obiter dicta, about a potential difficulty with the analytical approach in Ketola and Curling: see para. 106 of the Decision and Ketola, supra, at para. 121. In my view, these comments do not conflict with established jurisprudence on what is required in order to prove reprisal; and in any event did not form part of the reasons for my Decision that the June 18, 2009 letter could not form the basis of a reprisal claim under the Code because of absolute privilege.
Fact that absolute privilege may protect an applicant from civil suit is irrelevant to the determination whether absolute privilege applies to threats of litigation
33In addition to the above, the applicant seems to argue, with reference to para. 105 of the Decision, that the Tribunal relied upon an irrelevant factor – namely, the fact that absolute privilege sometimes protects applicants from legal proceedings – in determining that the threat of litigation in the June 18, 2009 letter was made on an occasion of absolute privilege.
34I do not agree. The obiter dicta comments in para. 105 of the Decision did not form part of the reasons for my determination that the June 18, 2009 letter was written on an occasion of absolute privilege. In any event, even if I had relied upon an irrelevant factor in reaching my Decision, in my view, that fact alone would not be a sufficient basis upon which to find that the Decision was in conflict with “established jurisprudence” or to grant the applicant’s Request for Reconsideration.
35In sum, the applicant has not satisfied me that there is any conflict between the part of the Decision which relates to absolute privilege and any of the established jurisprudence on reprisals. These aspects of the applicant’s Request are dismissed accordingly.
Tribunal jurisprudence on Absolute Privilege
36The applicant also argues that the Decision ought to be reconsidered because it is in conflict with the Tribunal’s own jurisprudence as to when absolute privilege applies. The applicant submits that, in Carlos, supra, at paras. 14-17, the Tribunal properly found that absolute privilege attached to complaints and filings to statutory tribunals and quasi-judicial regulatory bodies. The applicant submits that the decision in Carlos is not relevant to the issue whether absolute privilege attaches to statements made prior to the commencement of litigation, and does not support a finding of absolute privilege on the facts of this case.
37The applicant has not identified any conflict between my Decision and the decision in Carlos.
38I relied on Carlos for the proposition that the common law doctrine of absolute privilege applies in the human rights context, and that a statement which is made on an occasion of absolute privilege cannot found a claim under the Code: para. 99. This point is not in contention and is expressly conceded by the applicant in her Request for Reconsideration.
39I agree with the applicant that Carlos “had nothing to do with contemplated litigation.” It dealt with actual litigation. I fail to see, however, how that gives rise to any conflict between my Decision and the decision in Carlos. The decisions are not in “conflict” because they deal with different issues or underlying factual circumstances: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, at para. 57.
40For all of the above reasons, I am not satisfied that there is any conflict between the Decision and established Tribunal jurisprudence regarding when absolute privilege applies. This aspect of the applicant’s Request for Reconsideration is dismissed accordingly.
Court Jurisprudence on Absolute Privilege
41As noted above, the applicant argues that the Tribunal’s decision as it pertains to absolute privilege is in conflict with the established court jurisprudence.
42Before considering the applicant’s submissions, it is helpful to review the court jurisprudence on absolute privilege.
43Absolute privilege originally arose out of the need to protect judges, advocates, litigants, and witnesses from legal proceedings based on their participation in the justice system. In Stewart, the Ontario Divisional Court endorsed the following excerpt as correctly stating the rationale for absolute privilege:
Absolute privilege has been conceded on obvious grounds of public policy to insure freedom of speech where it is essential that freedom of speech should exist. It is essential to the ends of justice that all persons participating in judicial proceedings should enjoy freedom of speech in the discharge of their public duties or in pursuing their rights, without fear of consequences. The purpose of the law is, not to protect malice and malevolence, but to guard persons acting honestly in the discharge of a public function, or in the defense of their rights, from being harassed by actions imputing to them dishonesty and malice. Freedom from vexatious litigation for honest participants is so important that the law will not take the risk of subjecting them to such danger in order that a malicious participant may be mulcted in damages. The true doctrine of absolute immunity is that, in the public interest, it is not desirable to inquire whether utterances on certain occasions are malicious or not. It is not that there is privilege to be malicious, but that, so far as it is a privilege of the individual, the privilege is to be exempt from all inquiry as to malice; the reason being that it is desirable that persons who occupy certain positions, as judges, jurors, advocates, or litigants, should be perfectly free and independent, and that to secure their independence, their utterances should not be brought before civil tribunals for inquiry on the mere allegation that they are malicious. The rule exists, not because the malicious conduct of such persons ought not to be actionable, but because, if their conduct were actionable, actions would be brought against them in cases in which they had not spoken falsely and maliciously: it is not a desire to prevent actions from being brought in cases where they ought to be maintained, but the fear that if the rule were otherwise, numerous actions would be brought against persons who were acting honestly in the discharge of duty. Stewart, supra, at para. 32, citing Raymond Brown, The Law of Defamation in Canada, 2nd ed., looseleaf (Toronto: Carswell, 1999), at 12-64.
44As the law evolved, absolute privilege was extended to statements made prior to the commencement of litigation because it was necessary to do so in order to protect the privilege that would exist thereafter: Moseley-Williams, supra, at para. 19.
45Prior to the Divisional Court’s February 2010 decision in Stewart, there was a certain degree of uncertainty in the law regarding the application of absolute privilege to communications prior to the formal commencement of judicial proceedings: 1522491 Ontario Inc. v. Stewart, Esten Professional Corporation, 2009 CanLII 15656 (ON SCDC) at para. 18. (See also Wu v. Waters, 2009 CanLII 65796 (ON SC), in which the Ontario Superior Court stated in 2009 that “issues involving pre-litigation privilege [were] not fully settled in the jurisprudence in Ontario.”)
46Having said that, I do not disagree with the applicant that, certainly since Stewart, if not before, the established law in Ontario is that in order to find that pre-litigation communications have been made on an occasion of absolute privilege, the decision-maker must find on the basis of all of the facts that such communications were made on an occasion which is “preparatory or incidental to – or intimately connected with – judicial or quasi-judicial proceedings”: Stewart, supra, at para. 42; Moseley-Williams, supra, at para. 58. Something more than “merely a contemplation of the possibility of litigation is required” to render an occasion one of absolute privilege. Stewart, supra, at para 42; Moseley-Williams, supra, at paras. 46, 50 and 56. However, absolute privilege may arise where a conditional decision to litigate has been made: Moseley-Williams, supra, at paras. 44-46 and 55. There is also authority for the proposition that communications will “fall within the purview of the absolute privilege”, where they are “intimately connected to a judicial proceeding the institution of which [i]s being seriously considered by the defendants.” Dingwall v. Lax, 1988 CanLII 4716 (ON HCJ), 63 O.R. (2d) 336 (ON S.C.J.), as cited in Moseley-Williams, supra, at para. 38. See also Moseley-Williams, supra, at paras. 35 and 56.
47As I read the cases, Moseley-Williams, Stewart and Jamal stand for the proposition that an adjudicator ought not to assume that litigation is truly on the horizon just because it has been threatened. Rather, the adjudicator ought to consider all of the relevant facts, including, but not limited to, for example, whether steps have been taken to prepare for litigation, whether a decision to litigate has been made, and whether litigation was ever commenced (Stewart, supra, at para. 51) in order to determine whether, at the time the impugned communications were made, litigation was actually contemplated.
48In this case, the applicant contends that I did not delve into the sort of inquiry engaged in by the judge in Moseley-Williams with a view to determining exactly how serious the respondents were about following through on their threat to commence civil proceedings against the applicant before finding that the June 18, 2009 letter was written on an occasion of absolute privilege. I do not disagree. The question is whether that is sufficient reason to find that the Decision as it relates to absolute privilege is in conflict with the established jurisprudence. Having carefully considered the matter, I am satisfied that it is.
49The fact of the matter is that counsel has brought to my attention three decisions of the Ontario courts which establish the law regarding the circumstances in which absolute privilege will attach to pre-litigation communications, one of these published before and two after the hearing. I am very troubled that counsel did not put the 2004 decision in Moseley-Williams before me during the hearing. I want to make it very clear that, as noted in the Tribunal’s Practice Direction, reconsideration will not be granted under Rule 26.5(c) as a way to allow counsel to repair deficiencies in the case presented at the hearing. The respondents are not far from the mark when they say that that is precisely what the applicant is attempting to do here, and for this reason my decision to reconsider the Decision as it relates to absolute privilege is reached with some reluctance.
50Ultimately, however, I am of the view that there are some unusual factors in this case which distinguish it from a run-of-the-mill attempt to re-argue or “appeal” a decision. In an area in which the law was not settled, there have been two superior court decisions published after the hearing, which are binding upon the Tribunal, and which address and clarify the nature of the inquiry that must be undertaken by the trier of fact when deciding whether pre-litigation communications fall within the purview of absolute privilege. It is fair to say that my decision did not involve the sort of inquiry that it is now much clearer should have been made. Thus, in the very particular circumstances of this case, and as noted above, I am satisfied that the Decision as it pertains to absolute privilege is in conflict with established jurisprudence.
51Moreover, insofar as the issue involves the circumstances in which absolute privilege will prevent an applicant from pursuing a claim based on what would otherwise be actionable conduct under the Code, I am also satisfied that the proposed reconsideration involves a matter of general or public importance within the meaning of Rule 26.5(c) of the Tribunal’s Rules of Procedure.
52Accordingly, I am satisfied that this is an appropriate case in which to exercise my discretion to reconsider the part of the Decision which relates to absolute privilege and the reprisal claim which is based on the June 18, 2009 letter.
53As noted above, in her Request for Reconsideration, the applicant asks that the Tribunal reconsider and reverse its Decision that absolute privilege attached to the June 18, 2009 letter; and find that the threat of civil litigation contained in the letter constituted a reprisal or a threat of reprisal against the applicant. In the alternative, the applicant asks that the Tribunal re-hear whether the June 18, 2009 letter constituted a reprisal.
54I am not prepared to grant the applicant’s request, in the alternative, that I “re-hear" that part of her case relating to whether the June 18, 2009 letter constituted a reprisal within the meaning of s.8 of the Code. There is no basis for granting such a request. The parties had a full opportunity to present all of their evidence and arguments in relation to the June 18, 2009 letter and the related reprisal claim at the hearing.
55Rather, in accordance with Rule 26.8 of the Tribunal’s Rules of Procedure, I find it appropriate in the circumstances of this case to make a decision on the substance of the applicant’s Request without further submissions from the parties. That is, I propose to determine, on the basis of the evidence and arguments presented at the hearing, whether the respondents reprised against the applicant contrary to s.8 of the Code in the June 18, 2009 letter; or whether, as the respondents submit, the applicant is unable to rely upon the letter to found a reprisal claim under the Code for one or more of the reasons articulated by them at the hearing (see para. 7, above).
RECONSIDERATION
June 18, 2009 letter written on an occasion of absolute privilege because it was written in the course of ongoing litigation
56Having considered all of the evidence and the parties’ submissions, I agree with the respondents that even if the June 18, 2009 letter was not written on an occasion of absolute privilege because it related to civil proceedings against the applicant, the statements in the letter were still made on an occasion of absolute privilege because they were made in the course of ongoing litigation before this Tribunal.
57The Application in this matter was filed in December 2008 and all of the pleadings had been exchanged by February 2009. The August 2009 dates for the hearing were confirmed by the Tribunal in May 2009. Thus, at the time of the June 18, 2009 letter, there is no question that the parties were engaged in an ongoing legal proceeding before this Tribunal.
58At the hearing, the applicant argued that the June 18, 2009 letter was not connected to the ongoing litigation before the Tribunal, but rather represented an attempt by the respondents to end litigation. However, in all of the circumstances, it is quite clear to me that the June 18, 2009 letter related to and was written in the course of ongoing proceedings before this Tribunal (if not also in relation to a proposed civil action).
59The June 18, 2009 letter was written by the respondents’ (then) legal counsel to the lawyer from the Human Rights Legal Support Centre who was representing the applicant in her Application before the Tribunal. It is true that the letter threatened a civil action against the applicant based on her alleged slander of the respondents in the community if she did not agree, as a “proposed resolution” of the human rights case, to discontinue her human rights Application and provide a written apology to the respondents acknowledging that her sexual harassment allegations were baseless. However, the letter also addresses a number of aspects of “the anticipated hearing” before the Tribunal. For example, respondent counsel advised the applicant’s lawyer that he intended to call three additional witnesses to testify at the hearing of the Application and described, to some extent, the nature of their anticipated evidence. He also proposed a resolution of the proceedings before the Tribunal (albeit not on a basis acceptable to the applicant). In addition, the respondents’ counsel advised the applicant’s counsel that he intended to seek the respondents’ legal costs of the proceeding at the hearing of the Application. Based on the above, I find that the June 18, 2009 letter was related to and written in the course of ongoing proceedings before the Tribunal such that the statements in the letter were made on an occasion of absolute privilege.
60If it is somewhat unclear precisely when pre-litigation communications will be subject to absolute privilege, there is no such doubt about communications which are made in the course of legal proceedings. The jurisprudence appears to be clear that statements made in the course of judicial or quasi-judicial proceedings and those from the inception of the pleadings are the subject of absolute privilege. Lincoln v. Daniel, [1962] 1 Q.B. 237 (Eng. C.A.), at pp. 257-258, as cited in Stewart, supra, at para. 24; 522491 Ontario Inc. v. Stewart, Esten Professional Corp., 2008 CanLII 63198 (ON SC) at para. 13; Sussman v Eales, [1986] O.J. 317 (ON CA); Moseley-Williams, supra, at paras. 19, 27-30 and 54.
61As articulated above and in the original Decision, as a matter of law, the applicant cannot rely upon statements made on an occasion of absolute privilege to found a claim under the Code. The applicant’s reprisal claim which is based on the June 18, 2009 letter is dismissed accordingly.
Evidence did not establish that the personal respondent reprised or threatened to reprise against the applicant
62Moreover, even if the June 18, 2009 letter had not been written on an occasion of absolute privilege, I would still dismiss the applicant’s reprisal claim. This is because the applicant did not discharge her onus of proving on a balance of probabilities that the statements in the June 18, 2009 letter from respondent counsel to her counsel constituted a reprisal or a threat of reprisal against the applicant within the meaning of s. 8 of the Code.
63As the applicant acknowledges in her Request for Reconsideration, it is well-established that in order to succeed in proving reprisal, the applicant must show:
That the respondent(s) took action against or threatened the applicant;
That the action or threat was related to the applicant claiming or enforcing rights under the Code; instituting or participating in proceedings under the Code; or refusing to infringe the rights of another person under the Code; and
An intention on the part of the respondent(s) to retaliate for the applicant for having claimed or enforced rights under the Code; instituted or participated in proceedings under the Code; or refused the infringe to rights of another person under the Code.
64The requirement to prove intent in reprisal cases was discussed by the Tribunal in Noble v. York University, 2010 HRTO 878, at para. 31:
Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate.
65In this case, the applicant contends that the respondents reprised against her for having claimed or enforced her rights under the Code. In support of this contention, the applicant relies on the contents of the June 18, 2009 letter itself. Specifically, the applicant urges me to conclude from the fact that the respondents threatened to sue the applicant unless she withdrew her human rights Application that the threat of civil action was related to the applicant having claimed or enforced her rights under the Code.
66When he testified at the hearing of this matter, the personal respondent denied that the June 18, 2009 letter was sent as retaliation against the applicant for having invoked her rights under the Code. The personal respondent testified that the applicant’s December 2008 Application was going through the Tribunal process and that was fair as far as he was concerned. The personal respondent testified, however, that he became concerned that the applicant was defaming him in the small community in which he and the applicant lived when a lot of people came forward and told him that the applicant was going “all over town” calling the personal respondent a “pervert” and an “asshole”. The personal respondent testified that people who worked out with the applicant at the gym approached him and told him that they felt that he should know that the applicant was telling people that she was going to “get her revenge” against the personal respondent. He testified that he heard more than once that the applicant had told people, “The more complicated the case, the bigger the settlement.” He testified that he also heard that the applicant was going around town “talking bad” about the restaurant. The personal respondent testified that “everyone had their own little story” about what they had heard about the case from the applicant.
67The personal respondent testified that he knew that he had to go through “due process” at the Tribunal but he did not feel it was right for the applicant to be going around the small town in which they lived trying to ruin his reputation. The personal respondent testified that the applicant’s actions were negatively affecting his business and taking a toll on him mentally and socially. He testified that he stopped going to a couple of local restaurants he used to frequent because everyone there had heard “all about” what the applicant was saying. The personal respondent said that he brought his concerns in this regard to his lawyer’s attention and received the advice that the applicant’s actions were probably defamatory.
68The personal respondent testified that this conversation with his lawyer is what triggered the allegation in the June 18, 2009 letter that the applicant was slandering the respondents and the threat of a civil suit. He testified that the purpose of the June 18, 2009 letter was “to pursue a civil suit outside of the Human Rights Tribunal”. He testified that the letter was not sent to intimidate the applicant from pursuing her rights before the Tribunal, but in an attempt to get the applicant to stop going around town ruining his reputation and the credibility of his business, telling people that he was “an asshole” and that he had “sexually molested” the applicant.
69I accept the evidence of the personal respondent as credible for a number of reasons. First, there was no evidence put before me that would lead me to reject the personal respondent’s evidence on these points as false or otherwise unreliable or incredible. Moreover, the personal respondent’s evidence was uncontradicted, rich in detail, internally consistent, and plausible. In addition, the personal respondent’s evidence was consistent with the applicant’s testimony that she made negative remarks about the personal respondent in Facebook messages to the personal respondent’s brother-in-law (in which she referred to the personal respondent as “an asshole” and “perverted”, among other things) and to Joe Mete.
70Returning to the merits of the applicant’s reprisal claim, I find that the applicant did not meet her onus of proving, on a balance of probabilities, that the threat of civil litigation contained in the June 18, 2009 letter was made with the intent of punishing or retaliating against the applicant for claiming or enforcing her rights under the Code (i.e. that it constituted a reprisal).
71First, the applicant did not establish in evidence that the threat of civil litigation contained in the June 18, 2009 letter was related to her having claimed or enforced her rights under the Code. On the contrary, notwithstanding that the respondents’ former counsel proposed a resolution pursuant to which the applicant would “discontinue” her Application, the evidence establishes that the respondents were prepared to allow the Tribunal proceedings to unfold in due course. It was the personal respondent’s apprehension that the applicant was making a lot of derogatory comments about him and his business in the community at large that led to the threat of civil litigation in the June 18, 2009 letter. In all of the circumstances, I find that the threat of litigation contained in the June 18, 2009 letter was made in relation to the applicant having made potentially defamatory comments about the respondents in the community and not in relation to the applicant having invoked any of her rights under the Code.
72Having failed to establish that the threat of civil litigation in the June 18, 2009 letter was related to her having claimed or enforced her rights under the Code, it follows that the applicant cannot clear the additional hurdle of establishing that the threat was intended as retaliation or punishment for her having claimed or enforced her rights under the Code. In any event, I accept the personal respondent’s testimony that there was no intent on the part of the respondents to punish or retaliate against the applicant for having claimed or enforced her rights under the Code. Rather, I find on the basis of the personal respondent’s evidence that the June 18, 2009 letter was intended to respond to the applicant’s perceived attempt to ruin the personal respondent’s reputation and that of his business.
CONCLUSION
73For the reasons set out above, I am satisfied that this is an appropriate case in which to exercise my discretion to reconsider the Decision that the June 18, 2009 letter from the respondents’ counsel to the applicant’s counsel was related to civil proceedings against the applicant and therefore written on an occasion of absolute privilege.
74Upon reconsideration, I nonetheless find that the June 18, 2009 letter was written on an occasion of absolute privilege because it was written in relation to and in the course of ongoing legal proceedings before this Tribunal. Accordingly, the June 18, 2009 letter and the statements therein cannot be relied on by the applicant to form the basis for a reprisal claim under the Code.
75Moreover, even if the statements in the June 18, 2009 letter were capable of forming the basis of a claim under the Code, I would have dismissed the applicant’s reprisal claim on its merits. The evidence at the hearing did not establish, on a balance of probabilities, that the respondents reprised or threatened to reprise against the applicant in respondents’ counsel’s June 18, 2009 letter to counsel for the applicant.
76Accordingly, the applicant’s Request that the Tribunal find, on reconsideration, that the respondents reprised and/or threatened to reprise against her in the June 18, 2009 letter is dismissed.
Dated at Toronto, this 16th day of August, 2011.
“Signed by”
Sheri D. Price
Vice-chair