DATE: 20060317

DOCKET: C44334

COURT OF APPEAL FOR ONTARIO

RE: RUPERT BRYAN (Plaintiff/Appellant) – and – JAMIE CHAFFE and THE HONOURABLE NORMAN STERLING (Defendants/Respondents)

BEFORE: ROSENBERG, BORINS and LANG JJ.A.

COUNSEL: Osborne G. Barnwell for the appellant Leslie McIntosh for the respondent

HEARD: March 7, 2006

On appeal from order of Justice Herman J.W. Siegel of the Superior Court of Justice dated September 23, 2005.

E N D O R S E M E N T

[1] The appellant, Rupert Bryan, commenced an action for damages for defamation against the respondent Jamie Chaffe, an Assistant Crown Attorney. The words complained of by the appellant were spoken by the respondent to another assistant Crown Attorney, Mr. Boulet, who was representing the Crown in the Summary Conviction Appeal Court presided over by Beaulieu J. As such, Mr. Boulet was in the court to respond to an application for bail pending an appeal brought by the appellant from his conviction by the Ontario Court of Justice. In doing so, Mr. Boulet repeated the information received from the respondent to Beaulieu J. The information was incorrect. Subsequently, Mr. Boulet informed the judge of the correct information.

[2] Mr. Bryan appeals from a summary judgment dismissing his claim. He submits that the motion judge exceeded his proper role in hearing a motion for summary judgment under Rule 20 of the Rules of Civil Procedure by assessing credibility, weighing the evidence and finding facts. In the alternative, he submits that the motion judge erred in finding that there was no genuine issue for trial in respect to whether the respondent acted with malice in giving incorrect information to Mr. Boulet. For the reasons that follow, we would dismiss the appeal.

[3] The respondent relied on three defences, two of which apply to defamation actions: that the statements made by him to Mr. Boulet were spoken on an occasion of either qualified or absolute privilege. The third defence was that the action was statute barred because it was commenced more than six months from the date that the cause of action arose, contrary to s. 7(1) of the Public Authorities Protection Act, R.S.O. 1990, c. P. 38 (since repealed).

[4] It was common ground before the motion judge, and in this court, that the defence of qualified privilege and the defence under s. 7(1) of the Act can be defeated by proof of malice on the part of the defendant. Before the motion judge, the appellant’s position was that in incorrectly telling Mr. Boulet that he had been convicted of impersonating a lawyer, the respondent was acting as a “surrogate” of the Toronto Police, whom the appellant believed were engaged in a conspiracy to injure his reputation as a result of his involvement in identifying improper activities on the part of the police and some staff at the Scarborough Courthouse.

[5] On his analysis of the record, the motion judge was satisfied that there was no evidence of malice. As he observed, the uncontradicted evidence relied on by the respondent in support of his motion was that Mr. Boulet asked him to assist in obtaining information about the appellant’s criminal record, and that in doing so, the respondent provided incorrect information. On the other hand, the appellant could offer no evidence to support his conspiracy theory. Consequently, the motion judge found that there was no genuine issue for trial in respect to the malice issue. In our view, in reaching this conclusion the motion judge did not exceed his proper role. Moreover, we agree with his finding that there was no evidence capable of raising a genuine issue for trial in respect to whether the respondent acted with malice. Accordingly, we would not give effect to the appellant’s position.

[6] In respect to the defence of absolute privilege, the respondent’s position is that as the communications between him and Mr. Boulet were made in respect of court proceedings, the defence applies. Although the motion judge appreciated that he did not have to consider this defence in light of his conclusion respecting the other defences, he found that the defence of absolute privilege applied as the respondent was acting in respect of court proceedings when he provided information to Mr. Boulet, even though the information was incorrect. In the absence of any evidence that the respondent was not acting in respect to court proceedings, this is a finding that was open to the motion judge. As such, we would not interfere.

[7] Accordingly, we would dismiss the appeal with costs fixed in the amount of $4,000 including disbursements and GST.

“M. Rosenberg J.A.”

“S. Borins J.A.”

“S.E. Lang J.A.”