COURT OF APPEAL FOR ONTARIO
Thorburn J.A. (Motion Judge)
BETWEEN
Henry Aukema
Plaintiff
and
Michelle Peters, Jonathan Aukema, and Jennifer Aukema
Defendants
Denis Grigoras, for the plaintiff
Gabriel Latner, for the defendants
Heard: May 21, 2026
REASONS FOR DECISION
A. OVERVIEW
1The plaintiff and defendants jointly move for the determination of a question of law by way of a special case under r. 22 of the Rules of Civil Procedure, R.S.O. 1990, Reg. 194.
2This motion is related to an ongoing defamation action before the Superior Court of Justice. The plaintiff claims that the defendants made false statements to the police accusing him of serious criminal conduct.
3The parties agree that, if the defendants’ statements to police are covered by absolute privilege, the defamation claim must be dismissed.
4Therefore, the question posed by the special case is whether reports to law enforcement alleging criminal activity are protected by absolute privilege.
5If the motion is granted, the parties request that the special case be heard by a five-judge panel.
B. THE TEST TO BE MET
6Rule 22.01(2) provides for a special case where it may dispose of all or part of the proceeding, substantially shorten the hearing, or result in substantial cost saving. Rule 22.03(1) allows a special case to be brought before the Court of Appeal (“this Court”) in the first instance with leave.
7To be considered by this Court, the special case must at minimum raise one of the issues set out in r. 22.03(1):
(a) there are conflicting decisions of judges in Ontario and there is no decision of an appellate court in Ontario;
(b) there is a conflict between decisions of an appellate court in Ontario and an appellate court of another province, or between decisions of appellate courts of two or more other provinces; or
(c) one of the parties seeks to establish that a decision of an appellate court in Ontario should not be followed.
8However, even where one or more of the prerequisites of r. 22.03(1) are satisfied, leave is not automatic. Removal of the matter to this Court is discretionary. In Taylor v. Canada (Attorney General), 2011 ONCA 181, 104 O.R. (3d) 481, at para. 34, one of the few reported motion decisions under r. 22.03, Armstrong J.A. identified several factors relevant to the exercise of the motion judge’s discretion. These include: (i) the importance of the question of law; (ii) the inevitability of an appeal; and (iii) whether a prior determination in the court below will sufficiently assist this court in its ultimate determination, justifying the additional cost and delay.
C. THE POSITION oF THE PARTIES
9The parties submit that whether absolute privilege protects initialreports made by victims or witnesses to police, as opposed to subsequent statements given under oath, is an important question of law that this Court has yet to explicitly address.
10The defendants acknowledge that Ontario courts have previously held that complaints to police are covered by qualified privilege and not absolute privilege. For example, in Cusson v. Quan, 2007 ONCA 771, 87 O.R. (3d) 241, at paras. 39-40, this Court held that “complaints to police … are classic examples of occasions of qualified privilege”. It reasoned that implementing an absolute privilege standard would unduly restrict freedom of speech and outweigh the harm arising from the infliction of private injury. Meanwhile, qualified privilege can still be defeated “upon proof of malice” or “proof that the defendant either knew the statement was false or was reckless as to its falsity”.
11In Marcellin v. London (Police Services Board),2024 ONCA 468, 498 D.L.R. (4th) 438, at paras. 67-68, 71, leave to appeal refused [2024] S.C.C.A. No. 350, this Court acknowledged the application of qualified privilege to police complaints. It overturned a finding that there was no defamation, holding that, in that specific case, “the motion judge's analysis of the defence of qualified privilege in respect of the police complaint was incomplete” and was defeated by evidence of malice
While there is an obvious public interest in members of the public feeling free to report conduct which is of concern to the police … the motion judge did not consider whether there was a basis in the evidence to believe that the defence of qualified privilege would be lost because of the timing of the police report and the circumstances in which it was made.
The motion judge erred by not considering evidence of Dr. Young’s motive and malice in making the complaint. On the record in this case I am satisfied that there are grounds to believe that the defence of qualified privilege will not succeed in relation to this impugned expression. See also Haight v. R.B., 2017 ONSC 5359.
12Nonetheless, the moving parties contend that this court’s treatment of the issue is not explicit and does not conclusively demonstrate that qualified privilege attaches to complaints made to police. Furthermore, to the extent that these cases suggest qualified over absolute privilege, the moving parties argue that a special case should be heard under r. 22.03(1)(c) because the cases are incorrect and should not be followed.
13The parties refer to the English Court of Appeal’s decision in Westcott v. Westcott,[2008] E.W.C.A. Civ. 818, which extended the absolute privilege defence to initial reports to law enforcement. The court in Westcott reasoned at para. 36 that:
The police cannot investigate a possible crime without the alleged criminal activity coming to their notice. Making an oral complaint is the first step in that process of investigation. In order to have confidence that protection will be afforded, the potential complainant must know in advance of making an approach to the police that her complaint will be immune from a direct or a flank attack. There is no logic in conferring immunity at the end of the process but not from the very beginning of the process. [The] distinction between instigation and investigation is flawed accordingly. In my judgment, any inhibition on the freedom to complain will seriously erode the rigours of the criminal justice system and will be contrary to the public interest. In my judgment immunity must be given from the earliest moment that the criminal justice system becomes involved. It follows that the occasion of the making of both the oral complaint and the subsequent written complaint must be absolutely privileged. [Emphasis added.]
14Westcott was rejected by the British Columbia Court of Appeal in Caron v. A., 2015 BCCA 47, 382 D.L.R. (4th) where the court considered whether privilege could shield complaints made to police from defamation claims. It concluded at para. 54 that, “[s]tatements to police prior to the commencement of judicial proceedings are protected by qualified privilege, not absolute privilege, under Canadian law.”
15Nonetheless, the defendants submit that Westcott has not been formally considered by any court in Ontario, and that its ratio should be followed in lieu of Cusson and Marcellin.
D. Analysis
16The parties argue that the caselaw in Ontario is not clear about whether qualified or absolute privilege attaches to an initial police statement not made under oath. They also submit that r. 22.03(1)(c) is engaged because of the defendant’s contention that the existing appellate authorities, to the extent that they suggest qualified privilege over absolute privilege, should not be followed.
17I disagree. The defendants’ submission that this court should clarify the existing case law does not satisfy any of the prerequisite elements listed in r. 22.03. Moreover, this position is incompatible with r. 22.03(1)(c) which does not apply where the caselaw challenged by the parties does not “conclusively and indistinguishably” determine the legal issue: Seed v. Delhey (1989), 1989 CanLII 4102 (ON CA), 67 O.R. (2d) 317 (C.A.).
18The parties have not identified any conflict in the jurisprudence of the Superior Court or between appellate courts in Canada on this issue as required to satisfy r. 22.03(a) and (b).
19Accordingly, none of the three prerequisites in r. 22.03 for the Court of Appeal to hear a special case at first instance have been met.
20Moreover, even if the parties had met the prerequisites, I would decline to exercise my discretion to order a special case before this Court as, I am not satisfied that determination of this question will substantially shorten the hearing or result in a substantial cost saving.
21The parties argue that the circumstances favour granting leave as, (i) the special case raises an important question of law for which clear guidance from this Court is needed; (ii) an appeal on this legal issue is inevitable; (iii) there are no findings of fact or credibility that would assist this Court in determining the legal question, so there is no value in having this question first answered by the Superior Court; and (iv) if this Court finds that reports to the police alleging criminal activity are protected by absolute privilege, the action must be dismissed.
22Special cases before the Court of Appeal are rare. The most recent special case considered by the court was Taylorin 2012. The five-judge panel hearing the special case observed at para. 3, that resort to the special case was justified because of the “apparent inconsistency in this court's jurisprudence, the tortured and lengthy procedural history of this case, and the importance of the legal issue raised.”
23By the time the parties brought a motion for a special case at the Court of Appeal, the action had been ongoing for over 20 years. Further, the motion judge granting the special case noted that counsel advised there were “30 other cases ‘waiting in the wings’” for the proposed legal question to be resolved: Taylor v. Canada (Attorney General), 2011 ONCA 181, 104 O.R. (3d) 481, at para. 28.
24The parties in this case, on the other hand, have not demonstrated a similar “tortured and lengthy procedural history”. Moreover, while it is true that the action must be dismissed if reports to the police are protected by absolute privilege, the same is not true if these reports are protected by qualified privilege, as a trial must be held to determine if the report was in fact made with malice.
25In addition, without determining the merits of the special case, I am concerned that the parties may not have set out the necessary material facts to determine what privilege attaches to initial complaints to police.
26Rule 22.04(a) requires the parties to set out the agreed material facts necessary to enable the court to determine the question of law. Where parties do not set out the necessary material facts, the judge may refuse to answer the legal question: Bank of Montreal v. Bray, (1998) 1997 CanLII 545 (ON CA), 36 O.R. (3d) 99 (C.A.), at p. 112.
27The importance of sufficient material facts for this special case is apparent in the defendants’ submissions on this motion. As previously observed, they primarily argue that previous cases holding that initial complaints to police are protected by qualified privilege are “not controlling”, presumably because they are factually distinguishable. This necessarily requires sufficient material facts. Were a special case heard by this Court, and the Court determined it could not answer the special case due to insufficient facts; this would involve a significant unnecessary use of judicial resources.
28While the issue of whether absolute or qualified privilege applies to initial complaints to police is no doubt an important legal issue, I am not persuaded that this action warrants resort to the Court of Appeal determining the legal issue in the first instance.
E. disposition
29For these reasons, the r. 22 motion is dismissed. As the motion was on consent, I make no order as to costs.
“Thorburn J.A.”