COURT FILE NO.: 55/08
DATE: 20090122
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
ROBERT MANTELLA
Plaintiff
(Appellant)
- and -
LISA MANTELLA
Defendant
(Respondent)
Daniel F. Chitiz, for the Plaintiff (Appellant)
In Person
HEARD at Toronto: January 22, 2009
JANET WILSON J.:
[1] The ex-husband appellant appeals from the order of Master Hawkins, dated January 25, 2008. The Master denied the ex-husband’s request to add further allegations of defamation to an outstanding defamation claim advanced by him against his ex-wife.
[2] The alleged defamatory comments were made by the respondent ex-wife to a psychologist conducting a custody assessment for the parties in the context of outstanding custody litigation. The psychologist was appointed to conduct the assessment pursuant to s. 30 of the Children’s Law Reform Act, R.R.O. 1990, c. 18.
[3] The alleged defamatory comments are as follows:
“Robert is like Tony Soprano”
“I do not think Robert makes his money through legal ways … he bullies, threatens and intimidates people.”
[4] The Master concluded, correctly, that the requested amendment was without merit in law and refused the ex-husband’s request.
[5] The Master relied upon well-established principles with respect to absolute privilege for communications taking place in the context of litigation. He adopted the accepted principles with respect to absolute privilege, which are outlined in Raymond E. Brown, Defamation Law: A Primer, 2nd ed. at Chapter 12, page 5:
“There is an absolute privilege for communications which take place during, incidental to, and in the processing and furtherance of, judicial or quasi-judicial proceedings. The privilege applies to all participants in the proceeding including the judge, counsel, parties, witnesses, jurors and court personnel.”
[6] The appellant relies upon the decision of Reynolds v. Kingston (2007), 2007 ONCA 166, 84 O.R. (3d) 738 (C.A.) (Smith, the Smith Decision). He argues that the law of absolute privilege is unsettled in the context of a court appointed custody assessment. He suggests that in accordance with the Smith Decision the question of whether absolute privilege applies to statements made during a custody assessment should be determined in the context of a trial with a full factual base.
[7] I disagree.
[8] Counsel for the appellant have misinterpreted the Smith Decision in a significant way. The law of absolute privilege is clearly established. The issue in Smith was whether the doctrine of absolute privilege applied given Dr. Smith’s role as a public coroner performing an autopsy when he may later be called to testify in court at the preliminary hearing. Smith was not preparing a report in the context of outstanding litigation. He was performing a public function investigating a death under the Coroner’s Act, R.S.O. 1990, c. C.37. The discussion and issues in the Smith decision have no application whatsoever to the facts of this case.
[9] To the contrary, this motion illustrates cogently the need for strict adherence to the principle of absolute privilege in the context of litigation. As stated in Smith, the rationale behind absolute privilege is that “the proper administration of justice requires full and free disclosure” (at para. 14) without fear of retaliation. Clients participating in a custody assessment must be able to speak freely with the assessor without fear of consequences. The assessor in turn must be free to report to the court what occurs.
[10] The limit of absolute privilege is particularly important in family law matters. Imagine the chaos if parties in family law litigation could be sued for defamatory comments made during emotionally charged family law proceedings.
[11] Contrary to the suggestion from the appellant’s counsel, there is no need to clarify the law on this issue.
[12] The allegations of defamation in the Statement of Claim which are outstanding, relate to the ex-wife’s public assertions to third parties that her ex-husband is a member of the mafia, that there had been a history of violence during the marriage and the she has concerns about her safety.
[13] In my view, the defamation action is properly tied in with matters that are outstanding in the family law proceedings and should be transferred to the Family Law Division of this Court. I so order.
[14] The parties shall participate in an immediate conference with a Judge in the Family Law Division and no steps shall be taken in this proceeding until that meeting has taken place.
COSTS
[15] The respondent ex-wife seeks costs in the amount of $4,375.00, plus disbursements in the amount of $338.38. She appeared in person today but retained counsel to assist her with preparation of the factum and court documents. She has prepared a Bill of Costs based upon what she will be charged.
[16] The husband suggests that costs should be fixed in the amount of $2,500.00, plus disbursements, which was the amount ordered payable by the Master.
[17] In my view, the costs should be fixed, payable in the amount of $3500.00, inclusive of GST and disbursements, payable by the ex-husband to the ex-wife forthwith.
JANET WILSON J.
Date of Release: February 4, 2009
COURT FILE NO.: 55/08
DATE: 20090122
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
ROBERT MANTELLA
Plaintiff
(Appellant)
- and -
LISA MANTELLA
Defendant
(Respondent)
REASONS FOR JUDGMENT
JANET WILSON J.
Date of Release: February 4, 2009