Ont CA addresses privilege in communicating a sex assault allegation

On July 20th, the Court of Appeal for Ontario allowed an appeal of a civil sexual assault finding and, at the same, time awarded defamation damages to the party alleged to have committed the assault.

The matter dealt with assault and sexual assault claims brought by a sister against her older brother. She alleged the assaults occurred many years ago, the action being commenced based on “recovered memory.” Before the sister commenced her claim, she came out with the allegations in an e-mail to her brother, his wife and children, her two sisters and their families, her daughters and a woman she had been friends with in high school. She then sent similar communications to the same group as well as to her own lawyer and a lawyer involved in the administration of her mother’s estate.

The Court held that communication to the family members and lawyers was subject to qualified privilege but communication to the friend was not. The privilege in communicating with the family members was rooted in the sister’s need to “prevent future abuse or seek out emotional support” and the recipient’s reciprocal interest in deciding whether to take “protective action.” The privilege in communicating with the lawyers appears to be rooted in the nature of their retainers. Regarding the friend, the Court said:

However, there was no duty or interest on the part of the respondent’s former high school friend to receive the respondent’s communications. The respondent admitted that their friendship did not last after high school had ended and that they only briefly reconnected after the death of the respondent’s mother.  She did not testify as to her reason for copying the friend on the defamatory emails. There was no evidence that she asked her friend for assistance or advice, or that the friend ever responded to her communications. In these circumstances, there was no legitimate interest to be protected by the statements; as a result, they did not merit protection under the auspices of qualified privilege:  R.T.C. Engineering, at para. 15; Milgaard v. Mitchell (1996), 1996 CanLII 6950 (SK QB), 151 Sask. R. 100 (Q.B.), at para. 36.

Assault and sexual assault survivors can describe their allegations in seeking assistance and pursuing complaints, but may be liable for communicating their allegations too broadly. This finding gives fairly permissive scope to the (protective) qualified privilege doctrine, but also illustrates that its protection is has limits.

The Court also made a finding about the use of opinion evidence for the purpose of assessing credibility. This use of evidence is impermissible as “oath helping” and, in this case, rendered the trial judge’s sexual assault finding erroneous.

Whitfield v Whitfield, 2016 ONCA 581 (CanLII).