WILLIAM FRANCTS OCONNOR Vs. GORDON WALDRON

JUDGEMENT

(1.) This is an appeal from a judgment of the Supreme Court of Canada affirming a judgment of the First Appellate Division of the Supreme Court of Ontario affirming a judgment of Orde, J. The original judgment was given on a motion by the defendant to dismiss the plaintiff's action for slander on the ground that it was frivolous and vexations. The question is whether the defendant in uttering the words was protected by the absolute privilege which is given to words spoken by a Judge. The statement of claim alleges that the plaintiff is a barrister-at-law of the provinces of Ontario and Nova Scotia, and that the defendant published, concerning the plaintiff in relation to his profession and practice, to seven named persons the words following:

(2.) A very odious counsel. A lawyer cannot advise a wrong or a crime any more than anybody else. He has no privilege to do that. Well, then, you had full knowledge of the scheme. Was it you who gave to O'Conor the contrivance of effecting a crime without effecting a crime, of making a false pretence to the public and to the law? Was it you who gave that to O'Conor or did he give it to you? I will describe it more clearly. Did you give to O'Conor the idea that you might beat the law by false pretence? I say it is a thing any lawyer ought to be ashamed of. I do not care who he is. It is an outrageous, scandalous exhibition. It ought to be reported to the Law Society. Anybody who had an evil mind or disposition to commit crime would be completely carried away by the eloquence of Mr. O'Conor."

(3.) The defence admits that the words alleged were spoken except "it ought to be reported to the Law Society," and alleges that when speaking the words the defendant spoke them in his office of a Commissioner appointed by the Governor-General in Council under the Combines Investigation Act, E. S. C., C. 26, while he was acting judicially and that the speaking the said words was absolutely privileged. The statement of claim did not allege the defendant's office: and it is obvious that the pleading could not be struck out as disclosing no cause of action. The plaintiff, however, on examination for discovery admitted that the words were spoken by the defendant while purporting to act under his commission. On that admission the motion in question was made and dicided. Their Lordships are of opinion that the words uttered were not protected by absolute privilege, and the order dismissing the action should be set aside. The result will be that the action may come on for trial, and in these circumstances it is desirable that their Lordships should confine their opinion strictly to the matter in issue so as to avoid prejudicing the case of either party on a future occasion. The law as to judicial privilege has in process of time developed. Originally it was intended for the protection of Judges sitting in recognised Courts of justice established as such. The object no doubt was that Judges might exercise their functions free from any danger that they might be called to account for any words spoken as Judges. The doctrine has been extended to tribunals exercising functions equivalent to those of an established Court of justice. In their Lordships' opinion the law on the subject was accurately stated by Lord Esher in Royal Aquarium V/s. Parkinson, (1892) 1 QB 431 at p. 442, where he says that the privilege, "applies wherever there is an authorized inquiry which though not before a Court of justice, is before a tribunal which has similar attributes . . . The doctrine has never been extended further than to Courts of justice and tribunals acting in a manner similar to that in which such Courts act."