June 28, 2013
Guergis v. Novak 2013 ONCA 449

With one exception, the Ontario Court of Appeal agreed with the lower court that “the statements and letters upon which the allegations of defamation are based are either not capable of being defamatory or are protected by absolute privilege.” The Court struck torts pleaded in the alternative to defamation on the basis that they were “dressed up” defamation. The Court also upheld a claim for absolute privilege for communications between officers of state (it is only the second decision in Canada which has applied this privilege), and the Court held that a statement in which someone is alleged to have engaged in criminal conduct is not defamatory.

Background

Helena Guergis, the former Minister of State for the Status of Women, member of the Conservative Party of Canada (“CPC”) caucus, and Member of Parliament for the Electoral District of Simcoe-Grey brought a complaint against Prime Minister Stephen Harper and the Conservative Party of Canada (CPC) to the Canadian Human Rights Commission (CHRC) after she was pressured to resign from Cabinet in 2010.

The CHRC decided not to deal with Ms. Guergis’ complaint on the basis that her removal from Cabinet was protected by Crown prerogative and her removal from caucus by parliamentary privilege making her complaints non-justiciable. In addition, the Commission held her complaint against the CPC did not satisfy the statutory requirements of the Canadian Human Rights Act, R.S.C. 1985, c. H-6.

Ms. Guergis then brought an action against the CPC, Prime Minister Harper, Guy Giorno, Raymond Novak, Lisa Raitt, Axelle Pellerin, Shelly Glover, Arthur Hamilton, Cassels Brock & Blackwell LLP and Derrick Snowdy.

The tort claims that Ms. Guergis brought against the defendants included defamation, conspiracy, negligence, intentional infliction of mental suffering, misfeasance in public office and alleged breach of duty of care.

The defendants brought a motion to strike on the basis that the claim disclosed no reasonable cause of action. The motion judge granted the defendants’ motion. Ms. Guergis appealed the motion judge’s conclusion.

Decision Summary

The ONCA concluded that, with the exception of the claim against Shelly Glover, “the motion judge correctly concluded that the statement of claim should be struck under Rule 21.01(1)(b)on the basis that as the CHRC ruled that Guergis’s core complaints were not justiciable, “it was an abuse of process for her to seek to have such determinations re-litigated.”

With respect to Guergis’s action against Shelly Glover, as Guergis had not included Glover in her complaint to the CHRC, “the motion judge erred in lumping Glover in with the other respondents on the issue of whether it would be an abuse of process for her claim to proceed.”

The Court of Appeal found that the comments made by Shelly Glover during a television interview could be interpreted as being defamatory, and therefore, “the matter should be allowed to proceed to trial where the question of the actual meaning will be determined as a matter of fact.”

The Court went on to state that, with the exception of the statement of Shelly Glover:

…we agree with the motion judge that the statements and letters upon which the allegations of defamation are based are either not capable of being defamatory or are protected by absolute privilege. The other tort claims are simply “dressed-up” defamation claims. The factual basis and elements necessary to sustain these claims are not present in the pleading.