Legal Blog

Defamation

There are times when lawyers are too candid. One of these arose in the case of Gutstadt v. Reininger (1995), 27 O.R. (3d) 152 (O.C.G.D.).

Mr. Reininger was examining a defendant for discovery. At the end of the examination, while still in the examination room, but off the record, Mr. Reininger allegedly made statements that could be taken to mean that Mr. Gutstadt, a lawyer who drafted some of the documents under consideration, might have done something quite improper.

Mr. Gutstadt sued for defamation and Mr. Reininger defended on the basis of absolute or qualified privilege. Mr. Reininger’s counsel brought a motion to dismiss the action on the grounds that the pleadings disclosed no cause of action.

The judge quite rightly held that the applicability of qualified privilege depends on an absence of malice. To determine whether there has been malice, a trial is necessary.

The judge noted that there were no Canadian cases extending absolute privilege during examination for discovery to conversations between counsel after them. Although, there were American cases to that effect, the judge made no ruling as to whether the concept should be extended in Canada and held that the matter should go to trial for a decision. Unfortunately, the very reason for the Rule under which the motion was brought was to forestall an unnecessary trial.