Re: Vanderkooy v Vanderkooy & Vanderkooy, 2013 ONSC 4796 (Ont SCJ)
Two sisters, Patricia and Sarah Vanderkooy, were ordered to pay $125,000.00 damages to their Uncle Jack for libel for falsely alleging sexually abuse. The decision came down to balancing (1) the a person’s right not to be defamed against (2) a plaintiff’s right to seek damages without fear of being accused of libel. The case has potentially far-reaching consequences, at least for sexual assault victims.
The sisters, in their 30s, confronted their uncle for sexually assaulting them when they were 4 and 6 years old. Uncle Jack denied the allegations. The allegations divided the family, and the sisters ultimately retracted their accusations and apologized; however, they renewed their claim a short time later. They subsequently failed to prove that the allegations were true (or that they were subject to any of the defences to defamation, eg: truth).
It can be challenging for a sexual assault victim to come forward and make public a complaint of sexual abuse. It is arguably easier to remain silent rather than accuse the assailant. The twist to this case was that Uncle Jack sued for libel before his nieces actually pursued criminal charges.
On one hand, the court should not allow people to make spurious sexual assault accusations while at the same time the court needs to protect sexual assault victims. This decision foreseeably reaches beyond the realm of sexual assault to any crime in respect of which a defamation defence can be established.
In a judgment released on February 11, 2015 the BC Court of Appeal in Caron v ‘A’ ruled that complaints to the police are not subject to absolute privilege and can give rise to a defamation action (against the complainant).
The appellant went to the RCMP and falsely accused the Mr Caron of sexual assault. Not only did Mr Caron not get charged, he was able to show that the complaint was unfounded (he had an alibi). He sued for defamation (where ‘truth’ is the only real defence). The complainant unsuccessfully argued that the statements she made to police were subject to privilege and couldn’t be used as the basis of a defamation lawsuit – much like if she’d testified in court. First the BC Supreme Court and then the Court of Appeal disagreed: statements made prior to the commencement of judicial proceedings are not protected by absolute privilege where the dominant motive for ‘publishing’ the potentially defamatory statement is determined to be actual or express malice, in which case the complaint can be the basis of a lawsuit for defamation. (This would not likely be the case where charges are laid but are determined to be unfounded; however, there is law that holds damages may lie on different grounds.)
In dismissing the appeal, the Court of Appeal reasoned that qualified privilege applies where the complainant has a “legal, social or moral duty or interest” to publish the matter under scrutiny (at paragraph 15 of the decision) following Pressler v Lethbridge (2000), 86 BCLR (3d) 257 at 296 (CA), and see Hill v Church of Scientology of Toronto  2 SCR 1130 (@144). More particularly:
 …In short, where there is a public or shared interest in support of the statement both being made and received, a defendant cannot be held to have defamed a plaintiff unless the plaintiff can show that the defendant made the alleged publication for a malicious purpose.
 Absolute privilege, on the other hand, provides a complete defence in cases of alleged defamatory publications, even if the defendant published the statement with actual malice. Traditionally, absolute privilege was granted to any “communications which take place during, incidental to, and the processing and furtherance of, judicial or quasi-judicial proceedings”: Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115 at para. 112, citing Raymond E. Brown, The Law of Defamation in Canada, (Toronto: Carswell, 1999) at para. 12.4(1).
 Statements to police prior to the commencement of judicial proceedings are protected by qualified privilege, not absolute privilege, under Canadian law. In order to expand the defence of absolute privilege, the appellant must show that such an expansion is necessary in order to protect the administration of justice. The appellant cannot meet that onus in the current appeal, as there is no evidentiary record with which to support her argument or suggest that an expansion to absolute privilege, rather than an application of qualified privilege, is necessary in order to protect the proper administration of justice: Northwest Organics v. Maguire, 2014 BCCA 454.