A Privilege Maintained

by Catherine McKenzie
Irving Mitchell Kalichman LLP

In the recent decision of Ontario v. Rothmans et al. (2014 ONSC 3382), the Ontario Superior Court of Justice was asked to strike certain allegations made in the claim brought by the government under its tobacco damages recovery legislation against various tobacco companies on the basis that they violated parliamentary privilege. In the course of that proceeding, the Court rendered an important decision in respect of the scope of the application of the privilege and made it clear that allegations which clearly violated the privilege ought to be struck from the proceedings.

 

 

As described the Court:

[4] The impugned subparagraphs or portions thereof (reproduced in Appendix “A” – the "Subparagraphs") are pled in support of the allegations of misrepresentation and conspiracy. The Crown alleges that the defendants continually repeated the misrepresentations about the risks of smoking, including in presentations and statements (the “Presentations”) made to the House of Commons Standing Committee on Health, Welfare and Social Affairs in 1969, to federal legislative committees in 1987 and 1988, and to the House of Commons Standing Committee on Health in December 1996. The Crown further alleges that this was one of the means by which the defendants furthered the conspiracy.

The Court did an extensive review of the limited Canadian (and in fact international) caselaw on this issue, starting out by setting out the general principles underlying the privilege:

[7] In Canada (House of Commons) v. Vaid, Binnie J. provided a summary of the accepted principles of parliamentary privilege. I highlight the following: 

• Parliamentary privilege is the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions. 

• Parliamentary privilege is one of the ways in which the fundamental constitutional separation of powers is respected. 

• The role of the courts is to determine the existence and scope of a category of privilege. If the existence and scope of the privilege have been “authoritatively established in relation to our own Parliament or to the House of Commons at Westminster”, then no further inquiry by the courts is required. 

• If the existence and scope have not already been established, then the court must make this determination, applying the “necessity test”.  

•Once the existence and scope of the privilege have been established, it is for Parliament, not the courts, to determine whether the exercise of privilege is appropriate in any particular case.  

• The onus of establishing that a privilege exists is on the party claiming that privilege.

 

The tobacco companies were relying on the “freedom of speech” category of the privilege. That privilege protects not only statements made in Parliament, but also statements made before parliamentary committees by members of Parliament and those who are called to participate in the proceedings:

[12] The privilege applies not only to statements made in Parliament but to those made before parliamentary committees. According to Joseph Maingot’s Parliamentary Privilege in Canada, “[w]hatever freedom of speech applies in either House of Parliament also applies to committees of either House”, and therefore anything that is said “in one of the committees is not actionable in the ordinary courts”.  

[13] Further, the privilege extends not only to statements made by members of Parliament but to those who participate in proceedings in Parliament orparliamentary committees. As Maingot states: 

The Bill of Rights, 1689 is not restricted to Members; whatever protection is afforded the Member is equally afforded to the non-Member under the same circumstances. Accordingly, witness, petitioner, counsel, and others whose assistance the House considers necessary for conducting its proceedings are protected by the rule of Parliament … that no evidence given in either House can be used against the witness in any other place without the permission of the House.  

…  

While taking part in such proceedings, officers of Parliament, Members of Parliament, and the public are immune from being called to account in the courts or elsewhere, save the Houses of Parliament, for any act done or words uttered in the course of participating, however false or malicious the act and however malicious the words might be; and any member of the public prejudicially affected is without redress. 

[14] As noted in the above passage, the immunity provided by the freedom of speech privilege is absolute – it is not excluded by the presence of malice or fraudulent purpose. Pepall J. (as she then was) stated in Janssen-Ortho Inc. v. Amgen Canada Inc. that “[t]he court may not inquire into the statements that are the subject matter of paragraph 33 of the amended statement of claim as they are protected by absolute privilege”.

The scope of the privilege is one that protects the speaker from liability that might otherwise stem from the same statements:

[15] In terms of the scope of the privilege, it is well established that statements made by a person during the course of parliamentary proceedings cannot be used against the person in a civil action. The principle was articulated in Stopforth v. Goyer: 

The proceedings of a legislative body are absolutely privileged and words spoken in the course of a proceeding in Parliament can neither form the basis of nor support either a civil action or a criminal prosecution.  

[16] The U.K. Parliament’s Joint Committee Report, which was cited extensively by Binnie J. in Vaid, said that freedom of speech “protects a person from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament”. Its effect is that “those who participate in parliamentary proceedings should not in consequence find themselves having to account for their conduct in any form of court proceedings”.

The Court struck the paragraphs in question as falling squarely within the privilege:

[23] The Subparagraphs must be struck. The Crown pleads that the defendants made the Presentations to House of Commons standing committees and to federal legislative committees. Those Presentations are covered by parliamentary privilege – freedom of speech – and cannot be used against the defendants in a civil action. That is precisely what the Crown seeks to do. 

[24] The Crown’s primary submission is that it is premature to strike the Subparagraphs at the pleadings stage, since an evidentiary context is required to determine if the Presentations were privileged. The Crown relies on the decision of New Brunswick v. Rothmans Inc. – also a health care costs recovery case against the defendant tobacco companies – in which the court held that because the factual background giving rise to the alleged privilege was absent from the record, it could not decide whether what the defendants said to parliamentary committees was privileged. The court held that this evidentiary determination was better left to the trial judge. 

[25] With respect, I take a different view. 

[26] I asked Crown counsel how, in light of the broad principles set out in the case law, an evidentiary context might lead to the conclusion that the Presentations are not privileged. Counsel argued that it would be relevant to know the circumstances under which the defendants attended and made the Presentations to the committees – for example, whether the defendants were compelled to attend or came voluntarily, whether the Presentations were given under oath and whether the defendants were simply advancing their own business interests by making the Presentations to the committees. 

[27] The problem with this argument is that nothing turns on the evidentiary context. The references to the Presentations in the Subparagraphs fall squarely within the established scope of the freedom of speech privilege.    

[28] The privilege is not premised on how the person came to attend before the parliamentary committee, whether his evidence was under oath or whether he was advancing his own interests by attending. 

The Court also held that the motive underlying the statements is irrelevant:

[31] Third, because the immunity is absolute, any self-serving motivations of the person participating before the committees would not affect the privilege. Motive is irrelevant to an absolute privilege. In Roman Corp. v. Hudson’s Bay Oil & Gas, the court struck out a statement of claim noting that it had “no power to inquire into what statements were made in Parliament, why they were made, who made them, what was the motive for making them or anything about them”.  

[32] Once a person attends and participates in a parliamentary committee proceeding, the absolute privilege applies to his statements made in the course of that proceeding, with the result that the statements cannot be used in a civil action against him. The surrounding circumstances are simply not relevant. In this case, the Crown had pleaded that the defendants made the Presentations to various House of Commons standing committees and federal legislative committees. That is sufficient to invoke the privilege.

 

Finally, the privilege also applies to protect misleading statements, not just defamatory ones, because, while making a misleading statement to Parliament is a breach of Parliamentary rules, it is not sanctionable by anyone but Parliament:

[36] Finally, the Crown argues that parliamentary privilege is primarily invoked to defend a defamation claim. It submits that there are no cases that have considered whether this privilege protects against a misrepresentation claim – in particular, where the statement is alleged to be a misrepresentation to the public at large. I disagree.  

[37] The freedom of speech privilege is not restricted to defending a defamation claim. As Pepall J. noted in Janssen, how the plaintiff proposes to use the privileged statement is not relevant: 

In my view, the fact that the statements made in Parliament do not form the basis of Janssen’s defamation claims but support its other various claims is immaterial.  

[38] The case law has also established that if the words spoken in a parliamentary proceeding are misleading, they are nonetheless immune from review in the civil courts. It is Parliament, not the court, which has the power to impose sanctions for the misleading statement. If the courts were permitted to adjudicate on the misleading statement, they would be intruding on the jurisdiction of Parliament:

To mislead Parliament is itself a breach of the code of parliamentary behaviour and liable to be disciplined by Parliament … For the courts to entertain a question whether Parliament had been deliberately misled would be for the courts to trespass within the area in which Parliament has exclusive jurisdiction.

[39] Further, if the court were to determine whether the statements were misleading, there would be a risk of conflicting decisions as between the court and Parliament, which is one of the very things that the privilege is intended to avoid. As stated in Prebble: 

Misleading the House is a contempt of the House punishable by the House: if a court were also to be permitted to decide whether or not a member or witness had misled the House there would be a serious risk of conflicting decisions on the issue.

Reference : [2014] ABD 307