“More relevant to the issue of whether the Defamatory Statements were made on an occasion of qualified privilege is s. 125 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). That section sets out the obligation of a person to report information to a society where there are reasonable grounds to suspect that a child has suffered various kinds of harm. Section 125(10) creates a form of statutory qualified privilege:
This section applies although the information reported may be confidential or privileged, and no action for making the report shall be instituted against a person who acts in accordance with this section unless the person acts maliciously or without reasonable grounds for the suspicion. [Emphasis added.]
This statutory qualified privilege attaches to statements made in a complaint to a society, as well as to statements made by a person to the society in the course of an investigation: W. (D.) v. White, 2001 CarswellOnt 5892 (S.C.), at paras. 85-92, aff’d (2004), 2004 CanLII 22543 (ON CA), 189 O.A.C. 256 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 486; Nadejda Ryabikhina v. Stanislav (Stan) Savranskiy, 2010 ONSC 3860, at paras. 24-25, aff’d 2011 ONCA 219, leave to appeal to S.C.C. refused, 35927 (July 24, 2014); Sullivan v. Draper-Sereda, [2006] O.J. No. 4671 (Small Claims).
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In his discussion of the applicable legal principles, at para. 68 of the Second Reasons, the trial judge recognized that the defence of qualified privilege could be defeated by actual or express malice or if CC’s statements exceeded the limits of the applicable duty or interest: Korach v. Moore (1991), 1991 CanLII 7367 (ON CA), 1 O.R. (3d) 275 (C.A.), at pp. 278-80, leave to appeal refused, [1991] S.C.C.A. No. 30; Bent v. Platnick, 2020 SCC 23, 449 D.L.R. (4th) 45, at paras. 128 and 136. The limits of the privilege were explained by this court in RTC Engineering Consultants, at para. 18:
Not everything said or written on an occasion of qualified privilege is protected. As is evident from the term “qualified privilege” itself and from the previous discussion, the privilege is not absolute. It may be lost in one of two ways. First, it may be lost if the dominant motive for making the statement was malice. In this context malice means not just ill will towards another but any ulterior motive that conflicts with the interest or duty created by the occasion. And it includes recklessness. Both dishonesty and a reckless disregard for the truth may amount to malice. Second, a privilege may be lost if the statement is not commensurate with the occasion, either because the statement is not germane and reasonably appropriate to the occasion or because the recipients of the statement have no interest in receiving it. Put differently, to maintain privilege a defendant must communicate appropriate information to appropriate people. [Emphasis added.]
In considering whether malice by the maker of the statement defeats qualified privilege, the primary consideration is the state of mind of the maker at the time the words were published: Brown, at ch. 16.2(2). The presence of an improper motive is the critical consideration. The privilege will be lost if it is shown that the statement was published for a collateral motive unrelated to the privilege’s purpose: Brown, at ch. 16.3(1). Accordingly, malice is essentially a question of good faith. The privileged occasion must be used for the purpose for which it is given; it must not be misused or abused by a defendant: Brown, at ch. 16.3(1).
In RTC Engineering Consultants, this court, at para. 18, identified some aspects of the factual inquiry when it stated that malice in the context of qualified privilege “means not just ill will towards another but any ulterior motive that conflicts with the interest or duty created by the occasion. And it includes recklessness.””