“The nature and scope of the doctrine of absolute privilege lies at the heart of this appeal. That this doctrine is well-established at common law is beyond dispute. This court has repeatedly endorsed the definition of the doctrine set out in Halsbury’s Laws of England, vol. 28, 4th ed. (London, U.K.: Butterworths, 1997), at para. 97, which reads:
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- Absolute privilege.– No action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognised by law. The evidence of all witnesses or parties speaking with reference to the matter before the court is privileged, whether oral or written, relevant or irrelevant, malicious or not. – The privilege extends to documents properly used and regularly prepared for use in the proceedings. Advocates, judges and juries are covered by this privilege. – However, a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings.
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A separate action for malicious prosecution or the malicious institution or abuse of civil proceedings may lie independently of the law of defamation. [Citations omitted.]
This definition was adopted in Samuel Manu-Tech, at para. 19; Lowe v. Guarantee Co. of North America (2005), 2005 CanLII 80693 (ON CA), 80 O.R. (3d) 222 (C.A.), at para. 57; and Reynolds, at para. 14.
The doctrine has its roots in the early development of the law of defamation. However, in its modern form, its reach is considerably broader. Relying on Hargreaves v. Bretherton and Another, [1958] 3 All E.R. 122 (Q.B.D.), at 123, Feldman J.A. for this court in Samuel Manu-Tech confirmed, at para. 20, that: “[t]he immunity extends to any action, however framed, and is not limited to actions for defamation.” See also Lowe, at para. 58.
Historically, public policy considerations, including the need to foster confidence in the administration of justice, have been viewed as justifying an absolute privilege protecting counsel and others from suits based on what is said by them in court. There is authority for the proposition that the justification for absolute privilege is acute in cases involving statements made by counsel: see Dooley v. C.N. Weber Ltd. (1994), 1994 CanLII 7300 (ON SC), 19 O.R. (3d) 779 (Ont. Ct. (Gen. Div.)), per Reilly J., at 784 – 785; More v. Weaver, [1928] 2 K.B. 520, [1928] All E.R. Rep. 160 (Eng. C.A.), per Scrutton L.J., at 522; Munster v. Lamb (1883), 11 Q.B.D. 588 (Eng. C.A.), per Brett M.R., at 603 – 605.
Protection of the integrity of the justice system lies at the core of the public policy rationales for absolute privilege. As explained by the majority of the High Court of Australia in Mann v. O’Neill, [1997] H.C.A. 28, 71 A.L.J.R. 903, at 907:
[A]bsolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process. It is necessary that persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal re-presentatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings. Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the “safe administration of justice”. [Citations omitted. Emphasis added.]
Thus, where applicable, the doctrine of absolute privilege affords complete immunity to advocates and others for statements made by them in the course of judicial or quasi-judicial proceedings. This extraordinary protection operates to bar a cause of action otherwise available at law: i.e., a claim for relief by a client who has suffered loss through the negligence of his or her counsel. For this reason, the High Court of Australia has warned that any extension of the privilege is “viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated”: Mann, at p. 907, citing Williams, “Absolute Privilege for Licensing Justices”, (1909) 25 Law Quarterly Review 188 at 200 (other citations omitted). I would echo these words of caution.”