“Justice Shore argues that persons exercising judicial functions, whether in court proceedings or otherwise in the course of their judicial function, are exempt from all civil liability for anything done or said by them in their judicial capacity. This immunity is such that even if a judge’s acts or words complained of are alleged to have been spoken in bad faith, maliciously, corruptly, or without reasonable or probable cause, they are not actionable.
The content of what was written by Justice Shore is not pleaded, and thus not before the court for the purposes of this motion. The statement of claim simply alleges that Justice Shore sent an email to all Superior Court judges in Toronto, making what the plaintiff says were defamatory remarks against him, and then reproduced those comments in a Case History Report in connection with a family proceeding which was before the court.
A requirement of the rules of pleading, as they pertain to defamation proceedings, is that particulars of the allegedly defamatory words must be pleaded: Catalyst Capital Group Inc. v. Veritas Investment Research Corp. (2017), 136 O.R. (3d) 23, 2017 ONCA 85, at para. 23. The Statement of Claim does not set out either the contents of the January 2021 email or the Case History Report. Mr. McIntosh alleges that the impugned remarks “cannot be repeated as it would risk undermining the impartiality [of] the adjudication of this matter.” Unsurprisingly, the statement of claim also does not plead, as it should, the allegation that the words used were defamatory of Mr. McIntosh in their plain or ordinary meaning, or by innuendo. Corthorn J. was forgiving of these shortcomings, writing, at para. 61 of her endorsement:
Mr. McIntosh is a self-represented litigant attempting to navigate the complexities of a claim based in defamation. Even in the absence of the particulars of the wording of the January 2021 email, the context within which the email was sent, and the manner in which the email was presented, Mr. McIntosh is to be given the benefit of the doubt.
I will follow Justice Corthorn’s lead, and set to one side the pleading’s deficiencies for the purposes of considering this motion.
Turning to the substantive issue of judicial immunity, in Morier and Boily v. Rivard, 1985 CanLII 26 (SCC), [1985] 2 S.C.R. 716, the Supreme Court of Canada addressed a claim that members of the Commission de police du Québec, who were entitled to the judicial immunity of Superior Court judges, could not invoke that immunity when they acted without jurisdiction and contravened the rules of natural justice by failing to comply with the provisions of the governing legislation and the Charter of Rights and Freedoms.
At para. 90 of the decision in Morier, Chouinard J., writing for the majority of the Supreme Court of Canada, cited, with apparent approval, the following excerpts from Halsbury’s Laws of England, 4th ed., vol. 1, 1973, at pp. 197 et seq.:
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- Persons protected. Persons exercising judicial functions in a court are exempt from all civil liability whatsoever for anything done or said by them in their judicial capacity, nor can any action be brought against the Crown in respect of acts or omissions of persons discharging responsibilities of a judicial nature or in connection with the execution of judicial process.
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- Extent of protection. Wherever protection of the exercise of judicial powers applies, it is so absolute that no allegation that the acts or words complained of were done or spoken mala fide, maliciously, corruptly, or without reasonable or probable cause suffices to found an action. The protection does not, however, extend to acts purely extra‑judicial or alien to the judicial duty of the defendant; and, therefore, if the words complained of are not uttered in the course of judicial proceedings, the defendant is not protected.
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The protection extends to all judges, juries, advocates, parties and witnesses, for words spoken or written in the course of a judicial inquiry and having any reference thereto, however remote.
At paras. 95 and 96 of Morier, reference was made to the judgment of Lord Denning M.R. in Sirros v. Moore, [1975] 1 Q.B. 118 (C.A.), a decision of the England & Wales Court of Appeal, at p. 136, said to have been frequently cited as the correct statement of the contemporary rule of immunity:
Every judge of the courts of this land ‑‑ from the highest to the lowest ‑‑ should be protected to the same degree, and liable to the same degree. If the reason underlying this immunity is to ensure “that they may be free in thought and independent in judgment,” it applies to every judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself: “If I do this, shall I be liable in damages?” So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction ‑‑ in fact or in law ‑‑ but so long as he honestly believes it to be within his jurisdiction, he should not be liable. Once he honestly entertains this belief, nothing else will make him liable. He is not to be plagued with allegations of malice or ill‑will or bias or anything of the kind. Actions based on such allegations have been struck out and will continue to be struck out. Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it.
At the conclusion of an extensive discussion of the development of judicial immunity in England, the Court in Morier concluded, at para. 110, that the possibility that the members of the Commission had:
a. Exceeded their jurisdiction by doing or failing to do the actions mentioned in the statement of claim;
b. Contravened the rules of natural justice in that they had not informed the respondent of the facts alleged against him, or had not given him an opportunity to be heard; or,
c. Contravened the Charter,
were not allegations which may be used as the basis for an action in damages against a judge.
Mr. McIntosh raises similar complaints to those raised by the claimant in Morier. He says that he did not know about the comments made by Justice Shore at the time that she made them and, thus, was not provided an opportunity to respond to the comments, infringing his right to a fair proceeding.
The Supreme Court’s decision in Morier was considered by the Federal Court of Appeal in Taylor v. Canada (Attorney General), [2000] 3 F.C. 298, 2000 CanLII 17120 (FCA). At para. 41 of Taylor, the Court concluded that it could not be said that the Supreme Court of Canada in Morier had definitively decided whether a bad faith exception to judicial immunity is good law in Canada. However, the Federal Court of Appeal was inclined to accept the proposition that judicial immunity does not apply where it is shown that a judge knowingly acts beyond her jurisdiction. [Emphasis added.] The Federal Court of Appeal went on to conclude that if there is an exception to absolute immunity, it is a narrow one – stating, at para. 60: “It will be the rare case indeed where a plaintiff can show that a judge acted with the knowledge that he or she had no jurisdiction”.”