Law Society Complaint Sparks Defamation Lawsuit

Toronto Sun columnist Alan Shanoff writes about how a complaint made to the Law Society of Upper Canada by Darren John against Ontario lawyer Yaroslav Mikitchook has sparked a $100,000 defamation lawsuit against Mr. John. Apparently Mr. John was being sued by Mikitchook on two small claims court matters.  The lawyer alleges that the Law Society complaint has damaged his reputation as a lawyer and his standing in the community.  While Mr. John alleges that the defamation lawsuit is an attempt to intimidate him into retracting the complaint.

Shanoff writes:

The background to, and details of, the complaint are unimportant. I don’t know if the law society complaint was justified, or filed in bad faith. I don’t know if Mikitchook is guilty of professional misconduct. Those issues will get sorted out in due course. Right now all we’ve got are allegations.

But just imagine if the defamation lawsuit proceeds or is successful. It would create a mockery of the self-regulation of lawyers by making it dangerous for complaints to be filed with a law society. If people become afraid of filing complaints, or might be in legal jeopardy for filing complaints against lawyers, how can any law society effectively govern its lawyers? Outside regulation would be necessary.

With all due respect to Mr. Shanoff, I believe that the background to, and the details of, the complaint are in fact very important.  If the Law Society complaint was made maliciously (i.e. for an improper purpose) then Mr. John should be held accountable.

People should not be given a blanket immunity to make frivolous complaints.  Such an immunity, would flood the system and prevent legitimate complaints from being investigated.   Shanoff fails to recognize that Canadian defamation law already protects bona fide complaints made to governing bodies of professionals – even when the complaint has no basis and is damaging to the lawyer’s reputation; it’s called qualified privilege.

In the Supreme Court of Canada’s landmark ruling in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 the Court clearly spells out the principle of qualified privilege (i.e an existing immunity for real and honest complaints to professional societies) in Canadian defamation law:

Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself.  The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice.  Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff.  The privilege is not absolute, however, and can be defeated if the dominant motive for publishing the statement is actual or express malice.  Malice is commonly understood, in the popular sense, as spite or ill‑will.  However, it also includes any indirect motive or ulterior purpose that conflicts with the sense of duty or the mutual interest which the occasion created.  Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth.  Qualified privilege may also be defeated when the limits of the duty or interest have been exceeded.  The fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion.  The information communicated must be reasonably appropriate in the context of the circumstances existing on the occasion when that information was given.

Defamation law in Canada already protects complaints to the Law Society that are false and damaging!  Defamation law does not protect, nor should it protect, false and damaging complaints made in bad faith or with malice. Such an immunity would truly make a mockery of the complaints system.