Supreme Court of Canada
Lacarte v. Toronto Board of Education, [1959] S.C.R.
465
Date: 1959-03-25
Meriza Lacarte (Plaintiff)
Appellant;
and
The Board of Education
of Toronto (Defendant) Respondent.
1958: October 28, 29; 1959: March 25.
ON APPEAL FROM THE COURT OF APPEAL FOR
ONTARIO.
Libel and slander—School teacher dismissed—Statutory
duty to communicate reasons to teacher—Defence of qualified privilege—Absence
of evidence of malice—The Teachers’ Board of Reference Act, 1946 (Ont.), c. 97,
s. 2.
[Page 466]
The plaintiff, a former high school teacher,
was dismissed from her employment in 1948 by a letter informing her that, by a
resolution, the defendant Board had approved a recommendation of the Advisory
Vocational Committee that her employment be terminated “on the ground of lack
of co-operation”. She sued for damages for libel allegedly contained in her
letter of dismissal. The defence pleaded qualified privilege and lack of
malice. The trial judge, sitting with a jury, ruled that the publication had
been on occasions of qualified privilege and that there was no evidence of
malice to go to the jury, and directed a verdict for the defendant. This
judgment was affirmed by the Court of Appeal.
Held (Rand and
Cartwright JJ. dissenting): The action should be dismissed.
Per Taschereau,
Locke and Abbott JJ.: The letter dismissing the plaintiff was written in
pursuance of the statutory duty imposed by s. 2 of The Teachers’ Board of
Reference Act, 1946 (Ont.), which provided that every termination of
employment of a teacher by a board was required to be by notice in writing
indicating the reasons for such dismissal. Such publication of the letter and
the carbon copies of it, and of the copies of the resolutions as was made by
the defendant, was made upon occasions of qualified privilege and there was no
proof of malice in fact. Toogood v. Spyring (1834), 1 C.M. & R. 193,
Osborne v. Boulter, [1930] 2 K.B. 226, 232, and Edmondson v. Birch, [1907]
1 K.B. 371, 380, referred to. There was no evidence upon which a jury could properly
find that the members of the Advisory Vocational Commitee who recommended the
dismissal of the plaintiff, or the members of the Board of Education or their
officers who carried out their duty in informing the plaintiff in writing of
the reasons for her dismissal, were actuated by any other motive than the due
discharge of their duties.
Per Rand and
Cartwright JJ., dissenting: It would have been open to a properly
directed jury to find that certain of the employees of the defendant who,
acting within the scope of their duties, furnished the information on which the
defendant acted in making the statement complained of were actuated by malice
towards the plaintiff. If the jury had reached such a conclusion, the qualified
privilege would have been defeated. Where a corporation is under a duty,
whether of perfect or imperfect obligation, to publish a statement about a
person, and in the preparation of that statement relies on information
furnished by one of its employees within the scope of whose employment it is to
furnish the information, the malice of that employee in furnishing false and
defamatory information which is made part of the statement published will in
law be treated as the malice of the corporation, although all members of the
boards of directors or of trustees which authorize the publication are
individually free from malice. A new trial should be directed.
APPEAL from a judgment of the Court of Appeal
for Ontario, affirming a
judgment of Wells J. in an action for libel. Appeal dismissed, Rand and
Cartwright JJ. dissenting.
[Page 467]
Miss Meriza Lacarte, in person.
D.J, Walker, Q.C., and D.H. Osborne, Q.C., for the defendant, respondent.
The judgment of Taschereau, Locke and Abbott JJ.
was delivered by
LOCKE J.:—In this action which was commenced on
August 23, 1951, the present appellant claimed damages against the Board of
Education for wrongful dismissal, for libel and for other relief, the nature of
which is not of importance in the present appeal.
By an order made by the Chief Justice of the
High Court on January 12, 1953, it was directed that all issues raised in the
pleadings, except that of libel, be tried by a judge without a jury, and that
the issue of libel and the assessment of damages for libel only be tried before
a jury.
The action in respect of the alleged wrongful
dismissal and the claims for other relief was dismissed at the trial. Appeals
to the Court of Appeal and to this Court
were dismissed.
The action for the alleged libel was tried
before Wells J. and a jury. At the conclusion of the evidence given on behalf
of the appellant, that learned judge, upon the respondent’s motion for a
non-suit, directed the jury to find a verdict for the respondent and judgment
was entered dismissing the action. That judgment was upheld by a unanimous
judgment of the Court of Appeal, the
reasons for which were delivered by Roach J.A. and it is from the latter
judgment that, by special leave, this appeal has been brought in forma
pauperis.
The contract of employment in respect of the
termination of which the action was brought was originally made between the
appellant and the respondent on May 2, 1940. The appellant continued in the
respondent’s employ until June 30, 1948, at which date it was terminated pursuant to a written notice given
by the Board to the appellant in a letter dated May 7, 1948. It is in respect
of the terms of this letter which, as required by statute, gave the reason for
the termination of the contract that the claim for libel
[Page 468]
was made. The letter informed the appellant
that, by a resolution, the Board had approved a recommendation of the Advisory
Vocational Committee that the agreement be terminated on the date mentioned “on
the ground of lack of co-operation with the principal and certain members of
the staff of the Danforth Technical School”.
By the statement of claim it was alleged that
the said “notice” (referring to the letter) was “malicious and unfair to the
plaintiff”—that it wrongfully declared the appellant guilty of having failed to
co-operate with the principal and members of his staff and that the respondent
or the servants of the respondent who were responsible for the form of the
notice thereby knowingly and maliciously sought to injure the appellant and to
make it impossible for the appellant to secure the recommendation of a
principal for future employment in the City of Toronto or the Province of
Ontario.
The statement of defence gave lengthy
particulars of the reasons which led to the appellant’s dismissal and, with
these, we are not concerned. As to the claim for libel, the respondent alleged
that, by the provisions of the Teachers’ Board of Reference Act, c. 97
of the Statutes of 1946, it was required that every termination of employment
of a teacher shall be by notice in writing which shall indicate the reasons for
such dismissal, that the publication or publications complained of, if there
were such, were made upon occasions of qualified privilege and without malice,
the respondent believing the statement made to be true. Justification was not
pleaded to the claim for libel.
The appellant gave evidence on her own behalf at
the hearing, proving the fact of the employment and its termination, swearing
that she had not failed to co-operate with the principal of the Danforth School
or other members of the staff of that school and describing her unsuccessful
endeavours to obtain other employment, during the course of which she had
exhibited the copy of the letter from the Board of May 7, 1948, to the
principals of other schools where she sought employment. She was cross-examined
at some length upon the matter of her disagreements with the principal of the Danforth School, a
Mr. Ferguson, as to criticisms which she had made of his direction of the
school,
[Page 469]
of the complaints she had made to the Director
of Education, Dr. C.C. Goldring, and to other persons, and as to her
application to the Minister of Education, the Honourable George Drew, on May
19, 1948, for a board of reference to enquire into her dismissal. In addition,
the appellant called various secretaries, clerks and stenographers employed in
the Board of Education, including the secretary of Dr. Goldring, the business
administrator of the Board, the chief accountant, Mr. E.H. Silk, Q.C., the
senior solicitor for the Attorney General’s Department and the Deputy Minister
of Education, in an endeavour to prove publication of the letter under
circumstances which would defeat the claim of qualified privilege.
The respondent Board of Education was
constituted under the provisions of the Board of Education Act which, at
the time of the occurrence of the matters under consideration, appeared as c.
361, R.S.O. 1937. The Advisory Vocational Committee referred to in the letter
to the appellant of May 7, 1948,
was the body which, under the provisions of the Vocational Education Act, c.
369, R.S.O. 1937, was charged with the management and control of the Danforth High School.
By s. 2 of the Teachers’ Board of Reference
Act 1946 every termination of employment of a teacher by a board is
required to be by notice in writing which shall indicate the reasons for such
dismissal, and it was in pursuance of this statutory duty that the letter of
May 7, 1948, was written. As the evidence showed, records were kept of the
meeting of the Advisory Vocational Committee held on April 29, 1948, in which the following appears:
From the Director of Education submitting
as requested a further report regarding Miss M. Lacarte, teacher at Danforth Technical School.
Following a review of the case by the
Director of Education and the Superintendent of Secondary Schools, the Director
of Education recommended as follows:—“That the contract of Miss M. Lacarte be
terminated on June 30th, 1948 on the ground of lack of co-operation with the
principal and certain members of the staff of Danforth Technical School.”
After some discussion the recommendation of
the Director was adopted on motion of Representative Burns.
A portion of the minutes of a meeting of the
Board of Education held on May 6, 1948, at which the resolution referred to in the letter of May 7 was
passed was also put
[Page 470]
in evidence. The letter had been dictated to a
stenographer, Miss Mary Cartwright, an employee of the Board, and two carbon
copies of it were kept with its records. According to Miss Cartwright, these
copies were retained in the Board’s files, one being bound up in a book, and
the other in what were described as the central files. They would, of
necessity, be seen by the filing clerk or clerks who attended to such work.
As to the other employees and officials of the
Department who gave evidence, none of them said that they had ever seen the
letter or a copy of it, though the agenda of the meeting of the Advisory
Vocational Committee which was held on April 29, 1948, and of those of the
respondent Board held on May 6 had been seen by some of them. While these
minutes contained copies of the resolutions which were passed by these
respective bodies, since the claim for libel is restricted to the alleged
publication of the letter of May 7, this evidence need not be considered. I
would, however, add that if any such claim had been made in respect of these
minutes, the evidence shows that they were seen only by persons employed by the
respondent whose duty it was to deal with such documents in the ordinary course
of the respondent’s business, or to keep a record of the termination and the
reasons for the termination of a teacher’s employment.
The appellant, in writing to the Honourable
George Drew requesting a reference under the provisions of the Teachers’ Board
of Reference Act 1946, had enclosed a copy of the letter complained of, and
this was seen by the Deputy Minister of Education, as well as, presumably, by
the Minister and by Mr. Silk, Q.C. of the Attorney General’s Department,
when certain proceedings were taken by the appellant in regard to the board of
reference which was ultimately granted and which considered the appellant’s
complaint. Since this publication was made by the appellant, it is of no
assistance to her contention.
The learned trial judge, in a carefully
considered judgment, held that such publication of the letter and the carbon
copies of it and of the copies of the resolutions as had been made by the
respondent was upon occasions of qualified privilege, a conclusion with which
the learned judges of the Court of Appeal have unanimously agreed.
[Page 471]
The letter was written and the reasons for the
termination of the appellant’s services stated for the reasons to which I have
referred. In the ordinary course of business, the letter was dictated to a
stenographer and copies were undoubtedly seen by the filing clerks. The ground
upon which the privilege rests in a case such as this is stated by Baron Parke
in Toogood v. Spyring. That
it is not lost by such communications is shown by the cases referred to by the
learned trial judge: Osborn v. Boulter
and Edmondson v. Birch, which,
in my opinion, accurately state the law. In the last mentioned case it was said
by Fletcher Moulton L.J. (p. 382) that if a business communication is
privileged, as being made on a privileged occasion, the privilege covers all
incidents of the transmission and treatment of that communication which are in
accordance with the reasonable and usual course of business.
Such a claim of privilege might, of course, be
defeated by proof of malice in fact. The learned trial judge, dealing with this
aspect of the matter, referred to a passage from the judgment of Lord
Macnaghten in delivering the judgment of the Judicial Committee in Jenoure
v. Delmege, adopting
what had been said by Parke B. in Wright v. Woodgate, reading:
The proper meaning of a privileged
communication is only this: that the occasion on which the communication was
made rebuts the inference prima facie arising from a statement
prejudicial to the character of the plaintiff, and puts it upon him to prove
that there was malice in fact—that the defendant was actuated by motives of
personal spite or ill-will, independent of the occasion on which the
communication was made.
The learned trial judge found that there was no
evidence to go to the jury upon which they could properly find malice on the
part of the respondent and said that he did not consider that any one could
reasonably deduce from the evidence that there was any wrongful motive or
intent on any one’s part in dealing with the dissemination of the reasons for
the appellant’s dismissal after the dismissal took place. The learned judges of
the Court of Appeal were unanimously of the opinion that there was no evidence
[Page 472]
of malice and that the learned trial judge was
right in so holding in directing that a verdict in favour of the defendant be
returned.
My consideration of the record in this matter
leads me to the same conclusion. I find no evidence upon which a jury could
properly find that the members of the Advisory Vocational Committee who
recommended the dismissal of the appellant, the members of the Board of
Education or their officers who carried out their duty in informing the
appellant in writing of the reasons for her dismissal, were actuated by any
other motive than the due discharge of their duties.
I would dismiss this appeal with costs if
demanded.
The judgment of Rand and Cartwright JJ. was
delivered by
CARTWRIGHT J. (dissenting):—This is an
appeal from a judgment of the Court of Appeal for Ontario
dismissing an appeal from a judgment of Wells J. who had dismissed the
appellant’s claim for damages for libel.
On August 23, 1951, the appellant commenced an
action against the respondent in which she claimed, inter alia, damages
for libel. At the first trial of the action before the late Mr. Justice
Anger the jury failed to reach an agreement. Following this the learned Chief
Justice of the High Court directed that the issue of libel should be tried
separately before a judge and jury and that all other issues raised in the
action should be tried by a judge without the intervention of a jury. In this
appeal we are concerned only with the claim for damages for libel.
The words complained of were contained in a
letter of dismissal dated May 7, 1948, addressed by the respondent to the
appellant reading as follows:
THE BOARD OF EDUCATION
155 College Street,
Toronto.
A.V.
Ackehurst,
Assistant
Secretary,
7
May, 1948.
Miss Meriza Lacarte,
9, Tennis Crescent,
Toronto, 4, Ontario.
Dear Madam:—
[Page 473]
By Resolution of the Board of Education for
the City of Toronto passed on the sixth day of May, 1948, approving a
recommendation of the Advisory Vocational Committee of the said Board, made on
the twenty-ninth day of April, 1948, I was instructed to, and do hereby, inform
you that your agreement as a teacher with the said Board will be terminated on
the thirtieth day of June, 1948, on the ground of lack of co-operation with the
Principal and certain members of the Staff, of the Danforth Technical School.
This Notice is given pursuant to the terms
of the said agreement and Regulations Nos. 10 (ss.4) and No. 29 of the
said Board.
Yours
truly,
(signed)
C.H.R. FULLER
Business
Administrator
and
Secretary-
Treasurer.
The words of which particular complaint is made
are those stating the ground of dismissal as being:
lack of co-operation with the Principal and
certain members of the Staff of the Danforth Technical School.
These words were also contained in minutes of a
meeting of the Advisory Vocational Committee of the respondent of April 29,
1948, and in the minutes of a private session of the respondent held following
its regular meeting on May 6, 1948.
In the statement of claim the appellant alleged
that the words complained of were published by the respondent to the Principal
of Danforth Technical School and members of his staff, to other members of the
respondent’s staff, to the Minister of Education for the Province of Ontario,
to members of his staff and to members of the staff of the Attorney General for
Ontario.
At the opening of the trial before Wells J. it
was made plain by counsel for the respondent that there was no plea of
justification and that the defence relied on was that the statement was
published on occasions of qualified privilege and without malice.
The appellant pleaded a number of innuendoes,
but I do not find it necessary to consider these as it is clear that the words
complained of are, in their plain and ordinary meaning, defamatory of the
appellant and calculated to disparage her in her profession.
The trial occupied several days. At the
conclusion of the plaintiff’s case counsel for the respondent moved for a
non-suit and after hearing some hours of argument the
[Page 474]
learned trial judge granted this motion and
directed the jury that as a matter of law they must return a verdict for the
defendant.
The learned trial judge was of opinion that it
was the duty of the respondent, under s. 2(1) of The Teachers’ Boards of
Reference Act to give the respondent notice in writing indicating the
reasons for her dismissal, that the resolutions embodying those reasons,
including the statement complained of, were published by the respondent to
about twenty persons all of whom were officials, clerks, stenographers, filing
clerks or members of the accounting department of the respondent, that the
publications were on an occasion of qualified privilege and were not made to
any of those persons otherwise than in a reasonable manner and in the ordinary
course of business. The learned judge indicated that he had reached this
conclusion in regard to the members of the accounting staff only after
considerable reflection.
The learned judge went on to hold that there was
no evidence upon which the jury could find express malice.
As I have formed the opinion that there must be
a new trial I will refer to the evidence only so far as is necessary to make
clear the reasons for my conclusion.
On the question whether the publication to the
members of the accounting department was covered by the privilege I do not find
it necessary to express a final opinion. That question is one to be decided by
the judge presiding at the new trial on the evidence before him. Certainly some
of the answers made by the witnesses who were questioned on the point indicated
that there was no necessity for the members of that department to know the
reason for a teacher’s dismissal but other answers made in response to
questions which while permissible were most leading indicated the contrary.
I have read with care all the evidence given at
the trial and in my opinion it would have been open to a properly directed jury
to find that some of the employees of the respondent who, acting within the
scope of their duties, furnished the information on which the respondent acted
in making the statement complained of were actuated by malice towards the
appellant.
[Page 475]
The evidence bearing on this question is chiefly
that of the appellant herself, which was uncontradicted and not seriously
shaken on cross-examination. From all the evidence it appears to me that the
jury might reasonably have taken the following view of the facts:—(i) that the
statement that the appellant had failed to co-operate with the Principal and
certain members of the staff of Danforth Technical School was false, not merely
because falsity is presumed in the absence of a plea of justification but
because the falsity was proved by the appellant’s evidence; (ii) that the
principal was irritated by the fact that the appellant made repeated complaints
about various matters, such as, for example, minor discourtesies to which she
was subjected by other members of the staff and the lack of specific
instructions as to the circumstances under which teachers including the
appellant should be asked to give private tuition; (iii) that the most serious
of her complaints was in regard to the fact that, while her outstanding
qualifications as a teacher of French were admitted, she was without cause
diverted from the teaching of that subject to others which were not only less
congenial to her but in which she was not so well qualified; (iv) that her
complaints were justified but she was given no redress; (v) that her request to
the Superintendent of Secondary Schools that she be recommended for transfer to
another collegiate in which she could teach French was refused without cause,
was resented by the principal and resulted only in the latter suggesting that
the appellant should resign if she was unwilling to carry on with the teaching
programme outlined for her; (vi) that the appellant at all times carried out
her duties and obeyed the instructions given to her by the principal; (vii)
that the irritation mentioned above ripened into dislike and resulted in a
desire to get rid of the appellant; (viii) that instead of stating what he knew
to be the true reason for seeking her dismissal which was irritation at the
repeated complaints, all of which the jury might have found to be justified,
the principal represented that she was failing to cooperate.
I wish to make it clear that I do not say the jury
ought to have made these findings but in my view it was open to them to do so
and to draw from them the inference that the principal, at least, was actuated
by express malice.
[Page 476]
In reaching their conclusion the jury were
entitled to consider that the respondent in whose knowledge, i.e., in that of
its officials and employees, these matters lay did not see fit to tender
evidence in contradiction of that of the appellant.
On the assumption that the publication was
protected by the occasion of qualified privilege, as held by the learned trial
judge, the onus of proving express malice was of course on the appellant, but,
as in all civil cases, the jury might find it proved if all the evidence raised
a preponderance of probability of its existence. As was said by Lord Atkin in
Perrin v. Morgan:
To decide upon proven probabilities is not
to guess but to adjudicate.
If the jury reached the conclusion that the
principal was actuated by express malice, I am of opinion that the qualified
privilege which would otherwise have protected the respondent would be
defeated. It is a permissible inference that the statement made by the
respondent that the appellant had failed to co-operate with the principal was
founded on reports from the latter and that in making whatever reports he made
he was acting within the scope of his employment.
The applicable principle of law may, in my
opinion, be stated as follows. Where a corporation is under a duty, whether of
perfect or imperfect obligation, to publish a statement about X, and in the
preparation of that statement relies on information furnished by one of its
employees within the scope of whose employment it is to furnish the
information, the malice of that employee in furnishing false and defamatory
information which is made part of the statement published will in law be
treated as the malice of the corporation, although all members of the board of
directors or of trustees which authorizes the publication are individually free
from malice.
I am assisted in reaching this conclusion by the
reasoning of McArthur J. in Falcke v. The Herald and Weekly Times Ltd., a case in which the question arose
whether the
[Page 477]
defence of fair comment relied on by the
defendant corporation was defeated by a finding that the writer of the comment
was actuated by malice. At pages 72 and 73 the learned Judge says:
The next question is whether the dishonesty
of MacDonald in writing the article is imputable to the defendant so as to make
the comment, which was published by the defendant and not by MacDonald, an
unfair comment. As far as I am aware, this precise point has never been
decided, though there are a number of authorities showing that the principal,
whether a corporate body or an individual, may be liable for the malice or fraud
of his servant or agent acting within the scope of his authority, and in
particular for the malice of his servant or agent in publishing a libel.
It seems to me that the same principle should apply in the case of the servant
or agent writing a defamatory comment for the purpose of being published
and which is published by the defendant. The wrong complained of by the
plaintiff is the printing and publishing of and concerning him certain
defamatory words. Those defamatory words are not written by the defendant
himself, but by a writer who was employed by the defendant to write a comment.
The defendant might have written the comment himself, and if he had done so,
and did not honestly believe in the opinions expressed he would, on
publication, undoubtedly be liable. Instead of writing the comment himself he
employs a servant or agent to write it for him. “Qui facit per alium facit per
se.” It seems to me that he must be responsible for both the acts and the state
of mind of his servant or agent. It is true that, until the words are
published, the plaintiff has no cause of action, but once they are published,
and once the question arises as to whether or not they are fair comment, the
circumstances under which the words were written become important, and
if it be shown that they were written dishonestly or maliciously by the servant
or agent employed by the defendant to write them, then it seems to me that that
dishonesty or malice is imputable to the defendant so as to destroy the fair
comment. It may be put perhaps more simply, and somewhat differently, thus:—A
defamatory comment has been published by the defendant of the plaintiff; for
that the defendant is prima facie liable in damages to the plaintiff; to
defeat that prima facie liability the defendant endeavours to prove that
it was fair comment. But in endeavouring to do this he proves (or it appears in
the course of the case) that the comment was a dishonest comment made by his
servant or agent whilst acting in the scope of his authority. Surely this does
not amount to proof of fair comment?
The defendant cannot escape liability by
saying—“I did not know it was unfair when I published it. I did not know that
my servant or agent, whom I employed to write an opinion, wrote a dishonest
opinion.”
I am, therefore, of opinion that the
defendant has not succeeded in its defence of fair comment.
I do not find it necessary to deal with any of
the other points which were raised in argument before us.
In the result I would allow the appeal, set
aside the judgments in the Courts below and direct a new trial of the action in
so far as it relates to the claim for damages
[Page 478]
for libel. At the trial counsel for the
appellant urged the learned trial judge to take the verdict of the jury so as
to avoid the possible necessity of a new trial but this course was not
followed. Under all the circumstances I would direct that the appellant recover
the costs of the abortive trial and of the appeal to the Court of Appeal from
the respondent. In this Court the appellant will recover the costs to which she
is entitled having regard to the fact that the appeal was brought in forma
pauperis.
Appeal dismissed with costs if
demanded, Rand and Cartwright JJ. dissenting.
Solicitor for the defendant, respondent:
D. Hillis Osborne, Toronto.
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