



COURT OF APPEAL FOR ONTARIO

CITATION: Whitfield v. Whitfield, 2016 ONCA 581

DATE: 20160720

DOCKET: C58883

Weiler, van Rensburg and Roberts JJ.A.

BETWEEN

Dr. Agnes Jane Whitfield

Plaintiff/Defendant by Counterclaim
(Respondent)

and

Bryan Whitfield

Defendant/Plaintiff by Counterclaim
(Appellant)

Marie Henein, Matthew R. Gourlay and Christine Mainville,
    for the appellant

Dr. Agnes Whitfield, acting in person

Heard: January 6, 2016

On appeal from the judgment of Justice J.R. McIsaac of
    the Superior Court of Justice, dated May 1, 2014, with reasons reported at 2014
    ONSC 2745, and the order for costs, dated May 28, 2015, with reasons reported
    at 2015 ONSC 3422.

Roberts J.A.:

Overview

[1]

At the heart of this appeal are the permissible uses that can be made of
    an experts opinion concerning the credibility and reliability of a witness and
    the application of the defence of qualified privilege in the circumstances of
    this case.

[2]

The appellant and the respondent are brother and sister. The respondent
    is now 65 years old. The appellant is in his seventies. The appellant appeals
    from the May 1, 2014 judgment that found him civilly liable to his sister for historic
    sexual and physical assaults that the respondent says started about 60 years ago
    and were repeated until over 40 years ago. The appellant also appeals the
    dismissal of his counterclaim against his sister for defamation. The
    appellants counterclaim is founded on the publication and content of a series
    of the respondents emails, letters and postcard communications sent to family
    members, lawyers, and a friend, which contained allegations of sexual and
    physical abuse, and formed the basis for her successful claim.

[3]

The respondent testified that about 15 years ago when she turned 50
    years of age, she recovered memories of horrific and repeated sexual and
    physical abuse at the hands of her brother that the respondent says occurred
    when she was 4 or 5 and continued until she was 20 years old.

[4]

The main support for the respondents evidence came from her expert
    witness, Dr. Sarah Maddocks. Dr. Maddocks is a psychologist who was retained by
    the respondents prior lawyer to provide an opinion concerning an assessment of
    the respondents alleged recovered traumatic memory, her mental status,
    diagnoses and prognosis, along with the impact of the alleged sexual assaults
    on the respondent, and her recommended treatment plan. She was qualified at
    trial to give expert evidence generally in the area of psychology, and in
    particular in relation to sexual victimization. She opined that, while she
    could not know for sure if all of the memories were depictions of actual
    events, there was a strong indication that the respondent had been sexually and
    physically abused by the appellant on a regular basis over a long period of
    time.

[5]

The appellant denied that he had ever sexually or physically abused his
    sister. His denials of mistreatment were supported by his two older sisters and
    a woman who had worked for their family as a mothers helper.

[6]

The trial turned on the credibility and reliability of the respective
    accounts of the appellant and the respondent. The trial judge found that the
    appellant and the respondent were equally credible as witnesses and that their
    respective versions of events were also equally compelling.

[7]

As a result of this assessment, the trial judge determined that he
    needed to turn to the expert evidence of Dr. Maddocks to resolve the
    litigation with respect to the conflict between the different accounts given
    by the appellant and the respondent.

[8]

The trial judge erred by relying on Dr. Maddocks evidence for the
    impermissible use of corroborating the truth of the respondents allegations of
    sexual and physical assault for the purpose of finding the appellant liable. In
    doing this, the trial judge abdicated to the expert his role of trier of fact.

[9]

With respect to the counterclaim, the trial judge erred in determining
    that even if the respondents allegations were not accepted as true, the
    defence of qualified privilege would apply to all of her communications to
    third parties alleging sexual and physical abuse by the appellant. This
    conclusion was marred by the trial judges erroneous assessment that the
    allegations were in fact true.  Further, he erred in law in finding that all of
    the recipients of the communications, including the respondents former high
    school friend, had a duty or interest to receive the respondents
    communications.

[10]

As a result of the trial judges errors, the judgment, including the
    dismissal of the counterclaim, must be set aside.

[11]

For the reasons that follow, I would allow both the appeal and the
    appellants counterclaim. As I will also explain, I would hold that a new trial
    is unnecessary and dismiss the respondents action, allow the appellants
    counterclaim, and order costs in favour of the appellant.

Issues

[12]

The appellant raises the following grounds of appeal with respect to the
    respondents action:

i.

The trial judge erred in law in his reliance on and use of Dr. Maddocks
    opinion evidence.

ii.

The trial judge misapprehended the recovered memory theory in finding
    that repression by adults is a recognized phenomenon when there was no
    evidence to support this conclusion.

iii.

The trial judges handling of the respondents refusal to participate in
    a defence psychological assessment rendered the trial unfair.

iv.

The trial judge erred in law in his approach to corroboration of the
    respondents alleged recovered memories.

v.

The trial judge erred in the manner in which he handled the respondents
    alleged consistency in her allegations.

vi.

The trial judges approach to the evidence was marred by palpable and
    overriding errors, including his flawed analysis of the credibility and
    reliability of the respondents allegations.

vii.

The reasons for judgment are legally insufficient.

[13]

With respect to the counterclaim, the appellant submits that the trial
    judge erred in holding that, had the respondents action not been successful,
    the defence of qualified privilege would have applied to bar the defamation
    counterclaim.

Background Facts

[14]

The facts relevant to the disposition of this appeal are as follows.

[15]

The appellant and respondent were raised with their two older sisters
    and lived for many years with their parents on the family farm. The respondent
    is the youngest of the four siblings and seven years younger than the
    appellant. Their sisters are in their mid-seventies. All of the siblings are
    accomplished in their professional lives: the two eldest sisters are,
    respectively, a pediatrician and a psychiatrist; the appellant is a retired College
    teacher; and the respondent is a university professor.

[16]

Both parents have passed away. It was not until after the death of their
    mother in 1997 and the increasingly fractious administration of her estate that
    the respondent made any allegations of improper conduct against the appellant. As
    is evident from their affectionate exchange of correspondence up until that
    time, the respondent and the appellant had appeared to enjoy a very close
    relationship. Indeed, the appellant referred to the respondent as his favourite
    sister. According to their correspondence, the appellant and his family
    provided support to the respondent during her acrimonious divorce from her
    first husband and her estrangement from her daughters following the divorce.

[17]

The respondent first disclosed her allegations against the appellant
    immediately following the conclusion of her mothers estate administration.

[18]

The administration of the mothers estate was delayed for several years when
    the respondent refused to agree to sell the family cottage. The respondent wanted
    to purchase the cottage from her siblings at just over a third of its appraised
    value. Her siblings declined to sell at that price. They instead obtained three
    appraisals and offered to sell at a price based on market value. They stated
    that, if the respondent did not want to purchase the cottage on those terms and
    did not agree to place it for sale on the market, they would institute legal
    proceedings. The respondent subsequently signed off on the sale of the family
    cottage.

[19]

On July 26, 2001, following her execution of documentation to complete
    the sale of the cottage property, the respondent sent an email to the
    appellant, his wife and his daughters; her sisters and their families; her
    daughters; and a woman with whom she had been friends in high school. In this
    email, the respondent accused the appellant of physical cruelty while they were
    growing up, including twisting her arms and wrists, and trying to murder her
    by locking her up in the cold room in the dairy. She ended the transmission by
    directing him to have no further contact with her daughters and to remove
    himself as trustee of the grandchildrens trust.

[20]

The respondents family members did not support her allegations. The respondent
    sent requests to her sisters for confirmation of her allegations. They did not
    respond. However, the email sent to the appellant on July 30, 2001 by one of the
    respondents daughters reflected the familys denial of the respondents
    allegations:

I am very sorry about the letter mom sent to you and rest
    assured I do not take it seriously. Mom is not well, and unfortunately this is
    not the first of this kind of accusation that she has made  accusing has
    become a
modus vivendi
for her  although this has been among the most
    cruel. I hope this will give you some perspective. Also rest assured that I do
    not support her desire to remove you from the trust.

Please do not take this letter to heart[.]

[21]

The respondent persisted in her allegations against the appellant and over
    the next several months sent a series of emails to her siblings and their
    spouses, her daughters and her nieces and nephews. She sent some of the communications
    to the same former friend, and others to two lawyers (one was her own lawyer and
    the other was involved in the administration of her mothers estate). In these
    emails, details of the respondents allegations of sexual abuse by the
    appellant began to appear.

Evidence at trial

[22]

On December 17, 2002, the respondent commenced an action against the
    appellant, based on her allegations of sexual and physical abuse.

[23]

At the trial, which commenced almost 10 years later in November 2012,
    the respondent testified that in July 2001, she started having flashbacks of
    various incidents of sexual and physical abuse by the appellant. These
    flashbacks continued for several years and were recorded in diaries that the
    respondent produced to Dr. Maddocks and at trial. The respondent claimed that,
    excepting what the trial judge called one vague and ambiguous incident of the
    appellants lying down on top of her for 10 minutes in 1969 when their parents
    were away, her memories of all of the sexual and physical abuse were repressed
    for 30 years.

[24]

According to her flashbacks, starting when she was 4 or 5 years old, which
    would have been around 1955 or 1956, her then 11 or 12-year-old brother would
    regularly come into her bedroom in the morning before he left for hockey
    practice. He would sodomize her or force her to fellate him. These acts of
    abuse also took place in various other locations in or around the family farm
    and at two other properties near the farm.

[25]

According to the respondent, the appellant compelled her compliance by various
    acts of violence, including threatening to kill and actually killing one or two
    of the respondents pet rabbits by throwing them against the barn wall, putting
    a rope around her neck in the barn, forcing her head into the toilet and
    restraining her by the neck, and forcing her hand towards a hot pasteurizer. The
    respondent testified that the appellant threatened to shoot her with his BB gun
    and later his .22 rifle, and that the appellant shot in close proximity to her.
    She stated that their second eldest sister was complicit in the appellants use
    of the gun to threaten her.

[26]

The respondent testified that this abuse continued without abatement
    until the appellant left for a make-up high school year in 1962-63, when the
    respondent would have been 11 or 12 years old, and then when he attended
    university; however, the appellant would resume the abuse when he returned home
    for holidays or co-op placements.

[27]

The respondent recounted that on another occasion, during a visit to a
    cottage that the appellant had built on Eels Lake, the appellant and one of
    his friends forced her to fellate them and to eat her own feces. On that same
    occasion, the appellant threatened her with his gun and tied her up and left
    her at a mine entrance near the cottage.

[28]

The respondent further recalled that, when she was 16 years old and after
    the appellant had finished university and was teaching in Ottawa, their mother forced
    her to visit him. They shared his bedroom where the appellant forced her to
    fellate him.

[29]

The respondent testified that in the summer of 1971, when she was 20
    years old and after she had completed her third year of university in Europe,
    she accompanied the appellant on a trip to British Columbia at the behest of
    their mother. She said that she was forced to fellate the appellant on the
    train ride to obtain money because she had no other funds. She claimed that she
    was repeatedly raped in the course of this trip by the appellant and others: the
    appellant prostituted her to a number of the males in attendance at a party on
    Vancouver Island to whom the appellant had sold drugs; the appellant
    prostituted her to a gang of construction workers while he went on a long hike;
    and, while hitchhiking with the appellant, she was raped by him and the driver
    of the car that picked them up. On cross-examination, the respondent recanted
    her complaint about the gang rape on Vancouver Island and conceded that she
    only had an impression that those rapes had taken place.

[30]

Among others, the respondent called the following three witnesses: her
    physiotherapist, Nathalie Provençal; Dr. Maddocks; and the woman who had worked
    as a mothers helper for her family. None of these individuals had witnessed the
    abuse about which she testified. Rather, Ms. Provençal and Dr. Maddocks had observed
    dissociative episodes in which the respondent would assume the voices and
    characters of a little girl and boy and re-enact instances of abusive behaviour
    by the boy towards the girl. The former mothers helper testified that she
    witnessed nothing during her employment but also that she was absent during
    certain periods of time when the respondent was a child.

[31]

Ms. Provençal testified that during her treatment of the respondent,
    which began in October 2005, she witnessed four episodes of the respondents
    lapsing into some form of altered state where she took on the characters and
    voices of a little girl and a boy. During these episodes, in the voice of a
    little girl, the respondent would complain about a boy hurting and threatening
    her.

[32]

Dr. Maddocks testified that towards the end of an interview with the
    respondent in December 2003, she witnessed the respondent enter into a
    dissociative episode of about three minutes. In particular, she said that the
    respondent rocked back and forth, hyperventilated and shouted Im really
    angry and then Im really angry, you did nothing.

[33]

In her report dated July 15, 2004, which was filed at trial, Dr.
    Maddocks stated her opinion concerning the credibility and reliability of the
    respondents recalled memories. She acknowledged that the area of memory
    recovery is a very controversial field of inquiry. She also sounded a note of
    caution with respect to the accuracy of the respondents recalled memories,
    stating that we cannot know for certain if all of the memories represent
    actual events, also observing that the memories remained fragmented. Dr.
    Maddocks summarized her conclusions as follows:

In my opinion the recalled memories were not implanted and were
    consistent with the literature on types of recalled memory that have been found
    to refer to actual events. Whereas we cannot know for certain if all the
    memories are depictions of actual events, in considering all of the data, in my
    opinion, there is a strong indication that her brother severely sexually and
    physically abused her on a regular basis over a long period of time, starting
    when Dr. Whitfield was very young.

[34]

At trial, Dr. Maddocks confirmed the contents of her report. During cross-examination,
    Dr. Maddocks agreed with various statements from the Canadian Psychological
    Association and the American Psychological Association, of which she is a
    member. In particular, she agreed that recovered memories of early childhood
    abuse are a rare occurrence and may not be reliable. She also agreed that it is
    impossible, without other corroborative evidence, to distinguish a true
    recovered memory from a false one.

[35]

The former mothers helper lived and worked on the farm between 1950 and
    1957. During this period, she left her employ temporarily, once for six months
    and then on another occasion for two weeks. She left the farm for the last time
    when the respondent was six years old. She testified that she normally shared
    the respondents bedroom with her and never saw the appellant abuse his sister.
    As far as she was concerned, he was nothing other than a normal boy.

[36]

The appellant testified at trial. He categorically denied all
    allegations of abuse. In support of his defence, he called his sisters, who both
    testified that they never witnessed any abuse of the respondent by the
    appellant.

[37]

The eldest sister is a pediatrician. She is three years older than the
    appellant and ten years older than the respondent. She lived at the farm on a
    full-time basis until she left home to attend university in September 1959,
    when the respondent would have been eight years old. The abuse of the
    respondent would have been ongoing for three or four years by this point. She
    testified that she never witnessed the appellant abusing the respondent.

[38]

The second eldest sister is a psychiatrist. She is one year older than
    the appellant and eight years older than the respondent. She lived on the
    family farm until she left for university in the fall of 1960 when the
    respondent would have been nine years old. The abuse of the respondent would
    have been going on for four or five years by this point. This sister testified
    that she never witnessed any inappropriate behaviour on the part of the
    appellant towards the respondent nor did she ever hear the appellant threaten
    the respondent. In particular, she denied that she and the appellant ever
    threatened the respondent with guns or shot at her, or that the respondent ever
    complained to her about the alleged abuse.

The trial judgment

[39]

The trial lasted 24 days and spanned the course of about one year. Judgment
    was granted on May 1, 2014 in favour of the respondent. The trial judge awarded
    the respondent $250,000 for aggravated general damages, $50,000 for punitive
    damages, and $54,200 as special damages for future therapeutic care. On May 28,
    2014, the trial judge awarded the respondent costs in the amount of $97,000,
    inclusive of disbursements.

Assessment of the evidence by the trial judge

[40]

The trial judge reviewed the evidence of all of the lay witnesses and came
    to the following conclusion concerning the litigation:

Up to this point of my analysis, the scales between the case
    for the plaintiff and that of the defendant are relatively evenly balanced. Dr.
    Whitfields complaints against her brother are, in my view, extremely
    compelling and I am satisfied that they are neither a product of a wilful
    decision to slander her brother nor are they a construction of false memories
    either intentionally or inadvertently implanted into the mind of the plaintiff
    by her own efforts or those of third parties. The denials of Bryan Whitfield
    being effectively unchallenged by his younger sister during cross-examination
    and being substantively buttressed to varying degrees by his two older sisters,
    are equally compelling.

[41]

As a result of the even balance between the case for the appellant and
    the respondent, the trial judge turned to the evidence of Dr. Maddocks, stating:
    That is why I find the evidence of Dr. Maddocks, including her report, to be
    of critical importance in resolving this litigation.

[42]

The trial judge concluded that he could use Dr. Maddocks evidence not
    simply in furtherance of the quantification of the respondents claim for
    damages, but also to support the respondents case on liability. The trial
    judge reasoned as follows:

My review of the pertinent jurisprudence does support the use
    of such evidence for this purpose: see
S.R.S. v. H.P.S.
(1999) 122
    O.A.C. 351 (C.A.) at paras. 4-8. I am satisfied that the probative value of the
    evidence is significant in that it appears to be directly related to the abuse
    alleged and because it tends to corroborate the complaint of Dr. Whitfield
    whose claim may be suspect as it is based on recovered memories. Turning to the
    potential prejudicial effect of this evidence, as trial judge, I can be
    presumed not to allow it to disproportionately influence my analysis. In the
    result, I am satisfied that this part of Dr. Maddocks opinion is available to
    support the plaintiffs case on liability.

[43]

The trial judge also concluded that the episodes of disassociation that
    were witnessed by Ms. Provençal and Dr. Maddocks formed part of the recovery
    process of the respondents repressed memories of the abuse that she suffered
    at the hands of the appellant over the period of some 15 years.

Analysis

i.

The
    respondents action

[44]

As noted earlier, the appellant raises seven grounds of appeal in
    relation to the trial judgment allowing the respondents action. As I would
    allow the appeal on the first ground, that the trial judge erred in law by
    relying on Dr. Maddocks evidence for the purpose of determining liability, it
    is not necessary to deal with the other grounds of appeal relating to the
    respondents action.

General principles

[45]

The role of an expert witness in the trial process has been the subject
    of much judicial and other consideration. It is well established that the
    purpose of expert testimony is to assist the trier of fact by providing
    information about a specialized field of inquiry which is likely to be outside
    the experience of a judge or jury:
R. v. J.-L.J.
, [2000] 2 S.C.R. 600,
    2000 S.C.C. 51, at para. 56.

[46]

There is no question that expert evidence is essential to the litigation
    process and that many cases involving highly technical areas could not be tried
    without it:
R. v. Abbey
, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 73.

[47]

However, the nature of expert evidence and its allure of scientific
    infallibility give rise to the very real potential that it will swallow whole
    the fact-finding function of the court:
Abbey
, at para. 71. As a
    result, courts must remain vigilant to draw a firm line between the role of the
    expert and the role of the court to ensure that experts not be permitted to
    usurp the functions of the trier of fact:
J.-L.J.
, at paras. 25-26.
    Indeed, the closer the experts evidence approaches an opinion on an ultimate
    issue, the stricter must be the application of this principle:
J.-L.J.
,
    at para. 37.

[48]

Nowhere is this distinction more important than in relation to the
    issues of credibility and reliability that a trier of fact is called upon to
    determine in every trial. Expert evidence on human conduct and the
    psychological and physical factors which may lead to certain behaviour relevant
    to credibility is permitted, provided the testimony goes beyond the ordinary experience
    of the trier of fact:
R. v. Marquard
, [1993] 4 S.C.R. 223, at pp.
    248-49. Ultimate issues of credibility and reliability, however, are issues
    well within the experience of judges and juries and ones in respect of which no
    expert evidence is required:
R. v. Béland
, [1987] 2 S.C.R. 398, at pp.
    415-16.

[49]

These principles are illustrated in
Marquard
, which involved an
    allegation of aggravated assault of a child by her grandmother. At issue was
    the trial judges direction to the jury that they could rely on the expert
    evidence called to corroborate the truth of the childs testimony. In ordering
    a new trial, the Supreme Court confirmed that the jury direction was erroneous
    because the ultimate conclusion as to the credibility or truthfulness of a
    particular witness is for the trier of fact, and is not the proper subject of
    expert opinion: p. 248. The court explained why this is so, at p. 248:

A judge or jury who simply accepts an experts opinion on the
    credibility of a witness would be abandoning its duty to itself determine the
    credibility of the witness. Credibility must always be the product of the judge
    or jurys view of the diverse ingredients it has perceived at trial, combined
    with experience, logic and an intuitive sense of the matter. Credibility is a
    matter within the competence of lay people. Ordinary people draw conclusions
    about whether someone is lying or telling the truth on a daily basis. The
    expert who testifies on credibility is not sworn to the heavy duty of a judge
    or juror. Moreover, the experts opinion may be founded on factors which are
    not in the evidence upon which the judge and juror are duty-bound to render a
    true verdict. Finally, credibility is a notoriously difficult problem, and the
    experts opinion may be all too readily accepted by a frustrated jury as a
    convenient basis upon which to resolve its difficulties. All these considerations
    have contributed to the wise policy of the law in rejecting expert evidence on
    the truthfulness of witnesses.

Application of the principles to the present case

[50]

I agree with the appellants submissions that the trial judges reliance
    on Dr. Maddocks evidence went beyond its permissible uses. In particular, the
    trial judge erred in determining that he could use Dr. Maddocks evidence to
    establish the respondents claim and to find the appellant liable.

[51]

The trial judges reliance on the decision of
S.R.S. v. H.P.S.
(1999), 122 O.A.C. 351 (C.A.), at paras. 4-8, to corroborate the respondents
    claim on liability was misplaced. This decision does not stand for the general proposition
    that expert evidence can be admitted as corroboration of a claimants
    allegations of sexual abuse for the purpose of establishing liability.

[52]

Rather, this court simply noted in
S.R.S.
, at para. 6, that
    expert opinion evidence about the
impact
of sexual abuse was widely
    accepted and that the evidence in that case was filed on consent, without any
    limitation as to its use by the trial judge, and without cross-examination. As
    a result, this court found no basis for the complaint by the appellant.

[53]

The limited application of the decision in
S.R.S.
to the
    particular facts of that case is highlighted by the reference to
R. v.
    Olscamp
(1995), 95 C.C.C. (3d) 466 (Ont. C.J. (Gen. Div.)), addressing the
    admissibility of expert evidence concerning the impact of sexual abuse. In
Olscamp
,
    at p. 474, Charron J. stated the following general proposition referenced by
    this court in
S.R.S.
:

Expert opinion evidence about the general behavioural and
    psychological characteristics of child victims of sexual abuse has often been
    admitted in Canadian criminal trials. The admissibility of this kind of
    evidence for certain purposes has been confirmed by a number of Canadian Courts
    of Appeal and by the Supreme Court of Canada. [Citations omitted.]

[54]

Moreover, at p. 475, in rejecting the proffered expert evidence in the
    case before her, Charron J. reiterated the general caution expressed in
Marquard
about using expert evidence to determine issues of credibility:

Although the proposed evidence is certainly logically relevant
    to an issue in the case, its probative value, for the reasons set out earlier,
    is extremely limited. On the other hand, its prejudicial value can be
    overwhelming. This trial will turn on a question of credibility.
Although a distinction can be made between evidence going to
    credibility alone and this kind of evidence admitted in support of the
    complainants testimony, the line is a very fine one. The admission of evidence
    dressed up in scientific language (
Mohan
, at p. 411) in support of the complainants testimony may well
    be given far more weight by the jury than it deserves and may even become
    determinative of the ultimate issue.
The prejudicial effect of this
    evidence so far outweighs its low probative value that the matter cannot simply
    be left to be remedied by cross-examination and special instructions to the
    jury. The evidence should not be admitted. [Emphasis added.]

[55]

Although the trial judge indicated in his reasons that he would not
    allow Dr. Maddocks evidence to disproportionately influence [his] analysis,
    it is clear that this is exactly what occurred in this case.

[56]

The trial judge did not simply use Dr. Maddocks evidence to explain the
    memory process in human beings and delayed recall in victims of historical
    sexual abuse or for the purpose of assessing the respondents damages. There is
    no question that those uses would have been permissible.

[57]

Rather, the trial judge expressly relied on Dr. Maddocks evidence to
    resolve the litigation by tipping his otherwise evenly balanced assessment of
    the credibility and reliability of the appellant and the respondent. The trial
    judge erred by relying on Dr. Maddocks evidence to corroborate the truth of
    the respondents fragmented recovered memories. In doing this, he erroneously
    allowed the expert to usurp his role as trier of fact.

[58]

As a result, the judgment must be set aside. Given the trial judges determination,
    after considering and making findings based on the evidence of the lay
    witnesses, that the scales between the case for the plaintiff and that of the
    defendant [were] relatively evenly balanced, a conclusion which is not tainted
    by the errors identified in these reasons, the respondent has failed to prove
    her claim on a balance of probabilities. The evidence of Dr. Maddocks was
    essential to a finding that the respondent had made out her case. That evidence
    was simply not available to the trial judge to resolve the contradictions
    between the parties accounts. As such, the respondents action must be
    dismissed.


ii.

The
    appellants counterclaim

[59]

There is no dispute that the appellant met the burden of proving that
    the respondents allegations were defamatory and that they were published. The
    onus then shifted to the respondent to prove on a balance of probabilities that
    her allegations were justified because they were true or that the defence of
    qualified privilege applied in the circumstances of this case. Given my conclusion
    above, the statements cannot be justified as having been true. The question is
    therefore whether the trial judge was correct to conclude that the respondents
    statements were protected by qualified privilege.

[60]

I agree with the appellants submission that the trial judges finding
    of qualified privilege was irreparably tainted by his erroneous findings that
    the respondents allegations were true as supported by Dr. Maddocks opinion.
    In my view, even if the defence of qualified privilege can be said to apply to
    the communications to the respondents family and the two lawyers, it cannot
    apply to the communications to the respondents former high school friend. As
    such, I would allow the appellants appeal with respect to the counterclaim.

Brief background

[61]

It is useful to set out a brief summary of the facts underlying the
    appellants counterclaim. The communications at issue comprise emails, letters
    and postcards. Most were sent to the parties family members, including the
    respondents daughters; the appellant, his wife and their two daughters; the
    eldest sister, her husband and their two children; and the second eldest sister
    and her husband. Several of the emails were also sent to the respondents
    friend from high school, with whom she had not been friends for over 30 years since
    high school ended. These letters contained what the trial judge described as
    the respondents efforts to set the record straight on the marathon of
    sexual, emotional and physical abuse that she claimed comprised the
    relationship between her and the appellant.

[62]

The communications also include a letter sent by the respondent to the
    estate solicitor, with her siblings and her own lawyer copied, in which the
    respondent briefly described the abuse and her ongoing process of memory
    recovery. She expressed concern about the appellants ability to exert pressure
    on her daughters due to his role as trustee of their fathers estate. The two
    lawyers were later copied in an email sent by the respondent to her three
    daughters in which she again briefly described the assaults and begged her
    daughters to consider if they had any memories of inappropriate conduct by the
    appellant. Finally, she copied the lawyers on an email sent to her two older
    sisters in which she tried to enlist her sisters help in encouraging the
    appellant to resign from his role as Trustee of the Grandchildrens Trusts.

[63]

The respondent relied on the defence of qualified privilege in the event
    her justification by way of truth failed. Although the trial judge found that
    the respondent had made out her claim, he considered the counterclaim on the
    alternative basis of qualified privilege because of the extensive submissions
    that had been made on this point at trial.

General principles

[64]

The defence of qualified privilege flows from the rationale that the
    interest sought to be protected by the statement is considered important enough
    to justify allowing a person to defame another without attracting liability:
R.T.C.
    Engineering Consultants Ltd. v. Ontario
(2002), 58 O.R. (3d) 726 (C.A.),
    at para. 15.

[65]

Qualified privilege attaches to the occasion when a defamatory statement
    is made, not to the statement itself:
R.T.C. Engineering
, at para. 14.
    A privileged occasion is an occasion where the person who makes a
    communication has an interest or a duty, legal, social, or moral, to make it to
    the person to whom it is made, and the person to whom it is so made has a
    corresponding interest or duty to receive it:
Hill v. Church of
    Scientology of Toronto
, [1995] 2 S.C.R. 1130, at para. 143. Two broad
    categories of privileged occasions relevant to this appeal include
    communications intended to protect or further the legitimate interests of the
    publisher; and communications intended to protect or further the legitimate
    interests of another: Raymond E. Brown,
Defamation Law: A Primer
, 2nd
    ed. (Toronto: Thomson Canada Limited, 2013) at p. 211.

[66]

In assessing whether such an interest or duty exists, the test is
    whether persons of ordinary intelligence and moral principle, or the great
    majority of right-minded persons, would have considered it a duty to
    communicate the information to those to whom it was published:
Halls v.
    Mitchell
, [1928] S.C.R. 125, at pp. 132-33; Raymond E. Brown,
The Law
    of Defamation in Canada
, loose-leaf (2014-Rel. 3), 2nd ed. (Toronto:
    Thomson Reuters Canada Limited, 1999) at pp. 13-5, 13-103.

[67]

In determining whether the defence of qualified privilege is applicable,
    context matters. Relevant factors include the nature of the statement, the
    circumstances under which it was made, and by whom and to whom it was made.
    Reciprocity of interest is essential, and at the very heart of the defence of
    qualified privilege  the defendant must have some interest in making the
    statement and those to whom the statement is made must have some interest in
    receiving it:
R.T.C. Engineering
, at para. 16.

[68]

The privileged occasion must be created by the exigency of the
    circumstances and not by the state of mind of the person who communicates the
    information. That the person communicating the information believes in its
    truth is irrelevant to whether the occasion is privileged, although the lack of
    such a belief may constitute malice, causing the privilege to be lost:
R.T.C.
    Engineering
, at para. 18;
Ahmad v. Ontario Hydro
, 1997
    CarswellOnt 2783 (C.A.), at para. 5.

[69]

Further, the privilege is to be narrowly applied and does not extend to
    comments that go beyond the exigency of the occasion or which are communicated
    to those who have no interest in receiving them:
Hill
, at paras.
    146-147;
R.T.C. Engineering
, at paras. 15, 18. Simply put, to
    maintain privilege a defendant must communicate appropriate information to
    appropriate people:
R.T.C. Engineering
, at para. 18.

Application of the principles to the present case

[70]

The trial judge correctly stated the law on qualified privilege as
    follows:

The occasion of qualified privilege has been described as:

an occasion where the person who makes the
    communication has an interest
or
duty, legal,
    social or moral, to make it to the person to whom it is made, and the person to
    whom it is so made has a corresponding interest or duty to receive it. The
    reciprocity is essential....: see p. 47,
Annual Review
quoting
Adam
    v. Ward
, [1917] A.C. 309 (H.L.) at p. 334. [Emphasis in original.]

[71]

As he acknowledged, the trial judge was required to determine this issue
    after assuming that the respondent had failed to demonstrate that her allegations
    were true. However, the trial judge failed to do this.

[72]

Rather, the trial judges reasons indicate that he found that qualified
    privilege applied because the respondents allegations were true and supported
    by Dr. Maddocks opinion. Indeed, the trial judge chastised the respondents
    family for their apparent insensitivity to the respondent:

Although some or all of them may have found the disclosures
    distasteful and offensive, they had not only an interest but a familial duty to
    consider this dirty family secret and give their sister, sister-in-law and
    aunt at least a tiny benefit of a doubt as to the validity of her claims. Any
    group of right-minded persons would have done so, especially when her complaints
    were supported to a significant degree by the report of Dr. Maddocks. The
    refusal by two professionals such as her two older sisters to do so simply
    boggles my mind. This attitude was not only insensitive to their younger
    sister, it shows, in my view, a profound absence of professional objectivity.

[73]

The trial judge further erred when he determined that because the
    respondent believed in her heart and soul that she had been the victim of
    unrelenting sexual abuse at the hands of her brother she was entitled to make
    defamatory allegations of sexual abuse to other members of their family, her
    former high school friend, her lawyer and the estate solicitor. The
    respondents subjective beliefs may be relevant to the question of whether she
    acted out of malice. But they are irrelevant to the question of whether the
    occasion itself was privileged.

[74]

Unfortunately, the trial judge erred by conflating these criteria: his
    finding that the respondent honestly believed her allegations meant that she
    had an interest or duty to publish the information and that the recipients of
    her emails had a corresponding duty to give her at least a tiny benefit of a
    doubt as to the validity of her claims. By doing so and failing to analyze
    whether, objectively, the occasion was privileged, the trial judge erred.

[75]

As a result, it is necessary to examine the availability of the defence
    of qualified privilege in this case.

[76]

The respondent may have had an interest in sending email communications
    concerning the appellants behaviour, for example to protect her family
    members, prevent future abuse or seek out emotional support. In turn, her
    family members may have had an interest in receiving the respondents email
    communications about the appellant to consider whether they were affected by the
    allegations and should take any protective action: see e.g.
B. (P.) v. E.
    (R.V.)
, 2007 BCSC 1568, where family members were held to have an interest
    in receiving information from their relative who had accused her father of
    sexually assaulting her.

[77]

Similarly, in communicating with her lawyer and the estate solicitor
    about her allegations, specifically in requesting that the appellant be removed
    as the trustee for the grandchildrens trusts, the respondent may have been
    acting to protect the interests of other persons, namely her daughters. The
    solicitors may have had an interest or duty to receive those communications, to
    assess if or how to respond to the request.

[78]

However, there was no duty or interest on the part of the respondents
    former high school friend to receive the respondents communications. The
    respondent admitted that their friendship did not last after high school had
    ended and that they only briefly reconnected after the death of the
    respondents mother.  She did not testify as to her reason for copying the friend
    on the defamatory emails. There was no evidence that she asked her friend for
    assistance or advice, or that the friend ever responded to her communications. In
    these circumstances, there was no legitimate interest to be protected by the
    statements; as a result, they did not merit protection under the auspices of
    qualified privilege:
R.T.C. Engineering
, at para. 15;
Milgaard v.
    Mitchell
(1996), 151 Sask. R. 100 (Q.B.), at para. 36.

[79]

The respondent has failed to demonstrate the defence of justification or
    qualified privilege with respect to the defamatory communications sent to her former
    high school friend. I would allow the counterclaim in the amount of $5,000, as
    requested by the appellant.

Disposition

[80]

For these reasons, I would allow the appeal, dismiss the respondents
    claim and allow the appellants counterclaim in the amount of $5,000.


Costs

[81]

With respect to the costs of the appeal, the appellant claims his
    partial indemnity costs on appeal in the amount of $50,000.

[82]

The appellant was entirely successful on his appeal. As a result, there
    is no reason to depart from the ordinary practice that costs follow the event. Given
    the numerous pre-appeal procedures and attendances, and the voluminous
    materials filed by both parties, the amount claimed is fair, reasonable and
    proportionate, and ought to have been in the respondents contemplation if she
    were unsuccessful. That this matter was conducted as a bilingual proceeding has
    no bearing on the amount of costs awarded.


[83]

Accordingly, I would fix the appellants appeal costs in the amount of
    $50,000, inclusive of all amounts, and order that the respondent pay the
    appellants appeal costs on or before September 22, 2016.

[84]

Given the outcome of this appeal, the trial judges costs award must
    also be set aside.

[85]

The appellant did not make any submissions concerning his trial costs. If
    the parties cannot agree on the scale and quantum of costs to be awarded, they
    may forward written submissions of no more than five pages, including a costs
    outline, as follows: the appellant shall deliver and file his costs submissions
    by August 5, 2016; the respondent shall deliver and file her responding costs
    submissions by August 26, 2016. There shall be no reply submissions.

Released:
July 20, 2016

L.B. Roberts
    J.A.

I agree K.M.
    Weiler J.A.

I agree K. van
    Rensburg J.A.


