Executive Summary: Key Legal and Evidentiary Issues

• The core issue was whether allegedly defamatory statements made in a reply pleading and during account review hearings were protected by absolute privilege.

• Connie J.M. Tuharsky, the respondent, was not a party to the underlying litigation but claimed defamation based on statements about her in legal pleadings and oral submissions.

• The applications judge struck the claim, finding the statements were made on occasions of absolute privilege, but the chambers judge reversed this, holding it was not plain and obvious that privilege applied.

• The Court of Appeal held that statements made in court pleadings and during oral submissions before a court-designated review officer are absolutely privileged, regardless of content or motive.

• The Court found that no exception to absolute privilege applies for statements about non-parties when made in court pleadings or during oral argument.

• The appeal was allowed, the statement of claim was struck, and costs were awarded to the appellants under Column 1 of the Schedule C tariff.

Background and facts

Between 2009 and 2019, Connie J.M. Tuharsky was employed by O’Chiese First Nation as its general counsel. In 2010, she recommended that O’Chiese retain DLA Piper (Canada) LLP as external counsel for certain oil and gas matters. O’Chiese retained DLA Piper for several matters, including the preparation of three oil and gas joint venture agreements and as litigation counsel in disputes related to those agreements. In October 2019, after ending its relationship with both Tuharsky and DLA Piper, O’Chiese retained Poole Lawyers. On behalf of O’Chiese and its affiliated entities, Poole Lawyers filed a statement of claim against DLA Piper and its lawyers, alleging, among other things, a potential malpractice claim and conflict of interest regarding the preparation of the oil and gas agreements.

In May 2020, Poole Lawyers filed a reply to DLA Piper’s statement of defence. Although Tuharsky was not a party to the action, the reply alleged that DLA Piper had influence over her, that she did not provide O’Chiese with objective advice, and that her loyalty to DLA Piper superseded her loyalty to O’Chiese. The reply further alleged that she failed to advise O’Chiese of the potential malpractice claim and conflict of interest, failed to ensure legal expenses paid to DLA Piper were reasonable, and failed to ensure DLA Piper fulfilled their obligations. O’Chiese did not add Tuharsky as a defendant but asserted that if its losses were caused by both DLA Piper and Tuharsky, it could recover from DLA Piper, who could then seek indemnity or contribution from Tuharsky.

O’Chiese also sought review of DLA Piper’s accounts, leading to account review hearings before a review officer in February and November 2021. During these hearings, Poole Lawyers referenced the reply pleading and made statements about Tuharsky’s relationship with DLA Piper, including that she “had not been acting with full loyalty to” O’Chiese and that DLA Piper and Tuharsky “kept things from Chief and Council.” Counsel also stated that Poole Lawyers might be retained “to make a claim against DLA Piper for their illicit relationship with [the respondent] and for overbilling.”

Legal proceedings and decisions below

Tuharsky commenced a court action against O’Chiese, Poole Lawyers, two specific Poole lawyers, and others, alleging that the statements made in the reply pleading and during the account review hearings were defamatory. The appellants defended on the basis that the statements were protected by absolute privilege. The applications judge granted the applications to strike, holding that the statements were made on occasions of absolute privilege, as they were contained in pleadings and made during, incidental to, and in furtherance of judicial or quasi-judicial proceedings. The chambers judge allowed Tuharsky’s appeal, holding it was not “clear and obvious” that absolute privilege applied and that a holistic and contextual analysis was required to determine if there was an underlying connection between the making of the statements and the proceedings.

Court of Appeal’s analysis and outcome

The Alberta Court of Appeal held that the chambers judge erred in requiring a contextual analysis where the statements were made in a reply pleading and during oral submissions before a court-designated review officer—circumstances that fall within the core of recognized protected occasions. The Court clarified that absolute privilege attaches to the occasion on which a statement is made, not the words used, and applies regardless of content or motive. The Court rejected the argument that an exception should apply for statements about non-parties when made in court pleadings or during oral submissions, finding that such an exception would undermine the policy rationale for absolute privilege.

Conclusion and result

The Court of Appeal allowed the appeal, struck Tuharsky’s statement of claim in its entirety, and awarded costs to the appellants, assessed using Column 1 of the Schedule C tariff. No specific monetary amount was stated in the judgment. The successful parties were O’Chiese First Nation, Poole Lawyers, and the other named appellants.