The Dangers of Threatening to Sue a Plaintiff for their Witness Testimony in Canada

Jonathan Denis, the former Justice Minister for the province of Alberta has been found guilty of criminal contempt of court after threatening to sue a plaintiff nearing the end of her testimony in a wrongful termination suit. Denis’ case was recently featured on CTV News. 

During the trial, Denis sent a letter to Dr. Sauvageau threatening to sue her for defamation. The letter was sent while Dr. Sauvageau was in the midst of providing testimony, in which she had accused the government of Alberta of wrongfully terminating her position as Chief Medical Examiner. Denis was not personally named in the lawsuit, however, several of Dr. Sauvageau’s allegations referred to Denis directly. 

Denis argued that the letter was not directed at the statements made on the witness stand, but alternatively towards alleged statements made to the media outside of court following the publication of an Edmonton Journal article. However, Justice Doreen Sulyma rejected this explanation. 

The Court stated the letter constituted “intimidation to prevent [Dr. Sauvageau] from pursuing her right to testify in this trial.” 

Absolute Privilege

Absolute privilege operates as a defence against claims for defamation that arise through the ordinary course of litigation. As a result, subject to limited exceptions, witnesses cannot be subject to any reprisal or threat thereof from any comments or documents prepared during a trial.  The purpose of this rule is to ensure that witnesses feel comfortable giving statements freely.

Denis’s actions impugned the public confidence in the judicial process as it was an attempt to use Dr. Savageau’s testimony as a means to intimidate and/or silence her by threatening to launch a defamation suit against her following her testimony. The Court held that Denis’s letter challenged the witness’ right to absolute privilege in the circumstances.  Concluding that it was intended to not only obstruct the plaintiff’s testimony but the trial process itself.  

Dr. Sauvageau states the threat of legal action made her fearful of testifying and caused her mental anguish resulting in therapy and anti-anxiety medication. In addition, the Court found that the letter prompted another witness to withdraw from testifying and raised the risk of a mistrial following years of pre-trial litigation. 

The Court held that permitting such behaviour would create a dangerous precedent and threaten to bring the administration of justice into disrepute. 

Contempt of Court

The Court found that Denis was guilty of the criminal offence of contempt of court, which is broadly defined as words or acts obstructing or intending to obstruct the administration of justice. 

The actions taken by Denis attempted to interfere with the due course of justice and had the potential to discourage the public’s confidence in the justice system. Especially given Denis’ former position as Justice Minister, he should have been aware of the dangers of his actions. He was once in charge of the administration of justice, and as a lawyer has a responsibility and duty under the Law Society of Alberta’s Code of Conduct to “encourage public respect for and try to improve the administration of justice.” His letter clearly disregarded these duties as he negatively affected the trial process for his personal gain. 

For offences of criminal contempt, deterrence is usually the primary sentencing objective. This is because the purpose of contempt proceedings is to protect the rule of law, the organizing principle which distinguishes civilized society from anarchy. As a result, it is possible that Denis could face jail time, fines, and/or further disciplinary action by the Law Society of Alberta.

It should be noted that Denis has indicated that he intends to appeal the contempt order issued by Justice Sulyma.

Anti-SLAPP Legislation

In addition, in 2015, the province of Ontario enacted legislation designed to prevent this type of conduct in the form of Strategic Lawsuits Against Public Participation (“SLAPP”) legislation. The Anti-SLAPP legislation was in response to the rise in frivolous lawsuits designed to target and/or silence individuals with less financial resources. The purpose of these claims was to deter individuals from raising these allegations publicly by threatening them with the financial burden of responding to a lawsuit. The legislation permits a Court to summarily dismiss claims which are designed to solely to limit an individual’s free expression.   

Monkhouse Law successfully represented an employee who was faced with a SLAPP claim for speaking out publicly about her former employer’s discriminatory practices in Joshi v All State Insurance Company of Canada.

In Summary

Dr. Sauvageau’s case demonstrates the importance of retaining a lawyer to assist you through the litigation process. In most cases, there is a vast disparity in resources between an employee and their employer and it is not uncommon for an employer to try to take advantage of this power imbalance in order to convince you to accept an improvident settlement. 

The judicial system is a complex, and time-consuming process. If you’ve been terminated and your employer has threatened legal action against you in order to avoid paying you notice of termination, we can help.

Monkhouse Law is an employment law firm located in Toronto with a focus on workers’ issues. Give us a call at 416-907-9249 or fill out this quick form. We offer a free 30-minute phone consultation.

About the Author: This article was written by Daniel Hunter an Employment Lawyer at Monkhouse Law

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