Mantella v. Mantella 2009 Ont. S.C.J. “Absolute Privilege in the Context of Litigation”

The parties in this case were involved in custody litigation. The Husband commenced a claim of defamation against the wife relating to the wife’s alleged public assertions to third parties about the husband’s mafia connections and history of violence.

During the litigation, a psychologist was appointed to conduct an assessment pursuant to s. 30 of the Children’s Law Reform Act. During the wife’s interview by the psychologist, the wife allegedly compared her husband to Tony Soprano, a mob character in a popular television show. The Husband brought an application to add the wife’s alleged comments as further allegations of defamation. On January 25, 2008, Master Hawkins denied the husband’s request to add further allegations of defamation to the outstanding defamation claim. The Master relied on well-established principles with respect to absolute privilege for communications taking place in the context of litigation and concluded that the requested amendment was without merit in law.

The Husband appealed the decision of the Master and argued that the law of absolute privilege is unsettled in the context of a court appointed custody assessment. Justice Wilson of the Ontario Superior Court of Justice disagreed with the Husband’s position and reaffirmed the need for strict adherence to the principle of absolute privilege in the context of litigation. The judge maintained that clients participating in a custody assessment must be able to speak freely with the assessor without fear of consequences. The judge noted that the need of absolute privilege is particularly important in family law matters where emotions run high.

As such, the judge upheld the decision of the Master. In addition, he concluded that the original defamation action was properly tied to the outstanding family law proceedings and should be transferred to the Family Law Division.

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