Kinney v. Fisher

Kinney v. Fisher

Majority held that the privileged occasion of replying to a demand did not extend to an unproven criminal accusation because defendant failed to establish any interest or rights in the cheque; the earlier unrestricted order for a new trial did not bind the court on the present record; there was sufficient evidence of malice or contested facts to require submission to a jury, so the order for a new trial was proper; appeal dismissed.

Citation
(1921) 62 SCR 546
Parties
Defendant Appellant: W. A. Kinney; Plaintiff Respondent: Esther Florence Fisher
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
21 November 1921
Procedural Posture
Civil Libel Appeal / On Appeal to the Supreme Court of Canada From Supreme Court of Nova Scotia (new Trial Ordered Below)
Outcome
Appeal dismissed with costs; order below directing new trial upheld
Legal Topics
Qualified Privilege, Malice, Res Judicata, Evidence, New Trial
Source Language
English
Torts Defamation Civil Procedure Qualified Privilege Malice Res Judicata Evidence New Trial

Case Brief

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Parties

W. A. Kinney

Defendant Appellant

Esther Florence Fisher

Plaintiff Respondent

Procedural Posture

Civil Libel Appeal / On Appeal to the Supreme Court of Canada From Supreme Court of Nova Scotia (new Trial Ordered Below)

Legal Issues

  1. 1 Whether defendant's letter was privileged as a reply to a demand for payment
  2. 2 Whether privilege extends to a criminal accusation contained in the letter absent proof of an interest
  3. 3 Whether the prior appellate order granting a new trial operated as res judicata on the privilege issue

Ratio Decidendi

Majority held that the privileged occasion of replying to a demand did not extend to an unproven criminal accusation because defendant failed to establish any interest or rights in the cheque; the earlier unrestricted order for a new trial did not bind the court on the present record; there was sufficient evidence of malice or contested facts to require submission to a jury, so the order for a new trial was proper; appeal dismissed.

Court Disposition

Appeal dismissed with costs; order below directing new trial upheld

Orders

  • Appeal dismissed with costs
  • Proceed to new trial