The Applicant, Rajan, sought Summary Dismissal of the Action brought against her by Karagic. Karagic had claimed against Rajan, a medical doctor, in defamation, after Rajan provided a referral letter to Karagic’s former wife which stated that Karagic had sexually assaulted his child, which referred the child to the ER for further assessment (the “Letter”).

Rajan argued that the Claim should be summarily dismissed on the basis that the allegations in the Letter were subject to qualified privilege, since she was professionally obligated to report the allegations. Karagic acknowledged that the Letter would normally be subject to qualified privilege, but argued that it was not in this case due to the definitive nature of the language used in the Letter (which characterized her suspicion that the child had been abused as an “established fact”), and because the Letter was given to Karagic’s former wife, who Rajan knew would rely on the Letter during Karagic’s custody Trial to Karagic’s detriment.

After reviewing the facts along with the test for defamation and the defence of qualified privilege, Justice Kirker noted that pursuant to Rule 7.3(1), an Action may be dismissed summarily where “there is no merit to a claim or part of it”. Rajan argued that there was no merit to Karagic’s claim because the matter could be fairly and justly determined summarily on the existing record, and as such did not genuinely require a Trial. However, Justice Kirker concluded that the Application should be dismissed, as Rajan had not established that Karagic’s position was unassailable, or that her likelihood of success at Trial was very high. Although there was no question that Rajan had an obligation to refer the child for further assessment, “there is a wide gulf between words that convey that a child has been sexually abused and words that convey a concern that such may be, but is not necessarily the case.” Rajan’s arguments that she prepared the Letter in good faith and without intending that it be used by others outside of the ER referral similarly could not be decided summarily, as they required an assessment of credibility that could not be fairly and justly done without a Trial.