Defamation

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Date Retrieved:	2024-04-25
CLNP Page ID:	181
Page Categories:	[Defamation]
Citation:	Defamation, CLNP 181, <https://rvt.link/1o>, retrieved on 2024-04-25
Editor:	MKent
Last Updated:	2022/11/24

Gaur v. Datta, 2015 ONCA 151 (CanLII)

[8] The tort of defamation requires the plaintiff to prove three elements: (1) the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) the words in fact refer to the plaintiff; and (3) the words were communicated to at least one person other than the plaintiff: Guergis v. Novak, 2013 ONCA 449, 116 O.R. (3d) 280, at para. 39; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28; see also Lysko, at para. 91.

[9] In Lysko, at para. 90, this court noted that “publication by the defendant is an essential element of a defamation action and any person who participates in the publication of the defamatory expression in furtherance of a common design will be liable to the plaintiff”. As Raymond E. Brown stated in The Law of Defamation in Canada, loose-leaf (2012-Rel. 3), 2nd ed. (Scarborough: Carswell, 1999), at pp. 7-30 – 7-31:

The defamatory material may be published indirectly through the action of some intermediary for whose publication a defendant may be held to share responsibility. This may be because the defendant authorized, incited or encouraged another to publish it…A defendant may be responsible for the acts of others by encouraging, instructing or authorizing them to publish defamatory information, or providing them with information intending or knowing that it will be published.

[10] Pleadings in defamation cases are more important than in any other class of action, and require a concise statement of the material facts: Lysko, at para. 91.

Amorosi v. Barker, 2019 ONSC 4717 (CanLII)

[21] In order to have a legally tenable cause of action, a plaintiff in any defamation case must lead evidence to establish the following elements of the tort: (i) that the words complained of referred to the plaintiff; (ii) that the words were communicated to at least one other person; and (iii) that the words complained of were defamatory in the sense of tending to lower the plaintiff’s reputation in the eyes of a reasonable person: Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), (1995) 3 S.C.R. 3 at p. 24; Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), (1995) 2 S.C.R. 1130, at para. 164.

Cable Assembly Systems Ltd. et al. v. Ben Barnes et al., 2019 ONSC 97 (CanLII)

[56] Justice Nordheimer also dealt with a defamation claim in Janssen-Ortho Inc. He stated at para. 60:

Finally, the tort of defamation requires Janssen to prove

(a) the words are defamatory, in that they tend to lower the plaintiff in the estimation of right-thinking members of society, or to expose the plaintiff to hatred, contempt or ridicule; and

(b) the defamatory statement was published.

[57]The legal framework applicable to defamation alleged in the employment context was recently summarized by Miller J. in Papp v. Stokes et al.,:

As indicated in Grant v. Torstar Corp. 2009 SCC 61 (CanLII), at paragraphs 28-30:

A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism: see, e.g., R. A. Smolla, "Balancing Freedom of Expression and Protection of Reputation Under Canada's Charter of Rights and Freedoms", in D. Schneiderman, ed., Freedom of Expression and the Charter (1991), 272, at p. 282. (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se: R. E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), vol. 3, at pp. 25-2 and 25-3.) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.

If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability.

Both statements of opinion and statements of fact may attract the defence of privilege, depending on the occasion on which they were made. Some "occasions", like Parliamentary and legal proceedings, are absolutely privileged. Others, like reference letters or credit reports, enjoy "qualified" privilege, meaning that the privilege can be defeated by proof that the defendant acted with malice: see Horrocks v. Lowe, [1975] A.C. 135 (H.L.). The defences of absolute and qualified privilege reflect the fact that "common convenience and welfare of society" sometimes requires untrammelled communications: Toogood v. Spyring (1834), 1 C.M. & R. 181, 149 E. R. 1044, at p. 1050, per Parke B. The law acknowledges through recognition of privileged occasions that false and defamatory expression may sometimes contribute to desirable social ends.

…

In Korach v. Moore 1991 CanLII 7367 (ON CA), (1991) O.J. No. 1, the Court of Appeal indicated that where qualified privilege is established, the onus rests on the plaintiff to show malice. [All emphases added]

Murphy v. Sutton Group, 2019 ONSC 2078 (CanLII)

The Defamation Claim

[71] To prove his claim for defamation, Mr. Murphy must show:

(1) that the impugned words by the Defendants were defamatory, in the sense that they would tend to lower his reputation in the eyes of a reasonable person;

(2) the words in fact referred to him; and

(3) the words were published, meaning that they were communicated to at least one person other than to him.

Grant v. Torstar Corp, 2009 SCC 61 (CanLII) at paras 28. If these elements are established on a balance of probabilities, the law presumes the words are false and that the plaintiff suffered general damages. As the tort is one of strict liability, the plaintiff is not required to show that the defendant intended to do harm or even was careless. If the plaintiff proves the required elements, the onus shifts to the defendant to raise a defence to avoid liability; Grant at paras. 28 and 29. Where the tort is proven, an award of general damages is intended to compensate the plaintiff for the loss of reputation and injury to his feelings, and to console and vindicate the plaintiff to re-establish his reputation; Downard, The Law of Libel in Canada (4th, 2018) at p. 3, citing Walker v. CFTO Ltd. (1987), 1987 CanLII 126 (ON CA), 59 OR (2d) 104 at 111 (C.A.). A plaintiff may be awarded actual or special damages for specific losses resulting from defamation causing a loss or decline of business or patronage; Botiuk v. Toronto Free Press, 1995 CanLII 60 (SCC), (1995) 3 SCR 3 at paras. 108-111].

[72] In general, courts uphold defamation pleadings where a claimant cannot provide full particulars of every allegation but where the incidents and particulars are known to the defendant. This is the case where a claimant otherwise establishes that the impugned statements were disseminated and amount to a prima facie case of defamation: Catalyst Capital Group Inc. v. Veritas Investment Research Corporation, 2017 ONCA 85 (CanLII) at paras. 21 and 28.

[73] Mr. Murphy relies on several matters to ground his claim for defamation. These include: a) two (2) complaints to police; b) three (3) complaints to a regulatory agency; c) a trespass notice against him; and d) comments alleged to have been made by a former secretary at the Sutton Group brokerage.

Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), (1995) 2 SCR 1130

62 Two major issues are raised in this appeal. The first concerns the constitutionality of the common law action for defamation. The second relates to the damages that can properly be assessed in such actions.

63 Let us first review the appellants' submissions pertaining to defamation actions. The appellants contend that the common law of defamation has failed to keep step with the evolution of Canadian society. They argue that the guiding principles upon which defamation is based place too much emphasis on the need to protect the reputation of plaintiffs at the expense of the freedom of expression of defendants. This, they say, is an unwarranted restriction which is imposed in a manner that cannot be justified in a free and democratic society. The appellants add that if the element of government action in the present case is insufficient to attract Charter scrutiny under s. 32, the principles of the common law ought, nevertheless, to be interpreted, even in a purely private action, in a manner consistent with the Charter. This, the appellants say, can only be achieved by the adoption of the "actual malice" standard of liability articulated by the Supreme Court of the United States in the case of New York Times v. Sullivan, supra.

64 In addition, the appellant Morris Manning submits that the common law should be interpreted so as to afford the defence of qualified privilege to a lawyer who, acting on behalf of a client, reads and comments in public upon a notice of motion which he believes, in good faith, has been filed in court, and which subsequently is filed. Let us consider first whether the Charter is directly applicable to this case.

107 The other value to be balanced in a defamation action is the protection of the reputation of the individual. Although much has very properly been said and written about the importance of freedom of expression, little has been written of the importance of reputation. Yet, to most people, their good reputation is to be cherished above all. A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society's laws. In order to undertake the balancing required by this case, something must be said about the value of reputation.

108 Democracy has always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of a person. It is that good repute which enhances an individual's sense of worth and value. False allegations can so very quickly and completely destroy a good reputation. A reputation tarnished by libel can seldom regain its former lustre. A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited.

Farrow v Jones, 2014 CanLII 6012 (ON SCSM)

[56] Damages in defamation are said to be “at large” which means that they are awarded by courts to compensate for other than material loss, largely for harm caused to a person’s reputation. Robins J.A. in the case of Walker v. CFTO Ltd. (1987), 1987 CanLII 126 (ON CA), 59 O.R. (2d) 104 at p. 111, described such damages as follows:

Defamation is an invasion of a person's interest in his or her reputation, and compensatory damages are imposed primarily to compensate for the harm caused to the person's reputation by the defamatory publication. In libel actions damages are at large in the sense that the award is not limited to a pecuniary loss that can be specifically proved; damages are presumed from the publication of the libel itself and need not be established by proof of actual loss. Damages may include intangible or subjective elements; they cannot be measured by any objective monetary scale and are not capable of precise calculation.

[57] As noted above, damages in defamation cases are not capable of precise measurement and are based on a subjective determination made on a case-by-case basis, after taking all the facts and circumstances involved into account.