Defamation

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.