By PRADEEP CHAND, Founding Partner

What is Defamation?

Defamation refers to a false statement made about an individual that can potentially harm their reputation and give rise to damages. To constitute defamation, a statement must be made to a third party. A damaging and untrue statement presented to someone as a fact generally establishes a basis for a defamation lawsuit.

Types of Defamation:

Defamation can be experienced in two forms: (a) libel or (b) slander. The former includes false written statements published in a newspaper or broadcasted, such as by email, blog post, news article, website posting etc., whereas “slander” includes false spoken statements that may affect a person’s official, professional or business reputation. Defamation in the form of libel is generally considered more harmful to a person’s reputation since it generally leaves a permanent record.

Defamation Law in Ontario:

The law on defamation is constantly evolving due to the expanding ways of sharing information and the growing use of social media. The law on defamation is further developing due to changing views about the right to freedom of speech and the protection of an individual’s reputation.

In Canada, defamation law varies from province to province. Generally, defamation law originates from both judicial decisions and legislation. In Ontario, defamation law is governed by the Libel and Slander Act, R.S.O. 1990, c. L.12 (hereinafter, the “Libel and Slander Act”).

Generally speaking, a plaintiff must establish three elements to succeed in a defamation lawsuit. If the plaintiff successfully establishes these elements, the damage to the plaintiff’s reputation is inferred and the onus is on the defendant to provide a legitimate defence. The three elements are:

  1. The statements in question are defamatory, meaning that the plaintiff’s reputation was harmed by those statements in the eyes of a reasonable person;
  2. The defamatory statements refer to the plaintiff; and,
  3. The statements were made by the defendant to a minimum of one person other than the plaintiff.

Furthermore, it must be noted that although the threshold to prove a statement to be defamatory is low, in reality it can be challenging to succeed in a defamation lawsuit. Most lawsuits involving defamation are heavily dependent on the defendant’s ability to show a defence. If you believe you have a claim, you may consult with one of our lawyers at Chand & Co. to assess your chances of success in a defamation lawsuit.

Defences to Defamation:

If you are the defendant who is being sued for defamation, there are several potential defences available to prove that your statements are not defamatory.

  1. Truth/Justification

Generally, in Canada (except Quebec), truth can be used as a defence against a potential defamatory statement made. If the defendant can prove that the defamatory statement (written or oral) is substantially true, they will not be held liable.

  1. Absolute Privilege

Communications in certain circumstances or made in certain relationships are protected by an absolute privilege, such as communication between spouses or statements made in legislative assembly.

  1. Qualified Privilege

There are certain scenarios where a person has a legal or moral duty to provide a statement to a person who has a legitimate interest in receiving it. Qualified privilege applies where statements are made in good faith. One of the examples when this defence can be used is an employer providing a reference for an employee to a potential new employer. As long as the statements made about an individual are not made with malice, any defamatory material provided by the employer to the potential new employer is likely to be protected by qualified privilege.

  1. Fair Comment

This defence generally protects a statement of opinion on topics such as political commentary, critical review of books, movies, restaurants, etc. It protects any comment fairly made that is based on facts, involve no malice, and must satisfy the objective test which asks, can any person honestly express that opinion on the proved facts?

  1. Responsible Communication on Matters of Public Interest

This defence is generally available for journalists and other media who are sued for publishing a defamatory statement. In assessing the validity of this defence, the court considers whether the defamatory statements were a matter of public interest and whether there was a responsible publishment, meaning the defendant carefully verified the allegations before publishing. There are several factors that the court considers when assessing whether the defamatory communication was responsible. Our lawyers can evaluate the facts of your case and provide legal advice on whether this defence will apply to your case.

Remedies in Defamation Lawsuits:

Generally, if a person is suing for libel or slander, they are seeking monetary damages for the harm caused by the statement(s). The damage may include harm to the plaintiff’s reputation, lost work or business, lost wages, lost opportunity, or a lost ability to earn. The damage may also be emotional, such as the plaintiff’s experienced stress, anxiety or shame. In most cases, “general damages” are the primary remedy for defamation lawsuits, which covers losses such as pain, mental distress, loss of reputation and suffering.  A court may also award “aggravated damages”. Aggravated damages are compensatory damages awarded in circumstances where the wrongdoer’s conduct was exceptionally high-handed and general damages alone are not adequate to cover the plaintiff’s injuries, for example increased humiliation or anxiety. In extreme cases, a court may award “punitive damages” if the harm caused is outrageous and cannot be covered by general and aggravated damages combined. The intent of punitive damages is not to compensate the plaintiff for the harm suffered, but to punish the wrongdoer. It serves the purpose of denouncing malicious or high-handed or oppressive conduct and acts as a deterrence against future harm that can be done by the defendant. Additionally, a court may grant an injunction to prevent further publication of any defamatory material against the plaintiff.

Defamation Limitation Period:

Plaintiffs must keep in mind the time considerations in defamation lawsuits.  Each jurisdiction has their own time limitation rules for defamation claims.

In Ontario, the general limitation period of two (2) years applies to defamation lawsuits. For cases involving libel in a newspaper or broadcast, section 5(1) of the Libel and Slander Act requires the plaintiff to provide notice in writing to the defendant about the defamatory statement within six (6) weeks of learning about the defamatory conduct. Additionally, for cases involving libel in a newspaper or broadcast, section 6 of the Libel and Slander Act requires the plaintiff to bring a lawsuit within three (3) months of discovering the defamatory statements. Some exceptions may apply.

How Chand & Co. Can Help:

Whether you are a victim of defamation or you are defending yourself or a company in a defamatory lawsuit, our lawyers at Chand & Co. can assist with your case. Our lawyers will help you determine if you have any viable claims or defences, provide you with an assessment of your damages, and offer pertinent legal advice that will best suit the facts and circumstances of your legal matter. Defamation lawsuits involve complex notice and time limitation requirements, which should be carefully considered before commencing a lawsuit. Please feel free to contact our team at 416-583-2377 for any questions regarding defamation lawsuits in Ontario.

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