Defamation is widely understood as public statements that damage a person’s reputation. While this may seem a simple concept, the legal test for defamation is quite onerous and, depending on the circumstances, bringing a legal action for defamation may be quite complex.
The general rule is that a plaintiff must file a claim within 2 years from the date they first knew of the defamatory statement. However, it is important to note when the alleged defamatory statement is broadcast or published in a newspaper, the Defamation Act requires the plaintiff to provide notice of their intention to bring an action within 3 months of the date the statement first came to their attention.
In the 2009 decision of Grant v Torstar, the Supreme Court of Canada held that a plaintiff must prove three elements for a successful defamation claim.
First, the statement must be defamatory. A defamatory statement is one that “would lower the plaintiff’s reputation in the eyes of a reasonable person or expose the plaintiff to hatred or ridicule.” The court will assess both the plain meaning of the words used and the circumstances surrounding the statement.
Second, the statement must refer to the plaintiff. In most cases, this will involve the defendant referring to the plaintiff by name, although this is not necessarily required. Where the defendant does not explicitly name the plaintiff, the court will ask whether an ordinary person who is reasonably informed would know the statement was made about the plaintiff.
Third, the statement must have been communicated to at least one person other than the plaintiff, as their reputation cannot have suffered if they were the only one to hear the defamatory statement.
Importantly, there is no requirement that the defendant intended to defame the plaintiff. If a plaintiff can prove each of the elements, intention does not matter.
However, arguments in a defamation case will rarely end there. In most cases, the available defences to defamation play a key role. A defendant will not be held liable if they can prove they had a valid defence, regardless of whether each element has been proven by the plaintiff.
One of the most common defences to a defamation claim is truth, or justification. If a statement is true, it cannot be defamatory. The truth of the statement is to be determined as of the time the statement was made. Importantly, the defendant’s subjective belief in the truth of a statement is not sufficient; the actual truth of the statement must be proven under this defence.
Another important defence is “fair comment”, which applies to statements of opinion that are “generally incapable of proof.”. As stated by the Supreme Court in Grant v Torstar, this defence will apply when the statement is: (1) about a matter of public interest; (2) based on fact; (3) is recognizable as comment, not a statement of fact; and (4) satisfies the test of whether a person could honestly express the stated opinion on the proven facts. The opinion stated does not need to be reasonable, so long as it was honestly expressed and based on the facts.
Qualified privilege is a defence which attaches to the occasion upon which a statement was made and not to the communication itself. This will apply where there is a special relationship characterized by a “duty” to communicate information and a reciprocal interest in receiving that information. A common example is a reference provided in the employment context.
For both the defences of fair comment and qualified privilege, the defence will not apply if the plaintiff can demonstrate that the defendant was motivated by “express malice”. In that case, defamation will be made out.
However, where a statement is subject to absolute privilege, it can never serve as the basis for a defamation claim. Recognized examples include statements made in Parliament or testimony given by a witness in court or other quasi-judicial proceedings.
Lastly, the Supreme Court’s decision in Grant v Torstar created a new defence deemed “responsible communication on matters of public interest.” This defences applies mainly for journalists and media organizations. The defendant will be required to demonstrate that the publication was about a matter of public interest and it was communicated responsibly, having regard to the seriousness of the allegation, public importance, urgency, reliability of the source, whether they sought comment from the plaintiff or presented their side of the story accurately, and other relevant circumstances.
If a defamation claim is successful, the plaintiff may be entitled to monetary damages or an injunction preventing the plaintiff from making further statements. The defendant may also be required to issue a retraction of the statement and apologize. An apology will often reduce the damages to which a plaintiff is entitled.
General damages are intended to compensate for harm to reputation and will be determined with references to amounts awarded in previous cases. In some instances, special damages will be awarded if there is evidence of quantifiable monetary loss—i.e. loss of business, contracts, etc.
Punitive damages are awarded in rare cases where it is necessary to punish the defendant for behaviour that is overly malicious, oppressive, or high-handed. This is more likely where malice has been found on the facts of the case.
As shown above, defamation claims have many components. If you need advice to bring or defend a defamation claim, please contact our civil litigation team. Our experienced and knowledgeable Calgary and Strathmore litigation lawyers can assist you in navigating through the process.