Caveat | Comment | BBB BS |
Defamation | Goerthe | Prepaidlegal.htm | Custody?
Canadian Defamation Law
Notice/Avis: This summary does not
apply to Quebec. Ce sommaire ne s'applique pas au territoire quebecois.
Defamation was well described in a 1970 British Columbia Court of Appeal decision called
Murphy v. LaMarsh:
(Defamation is where) a shameful action is attributed to a man (he stole my
purse), a shameful character (he is dishonest), a shameful course of action (he lives on the avails
of prostitution), (or) a shameful condition (he has smallpox). Such words are considered
defamatory because they tend to bring the man named into hatred, contempt or ridicule. The
more modern definition (of defamation) is words tending to lower the plaintiff in the estimation of
right-thinking members of society generally.
The common law protects every person from harm to their reputation by false and derogatory
remarks about their person, known as defamation. In addition, all Canadian provinces have libel/
slander legislation (defamation includes slander and libel, where slander is verbal
defamation and libel is printed defamation). It is a tricky and slippery field of law, based on
statutes, English common law and many defences. No wonder it has been called a "peculiar tort".
And remember, defamation tort law protects your reputation, not your feelings.
The major points of defamation law in Canada are as follows:
There are a number of special defences available against defamation:
- Defamation is a "strict liability" tort. In other words, it does not matter if the defamation was
intentional or the result of negligence. Defamatory material is presumed to be false and malicious.
"Whatever a man publishes", according to one case, "he publishes at his peril."
- Defamation must be a direct attack on an actual reputation, not an alleged reputation that a
"victim" believes they deserve. A judge will assess the statement against the evidence of the
victim's reputation in their community.
- The remarks must be harmful (i.e. "defamatory") and this will be assessed on a case-by-case
basis. Some statements are clearly defamatory. Other statements would only be defamatory to the
person targeted by the remarks. What may be a nonsensical or mildly offensive remark to one
person may constitute serious defamation to another. The judge will consider the situation of the
person defamed in assessing the claim of defamation.
- The defamatory remark must be clearly aimed at the plaintiff. General, inflammatory remarks
aimed at a large audience would not qualify as the remarks must be clearly pointed at a specific
- The defamatory remarks must be somehow conveyed to a third party. Private defamation
just between two parties causes no reputation damage to reputation because there are no other
persons to be impacted by the remarks. With libel, the damage is presumed as it is published. With
slander (verbal defamation), proof of repetition to other people is essential to the claim; damages
have to be proven (there are four exceptions: the defamation imputes the
commission of a crime, the unchaste status of a woman, a "loathsome disease", or a professional
Situations which involve racial or hate defamation might find a more expeditious and
cost-effective recourse through human rights legislation rather than defamation.
- The "defamatory" remark was basically accurate.
- The plaintiff agreed with the defamatory remarks. For example, if the plaintiff subsequently
publishes the remarks, they would be hard pressed to succeed in a defamation claim.
- Some special privileges exist for remarks made in certain venues such as in a court room
during trial or in a legislative assembly or one of its committees. A privilege against defamation
claims also exists for judicial or legislative reports.
- There is what is known as a "qualified privilege" where remarks that may otherwise be
construed as being "defamatory", were conveyed to a third party non-maliciously and for an
honest and well-motivated reason. An example would be giving a negative but honest job
reference. The criteria for this defence are: defamation was incidental to the protection of an
interest or discharge of a duty and the remarks were given to a
person who had an interest in receiving the information. In assessing this defence, judges will ask
themselves whether a reasonably intelligent person would have given the information to the
person to whom it was conveyed.
- Citizens are entitled to make "fair comment" on matters of public interest without fear of
defamation claims. A good example of this is a letter to the editor on a matter of public concern.
The author of the remarks may even go so far as to presume motives on the part of the person
who's actions are being criticized provided only that the imputation of motives is reasonable under
the circumstances. The rule of thumb is that the fair comment must reflect an honestly held
opinion based on proven fact and not motivated by malice. It should be noted, however, that some provinces have enacted laws which give their citizens varying rights to "fair comment."
You should also be aware that most provinces have implemented very short limitation periods with
regards to alleged defamation appearing in newspapers or broadcast (as short as six weeks in
some cases) so time may be of the essence.
For further research on defamation law in Canadian common law provinces,
you should consult the two-volume binder edition of Defamation Law in Canada written by R.
Brown and published by Carswell legal publishers.
© 1996 World Wide Legal Information Association. The information provided in this and all WWLIA
documents is internationally copyright protected and does not represent legal advice. If and when you face a specific legal situation, you should conduct independent inquiries with legal professionals to determine what your legal rights may be.
Last Updated: CanLaw Inc.
by CanLaw Inc