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September 8, 2022
Leo McGrady, Q.C., Koskie Glavin Gordon
Introduction
We’ll begin with everyone taking a few moments to introduce themselves. Please tell us your name, your union or organization, your position, and any experience you have had with the law of defamation. Please also let us know any specific areas of the law of defamation that you are concerned with or are interested in.
We’ll have 2 or 3 exercises over the course of the day. When we come to them, please take a moment and read the facts. We will then spend 10 or 15 minutes discussing the solutions.
These workshops work best if there are a lot of questions from yourselves over the course of the day. Please do not leave your questions to the end. And if you have a response to a question from another student, based on your experience, please feel free to share it.
If questions occur to you sometime in the next week or so relating to the material covered, please feel free to e-mail them to me and I will answer them as part of this workshop: lmcgrady@mcgradylaw.ca
The workshop will go from 9:30 AM to 4:00 PM with a 15-minute break mid-morning and mid-afternoon and an hour break for lunch at noon.
I have inserted excerpts from some of the cases I will be referring to, but I’ve also included the citations in case you want to read the full decisions. They can be accessed at the CanLII caselaw database. It is offered free of charge by the Federation of Provincial Law Societies.
Before we dig into the details of the law on defamation let me say a few words about why I have practiced in the area of defamation for over 50 years and continue to do so. It’s probably one of the most arcane, bizarre, contradictory, yet fascinating areas of law. Knowledge of the law of defamation can also be an extremely important skill to have.
It’s generally acknowledged that there are 4 purposes achieved with a defamation lawsuit:
I also want to offer some basic advice on how to avoid a defamation suit when you are writing an article or leaflet, speaking to the media or when using Facebook, Instagram, or Twitter. They’re the obvious steps, I’m sure practiced by all of you, but its often helpful to be reminded of them.
Civeo Corporation v Unite Here, Local 40, 2022 CanLII 51879 (Nick Glass, Arbitrator) (158 pages) Defamation grievance resulting in a $500,000.00 damage award – May 16, 2022
It is defined as “any communication or representation that would tend to lower the reputation of the plaintiff in the estimation of the community.”
In exercising your judgement about the potential for one of your pieces to be defamatory, here are two valuable excerpts to keep in mind:
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 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.
Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 at para. 108.
Never forget that investigation is a weapon, and you can hurt people with it--deliberately, or by your own carelessness. [Not enough is made of the fact that Woodward and Bernstein of Watergate fame, by their own admission, destroyed the careers of several innocent people along with Richard Nixon’s.] In the course of your career, you are going to be the best and the worst thing that ever happens to some other people. Be careful about which role you play, and for whom, and why.
Mark Lee (with others), Story-Based Inquiry: A Manual for Investigative Journalists (France: UNESCO, 2011) at 12 online: http://unesdoc.unesco.org/images/0019/001930/193078e.pdf
The test for justification in respect of the publication of an allegedly defamatory statement is whether the statement was “substantially true” or “true in substance”. It’s important to keep in mind that the defence of justification turns on the overall “sting” of the defamation, not whether the published words were true in every respect. Minor inaccuracies which do not affect the substantial truth of the statement or add materially to its defamatory quality may be overlooked:
However, if the defence is unsuccessful, the failure will aggravate damages. For this reason, I rarely plead truth as a defence – perhaps 3 times in my career.
The ordinary rules of evidence apply. You cannot prove truth through hearsay evidence. This is a very important point to remeber. That is particularly so for those used to the more relaxed hearsay rules in the labour law setting.
There must be an absence of malice
The term ‘fair’ is misplaced here. Provided the other elements are met, the comment need not be fair, in the sense of being balanced or impartial. It may be extreme, prejudiced, or exaggerated. It may be unreasonable, intemperate, and strongly expressed.
Petersen v. Deck, 2021 BCSC 1670 (CanLII)
The plaintiff is a Kelowna surgeon. The defendant Beck was his patient, who posted this statement on her personal website and on Google Reviews about him, which she referred to as a ‘review’.
My experience with this particular surgeon was an anxiety filled nightmare. Not only did I leave the operating table worse than when I initially laid down for my procedure, but Peterson & his receptionist made correcting the issues seem unimportant & unpredictable.
Also, I have spoken to a number of people with similar experiences after my review went viral. Peterson constantly tries to take down my review and publicly bully me. I’d suggest taking note of the ‘5-star’ reviews all similar praise with Peterson being their own review. Why is it there is not one negative?
The British Columbia Supreme Court awarded the plaintiff surgeon $30,000 general damages plus costs (for a likely total of approximately $100,000.00) over a defamatory statement posted by a patient. With respect to her fair comment defence, the Court concluded:
“While internet postings in the nature of “reviews” of restaurants and services are the norm in today’s world, defamatory comments dressed up as “reviews” that are not factual or do not qualify as fair comment are subject to the laws of defamation.” “ In my view, a reasonable person knowing the proven background facts … could not honestly express the opinions set out in the Posts. Moreover, the Posts contain defamatory statements of fact that cannot be justified.”
Fair Comment Exercise – Is this post below defamatory? And if so, is the defence of fair comment available
Harvey Osborne - The Bankers' Toady! (Adapted from a 2016 post on Linkedin by Thomas Lavalle, economist, and columnist)
Harvey Osbourne is facing serious accusations of forcing financial regulators to abandon a review into Canada's banking culture, while under pressure from the banking industry's biggest names.
The minister is "bowing" to demands to drop the so-called "banker bashing" probe set up after the rate-rigging scandal, it is now being claimed.
He has announced he will instead "engage individually with firms to encourage their delivery of cultural change".
What a complete load of absolute utter drivel – what a pile of hyper wabble-babble!
There used to be a time where Ministers of the Crown went to great lengths to at least give the impression that they meant what they said, but now, as far as Harvey Osbourne, the Bankers’ toady is concerned, he will promise to do one thing on one day, but as soon as his friends on Bay Street start bleating, he will back down.
There are two kinds of malice: legal malice, which is presumed upon publication of a defamatory statement, and actual malice, which must be proven by the plaintiff to defeat a defence of fair comment or qualified privilege. Actual malice consists of some improper, ulterior, or evil purpose in publishing the defamatory statement, or a lack of honest belief in what was published. It may be proven from the tone or words used in the publication itself, or by extrinsic evidence. Unsuccessfully pursuing a defence of truth may be considered evidence of malice.
Similarly, statements, applications, or complaints to administrative tribunals such as labour boards or human rights tribunals are protected by absolute privilege. Formal grievance forms or letters are similarly protected.
Consequently, if the information is communicated beyond those with an interest or duty in receiving it, the qualified privilege is lost. Such privilege will also be lost when the communication contains information that the recipients have no interest or duty in receiving, or which the publisher has no interest or duty in communicating to them:
Moises v. Canadian Newspaper Co., (1996), 24 BCLR (3d) 211 (CA).
1 On November 23, 1988, the respondent ("Times-Colonist") published an article about the appellant ("Moises") under the headline, "Ottawa still questioning why terrorist official living in Victoria". Moises sued for libel, claiming that the headline and the article referring to him as a "terrorist official" were false, malicious, and damaging to his reputation. The trial judge dealt with the defences of truth and qualified privilege which were raised by the Times-Colonist. He made no finding on the defence of truth but found that the article was published on an occasion of qualified privilege. Moises appeals from the dismissal of his action.
30 The Times-Colonist relied heavily on the fact that Moises had himself "come into the fray" by publishing his letter of 6 May in response to the Globe and Mail article. Entering the fray may, in some circumstances, be an important fact in a defamation case. Anyone who raises an issue and charges another should expect a countercharge of equal or even greater force. But that is not what occurred in this case. Here, Moises responded to a Globe and Mail article by letter, and, in response to that letter, the Times-Colonist published some 16 articles concerning him. Freedom of expression includes the right to speak out by writing letters to the editor of a newspaper. However, if the mere act of writing a letter to the editor could automatically clothe a subsequent defamatory statement with qualified privilege, even greater intrusion on freedom of expression would result than that which concerns the Times-Colonist.
60 The press in Canada, particularly, has received no special protection in the law of defamation. The courts have been unwilling to recognize any unique prerogatives on the part of the press to communicate matters of public interest or concern to the general public. Thus, Canadian courts have stated emphatically that the press enjoys no privilege of free speech greater than enjoyed by a private individual and that the liberty of the press is no greater than the liberty of every subject. (Bold added)
Robinson v. Furlong, 2015 BCSC 1690 (CanLII) (I’ve deleted most of the citations in order to shorten the insert)
[1] This is a defamation claim brought by a journalist against the person about whom she wrote.
[2] At the outset, it is important to understand what this case is not about as well as what it is about. This is not a case concerning the right of a journalist to publish information about matters of public interest, or the defences that ought to be available to a journalist who does so. This case concerns a journalist who wrote about a well-known citizen and criminal acts of child abuse he is alleged to have committed some forty years ago. The citizen responded to these allegations in strong terms, saying, among other things, that the journalist had displayed a “shocking lack of diligence” in her reporting. The journalist claims that she was defamed by the citizen in his responses to her articles.
[3] The plaintiff in this case is Laura Robinson, an experienced investigative journalist and extensively published author. The defendant is John Furlong, a prominent citizen. The issue arising on the facts of this case is the right -- or the scope of the right -- of a person whose character and conduct is impugned by a journalist to respond with strong criticisms of the journalist.
[4] The question is whether Ms. Robinson attacked Mr. Furlong’s character and conduct in a manner that entitled him to strike back with the words he used. In legal terms, the question is whether Mr. Furlong’s response was an occasion of qualified privilege which protects him from Ms. Robinson’s defamation claim.
The law of response to attack
[23] The law recognizes that a response to an attack on a person’s character or conduct constitutes an occasion of qualified privilege and, absent malice, defamatory statements made in the course of responding to an attack are privileged. In Richardson v. Vancouver (City), 2006 BCCA 36, our Court of Appeal said the following at para. 38 with respect to this aspect of privilege:
…[A] person whose character or conduct has been attacked is entitled to answer the attack, and any defamatory statements he makes about the person who attacked him will be privileged provided they are bona fides and are fairly relevant to the accusations made. [Emphasis added.]
[24] Rymond E. Brown, Brown on Defamation: Canada, observed that the qualified privilege is much like the right of self-defence in criminal law. The person being attacked is entitled to respond by way of vindication and need not follow the rules of Queensbury when doing so. The learned author has usefully summarized the principle as follows:
… There is a “privilege to hit back when one’s reputation is attacked”. A person has a right, within limits, to defend himself or herself against false accusations. This privilege has been likened to a man’s right of self-defence in criminal law. Where a defendant is attacked by another, he or she is privileged to meet the attack with an appropriate rejoinder, and where the attack is a public one, the public has a corresponding interest in the reply. There is available to him or her the common law privilege of self-defense. A defendant is not obliged to keep one hand behind his or her back and retaliate with respect to only some of the blows. Nor is he or she obliged to follow the rules of Queensberry. A person…is entitled to respond by way of vindication. … He or she may deny or explain the defamatory matter, correct any misstatements, reflect adversely on the assailant, label a personal attack as a “lie” and the attacker as a “liar”, “attack in proper language the accuracy of the conclusions”, “impugn the truth of the charges”, question the purity of the accuser’s motives, and, in an appropriate case, even defame the assailant in the process.
[25] To attract the privilege, the response must be “germane and reasonably appropriate to the occasion”:
[26] In the event the response is “directed at countering the criticisms made”, that will satisfy the requirement that it be germane and reasonably appropriate to the occasion. The law “does not require either blandness or accuracy as a condition of successfully invoking qualified privilege”.
These authorities, in my view, clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.
[27] The generous approach to be taken in assessing a defendant’s “response to attack” was described as follows:
The exception [to the protection of qualified privilege] is where what is published incorporates defamatory matter that is not really necessary to fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded. Logically it may be said that such irrelevant matter falls outside the privilege altogether. But if this were so it would involve the application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them so to do. So, the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded.
[28] In other words, a defamatory statement made in response to an attack on one’s character or conduct must be clearly and obviously irrelevant to the substance of the attack before the privilege is lost.
Grant v. Torstar Corp., 2009 SCC 61 (CanLII), [2009] 3 SCR 640
Ezra Levant & Rebel News Network v Brendan Demelle & The Narwhal News Society 2021 ONSC 1074
Overview
[1] In early December 2019, the plaintiffs Rebel News Network Ltd. (“Rebel”) and its founder Ezra Levant (“Levant”) commenced this simplified procedure action against the defendants Brendan Demelle (“Demelle”) and The Narwhal News Society (“Narwhal”) seeking damages for defamation in the amount of $70,000.00, plus punitive, and exemplary damages in the amount of $20,000.00.
[2] The plaintiffs’ cause of action arises out of an allegedly defamatory statement contained in an article entitled “Right Wing Attacks on Greta Thunberg: How Low Can They Go? Canada’s Extremist Network ‘The Rebel’ Tries for the Prize” written and published by Demelle on his website www.desmogblog.com on October 19, 2019. The plaintiffs allege that within the said article, Demelle published a defamatory statement (described in greater detail hereinafter).
[3] After defending Rebel’s Statement of Claim, Demelle now brings a motion pursuant to section 137.1(3) of the Courts of Justice Act, R.S.O. 1990 c. C43 (“CJA”) for an order dismissing this action as being a strategic lawsuit against public participation (“SLAPP”).
[65] However, on the record before me Demelle’s evidence falls short of showing, at least at this stage, that he was reasonably diligent in verifying the accuracy of the impugned expressions. In coming to this conclusion, I rely upon (a) the minimalistic research carried out into concluding Rebel’s contributor being “connected to white supremacists” as a basis for the impugned expressions, (b) Demelle’s admitted history of tracking and exposing who he considers to be climate change deniers spreading misinformation on climate science, (c) Demelle choosing to overlook available facts about Goldy’s attendance at the 2017 Unite the Right rally including Goldy live streaming from the rally on her personal time and account, and Levant having released statement that he had fired Goldy due to her having conducted the interview with the neo-Nazi podcaster, and (d) Demelle not contacting either plaintiff to allow them to respond to the issues raised and covered in the article.
[66] I find that the plaintiffs have shown the presence of grounds to believe that Demelle has no valid defence of responsible communication on matters of public interest.
Rebel’s claim was later dismissed on the defendant’s SLAPP motion.
Responsible Communication Exercise – Is this defamatory? And if so, is the defence of Responsible Communication available?
McTavish v Chong
Lynette Chong is a recent graduate of the Toronto Metropolitan University School of Journalism. She published an article about the conversion of 25 acres of agricultural land near Parksville BC to a high-speed racetrack facility, with seating for 1000 people.
The land had been in the Agricultural Land Reserve since the 1970s and was owned by Harry Storms. He had applied to have it removed from the reserve on two occasions and failed each time. He believed his failure was the result of opposition from his two neighbours, both farmers.
Storms is close friends with Aline McTavish, a Liberal MLA, and the Premier of BC. In 2021 Storms donated $1500.00 to Aline’s re-election campaign.
Lynette learned of the controversy from friends who lived in Parksville. She persuaded her employer to assign to the story to her. She interviewed Storm’s two neighbours at length, and conducted a 2nd and 3rd interview with one, Jessie Deepak with property closest to Harry’s. Jessie repeatedly asserted that Harry had bought the exclusion with his donation. Lynette also carefully reviewed the history of the Storm’s two earlier failed attempts. She then checked the history of political contributions to the Liberals, as well as Storm’s’s own contribution history. She interviewed Storms at length. He vigorously denied any impropriety. She included his denials in the story.
Lynette’s deadline is two days away. She’s proud of her work on the story and is determined to meet her deadline. A day later, she realises she hasn’t yet interviewed Premier McTavish. She called and e-mailed her office repeatedly during that day. The message she finally received was that the Premier was tied up and unable to reply until the following week.
Lynette proceeded to submit the story. She included her repeated efforts to contact the Premier and the responses she received. Her story prominently featured the statements by Jessie Deepak that Storms had bought the exclusion with his donation to the Premier’s campaign.
Lynette and her employer are both sued for defamation by the Premier. Lynette believes she has the benefit of the responsible communication defence.
We could spend the better part of the day dealing with SLAPP motions. I say that because they have become so complicated, so time-consuming, and so expensive. The concept is crucially important, absolutely vital to the preservation of the right of freedom of expression. But it is in dire need of reform. Some colleagues are suggesting that if you have a strong case, to simply proceed to trial as you normally would. They suggest that you skip the SLAPP motion altogether. That’s a controversial suggestion, but it does merit consideration. And it does reflect on the problems that have developed with SLAPP motions.
Here are the core steps involved in a SLAPP motion. This is a highly simplified version that leaves out some exceptions and steps that are not central.
This summary is taken from a flowchart prepared by Karen Zimmer and Courtenay Caitlin, lawyers with Alexander Holburn in Vancouver, for a CLE presentation on defamation in March this year.
1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, paragraphs 28, 61, 88 to 90: It is based on the Ontario version of SLAPP, but the language of the statute is almost interchangeable and the caselaw from one is used for the other.
MacDonald v Feldman 2022 ONSC 4818, paragraph 24: Makes it clear, following the Pointes Protection case that SLAPP motions can be raised in any type of proceedings that arise from expression. And so, these motions are available in arbitration as part of the grievance procedure.
CUPW v. B’nai Brith 2021 ONCA 529: This is a rare case in which a union is suing for defamation. B’nai Brith filed a SLAPP motion. It was dismissed, as was its appeal. It is an interesting read.
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