The law of defamation in
The Plaintiff is required to prove the defamatory statements were published to some one other than the Plaintiff and that the defamatory words were reasonably understood to refer to the Plaintiff. When the Plaintiff is referred to by name in the defamatory publication, this is not much of a hurdle. When the Plaintiff is not referred to by name, the Plaintiff must lead evidence to show that a reasonable person would understand that the defamatory statements referred to the Plaintiff.
The Plaintiff must then show that the statements conveyed a defamatory meaning, either in their natural and ordinary meaning or by way of innuendo.
Plaintiffs are also required to prove malice in order to rebut the defences of qualified privilege and fair comment. Before commencing an action, it is, therefore, important for the Plaintiff to consider whether those defences have any likelihood of success absent proof of malice.
At trial, the Plaintiff can keep his or her case relatively simple. The Plaintiff needs to prove that the Defendant published the words complained of to a third party, the extent and scope of the publication, any extrinsic facts or circumstances relied upon to give the words a defamatory meaning or to show that the defamatory words referred to the Plaintiff, and proof of special damages if any are claimed. Because the words complained of are presumed to be false unless proven otherwise by the Defendant, the Plaintiff does not need to lead any evidence in chief regarding the truth or falsity of those words. The Plaintiff can lead evidence regarding the truth or falsity of the alleged defamatory statements in reply. However, if the Plaintiff leads evidence in chief going to the truth or falsity of the words complained of, the Plaintiff will not be allowed to withhold some of that evidence for reply because that would constitute splitting his or her case.
Before even entering a plea, a Defendant will normally need to decide whether or not to apologize. If the Defendant is ultimately found liable for defamation, the failure or refusal to apologize may aggravate the damages or result in punitive damages being awarded.
Generally, apologies must be sincere and unequivocal. The apology should be published as prominently as the original defamatory statement and should not repeat the defamatory statement, as that would simply aggravate the damages suffered by the Plaintiff. An insincere, equivocal or belated apology may also aggravate the damages. Any apology must be carefully worded to avoid making admissions, which will preclude or weaken certain defences. This creates a particular problem if the Defendant wishes to plead the defence of truth or justification. Normally, an acceptable apology will indicate that the words complained of were false or incorrect. Ramsey v. Pacific Press, 2000 BCSC 1551, is an example of a case where a purported apology was held to be inadequate because it attempted to shift the blame for the defamatory publication away from the defendant onto the plaintiff.
Pleading a defence of justification is risky. If the defence is unsuccessful, the Defendant’s reliance upon it will normally aggravate the damages and possibly support an award of punitive damages. If the words complained of contain statements of fact and comment, a Defendant pleading justification must prove that all of the statements, whether fact or comment, are true.
Because it is often difficult to prove the truth of a statement of opinion, many Defendants rely on the defence of fair comment instead of a defence of justification, or in the alternative. The defence of fair comment essentially is that the words complained of which are capable of being defamatory of the Plaintiff are statements of opinion on a matter of public interest. However, the Defendant must provide particulars of the facts upon which the comment was based and those facts must be proven to be true. As with the defence of justification, if the Defendant does not provide particulars of the facts upon which the alleged defamatory comments were based, then the Defendant will not be able to discover the Plaintiff unless and until such particulars are provided.
The risk of a fair comment defence is that the words complained of may be found to be at least in part defamatory statements of fact, in which case the defence of fair comment will not apply. Absent a successful defence of justification or privilege, the Defendant will be held liable.
It is a common misconception that for a comment to be fair, it must be fair in some sort of objective sense. Although there must be some sort of factual basis to the comment, an honest expression of opinion may be rude, harsh, and intemperate. However, the comment must be on a matter of public interest.
The third major defence in defamation actions is the defence of privilege. The privilege claimed may be absolute, qualified or statutory. Statements made in Court or Parliament are subject to an absolute privilege which constitutes a complete defence to any defamation action. So are statements made to administrative tribunals or as part of a legal investigation process: Hamouth v. Stuart Video Technologies Inc., 2005 BCCA 172.
The defence of qualified privilege is available where the Defendant’s alleged defamatory communication was made on an occasion where the Defendant had an interest or duty in making the communication and the person receiving it had a corresponding interest or duty to receive it. Absent proof of malice, the onus of which is on the Plaintiff, if the occasion of the publication is shown to be privileged, the Defendant will be absolved of any liability despite the words complained of being defamatory and untrue of the Plaintiff.
This privilege can be lost by over broad publication of the defamatory statement. The defence of qualified privilege only protects communications to people who have a special interest or duty in receiving the information. Defamatory statements that are published through the media or over the internet will rarely be considered protected under the defence of qualified privilege. Such publications are considered to have been published “to the world.” It is not sufficient that the public may have a legitimate interest in receiving the information. If neither the person making the statement nor the media reporting it have a duty to publish the information, then the defence of qualified privilege will fail: Moises v. Canadian Newspaper Co., (1996) 24 B.C.L.R. (3d) 211 (C.A.).
When defamatory statements are published to the general public in response to statements that have also been reported in the media, generally the Defendant can address the same audience and qualified privilege should still apply: Ward v. Clark, 2001 BCCA 724. At trial, Premier Clark had been held liable for defaming a critic of his fast ferries project. Despite a finding by the trial judge that Mr. Clark’s statement was not motivated by malice, the trial judge held that he exceeded the limits of qualified privilege because his language was disproportionate to the occasion. The Court of Appeal reversed this finding, holding that because the words spoken by Mr. Clark were directed at countering the criticisms made by the plaintiff, they were germane and reasonably appropriate to the occasion (paragraph 56).
The Court of Appeal reaffirmed the principle from Adam v. Ward that someone speaking or publishing a statement on a privileged occasion will be protected from liability even though his or her language should be violent or excessively strong. Although the qualified privilege is not absolute, it can only be defeated by a finding that the dominant motive for the publication was actual or express malice. Consequently, because the judge had found that Mr. Clark’s statements were not motivated by malice, that should have been the end of the inquiry (paragraphs 59-61).
Hearsay evidence is admissible in support of a defence of qualified privilege where the hearsay evidence was relied upon by the defendant, in order to show that the defendant honestly believed in what he or she said or wrote and that the defendant was not actuated by express malice: Davis v. Goode, (1889) 10 N.S.W.R. 232.
Both the defences of fair comment and qualified privilege can be defeated by evidence of malice.
In the Ward v. Clark case, the plaintiff argued that the defence of qualified privilege was defeated by Mr. Clark’s malice. Mr. Clark was alleged to have made his statement maliciously because his real or dominant motive was said to be the advancement of his own political interests. Despite Mr. Clark’s acknowledgement that his political reputation was tied up in the fast ferry project, the Court of Appeal held it did not follow that the advancement of his political reputation was his dominant motive. There will likely always be a range of motives which may contribute to a defendant making a statement. However, an indirect motive sufficient to vitiate qualified privilege will be found only where it is clear that the overriding motive was an improper one (paragraph 53).
If the dominant motive for publishing the defamatory statement is simply to vent one’s personal spite or ill will towards the plaintiff, rather than to communicate information to an audience which has an interest or duty in receiving it, then the defence of qualified privilege will be lost.
Malice will also be found if the defendant did not have an honest belief in the truth of what he or she published. Malice may also be found if the defendant was reckless with respect to the truth of the statements.
Evidence of other defamatory statements made by the defendant regarding the plaintiff may be used to show malice, even when those other statements have not been sued upon. The extent and scope of the publication of the defamatory statements, including their repetition or recirculation, may also constitute evidence of malice. An unsuccessful defence of justification may be relied upon by the Plaintiff as evidence of malice and also in support of a claim for punitive damages.
Malice must be
directed at the plaintiff, not another party referred to in the statement: BSOIW,
Local 97 v.
TRADE UNIONS AND DEFAMATION LAW
In several jurisdictions in
In cases involving defamation in a unionized workplace environment, the Courts have generally prevented employees from pursuing defamation actions but have given much more leeway to management.
In Fording Coal Ltd. v.
USWA, Local 7884 (1999), 65 BCLR (3d) 1 (CA), the president of the
defendant union was quoted in a newspaper article as saying that the plaintiff
employer’s production practices compromised safety in the workplace. The employer commenced a defamation action
and filed a grievance in case the Court declined jurisdiction. The union obtained the appointment of an
arbitrator, who determined that he had jurisdiction to deal with the
dispute. The BC Court of Appeal
ultimately decided the arbitrator did not have jurisdiction, despite the
Supreme Court of Canada’s decisions in Weber v.
The Court of Appeal held that the dispute would have fallen within the jurisdiction of the arbitrator if it related to production versus safety with respect to the exercise of management’s rights. However, a majority of the Court of Appeal held that the dispute was not about production or safety, but instead was about the alleged false and defamatory statements made by the union president. The Court of Appeal held that the collective agreement did not contemplate adjudicating upon the freedom of speech of the union president and that the dispute fell well outside the normal scope of employer – employee relations (paragraph 27). The dissenting Judge pointed out, correctly, that the issue was not whether the action, legally defined, was independent of the collective agreement, but rather whether the dispute was one arising under the collective agreement. The dissenting Judge held that the defamatory statements referred to matters of production, discipline and workplace safety, issues covered by the collective agreement, and that in making statements to the newspaper instead of using the grievance procedure, the union president had violated the provisions of the collective agreement requiring safety issues to be dealt with through the grievance procedure.
Even more problematic is the companion decision of the BC Court of Appeal
The willingness of the Courts in British Columbia to assume jurisdiction over defamation claims brought by management against union representatives and their unions was further emphasized in the Kovlaske v. IWA – Canada, Local 1-217 case:  BCJ No. 2326 (SC). In the course of a labour dispute, a company manager was accused of being a racist. These accusations were republished in an Indo-Canadian newspaper and in a union newsletter. The Court held it had jurisdiction over the defamation claims based on the reasons set forth in Fording Coal Ltd. (at paragraph 6). The defences of qualified privilege and fair comment were defeated by the malice of the union defendants who allegedly conspired to personally attack the plaintiff in order to pressure his employer into settling the strike (paragraph 46). The damages were aggravated by a plea of justification which was maintained until all of the evidence was heard at trial, the failure to issue any form of an apology, the plan to secure republication of the defamatory statements in the Indo-Canadian newspaper and, with respect to one of the union defendants, his failure to appreciate the significance of his actions and their impact on the plaintiff.
In a recent
In dismissing a defamation claim for lack of jurisdiction in Blomander v. Canada Post Corp., 2000 SKQB 585, the Saskatchewan Court of Queen’s Bench nevertheless disagreed with the majority analysis in Fording Coal and also endorsed the dissenting reasons of Rowles, JA (at paragraphs 46 – 48).
There have only been a handful of cases where unionized employees have
been able to pursue defamation claims.
In Sadler v.
In a more recent decision, the BC Court of Appeal has suggested that the
Courts lack jurisdiction to deal with a defamation claim even if the defendant
is not covered by the same collective agreement: Haight-Smith v. Neden, 2002 BCCA 132, at paragraphs 46 -47. The BC Court of Appeal referred to the
In the Haight-Smith case, the plaintiff sued three other employees who were not covered by the same collective agreement regarding statements they made to the employer as part of a harassment investigation. The Court’s jurisdiction over those employees was not questioned at trial. They succeeded on a defence of qualified privilege. Thus, the Court of Appeal’s comments regarding lack of jurisdiction over those claims were obiter.
In Graham v. Strait Crossing Inc. (1999), 170 DLR (4th) 152 (PEI SCAD), the Prince Edward Island Court of Appeal allowed an employee’s defamation claim to proceed where the claim was based on a communication sent by his employer to the Workers’ Compensation Board because the plaintiff’s entitlement to compensation benefits was determined solely by statute and not by the collective agreement.
Given the positions taken by the Courts, it should not be surprising that some arbitrators have accepted jurisdiction to hear grievances concerning allegedly defamatory matters: Re Vancouver Hospital and Health Sciences Centre (2000), 87 LAC (4th) 205 (Gordon). In this case, the grievor’s immediate supervisor communicated allegedly defamatory statements to another employer, covered by the same collective agreement, where the grievor was applying for work. However, there was no claim against the supervisor. Under the collective agreement, the grievor was entitled to know how her performance had been evaluated by the employer. In addition, the grievor was entitled to a measure of confidentiality in respect of that information. Because the dispute related to an allegedly defamatory evaluation given by the employer to a third party covered by the same collective agreement, it was held to impliedly fall within the ambit of the collective agreement and, therefore, the arbitrator had jurisdiction.
In ABT Buildings Products Canada Ltd. (2000), 90 LAC (4th) 1, Arbitrator Christie also held that he had jurisdiction over a defamation claim made in the context of a grievance involving a supervisor’s slanderous remarks about the grievor at meetings with employees. However, Mr. Christie declined to award any damages. The grievor was simply awarded an apology.
In Vancouver Coastal Health Authority,  BCCAAA No. 14 (McDonald), the arbitrator held that he had jurisdiction over a union grievance regarding defamatory statements made by an employer spokesperson regarding an alleged walkout.
In City of Surrey,  BCCAAA No. 243 (Beattie), the arbitrator considered a claim for damages for defamation but dismissed the claim based on the law and the evidence, agreeing that she had jurisdiction to assess the claim.
INJUNCTIONS IN DEFAMATION CASES
Generally, it is difficult to obtain an interlocutory injunction in defamation cases. In Compass Group Canada (Health Services) Ltd. v. Hospital Employees’ Union, 2004 BCSC 51, the Court set aside an ex parte injunction prohibiting a union from picketing with placards containing information allegedly defamatory of the plaintiff company. The Court agreed that the traditional balance of convenience test should not apply when a party seeks an interlocutory injunction restraining the publication of allegedly defamatory statements (at paragraph 66). The Court upheld the general approach that injunctive relief to restrain alleged defamation is an exceptional remedy which should be granted in only the rarest and clearest of cases. The Court should only issue such relief when the words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse by the Court of Appeal (at paragraph 62). In addition, there must be evidence of an intention, or grounds to infer, that the alleged defamation will be repeated or published (at paragraph 63).
This decision is in marked contrast to another BC decision in 55971 BC Ltd. v. Hospital Employees’ Union, 2002 BCSC 962, where the Court granted an interlocutory injunction prohibiting the union from broadcasting a television ad which referred obliquely to the plaintiff company as an “abortion foe’s firm.” The Court held, wrongly in my view, that because the defendants did not seek to justify the alleged defamatory statements, an interlocutory injunction was justified (at paragraph 16). Fortunately, it does not appear that this case has been followed by any other Court.
In Thompson v. Palmiere, 2004 BCSC 223, the Court upheld the right of an international union officer to sue a former local union officer for defamation because the dispute had not arisen under a collective agreement and was not related to any labour dispute. Furthermore, the international officer was not a party to any collective agreement between the local union and an employers’ association and could not avail herself of any grievance procedures under a collective agreement.
TRADE UNIONS, TRADEMARKS and COPYRIGHT
At one time, the ILGWU had registered its union logo as a trademark. Unfortunately, the trademark was allowed to
expire and, therefore, could not be relied upon when a nonunion contractor obtained
some union labels in
The claim for wrongful conversion was based on the argument that the union had an unregistered copyright in the union logo and the union label which gave the union possessory rights over the union labels at the time that they were pilfered by the defendant.
The union relied on a Federal Court decision, Canadian Tire Corp. Ltd. v. UFCW Local 1518 (1985), 7 CPR (3d) 415 (FCTD). In the Canadian Tire case, Canadian Tire sought an interlocutory injunction to restrain the defendant union from infringing the copyright in the Canadian Tire logo. During a strike against a franchisee, the union had used leaflets with a Canadian Tire logo overlaid with a diagonal line in the manner of international traffic signs indicating “do not enter.” The Federal Court held that the Canadian Tire logo was subject to copyright and, therefore, the union was not allowed to use the logo without the permission of the copyright holder.
With respect to the tort of passing off, the union argued that the defendant
deliberately and knowingly passed off the jackets sold to the IWA as jackets
produced by ILGWU members. The union
relied on the
In Rotisseries St.-Hubert Ltee
v. Le Syndicat des Travailleurs
(1986), 17 CPR (3d) 461 (
In Compagnie Generale des
Establissements Michelin v. National
Automobile, Aerospace, Transportation and General Workers Union of Canada
(CAW-Canada),  2 FC 306 (TD), the CAW used the Michelin logo on
promotional material during an organizing campaign. Michelin sued for trademark and copyright
infringement. The trademark infringement
claim was dismissed because the union was not using the Michelin trademark in
association with any wears or services and was not otherwise engaged in
commercial activity. The copyright
infringement claim was upheld. Parody
was held not to be a form of “criticism” for which an exception to copyright
infringement is allowed under the Copyright
Act. The Court also held that the
union could not rely on the “criticism” exception because it did not mention
the source, or the author’s name of the original Michelin logo in the union
leaflets and posters. This decision and
others that follow it have come in for significant academic criticism (see, for
example, David Vaver, Copyright Law (
In a more recent case, BCAA v. OPEIU Local 378, 2001 BCSC 156, the BC Automobile Association sued its office union for damages for passing off, trademark violation and breach of copyright when the union created a website similar to the Association’s website and used the Association’s trademarks in its domain name and meta tags. The trademark claim was again dismissed because there was no element of commercial use or depreciation of the Association’s goodwill. However, the use of the Association’s trademarks and logo was held to be in breach of copyright. The union’s use did not constitute fair dealing as the union website did not contain any criticism of the Association’s website and did not mention the source and author of the Association’s website. The initial union website, which was a parody of the Association’s website, was also held to constitute passing off. However, only nominal damages of $2,500.00 were awarded.
There may be a way to get around these copyright infringement claims. In Theberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34, the Supreme Court of Canada held that it was not an infringement of copyright to transfer an image from a poster onto a canvas because the image on the original poster was completely obliterated, such that the only existing image was the one reproduced on the canvas. The defendants had purchased lawfully reproduced posters of the plaintiff’s paintings. As owners of the physical posters, the galleries were entitled to transfer the images from the posters on to canvas as this did not constitute a “reproduction” of the artistic work. This case may leave it open to unions to purchase items containing images of company logos and then to simply transfer the image directly on to a leaflet, poster or placard without infringing the company’s copyright in the logo.
Copyright law has also been used by employers to prevent the dissemination of leaked documents. In Fraser Health Authority v. Hospital Employees’ Union, 2003 BCSC 807, the Court upheld an ex parte injunction prohibiting the union from possessing, copying or distributing a leaked memorandum summarizing the result of an evaluation of various bids on work that was being contracted out by the Health Authority. The Court held that the Health Authority had established a strong prima facie case with respect to its claim of breach of copyright and that the publication of the leaked documents would cause irreparable harm.