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Understanding Defamation in Ontario

Civil defamation in Ontario involves protecting an individual’s reputation from false and damaging statements. This legal area encompasses two primary forms: (1) libel, which refers to written or published defamatory statements, and (2) slander, which refers to spoken defamation.

In Ontario, the plaintiff must prove that the defamatory statement was made to a third-party, was false, and caused harm to their reputation. The law balances protecting one’s reputation with the Canadian Charter-protected right to freedom of expression. The law on civil defamation outlines certain defences such as truth, fair comment, and qualified privilege. Laws regarding civil defamation helps to ensure that people are protected from unfounded or baseless attacks on their reputation and character.

What is Civil Defamation?

Civil defamation in Ontario involves protecting an individual’s reputation from harm caused by others’ false and damaging statements. This legal area is divided into two key types: libel, which pertains to written or otherwise permanent defamatory statements, and slander, which refers to defamation that is spoken out loud.

In Ontario, the Libel and Slander Act governs these categories. To substantiate a defamation claim, a plaintiff must prove that the defamatory statement refers to them, was made by the defendant and communicated to the public, and that the statement in issue harmed their reputation from the perspective of a reasonable person.

The law sets out defences against defamation. Defences available to a defendant include proving the truth of the statement (justification), showing the statement was part of a fair and accurate report on current court proceedings or parliamentary functions (absolute privilege), or demonstrating the statement was a fair comment on a matter of public interest based on proven facts and not made with a malicious intent (fair comment).

Additionally, the responsible communication defence can be invoked if the publication was a matter of public interest and the defendant diligently tried to confirm the truth of the allegations. Specific timeframes must be adhered to when initiating defamation actions, especially for statements made in newspapers or broadcasts. The law continually evolves to accommodate our changing understanding of reputation and free speech and the increasing ways information can be disseminated, such as through social media, emails, or messaging applications.

Please note that this general explanation should not taken as a substitute for legal advice. Defamation law is a nuanced topic, and as such, you should seek advice from a knowledgeable lawyer if uncertain about potentially defamatory content.

How to Defend a Civil Defamation Claim?

Civil defamation defence lawyers in Ontario can use a number of defences to protect their clients from defamation claims. One common defence is truth (justification), where the defendant proves on a balance of probabilities that the defamatory statement is true. If the statement about the plaintiff is factual, the defamation claim fails, as truth is an absolute defence.

In the context of a civil defamation suit, a “balance of probabilities” burden of proof is used as is typically the case with civil suits. This means that the defendant must demonstrate that it is more likely than not that the defamatory statement at issue is factual. Simply put, the evidence presented must show that there is a greater than 50% chance that the statement is factual. This threshold is lower than the “beyond a reasonable doubt” standard used in criminal proceedings, which demands a much higher level of certainty.

In a defamation case, if the respondent can meet this standard and prove the truth of the statement, the defamation claim will fail because truth is a complete defence to defamation.

Another available defence is fair comment, which protects opinions on issues of public interest. For this defence to succeed, the defendant must show that the comment was based on facts, recognizable as an opinion, and not made with a malicious intent. The opinion must be one that any person could reasonably and genuinely hold, even if it may seem outlandish or prejudiced. Seeing as how complicated the laws on defamation can get and how nuanced certain situations can be, it is important to speak to an experienced lawyer to obtain the best legal advice for your particular situation.

In addition, privilege can be used as a defence. Privilege can be “absolute” or “qualified”. Absolute privilege applies to statements made in specific contexts, such as during parliamentary proceedings or in judicial settings, where freedom of expression is paramount. Qualified privilege covers statements made in situations where the communicator has a legal, moral, or social duty to make the statement, and the recipient has a corresponding interest in receiving it, provided the statement is not made with malicious intent.

Finally, the responsible communication on matters of public interest defence protects journalists and others who publish information on matters of public interest. To use this defence, the defendant must demonstrate that they acted responsibly in verifying the information before publishing it, considering factors like the seriousness of the allegation and the urgency of the matter.

How to Prepare for a Civil Defamation Case?

Civil defamation defence lawyers in Ontario prepare for cases by gathering evidence to support defences like truth or fair comment. This involves collecting documents, witness statements, and expert testimony to substantiate the factual basis of the statements in question. Lawyers consider the context in which the statements were made to argue for defences like privilege or responsible communication. They may also negotiate settlements or seek to dismiss the case before trial through motions. 

What are the Possible Legal Outcomes of a Civil Defamation Lawsuit in Ontario?

The potential outcomes of a civil defamation lawsuit in Ontario can include dismissal of the case if a defence is successful, a ruling in favor of the plaintiff with damages awarded for harm to reputation, or a negotiated settlement between the parties. Damages can be compensatory, to cover actual losses; punitive, to punish malicious behaviour; or nominal, where harm is minimal but a legal wrong occurred. Courts may also issue injunctions to prevent further publication of defamatory statements.

Understanding Workplace Investigations

How does Ontario’s Anti-SLAPP Legislation affect Civil Defamation Cases?

Ontario’s anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation significantly impacts civil defamation cases by providing a mechanism to quickly dismiss lawsuits intended to silence or intimidate critics. Enacted through the Protection of Public Participation Act, 2015, this legislation introduced sections 137.1 to 137.5 to the Courts of Justice Act. The purpose of this legislation is to protect individuals from legal actions that are primarily designed to stifle free expression on matters of public interest.

Under Section 137.1 of the Courts of Justice Act, a defendant can move to dismiss a defamation lawsuit at any stage after the proceeding is commenced, even before filing a statement of defence. To succeed, the respondent must first demonstrate that the lawsuit arises from an expression related to a matter of public interest, meeting what is known as the “threshold burden.” If this burden is met, the onus then shifts to the plaintiff to show why the lawsuit should proceed. In this context, the term “onus” means the responsibility or burden of proof.

The plaintiff must overcome two hurdles: the “merits-based hurdle” and the “public interest hurdle.” The merits-based hurdle requires that the plaintiff to establish grounds to believe that the proceeding has substantial merit, and that the respondent has no valid defence. This standard of proof is less onerous than the usual civil standard of balance of probabilities but requires more than just a simple suspicion.

The plaintiff must show that their claim is legally valid and supported by evidence that is reasonably capable of belief. The public interest hurdle involves demonstrating that the harm likely suffered by the plaintiff due to the respondent’s expression is sufficiently serious that it outweighs the public interest in protecting that expression. This demands a qualitative assessment of the alleged harm balanced with the value of the respondent’s expression to the public interest.

The Supreme Court of Canada’s decision in the 2020 case of 1704604 Ontario Ltd. V. Pointes Protection Association, clarified the test for anti-SLAPP motions, maintaining that judges should focus on the specifics of each case to determine whether the lawsuit is being used strategically to silence the defendant or if it is a genuine attempt to protect one’s reputation. These decisions also highlighted the defence of qualified privilege, which protects statements made on privileged occasions unless made with malicious intent or recklessness.

To sum up, Ontario’s anti-SLAPP legislation equips defendants in civil defamation cases with a powerful tool to challenge and potentially dismiss meritless lawsuits aimed at suppressing free speech, thereby balancing the protection of reputations with the right to freedom of expression.

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Relevant Cases

C.H. v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130

This is a landmark defamation case in Canadian law. C.H., a Crown Attorney, sued the Church of Scientology and its lawyer for defamation. The dispute arose from statements made by the Church of Scientology’s lawyer at a press conference, accusing C.H. of criminal conduct and breaching a court order. C.H. argued that these allegations were false and damaged his reputation.

The Supreme Court of Canada upheld the lower court’s decision, awarding C.H. significant damages. The court’s ruling emphasized the balance between freedom of expression and the protection of reputation, affirming that defamatory statements made with reckless disregard for the truth are not protected under the Canadian Charter of Rights and Freedoms. This decision emphasized the idea that while freedom of expression is a fundamental right, it does not extend to making baseless and damaging allegations that can ruin an individual’s reputation.

The case is significant for its impact on defamation law in Canada, specifically in how it addresses the responsibilities of individuals and organizations when making public statements. It underscores the importance of ensuring that accusations are well-founded and not made with malice or negligence. The decision also highlights the court’s role in protecting individuals from unwarranted attacks on their character while balancing this protection with the principles of free speech.

P.G. v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640

The case P.G.  v. Torstar Corp. established the defence of “responsible communication on matters of public interest” in Canadian defamation law. This case has significant implications for Ontario law because it expanded the kinds of defences available to media organizations and others reporting on issues of public interest.

In this case, P.G. sued the Toronto Star for libel over an article that implied that P.G. used political influence to gain approval for a golf course development. The article reported local residents’ concerns about environmental impacts and potential political interference. The trial jury awarded significant damages to P.G., but the Court of Appeal found the jury instructions flawed and ordered a new trial. The Supreme Court of Canada then introduced the new defence of responsible communication.

The SCC outlined that for this defence to apply, two elements must be satisfied: (1) the publication must be on a matter of public interest, and (2) the publisher must show they acted responsibly in confirming the truth of the information.

The ruling highlighted how important it is to balance freedom of expression with protecting reputation. The court noted that stringent libel laws might impede people’s rights to free speech and stifle public debate on important issues. Therefore, the new defence protects people who diligently verify their information before publishing, even if the information cannot be ultimately proven factual in court.

This case is important in Ontario civil defamation law because it acknowledges the dynamic, evolving role of the media and the need to foster open public discourse while safeguarding individuals’ reputations. It provides a framework for evaluating the responsibilities of journalists and others who communicate on public matters.

Hamilton-Wentworth District School Board v. S.F., 2016 ONCA 421

This case involved an employee, S.F., who filed a discrimination claim after being terminated by the Hamilton-Wentworth District School Board due to mental health-related absenteeism.

S.F., who suffered from an anxiety disorder as well as depression, asserted that her dismissal was discriminatory and that the school board had failed to accommodate her mental health conditions. The Ontario Court of Appeal upheld the decision of the Human Rights Tribunal of Ontario, which found in favor of S.F. The Court emphasized the necessity of accommodating employees with mental health disorders and reinforced the obligation of employers to provide a compelling and evidence-based justification for terminations that are claimed to result from undue hardship.

The decision highlighted that the standard for proving undue hardship is stringent and requires employers to demonstrate that accommodating the employee’s mental health needs would cause significant difficulty or expense, beyond mere inconvenience. The Court of Appeal reaffirmed the principles of accommodation, stressing that employers must take proactive measures to manage occupational stress and mental health issues.

This includes creating a supportive work environment, making necessary adjustments to the employee’s job duties or work conditions, and engaging in a meaningful and interactive process to find reasonable accommodations. The ruling shows us that generally speaking, employers are not allowed to dismiss employees based solely on mental health-related absenteeism without first exploring all possible, reasonable accommodations. The Court also noted that employers must document their efforts to accommodate and must be able to show that they have exhausted all reasonable options before concluding that accommodation is not feasible.

This case shows how important it is to implement the duty to accommodate in the workplace. It reinforces the legal and ethical obligations of employers to address mental health issues with sensitivity and diligence, and it ensures that employees are protected from discrimination based on mental health conditions. v. M.G., 2018 SCC 28, [2018] 2 S.C.R. 3

M.G, a Canadian businessman who owns a well-known football club in Israel, sued the Israeli newspaper Haaretz for defamation in Ontario. Haaretz published an article critical of M.G. management of the football club, which M.G. claimed damaged his reputation in Canada. The Supreme Court of Canada (SCC) ruled on whether Ontario courts had jurisdiction over the case and if Israel was a more appropriate forum (forum non conveniens). The court highlighted two key principles: The first is “Jurisdiction Simpliciter”. The court found that the publication of the article in Ontario (even if only online) was sufficient to establish a presumptive connection to Ontario. The second principle is “Forum Non Conveniens.” The Court examined whether Israel was a clearly more appropriate forum for the trial.

Ultimately, the SCC concluded that Israel was indeed the more appropriate forum to litigate this matter, given factors such as the location of witnesses, the relevance of Israeli law, and the significant connection of the defamation case to Israel. The Court emphasized that even though Ontario had some level of jurisdiction, the principles of fairness and efficiency ultimately favoured holding the trial in Israel, where the majority of the harm and relevant evidence was situated. 

The case is significant for its analysis of jurisdiction in defamation cases involving online publications and for setting a precedent on how Canadian courts deal with multi-jurisdictional defamation claims. It demonstrates the importance of finding the right balance between jurisdictional principles with practical considerations of where a case can be most fairly and efficiently tried.

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.