In Canada, defamation has to do with words that impact the plaintiff’s reputation with others1 and is a strict liability offence2. These words can be written (known as libel) or spoken (known as slander). In Grant v Torstar Corp. the Supreme Court of Canada (SCC) outlined the current law as requiring the plaintiff to prove three elements.
Before we explain the elements, lets first check in on the meaning of “strict liability.” Strict liability means that if the defendant did “the thing” that caused the plaintiffs harm, then the defendant will be liable, even if the defendant did not intend to cause the harm. In other words, proving that the defendant intended to cause the harm is not necessary. The plaintiff only needs to prove the defendant did cause the harm.
Now back to the elements of defamation, which are outlined in Grant v. Torstar as3:
- The words in question were defamatory. This means the words “would tend to lower
the plaintiff’s reputation in the eyes of a reasonable person”.
- The words in question did refer to the plaintiff.
- Finally, the words “were published.” This means that the defendant communicated
these words to, at minimum, one other person who was not the plaintiff.
The plaintiff holds the burden of proving to the court that “on a balance of probabilities” the elements of defamation are met4. If the plaintiff is successful, the burden then shifts to the defendant to present a defense that may allow them to avoid liability5.
In Canada, the defenses available include:
- Truth or justification
- Fair comment
- Absolute privilege
- Qualified privilege
- Responsible communication
The remedy for defamation is damages and the amount and type of damages awarded is dependent on the circumstances of the case. The Alberta Defamation Act outlines that mitigating factors can include whether an apology was given.
O’Malley v. O’Callaghan (1992),  4 W.W.R. 81 (Alta. Q.B.) quoting; Sim v. Stretch,  2 All E.R. 1237 (H.L.), at p. 1240: “would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally.”
2 Grant v. Torstar  3 S.C.R. at para .
3 Grant v. Torstar  3 S.C.R. at para .
4 Grant v. Torstar  3 S.C.R. at para .
5 Grant v. Torstar  3 S.C.R. at para .
The takeaway? While we hope you found this informative, we must admit that most of us don’t have pockets as deep as Ms. Heard and Mr. Depp. Funding a defamation lawsuit can be expensive and time consuming, all of which needs to be balanced against both the likelihood and amount of damages which may be awarded.
We always advise potential clients to educate themselves and balance the pros and cons before launching into an expensive court case. We hope this article has helped with that process.
That said, if you think you have a case and want to talk further, please call us at 780.831.7370 or email Reception@HayesFryLaw.ca