Defamation refers to either spoken or written words used against a specific person(s) which are not true and will negatively affect their reputation.

The words are defamatory, not true, made to a third party and damage a person’s reputation. The test for determining whether the words damage a person’s reputation is an objective test meaning that it is relevant what the average person thinks and not that of the victim.

1. Absolute Privilege: This defence exists when a statement is made in a place where free speech needs to be protected. Examples of this include statements made in Court and in parliament.
2. Fair Comment: May apply where statements are made on matters of public interest provided there is no malicious intent and the statements were honest opinions.
3. Innocent Dissemination: In today’s world of online activity individuals and businesses frequently “share” information that they themselves did not produce. An example of this would be a news article which incorrectly states that John X has been arrested for the murder of someone and you share this article on twitter, facebook etc.
4. Made only to the person it is about: Where the statement is only made to the person it is about.
5. Qualified Privilege: Where there is a duty be it legal, moral, or social to publish / provide said information. The person receiving this information typically must have a legitimate interest in receiving it.
6. Responsible Communication on matters of public importance: This defence came into affect in the landmark decision of Grant v. Torstar Corp., 2009 SCC 61 (CanLII), [2009] 3 SCR 640 where Justice McLachlin outlines the requirements at paragraph 126 as follows: “The defence of public interest responsible communication is assessed with reference to the broad thrust of the publication in question. It will apply where:

• The publication is on a matter of public interest, and
• The publisher was diligent in trying to verify the allegation, having regard to:

(a)      the seriousness of the allegation;

(b)      the public importance of the matter;

(c)      the urgency of the matter;

(d)      the status and reliability of the source;

(e)      whether the plaintiff’s side of the story was sought and accurately reported;

(f)       whether the inclusion of the defamatory statement was justifiable;

(g)      whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and

(h)      any other relevant circumstances.”

7. Statement is not damaging: The statement must be both false and damaging. It would not be defamatory to say John is 6 feet tall when he is 5 feet 6 inches. While this statement is false it is not damaging.
8. True Statements: A true statement can not be defamatory even if it was published to harm the reputation of the person defamed. For this reason, you will frequently see news outlet refer to convicted individuals of heinous crimes as serial rapists, murderers etcetera. The article will clearly damage the individual is reputation but because it is true the news outlet has an absolute defence to defamation.

1. In Vanderkooy v. Vanderkooy et al, 2013 ONSC 4796 (CanLII) two sisters many years after the fact told family members that their uncle had sexual assaulted both of them. The Judge did not accept that any sexual assaults had actually occurred based on the evidence and determined that the uncle had been subject to defamatory statements which a reasonable person would find suggested he was a child molester and pedophile. The plaintiff was awarded $125,000.00 in general damages plus costs.
2. In Rutman v. Rabinowitz, 2018 ONCA 80 (CanLII) long-time business associates had a falling out. The one party began an online smear campaign posting fake reviews on an internet bulletin board and emailed other business partners of the plaintiff. There were more than 5,000 viewings on the GigPark site of the relevant page. The postings made allegations that Rutman was a “thief and a bastard, someone who deserves to be behind bars” etc. The Ontario Court of Appeal upheld the awards damaged by the Superior Court Judge of $700,000. What is most interesting about this case is what was said at paragraphs 62 and 65 by the Ontario Court of Appeal.

Paragraph 62: “It is trite law that general damages in libel cases are presumed from the very publication of the false statement.  The injured plaintiff bears no obligation to prove actual loss or injury.” and;

Paragraph 65: “The inability to point to specific reputational harm is not an admission that such harm did not occur”

This is particularly relevant because it implies that there is no onus on the plaintiff in libel cases to prove loss or injury.

3. In Wilson v. Wilson, 2019 ONSC 5726 (CanLII) during the course of separation from her husband a number of posts were made on facebook alleging the plaintiff committed incest, his business was failing, theft etc. $15,000.00 in general damages were awarded.
4. In Duncan v. Buckles, 2020 ONSC 3219 there was a neighbour dispute over a fence. An unsuccessful nuisance action was brought against the plaintiff in small claims court. The property owner who was unhappy with the fence engaged a 3^rd party to assist her with her dispute. The 3^rd party proceeded to make posts on a blog and youtube and additionally started an online petition. Some of the allegations included that the plaintiff was a “liar and a bit of a nut case.” Damages in the amount of $70,000.00 were awarded against the third party.
5. In Grochowski v. Young, 2019 ONSC 326 (CanLII) the plaintiff posted a comment to an online article in the Sarnia Observer. The plaintiff was a Family Physician and Emergency Room Doctor. The defendant had seen the plaintiff Doctor on a previous occasion. The defendant published the following postings in an online version of the Sarnia Observer: a)“Without getting into confidential details, I’ve also seen you prescribe highly-addictive medication to someone (while stretched thin at the ER) without close inspection. (b) No, but I know when someone close isn’t examined at all and a thing or two about substances we’ve been reading about over the last few years.” Justice McArthur awarded damages of $12,500.00 to the Doctor as well as costs of $2000.00

6. In Paramount v. Kevin J. Johnston, 2019 ONSC 2910 (CanLII) the court awarded $2,500,000.00 in damages. The defendant used website(s) and other social media defaming the plaintiffs which suggested the plaintiffs were involved with terrorists amongst other things. The plaintiff restaurant and its owner lost out on a deal overseas because of the defamatory attacks. It would appear a large portion of the damages awarded in this case related to the loss of business opportunity.

When bringing a defamation lawsuit typically there are two components which are sought by plaintiffs.

• A retraction of the defamatory statement
• Monetary compensation for the statement

Additional steps prior to filing a lawsuit may need to be taken depending on the source and location of the defamation.

The general limitation period is 2 years from the date of discovery however, in regard to claims for defamation a significantly shorter limitation period applies for a number of forms of publication.

For example see section 5(1) of the Libel and Slander Act which requires that notice be provided to the defendant in writing within six weeks of the alleged libel coming to the plaintiff’s knowledge where the alleged libel was in a newspaper or broadcast. The requirements for providing notice are very specific and should not be undertaken without the assistance of a Defamation Lawyer.

In order to limit your risk of facing a limitation period defence you should contact a defamation lawyer as soon as reasonably possible.

Libel is a form of defamation. Libel refers to a defamatory statement which is either published or broadcast.

Slander is a form of defamation. Slander refers to a defamatory statement involving spoken words, gestures etc. Lawsuits for slander are brought much less frequently than lawsuits for libel because damages generally have to be proven where slander is alleged because there is no permanent record.

Defamation of character is another term for defamation that is also frequently used to describe the same thing.

You can absolutely sue for defamation on social media. In today’s world where each post online can be liked, shared, reposted etceter and a single posting can reach an enormous amount of people.

The Small Claims Court can be a good venue choice for individuals seeking cheaper and faster access to Justice. The maximum amount of damages awardable by the Small Claims Court in Ontario is $35,000.00.

If you are considering filing a defamation lawsuit you should do so with the help of a qualified legal professional. There are complex limitation and notice periods involved that can easily be missed, quantification of damages is not straightforward as well as a host of other issues.

Whether you are considering suing for defamation, libel or slander or you are accused of said act(s) McMackin Law can assist you with your matter.