Evidence at Trial
| Author | Roger McConchie; David Potts |
| Profession | Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario |
| Pages | 741-816 |
C H A P T E R
T
W
E
N
T
Y-
E I G
H
T
I
Evidence
at
Trial
A.
INTRODUCTION
This chapter should
be
read with
the
chapters concerning substantive
defences.
Court
decisions
which
discuss
the
admissibility
of
certain types
of
evidence
in
defamation proceedings,
or the
weight
to be
given
it, are the
principal
topic
of
discussion below. However,
a
number
of
court rulings
are
included because they illustrate
how
certain forms
of
evidence
may be
employed
at
trial.
B.
THE
PLAINTIFF'S
EVIDENCE
1)
Libel
The
plaintiff
must lead evidence
to
establish
the
following material
facts,
unless there have been
formal
admissions making such proof unnecessary:
1.
the
content
of the
allegedly
defamatory
expression;
2.
if the
expression
is
innocent
on its
face,
or has
some special meaning,
proof
of the
extrinsic
facts
and
circumstances which give that
expression
a
defamatory
sting;
3.
if the
expression does
not
identify
the
plaintiff,
proof
of the
extrinsic
facts
and
circumstances which establish that
it is of and
concerning
the
plain-
tiff
to a
select audience knowing those
facts
and
circumstances;
and
4.
publication
by the
defendant.
741
742
CANADIAN
2)
Slander
Where
the
claim
is for
slander,
the
plaintiff
must also prove special damage
unless
the
slander
is
actionable
per
se
or is
deemed
by a
provincial
defama-
tion statute
to
cause damage.
C.
PUBLICATION
1)
Introduction
Publication
is the
essence
of
defamation.
The
plaintiff
must
introduce
evi-
dence that
the
statement
was
read, seen, heard,
or
otherwise communicat-
ed to a
third
party.
McNichol
v.
Grandy,
[1931]
S.C.R.
696.
It
has
been held that embarking
on
calling
defence
evidence
is to be
taken
as a
virtual admission
of
publication
by the
defendant.
Patching
v.
Howarth,
[1930]
4
D.L.R.
489,
per
MacDonald
C.J.B.C.
at 490
(B.C.C.A.),
affirming
[1930]
2
D.L.R.
776.
Certain
presumptions
can
assist
a
plaintiff
to
prove publication:
i) a
printed copy
of a
newspaper
or
other periodical publication
is
proof,
in the
absence
of
evidence
to the
contrary,
of the
publication
of the
printed copy
and of the
truth
of the
statements
in
that newspaper
identifying
the
proprietor
and
publisher;
Act,
R.S.B.C.
1996,
c.
263,
s.!2(2).
ii)
when
a
libelous book
or
magazine
is
located
in a
lending
library,
pub-
lication
to
library
subscribers
is
presumed;
Vizetelly
v.
Mudie's
Select
Library
Limited, [1900]
2
Q.B.
170
(C.A.).
iii) the sale of a book, magazine, or pamphlet in the public, open shop of
a
known bookseller
is
presumed
to be a
publication
by the
owner
of
the
bookshop.
Rex
v.
Almon
(1770),
5
Burr.
2686,
98
E.R.
411.
iv)
where
the
expression
is
contained
on a
website, there
is
presumed
publication
to one or
more persons unknown.
Patrick
Milmo
&
WVH.
Rogers,
Gatley
on
Libel
and
Slander, First
Supple-
ment
to the 9th ed.
(London:
Sweet
&
Maxwell)
at
6.24,
citing
Bristile
v.
Buddhist
Society
of
Western Australia Inc., [1999] WASC
259.
Chapter
Twenty-Eight:
Evidence
at
Trial
743
2)
Slander
Where slander
is
alleged,
the
accuracy
and
authenticity
of
notes
or
tape
or
video recordings
may be
called into question
by
either
of the
parties.
The
author
of
purported notes
of
conversations should
of
course
be
called
to
prove
their contents.
A
party's
failure
to
challenge
the
accuracy
of
notes
or
other
records,
if
testimony
is
offered
to
substantiate their accuracy,
may
weigh against that
party.
Kelly
v. Low
(2000),
257
A.R.
279
(Q.B.)
at
paras.
107-111.
Where
the
answers
given
by a
defendant
on his
examination
for
discov-
ery are
read into
the
record
by the
plaintiff
at
trial,
and one of the
answers
by the
defendant
is a
denial that
he
spoke
the
slander alleged, that answer
must
be
taken
as
against
the
plaintiff
regarding
the
defendants
denial that
he
used those words.
Robertson
v.
McBride,
[1931]
4
D.L.R.
132,
per
Duff
J. at 136
(S.C.C.).
When
the
defamatory expression
is
intended only
to be
communicated
to
the
plaintiff
but is
unintentionally communicated
by the
defendant
to a
third
party,
the
burden
is on the
defendant
to
show that
the
communication
to
the
third party could
not
have been anticipated
and did not
occur
through
his
negligence.
A
defendant
may not be
liable
for a
purely acciden-
tal
communication
to a
third person
who
hears
him
utter
a
slander
— the
defendant
not
knowing,
nor
having
any
reason
to
suppose, that
any
person
other
than
the
plaintiff
is
within earshot,
and
being
free
from
any
fault
lead-
ing to the
communication
to the
third person.
McNichol v. Grandy, [1931] S.C.R. 696 per Duff J. at 704 [eavesdropper over-
heard loud, angry tones
of
defendant speaking
to
plaintiff
in an
adjoining
room].
Dictating
a
letter
to a
stenographer
in the
ordinary course
of
business
without
further
publication other than
the
typing
by her and
mailing
to the
plaintiff
is
probably slander,
not
libel.
Lawrence
v.
Finch, [1931]
1
D.L.R.
689,
per
Masten J.A.
at 692
(Ont. S.C.
(A.D.))
[nominal damages
awarded].
A
defendant
who
denies making allegedly slanderous remarks
may
cross-
examine
the
plaintiff
on his
conversations with others
to
whom
he
might rea-
sonably
have been expected
to
refer
to the
slanderous remark,
to
establish
that
no
reference
to it was
made. Furthermore,
a
defendant
may
testify
that
he
would
not
have wanted
to say
anything
to the
effect
of the
alleged slander.
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