Identification of the Plaintiff
| Author | Roger McConchie; David Potts |
| Profession | Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario |
| Pages | 233-255 |
C H A P T E R
T
H I
R
T
E E
N
I
Identification
of
the
Plaintiff
A.
OVERVIEW
Any
defamatory
expression must
be
about
the
plaintiff
in
order
to be
action-
able.
The
burden
is on the
plaintiff
to
satisfy
this requirement.
Although
the
requirement
is
obviously satisfied
if the
plaintiff
is
expressly
named,
the
converse
is not
true.
Merely
omitting
the
name
of a
plaintiff
from
the
defamatory
expression
will
not
necessarily insulate
the
defendant. Liabili-
ty
for
defamatory
expression
may be
imposed
if the
expression would reason-
ably
lead persons acquainted with
the
plaintiff
to the
conclusion that
it
does
refer
to the
plaintiff.
It is
irrelevant whether
or not the
defendant subjectively
intended
to
refer
to the
plaintiff
or was
even aware
of the
plaintiff's
existence.
The
case
law
illustrates many
different
situations
where
liability
has
been imposed although
the
plaintiff
was not
expressly named, including
the
following:
i) A
defendant deliberately
refrains
from
naming
the
plaintiff
in the
belief
this will enable
the
defendant
to
avoid legal liability
or in the
belief
the
plaintiff
will
not sue and
thereby risk revealing
his or her
identity
to the
world.
ii) The
defamatory
expression concerns members
of a
group
or
class
of
individuals.
iii)
The
defamatory
expression
is
ambiguous
or
confusing
but
nevertheless
points
to the
plaintiff,
whether
or not the
plaintiff
is the
actual
target.
iv)
The
defamatory
expression
is a
work
of
fiction
and no
reference
to the
plaintiff
is
intended.
The
leading authority
on
this topic
is
Knupffer
v.
London
Express
Newspa-
per,
Ltd.,
(H.L.)
which
is
invariably cited with
233
234
CANADIAN LIBEL
AND
SLANDER
ACTIONS
approval
in the
Canadian
jurisprudence
and
informs
much
of the
discus-
sion
in
this
chapter.
B.
ESSENTIAL ELEMENT
OF
CAUSE
OF
ACTION
[I]t
is an
essential
element
of the
cause
of
action
for
defamation that
the
words complained
of
should
be
published
"of the
plaintiff."
If the
words
are
not so
published
the
plaintiff
cannot have
any
right
to ask
that
the
defendant
should
be
held
responsible
to
him.
Knupfferv.
London
Express
Newspaper,
at
118.
An
essential
element
of
such
a
cause
of
action
is
that
the
words
complained
of
should
be
published
"of the
plaintiff
...
Arnottv.
College
of
Physicians
and
Surgeons
of
Saskatchewan,
[1954]
S.C.R.
538
per
KellockJ.
at
554.
Booth
v.
British
Columbia
Television
Broadcasting
System
(1982),
139
D.L.R.
(3d)
88, per
Lambert J.A.
at 92
(B.C.C.A.).
Butler
v.
Southam
Inc. (2001),
Cromwell J.A.
at
para.
29
(C.A.).
Grant
v.
Cormier-Grant (2001),
56
O.K.
(3d) 215,
per
Borins J.A.
at
para.
19
(C.A.).
Aiken
v.
Police
Review
Publishing
Co.,
[1995]
E.WJ.
No.
5681
per
Lord
Justice
Hirst
at
para.
13
(C.A.).
Bai
v.
Sing
Tao
Daily
Ltd., [2003]
OJ.
No. 917 per
McMurtry C.J.O.
at
para.
10
(C.A.), leave
to
appeal
to
S.C.C. denied, [2003] S.C.C.A.
No.
354.
1) A
Two-part
Test
To
establish
this
element
of the
cause
of
action,
the
plaintiff
must
satisfy
a
two-part
test:
1.
as a
question
of
law,
can the
expression
be
regarded
as
capable
of
refer-
ring
to the
plaintiff?
and
2. as a
question
of
fact,
does
the
article
in
fact
lead
reasonable
people
who
know
that
plaintiff
to the
conclusion
that
it
does
refer
to
him?
Knupffer
v.
London
Express
Newspaper,
Ltd., [1944]
1
A.C.
116 per
Viscount
Simon
at
121.
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