Introduction
| Author | Roger McConchie; David Potts |
| Profession | Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario |
| Pages | 1-7 |
INTRODUCTION:
The
Special Nature
of
Defamation Litigation
The
gist
of the
cause
of
action
for
libel
or
slander
is
injury
to
reputation.
In the
common
law
provinces
and
three northern territories,
the
tort
is
firmly
root-
ed
in
centuries
of
English jurisprudence
and is
largely unaltered
by
statute.
The
issues
in
defamation litigation invariably transcend
the
private inter-
ests
of the
parties. Libel
and
slander lawsuits involve
a
clash between
two
fundamental
democratic values
—
protection
of
reputation
and
freedom
of
expression.
In
many defamation lawsuits,
the
Court
is
required
to
engage
in
a
delicate balancing exercise,
the
results
of
which
may
have broad implica-
tions
for the way our
democracy operates.
In
the
leading
Canadian
case,
the
1995
ruling
of the
Supreme Court
of
Canada
in
Hill
v.
Church
of
Scientology
of
Toronto,
1130,
Cory
J.
emphasized
the
clash
of
values
in
libel litigation:
1100
There
can be no
doubt that
in
libel cases
the
twin values
of
reputation
and
freedom
of
expression will clash.
As
Edgerton
J.
stated
in
Sweeney
v.
Pat-
terson,
128 E2d 457
(D.C. Cir. 1942)
at p.
458,
certiorari denied
317
U.S.
678
(1942), whatever
is
"added
to the
field
of
libel
is
taken
from
the
field
of
free
debate."
1101
Much
has
been written
of the
great importance
of
free
speech. Without
this freedom
to
express ideas
and to
criticize
the
operation
of
institutions
and
the
conduct
of
individual members
of
government agencies, democratic
forms
of
government would wither
and
die.
...
More recently,
in
Edmonton
Journal,
... it was
said:
It
is
difficult
to
imagine
a
guaranteed right more important
to a
demo-
cratic
society than freedom
of
expression. Indeed
a
democracy cannot
exist
without that freedom
to
express
new
ideas
and to put
forward
1
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