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,

[1995]

2

S.C.R.

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,

[1989]

2

S.C.R.

1326

... 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