Justification
| Author | Roger McConchie; David Potts |
| Profession | Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario |
| Pages | 497-519 |
CHAPTER
T W
EN
TY-ONEI
Justification
A.
DEFINITION
Justification
is the
technical name
for the
defence
of
truth.
In
Govenlock
v.
Free
Press
Co.
Limited
(1915),
35
O.L.R.
79
(C.A.),
Hodgins J.A.
defined
the
defence
at
page
83:
Justification
means
one
thing,
and one
thing only:
i.e.
that
the
libel
is
true
as
printed.
A
plea
of
justification
alleges that
the
defamatory expression
at
issue
"is
true
in
substance
and in
fact."
Douglas
v.
Tucker,
285.
Hare
&
Grolier
Society
v.
Better
Business
Bureau,
[1947]
1
D.L.R.
280 at 284
(B.C.C.A.).
B.
JUSTIFICATION MUST
BE
SPECIFICALLY PLEADED
Justification
is an
affirmative
defence
which must
be
expressly
and
specifi-
cally pleaded.
A
denial that
the
expression
is
defamatory does
not
consti-
tute
a
defence
of
justification.
Stetson
v.
MacNeill
(c.o.b.
The
Eastern
Graphic)
(1997),
152
Nfld.
&
P.E.I.R.
225 per
Matheson
J. at
para.
15
(EE.I.S.C.
(T.D.)):
The
case
law is
clear that
the
defendant cannot rely
on
particulars
to
raise
the
plea.
In
summary,
the
defendant cannot rely
on the
defence
of
justification
unless
it is
specifically
pleaded
and he has not yet
done
so.
497
498
C.
EFFECT
OF THE
DEFENCE
Justification
is a
complete
defence
to a
defamation
action.
If the
expression
at
issue
is
true,
the
plaintiffs
defamation
claim
concerning
that
expression
must
be
dismissed.
Leenen
v.
Canadian
Broadcasting
Corporation
(2000),
48
O.R. (3d) 656,
per
Cunningham
J. at 689
(S.C.J.),
affd
(2001),
54
O.R. (3d)
612 at
617, para.
9
(C.A.),
leave
to to
S.C.C. appeal denied, [2001] S.C.C.A.
No.
432.
Hodgson
v.
Canadian
Newspapers
Co.
(1998),
39
O.R. (3d)
235 per
Lane
J. at
368-69
(Gen.
Div.),
aff'd
on
this issue, varied
on
other grounds (2000),
189
D.L.R.
(4th)
241 at
256, para.
32
(C.A.),
leave
to
appeal
to
S.C.C.
denied,
[2000]
S.C.C.A.
465
Sutherland
v.
Slopes,
Viscount Finlay
at 62
(H.L.):
It
is
clear that
the
truth
of a
libel
affords
a
complete answer
to
civil
pro-
ceedings. This defence
is
raised
by a
plea
of
justification
on the
ground
that
the
words
are
true
in
substance
and in
fact.
Such
a
plea
in
justifi-
cation means that
the
libel
is
true
not
only
in its
allegations
of
fact
but
also
any
comments made therein.
The law
presumes
that
defamatory
expression
is
false.
Therefore
the
plaintiff
need
only
establish
that
the
allegedly
defamatory
expression
was
published.
The
onus
is not
upon
the
plaintiff
to
prove
that
the
defamatory
expression
is
untrue
but
rather
upon
the
defendant
who
pleads
justification
to
prove
on a
balance
of
probabilities
that
it is
true.
Kent
v.
Kehoe
(2000),
183
D.L.R.
(4th)
503 at
512, para.
20
(N.S.C.A.).
Littleton
v.
Hamilton (1974),
4
O.R. (2d) 283,
per
Dubin J.A.
at 286
(C.A.),
leave
to
appeal
to
S.C.C. denied
(1974),
4
O.R. (2d)
283n
(S.C.C.).
Jean
v.
Slyman,
[1990]
B.C.J.
No.
2044
(S.C.)
per
Cohen
J.
Caldwell
v.
McBride
(1988),
45
C.C.L.T.
150 per
Southin
J. at 156
(B.C.S.C.),
citing Philip Lewis,
Galley
on
Libel
and
Slander,
8th ed.
(London: Sweet
&
Maxwell,
1981)
at
150:
351: Truth
of the
imputation.
The
plaintiff
establishes
a
prima
facie
cause
of
action
as
soon
as he has
proved
the
publication
of the
defam-
atory
words.
It is no
part
of the
plaintiff's
case
in an
action
of
defama-
tion
to
prove that
the
defamatory words
are
false,
for the law
presumes
this
in his
favour.
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