Parties
| Author | Roger McConchie; David Potts |
| Profession | Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario |
| Pages | 109-138 |
cHAFTER
SEVEN;
Parties
A.
INTRODUCTION
Defamation
actions
in
Canada have been brought
by and
against individu-
als,
trade unions, charities, trading corporations, professional regulatory
bodies such
as the
College
of
Physicians
and
Surgeons,
and
government
institutions such
as
municipalities, separate school boards,
and
police serv-
ices boards.
This
chapter provides
a
brief discussion
of the
question
of
legal capacity
to sue or be
sued
for
defamation.
The law on
this subject varies
from
province
to
province
in
part because
of
differences
in
legislation
and in
part
because courts
in
different
jurisdictions have reached
different
conclusions.
It
is
impossible
to
address
every
nuance
in
this
chapter. Prudent libel liti-
gants
and
their legal counsel will closely study
the law in
their particular
jurisdiction.
The
issues addressed
in
this chapter overlap
to
some degree with issues
discussed
in
Chapter
13,
"Identification
of the
Plaintiff,
Chapter
14,
"Pub-
lication
and
Republication"
and
Chapter
30,
"Damages."
B.
STATUS
The
status
and
immunity
of
defamation litigants
are in
large measure deter-
mined
by the
legal
principles
that apply
to
other tort claims.
An
entity
has the
status
to sue or be
sued
if it is
recognized under
the
rel-
evant statutory
or
common
law as a
natural
or
statutory
person.
A
"natural
person"
is a
living being, generally required
to be of
full
age and
mental
competence,
but it
also
includes
alien citizens,
nonresidents,
convicts
and
accused
persons,
and in a
representative
capacity,
mentally incompetent
109
110
CANADIAN LIBEL
AND
SLANDER
ACTIONS
persons
and
infants.
"Statutory" persons
are
nonliving entities recognized
by law as
possessing legal personalities separate
and
apart
from
their con-
stituent
members.
The
International
Assn.
of
Science
and
Technology
for
Development
v.
Hamza
(1995),
28
Alta.
L.R.
(3d) 125,
per
Conrad J.A.
at 131
(C.A.):
...
In
Alberta, corporations
are
deemed legal persons
by
virtue
of s.
15(1)
of the
Alberta
Business
Corporations
Act,
S.A. 1981
c.
B-15,
which
reads:
15(1)
A
corporation
has the
capacity and, subject
to
this Act,
the
rights,
powers
and
privileges
of a
natural person.
Societies
duly registered pursuant
to the
Societies
Act,
R.S.A.
1980,
c. S-
18, are
deemed
to be
corporations
and are
thus granted
the
status
of a
statutory
person pursuant
to s. 10 of
that
Act
which reads:
10.
From
the
date
of the
certificate
of
incorporation,
the
sub-
scribers
to the
application
and the
other persons that
from
time
to
time become members
of the
society
are a
corporation
and
have
all the
powers, rights,
and
immunities vested
by law in a
corporation.
The
Crown
(federal
and
provincial)
is
also
a
statutorily recognized juridi-
cal
person,
as are
foreign
sovereigns
and
states.
The
International
Assn.
of
Science
and
Technology
for
Development
v.
Hamza,
ibid.
An
office
which
is a
creature
of
convention (not statute) cannot
be
sued.
This would include
the
office
of a
provincial Premier. Accordingly, defama-
tion
plaintiffs
should take care when drafting their pleadings
to
ensure that
individual defendants
are
appropriately described
in the
style
of
cause.
The
International
Assn.
of
Science
and
Technology
for
Development
v.
Hamza,
ibid.,
citing
Reference
re
Amendment
of
the
Constitution
of
Canada
(Nos.
1, 2, and
3),
[1981]
1S.C.R.
753,
R&WSuch
Holdings
Ltd. (1991),
126
A.R.
16
(Q.B.).
1)
Deceased
Persons
At
common law,
an
action
in
tort does
not
survive
an
individual's death.
No
action
in
defamation could
be
brought
on
behalf
of a
deceased person.
Accordingly,
a
defamation action
by an
individual could only
be
brought
or
maintained during
his or her
lifetime.
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