Response to a Lawsuit

• Author: Roger McConchie; David Potts
• Profession: Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario
• Pages: 27-31

C H A P

T

E R F O

U

R

I

Response

to a

Lawsuit

A.

FIRST STEPS

The

first

thing

a

defendant must bear

in

mind

is

that

the

entirety

of the

defendant's

conduct,

from

the

time

the

libel

was

published down

to the

close

of

trial,

may be

taken into account

by the

court.

Baxter

v.

Canadian

Broadcasting

Corporation

(1979),

28

N.B.R.

(2d) 114,

63

A.ER.

114 at

162,

para.

58

(Q.B.

(T.D.)).

Hill

v.

Church

of

Scientology

of

Toronto,

[1995]

2

S.C.R.

1130

at

para.

182.

Leenen

v.

Canadian

Broadcasting

Corporation

(2000),

48

O.R. (3d)

656 at

paras.

143, 163,

205

(S.C.J.),

aff'd

(2001),

54

O.R.

(3d) 612,

leave

to

appeal

to

S.C.C.

refused,

[2001]

S.C.C.A.

No.

432.

A

defendant

who

learns

of a

libel complaint

or a

libel lawsuit would

be

wise

to

involve

his or her

legal counsel immediately.

The

defendant

should

also give immediate notice

to his or her

insurer,

who

should

be

kept

informed

in a

timely manner

of

steps being taken

by the

defendant

to

respond.

When

served with legal process,

a

prudent defendant will note precisely

the

time, date,

and

manner that process

was

served. Because

of the

strict

time limits under certain provincial defamation statutes

for

minimizing

the

defendants

liability

for

damages

by

publication

of a

correction, retraction,

or

apology,

a

defendant

may not

have

much

time

to

conduct

an

investigation

to

facilitate

a

decision

on

these matters. There

is

also

often

very little time

to

obtain detailed information about

the

alleged libel;

the

material originally

relied

upon

and

still available

to

support

the

expression

at

issue;

and the

evi-

dence, including witnesses

who can

testify

to the

truth

of the

publication.

27