Summary of Defamation Law

AuthorDavid A. Potts; Erin Stoik
 2
Summary of Defamation Law
The Supreme Court of Canada in Grant v Torstar Corp, [2009] 3 SCR 640,
succinctly and authoritatively summarized the claim and the defences of the
law of defamation in Canada at paras 28–37:
[28] A plaintif‌f in a defamation action is required to prove three things to obtain
judgment and an award of damages: (1) that the impugned words were defama-
tory, in the sense that they would tend to lower the plaintif‌f’s reputation in the
eyes of a reasonable person; (2) that the words in fact referred to the plaintif‌f;
and (3) that the words were published, meaning that they were communicated
to at least one person other than the plaintif‌f. If these elements are established
on a balance of probabilities, falsity and damage are presumed, though this rule
has been subject to strong criticism: see, e.g., R. A. Smolla, “Balancing Freedom
of Expression and Protection of Reputation Under Canada’s Charter of Rights
and Freedoms,” in D. Schneiderman, ed., Freedom of Expression and the Charter
(1991), 272, at p. 282. (The only exception is that slander requires proof of special
damages, unless the impugned words were slanderous per se: R. E. Brown, The
Law of Defamation in Canada (2nd ed. (loose-lea)), vol. 3, at pp. 25-2 and 25-3.)
The plaintif‌f is not required to show that the defendant intended to do harm,
or even that the defendant was careless. The tort is thus one of strict liability.
[29] If the plaintif‌f proves the required elements, the onus then shifts to
the defendant to advance a defence in order to escape liability.
[30] Both statements of opinion and statements of fact may attract the
defence of privilege, depending on the occasion on which they were made.
Some “occasions,” like Parliamentary and legal proceedings, are absolutely
privileged. Others, like reference letters or credit reports, enjoy “qualif‌ied”
privilege, meaning that the privilege can be defeated by proof that the defend-
ant acted with malice: see Horrocks v. Lowe, [1975] A.C. 135 (H.L.). The defences

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