C. The Elements of the Cause of Action

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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1) A Defamatory Statement

A defamatory statement is one that reduces the esteem or respect in which the plaintiff is held by others in the community. The test for defamation is an objective one. It is sufficient to prove that the statement would have the effect of lowering esteem or respect for the person in the minds of persons variously described as "right-thinking members of society"8or "reasonable or ordinary members of the public."9There is no need to prove that the statement was false or that there was any actual loss of esteem by another individual. It is no defence that those who heard the defamatory statement did not, in fact, think less of the plaintiff or that they knew the statement to be untrue or did not believe it. This lessens the plaintiff’s burden of proof by dispensing with the need to bring evidence about who heard the statement, who believed it, and who had knowledge of its untruth. These questions may be relevant in the assessment of damages but not in the determination of liability.

Liability in defamation is strict. The plaintiff is not required to prove that the defendant intended to defame the plaintiff or that the defendant failed to take reasonable care in ascertaining the truth of the statement. It is also no defence that the defendant was unaware of the defamatory meaning of the words he used or that the defendant did

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not intend the words to refer to the plaintiff. Nor is it a defence that the defendant merely repeated what he had been told by a reliable and authoritative source.

The concept of a defamatory statement extends beyond oral or written words to include movies, cartoons, drawings, billboards, and photographs. Indeed, any communication that would lead ordinary Canadian citizens to think less of the plaintiff is defamatory.10Defama-tory statements may include allegations of dishonourable conduct such as dishonesty, malingering, fraud or criminal activity, disparaging remarks about a person’s character, integrity, competence in his profession or trade, fitness for public office, allegations of ties to disreputable organizations, and allegations that cause a person to be shunned, ridiculed, hated, pitied, or held in contempt, such as allegations of racism, venereal disease, poverty, and immorality. Allegations that the plaintiff broke any of the ten commandments or committed any of the deadly sins are also defamatory. "[A]lmost all uncomplimentary comment is defamatory."11Defamatory statements must, however, be distinguished from statements of abuse and blasphemous statements made in anger. Such statements may be distressing and annoying and they may be embarrassing when they are heard by third persons but they are not normally perceived as being damaging to the plaintiff’s reputation.

One of the tests of a defamatory statement is whether or not the statement tends to lower the plaintiff in the eyes of the "right-thinking members of society." Occasionally this has led courts to take a very idealistic view of societal attitudes. In one case, for example, it was held not to be defamatory to allege that a member of a golf club informed the police of the presence of illegal gambling machines on the club’s premises.12The allegation certainly lowered the plaintiff in the esteem of fellow club members, particularly those who enjoyed gambling, but the Court took the lofty view that no "right-thinking" person would think less of a person for informing the police of illegal activities. Most courts, however, use the more generous standard of the ordinary person, which promotes decision making that is more reflective of the...

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