Defamation claims

Key laws

What key legislation and case law serve as the basis for defamation claims in your jurisdiction?

In Canadian common law jurisdictions, the key Supreme Court of Canada (SCC) cases that discuss defamation claims are Hill v Church of Scientology of Toronto [1995] 2 SCR 1130 and Grant v Torstar Corp., 2009 SCC 61. Defamation claims in Ontario and British Columbia can lead to the defendant to file anti-SLAPP motions with the objective of dismissing the claim at an early stage. The leading Supreme Court of Canada cases on anti-SLAPP motions are: 1704604 Ontario Ltd v Pointes Protection Association, 2020 SCC 22; Bent v Platnick, 2020 SCC 23; and Hansman v Neufeld, 2023 SCC 14.

Each province and territory also have passed legislation governing defamation claims involving broadcasts, publications in newspapers and other traditional media. Ontario and British Columbia have a Libel and Slander Act, while the remaining common law provinces and territories have put in place a Defamation Act.

In Quebec, the Quebec Charter of Human Rights and Freedoms (the Quebec Charter) guarantees every person the right to dignity, honour and reputation, and entitles any person who has had their rights violated to obtain compensation (sections 4 and 49 of the Quebec Charter). The Civil Code of Quebec (CCQ) also provides that every person has a right to the respect of their reputation and privacy (section 35 CCQ). To proceed with a defamation claim, claimants satisfy the criteria set out in section 1457 CCQ, which governs all forms of extracontractual responsibility and requires that claimants prove their injury, a fault and a causal link between the two, on the basis of a balance of probabilities.

In essence, under Quebec law, defamation is merely the fault that violates one’s right to reputation.

Key rulings by the Supreme Court of Canada include Prud'homme v Prud'homme, 2002 SCC 85 (Prud’homme) and Bou Malhab c. Diffusion Métromedia CMR inc., 2011 SCC 9.

Legal tests

What is the test to determine whether words published are defamatory? Must the claimant show actual harm or loss?

In Canadian common law jurisdictions, the plaintiff in a defamation claim must prove three elements:  (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words were 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 (Grant v Torstar Corp., 2009 SCC 61, paragraph 28).

Harm, which is compensated by general damages, is presumed once defamation is established. A plaintiff must show proof of special damages. 

In Quebec, defamatory statements are statements that cause an ordinary citizen to lose consideration or promote unfavourable or unpleasant feelings towards a person (Prud’homme, paragraph 33). That said, liability in defamation cases is only triggered where the defamatory statements constitute a fault (ie, a behaviour that departs from the standard expected of a reasonable person in the same circumstances).

There are three situations where the author of a defamatory remark could be civilly liable under Quebec law: (1) a person makes an unpleasant remark knowing that it is false, with intention to harm; (2) a person spreads unpleasant statements that they should have known to be false, as a reasonable person would have reason to doubt the truth of the information; and (3) a person intentionally makes an unfavourable but true statement about the third party, without any valid reason to do so (Prud’homme, paragraph 36). Thus, the act of communicating false information does not necessarily entail liability, and communicating true information with the intention to harm someone’s reputation may give rise to a defamation claim.

Where a claimant seeks moral or pecuniary damages, the claimant must demonstrate actual harm or losses to satisfy the criteria of injury set out in section 1457 CCQ. This requires introducing evidence to establish the scope of dissemination of the statements and their actual consequences on the claimant.

Libel and slander

Does your jurisdiction distinguish between libel and slander?

In colloquial usage, ‘defamation’ is commonly associated with spoken defamatory statements, while ‘libel’ is used to refer to written defamatory expressions (Réseau de télévision quatre saisons inc. c. Cliche, 1993 CanLII 3696 (QC CA), paragraph 6). The distinction primarily arises from the context in which the defamatory statements are made: orally or in writing.

The Canadian common law jurisdictions tort of defamation does not distinguish between libel and slander. Each province and territory has enacted legislation to create specific rules and requirements that apply to libel and slander in newspapers and traditional broadcast media (see, eg, Libel and Slander Act, RSBC 1996, c 263, Libel and Slander Act, RSO 1990, c. L.12, etc).

In Quebec, the terms libel, defamation and even defamatory libel are encompassed in the concept of a damage to reputation. Thus, Quebec civil law treats both forms of defamatory statements equally when it comes to seeking legal recourse.

Standing

Who can sue in defamation and must the claimant be named in the publication in order to bring a claim? Are there any key differences between litigation involving individual and corporate claimants?

In Canadian common law jurisdictions, plaintiffs do not need to be named in the publication/expression. However, there must be enough information for a reader to understand that the words refer to the plaintiff. In the context of a defamation claim brought by a corporation, the general presumption of harm is weaker because ‘a company cannot be injured in its feelings, it can only be injured in its pocket. Its reputation can be injured by a libel but that injury must sound in money’ (2504027 Ontario Inc. o/a S-Trip! v Canadian Broadcasting Corporation (CBC) et al., 2021 ONSC 3471, paragraph 66).

In Quebec, plaintiffs also do not need to be named or designated in order to bring a claim for defamation (Bou Malhab v Diffusion Métromédia CMR inc., 2011 SCC 9, paragraph 49). In such cases, the test to be performed requires examining whether the claimant is accurately identified in the reader’s mind. The words can thus be indirectly defamatory and can take many forms, such as a mere allusion or an insinuation. In the context of a defamatory statement towards a group, it is easier to prove personal injury justifying damages if the group members are identifiable. The same goes for an unnamed individual that is nonetheless recognisable by the reader (Digital Shape Technologies Inc. c. Walker, 2018 QCCS 4374, paragraph 49).

Furthermore, both individuals and corporations can sue for defamation, given that the protection granted by the Quebec Charter applies to both (Genex Communications inc. c. Association québécoise de l'industrie du disque, du spectacle et de la vidéo, 2009 QCCA 2201, paragraph 39). Depending on whether the claimant is an individual or a corporation, there are several key differences, notably in the quantum of damages.

With regards to moral damages, the Quebec courts recognise that corporations do not have sensitivity, emotionality, or privacy concerns that affect individuals (Gilles E. Néron Communication Marketing inc. c. Chambre des notaires du Québec, 2000 QCCS 19019, paragraph 93). In Voltec ltée c. CJMF FM ltée, 2002 QCCA 63224, the Court of Appeal stated that moral damages awarded to corporations for injury to reputation should range between C$10,000 and C$25,000, depending on the circumstances. However, more recently, the Superior Court indicated that, although this range continues to represent the norm, it is not a limit. In other words, depending on the case, it is possible that a corporation is granted damages exceeding C$25,000 (Journal de Montréal, une division de MédiaQMI inc. c. Conseil de presse du Québec, 2023 QCCS 516, paragraph 202). In comparison, moral damages granted to an individual can rise up to $500,000 (A.B. c. Google, 2023 QCCS 1167, paragraph 560).

In terms of pecuniary damages, the Quebec courts recognise that corporations may suffer larger damages than individuals if proof of loss of business opportunities or contracts is established. In the case of individuals, concrete proof of loss of salary, loss of contracts or loss of opportunities must be established to be granted pecuniary damages. In absence of concrete proof, pecuniary damages risk compensating the victim twice for their moral damages (Pierre-Claude LAFOND, ‘Réparation à la suite d’une atteinte aux droits à l’honneur, à la dignité, à l’égalité, à la réputation et à la vie privée’, JurisClasseur Québec).

Defences

What key defences are available to a claim in defamation?

In Canadian common law jurisdictions, the key defences to the common law tort of defamation are:

  • Fair Comment: The defence of fair comment is available where the defendant can prove that their expression was a comment (as opposed to a statement of fact) on a matter of public interest, that was premised on provable facts, that any reasonable person could make on the same facts, and that was not made with malice.
  • Truth/Justification: Truth is a complete defence against a defamation action. The impugned expression must be capable of being proved to be true.
  • Qualified Privilege: An occasion of qualified privilege exists if a person making a communication has an interest or duty (legal, social, moral or personal) to communicate an expression to a person who has a corresponding interest or duty to receive it. Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. A plaintiff can defeat this defence by proving that the expression was made with malice, the defendant was reckless to the truth of the words spoken or where the defendant exceeded the scope of the privileged occasion.
  • Absolute Privilege: Like the defence of qualified privilege, this defence attaches to the occasion rather than the communication itself. An expression made on an occasion on absolute privilege is protected from liability from defamation, even if it was made with malice. Examples include statements made in the context of judicial or quasi-judicial proceedings, statements made by one officer of state to another in the course of their official duties, and parliamentary proceedings and official parliamentary reports. 
  • Responsible Communication on Matters of Public Interest: Applies to publications that relate to a matter of public interest and that are made ‘responsibly’. A court will determine whether a publication is ‘responsible’ by referring to the following factors: the seriousness of the allegation; the public importance of the matter; the urgency of the matter; the status and reliability of the source; whether the plaintiff’s side of the story was sought and accurately reported; whether the inclusion of the defamatory statement was justifiable; whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (ie, ‘reportage’); and any other relevant circumstances (see Grant v Torstar Corp., 2009 SCC 61).

 

In Quebec, given that a claim in defamation is governed by the regime of extracontractual responsibility (1457 CCQ), the only defence is the absence of fault (Prud’homme, paragraph 63). In the context of a defamation claim, fault can arise from two types of conduct: malice and negligence. The courts consider that the author of a defamatory statement acted maliciously if they, knowingly and in bad faith, attack the reputation of the victim with intention to harm. On the contrary, the courts deem conduct to be negligent where the author of the defamatory statement does not have the intention to harm but interferes with the victim’s reputation by acting carelessly. As such, the defence of absence of fault would require the defendant to prove that their behaviour can neither be considered malicious, nor negligent (Prud’homme, paragraph 35).

For illustration purposes, the courts have ruled that the common law defence of ‘fair comment’ applicable to opinions only (Guitouni c. Société Radio-Canada, 2000 QCCS 18442, paragraph 31), and the defence of ‘responsible communication’ that applies in the presence of a question of public interest, are not directly applicable in Quebec civil law. In Prud’homme, the Supreme Court of Canada specifies that ‘[t]he rules of civil liability already provide that a defendant may rely on all the circumstances that tend to demonstrate the non‑existence of fault. Because the criteria for the defence of fair comment are precisely the circumstances to be taken into consideration in determining whether a fault has been committed, those criteria are already an integral part of Quebec civil law' (paragraph 63).

Jurisdiction

How do the courts approach questions of jurisdiction, for example in relation to online content that may be accessed by readers and viewers in multiple jurisdictions?

In Canadian common law jurisdictions, the question of jurisdiction in actions involving multijurisdictional online defamation can be a source of uncertainty for potential litigants. The leading case on jurisdiction for internet defamation is Haaretz.com v Goldhar, 2018 SCC 28. In Goldhar, the Supreme Court of Canada dealt with a Canadian businessman’s lawsuit against an Israeli newspaper that published allegedly defamatory statements both about the businessman’s management of his professional Israeli soccer team and his businesses in Canada. The article was not distributed in print form in Canada but was available electronically.

To decide the appropriate forum, the Supreme Court of Canada applied the general test for determining jurisdiction:

  • whether a real and substantial connection exists between a chosen forum and the subject matter of the litigation (as determined by a series of presumptive connecting factors);
  • whether the defendant can rebut the presumption of jurisdiction because only a weak connection exists between the forum and subject matter of the litigation; and
  • whether a court should decline to exercise its presumptive jurisdiction in favour of a ‘clearly more appropriate’ forum.

(see Goldhar).

 

The Supreme Court has indicated the establishment of a presumptive connecting factor in internet defamation cases is ‘virtually automatic’ (Goldhar, paragraph 48). In Goldhar, the court concluded that there was a presumptive connecting factor with Ontario and that the defendant could not rebut this presumption, as it wrote allegedly defamatory statements about the plaintiff’s Canadian business practices. However, the court found that Israel was clearly the more convenient jurisdiction for a variety of reasons.

For further discussion of the topic of jurisdiction in online defamation cases, and an example of where a Canadian court found it had jurisdiction to hear an internet defamation claim, see the British Columbia Court of Appeal decision in Giustra v Twitter, Inc., 2021 BCCA 466.

In Quebec, if a claim has an extraterritorial and international aspect, Quebec courts have jurisdiction if damages are suffered in Quebec or if a fault is committed in Quebec, even if another fault or damages occurred in another province or country (section 3148(3) CCQ; Reader’s Digest Magazines Ltd. c. Speers, 2010 QCCS 49).

Burden of proof

Who bears the burden of proof in defamation claims in your jurisdiction?

In Canadian common law jurisdictions, the plaintiff bears the burden of proving the three elements of defamation. Once the plaintiff proves these elements on a balance of probabilities, the burden then shifts to the defendant to establish their defence.

In Quebec, the burden of proof sets out in section 1457 CCQ rests on the plaintiff. The plaintiff must therefore prove the three traditional elements of civil liability: fault, damage and a causal link between the fault and the damage, in accordance with the principle of the preponderance of evidence (sections 2803 and 2804 CCQ).

Limitation period

What limitation period applies to claims in defamation?

The following are the basic limitation periods for defamation claims pursuant to each province and territory’s legislation. The following list does not include ultimate limitation periods to the extent a province or territory’s legislation provides for one.

 

Province/Territory

General defamation basic limitation period

Limitation period for certain defamation claims

British Columbia

Two years after the date on which the claim is discovered (The Limitation Act, S.B.C. 2012, c. 13, section 6)

No special limitation periods

Alberta

Two years after the date on which the claimant first knew or ought to have known (The Limitation Act, R.S.A. 2000, c. L-12, section 3)

In an action for libel in a newspaper or broadcast, the plaintiff must provide written notice within three months from when the publication of the defamatory matter came to the plaintiff’s notice or knowledge (seven days’ notice required for a daily newspaper or 14 days’ notice for any other newspaper or broadcast) (Defamation Act, R.S.A. 2000, c. D-7, section 13)

Saskatchewan

Two years from the date on which the claim is discovered (The Limitation Act, S.S. 2004, c. L-16.1, section 5)

In an action for libel in a newspaper, the plaintiff must provide written notice (five days’ notice required for a daily newspaper or 14 days’ notice for a weekly newspaper) (The Libel and Slander Act, R.S.S. 1978, c. L-14, section 15)

Manitoba

Two years after the date the claim is discovered (The Limitation Act, C.C.S.M.  c. L150, section 6)

In an action for libel in a newspaper or broadcast, the plaintiff must provide written notice within three months from when the publication of the defamatory matter came to the plaintiff’s notice or knowledge (seven days’ notice required for a daily newspaper or 14 days’ notice for any other newspaper or broadcast) (The Defamation Act, C.C.S.M., c. D20, section 14)

Ontario

Two years from the date on which the claim is discovered (The Limitation Act, 2002, S.O. 2002, c. 24, Sch. B, section 4)

An action for libel in a newspaper or broadcast must be commenced within three months from when the libel coming to the knowledge of the person defamed, and written notice must be provided within six weeks of the alleged libel coming to the plaintiff’s knowledge (Libel and Slander Act, R.S.O. 1990, c. L.12, sections 5–6). Note that courts in Ontario have not definitively confirmed whether social media can fit within the definition of ‘broadcast’; decisions that have considered this issue have held that the issue could not be decided on the record before the court. See, for example, Nanda v McEwen, 2019 ONSC 125

Quebec

One year from knowledge of the defamation (CCQ, CQLR, c. C-1991, section 2929)

Every person who deems themself injured by an article published in a newspaper and who wishes to claim damages must institute their action within three months of said article or knowledge of same (Press Act, C.Q.L.R, c. P-19, section 2). However, this exception does not benefit a newspaper where the article accuses a plaintiff of having committed a criminal offence or where the article complained of refers to a candidate and was published within the three days prior to the nomination day and up to the polling day in a parliamentary or municipal election (section 9 of the Press Act; Bouchard c. Communications Quebecor inc., 2002 CanLII 11648)

The one-year prescription period of section 2929 of the CCQ only applies if the legal action is based exclusively on the damage to the plaintiff’s reputation. Indeed, it becomes inapplicable when the wrongful actions extend beyond mere harm to reputation and encompass other inseparable aspects, such as the alleged victim’s physical integrity, dignity, professional life, and personal life (Bouffard c. Québec (Procureure générale), 2016 QCCS 5384, paragraph 67)

 

Additionally, defamation can lead to continuous harm over an extended period; for every day a defamatory statement remains accessible to others, the potential for harm to one’s reputation continues to exist. As a result, the prescription period for defamation may be calculated differently from other legal claims, considering that each day could be considered as a new instance of damage (Fillion c. Chiasson, 2007 QCCA 570; Bouffard c. Québec (Procureure générale), 2016 QCCS 5384)

Newfoundland and Labrador

Two years after the date on which the right to do so arose (The Limitation Act, S.N.L. 1995, c. L-16.1, section 5)

In an action for libel in a newspaper or broadcast, the plaintiff must provide written notice within three months from when the publication of the defamatory matter has come to the plaintiff’s notice or knowledge (seven days’ notice required for a daily newspaper or 14 days’ notice for any other newspaper or broadcast) (The Defamation Act, R.S.N.L. 1990, C. D-3, section 16)

New Brunswick

Two years from the date on which the claim is discovered (The Limitation of Actions Act, S.N.B. 2009, c. L-8.5, section 5)

No special limitation periods

Nova Scotia

Two years from the date on which the claim is discovered (The Limitation of Actions Act, S.N.S. 2014, c. 35, section 8)

An action for libel in a newspaper or broadcast must be commenced within six months after the libel has come to the knowledge of the person defamed, and written notice must be provided within three months from when the publication of the defamatory matter has come to the plaintiff’s notice or knowledge (seven days’ notice required for a daily newspaper or 14 days’ notice for any other newspaper or broadcast) (The Defamation Act, R.S.N.S. 1989, c. 122, sections 18–19)

Prince Edward Island

Two years after the cause of action arose (The Statute of Limitations, R.S.P.E.I. 1988, c. S-7, section 2)

An action for libel in a newspaper or broadcast must be commenced within six months of the libel coming to the knowledge of the person defamed, and written notice must be provided within three months from when the publication of the defamatory matter has come to the plaintiff’s notice or knowledge (five days’ notice required for a daily newspaper or 14 days’ notice for any other newspaper or broadcast) (The Defamation Act, R.S.P.E.I. 1988, c. D-5, sections 14–15)

Yukon

Two years after the cause of action arose (The Limitation of Actions Act, R.S.Y. 2002, c. 139, section 2)

An action for libel in a newspaper or broadcast must be commenced within six months of the libel coming to the knowledge of the person defamed, and written notice must be provided within three months of the publication of the defamatory matter has come to the plaintiff’s notice or knowledge (14 days’ notice required) (The Defamation Act, R.S.Y. 2002, c. 52, sections 14-15)

Northwest Territories

Two years after the cause of action arose (The Limitation of Actions Act, R.S.N.W.T. 1988, c. L-8, section 2)

An action for libel in a newspaper or broadcast must be commenced within six months after the libel coming to the knowledge of the person defamed, and written notice must be provided within three months of the publication of the defamatory matter has come to the plaintiff’s notice or knowledge (14 days’ notice required) (Defamation Act, R.S.N.W.T. 1988, c. D-1, sections 15–16)

Nunavut

Two years after the cause of action arose (The Limitation of Actions Act, R.S.N.W.T. (Nu) 1988, c. L-8, section 2)

An action for libel in a newspaper or broadcast must be commenced within six months of the libel coming to the knowledge of the person defamed, and written notice must be provided within three months of the publication of the defamatory matter has come to the plaintiff’s notice or knowledge (14 days’ notice required) (The Defamation Act, R.S.N.W.T. (Nu) 1988, c. D-1, sections 15–16)

Evidence

What rules and procedures govern the collection, submission and admissibility of evidence in defamation trials? Is expert witness testimony allowed? What common evidential issues should claimants be aware of?

Within the framework of a defamation case involving anonymous defamatory statements or the widespread dissemination of such comments, numerous hurdles come into play and warrant careful consideration. Otherwise, the standard common law and Quebec civil procedure rules of evidence apply to defamation trials subject to any relevant legislation, as well as the requirements for disclosure and the available discovery exercises.

Among others, these cases present additional impediments where it is necessary to find the identity of any anonymous author(s) responsible for the defamation. To do so, it has been recognised that tribunals are competent to issue Norwich Orders, which allow claimants to turn to internet service providers or website administrators to obtain the anonymous authors’ identities. A five criteria test will need to be successfully passed for the court to issue a Norwich Order (Fers et métaux américains, s.e.c. c. Picard, 2013 QCCA 2255, paragraph 6). Moreover, a court may order a third party to disclose information allowing to identify a wrongdoer in the context of existing proceedings (section 251(2) of the Civil Code of Procedure (CCP)).

In addition, with regards to online defamation, claimants should be aware of the importance of demonstrating the scope of dissemination of the defamatory publication. This often includes technological evidence such as expert testimony or analytics reports. A court will not conclude that the defamatory statements have been read by many merely because said statements are made online.  For example, in the context of a defamation claim involving defamatory videos and comments published on Instagram, the Superior Court of Quebec considered the number of people who followed the defendant and the number of hours the content was posted in order to assess the claimants’ damages (Ayotte c. Chiaramonte, 2019 QCCS 85, paragraph 35).

With regard to expert evidence, it is not commonly used in Quebec cases, save and except where technological evidence is involved, given the modest quantum of damages generally granted for defamation claims. That being said, expert evidence may be used insofar as it is provided by a qualified expert in a domain that enlightens and assists the court in assessing evidence (section 231 CCP).

In common law provinces, expert evidence is admissible in defamation trials provided it meets the general criteria for admissibility of expert evidence. Expert evidence is admissible where (1) it is relevant; (2) it is necessary to assist the trier of fact; (3) there is an absence of any other exclusionary rule; and (4) the expert is properly qualified (R v Mohan, [1994] 2 SCR 9). The court may still exclude the expert evidence if its prejudicial effect outweighs its probative value.

In Ontario and British Columbia, defendants in defamation actions frequently bring anti-SLAPP motions to attempt to dismiss the claim at an early stage. To overcome an anti-SLAPP motion, it is necessary (among other things) for the plaintiff to show that the harm they have suffered or are likely to suffer because of the defamatory expression outweighs the public interest in protecting the defendant’s expression. In practice, this requires that the plaintiff points to evidence of some quantifiable harm beyond the presumed general damages. When responding to an anti-SLAPP motion, Plaintiffs, and especially corporate plaintiffs, must ensure that they have evidence of the consequences of the harm they have suffered due to the defamatory expression.

Trial format and time frames

Are defamation cases decided by a judge or jury? How long does a case typically take to reach trial and a verdict or judgment?

Each Canadian common law jurisdiction has its own rules regarding the use of civil jury trials. In Ontario, for example, a party has a right to a jury trial in a defamation action unless the other party can show there are features in the legal or factual issues to be resolved, in the evidence or in the conduct of the trial, that merit the discharge of the jury. The overriding test is whether a party can demonstrate that the discharge of the jury will better serve justice to the parties (Kempf v Nguyen, 2015 ONCA 114, paragraph 43). While Ontario courts have acknowledged that defamation law is ‘notoriously complex and difficult’, they have refused to deny the right to a jury trial on that basis alone (Chandra v CBC, 2015 ONSC 2980, paragraph 50). Typically, a case that leads to a judgment on the merits will go on for several years.

In Quebec, defamation cases, like all other civil cases in Quebec, are only decided by a judge in first instance, and a bench of judges on appeal, as the case may be. Indeed, jury trials in civil matters were abolished in Quebec in 1976.

The CCP provides that a civil action must be set down for trial within six months of filing the case protocol (section 148 CCP), a document that describes the steps to be taken to ensure the orderly conduct of the proceeding and to set the deadlines to be met within the strict time limit for trial readiness (section 148 CCP). However, the parties may request additional delays or stays of proceedings to the Court, which may slow down the progression of the case. Once the case has been set down for trial, several weeks should normally be expected before the court summons the parties and assigns trial dates. A judgment on the merits of a case in first instance must be rendered within six months after the matter is taken under advisement in contentious proceedings (section 324 CCP).

Considering all of the above, a case that leads to a judgment on the merits will typically go on for at least two years.

Case management and anti-SLAPP laws

What types of application or case management procedure are available to enable an early determination or dismissal of a claim? Does your jurisdiction have anti-SLAPP (strategic lawsuits against public participation) legislation?

Both Ontario and British Columbia have anti-SLAPP legislation. Under both frameworks, the moving party (defendant) has the burden of satisfying the motion judge that their expression(s) relate to a matter of public interest. This is generally a low burden of proof. The burden then switches to the responding party (plaintiff) to satisfy the motion judge that there are ‘grounds to believe’ (1) that the proceeding has substantial merit (eg, the expression meets the criteria of the tort of defamation); (2) that the defendant’s defence would not succeed; and (3) that the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. Affidavit evidence is admissible on these motions. Once an anti-SLAPP motion is brought, no further steps in the proceeding may take place until the anti-SLAPP motion is disposed of.

Many jurisdictions provide for other means to dismiss a civil claim prior to trial, including:

  • a summary judgment where the court is satisfied there is no genuine issue requiring a trial; and
  • striking out all or part of a claim where it is plain and obvious that the claim does not demonstrate a reasonable prospect for succeeding at trial, even if it is assumed that the facts pleaded are true.

 

Dismissing a claim where it is an abuse of procedure

In Québec, sections 51 to 54 CCP enable the courts, on an application or on their own initiative, to declare that a judicial application or a pleading is abusive, notably when the latter is clearly unfounded, frivolous or intends to delay or consists in conduct that is vexatious or quarrelsome. Anti-SLAPP legislation is embedded within these dispositions.

These anti-SLAPP dispositions aim to counteract the use of procedure that is contrary to the ends of justice, particularly if it is instituted in order to restrict another person’s freedom of expression (section 51 CCP). Accordingly, a lawsuit filed with the objective of muzzling an individual’s freedom of expression may be declared abusive.

The SLAPP has been defined as follows by case law:

  • it is a legal action;
  • filed against organisations or individuals;
  • involved in the public sphere within debates involving collective issues;
  • aiming to restrict the scope of freedom of expression of said organisations or individuals and to neutralise their action; and
  • by resorting to the courts to intimidate them, impoverish them and divert them from their action.

(Développements Cartier Avenue inc. c Dalla Riva, 2012 QCCA 431, paragraph 21, translated from French to English).

Other causes of action

Does your jurisdiction recognise other causes of action that are separate from but related to defamation, such as malicious falsehood? If so, what are the main differences between these and defamation claims?

In Canadian common law jurisdictions, the tort of injurious falsehood continues to exist. Injurious falsehood deals with publications regarding a business or property, as opposed to publications concerning a person. Unlike defamation (in which defamatory words are presumed to be false and the defendant has the burden of proving a defence), the tort of injurious falsehood requires the plaintiff to prove that the published statements were false and that they were made maliciously.

The common law tort of injurious falsehood also requires the plaintiff to prove that they suffered special damages, unlike defamation actions wherein general damages are presumed. This requirement may be modified by legislation. For example, section 17 of Ontario’s Libel and Slander Act removed the requirement to prove special damages in actions for injurious or malicious falsehood.

In Quebec, civil law does not recognise any other causes of action that are separate but related to defamation; however, it should be noted that defamation in a commercial context can amount to a fault of unfair competition between two competitors.

Criminal defamation

Does your jurisdiction recognise any criminal offences for defamation? If so, what are the elements of these offences and how are they punished?

As criminal law falls under federal jurisdiction, the provisions of the Criminal Code of Canada (Criminal Code) regarding defamation apply in every province. The Criminal Code contains two defamation-related criminal offences. The first is defamatory libel under section 298(1) of the Criminal Code. The elements of defamatory libel are:

  • the publication of a false statement without justification or excuse;
  • the statement is objectively defamatory as it is likely to injure the reputation of any person by exposing them to hatred, contempt or ridicule; and
  • the person who published the statement knew it was false and published it with the intention to defame the victim.

(R v Marsden, 2019 ONSC 6424, paragraph 17).

 

The second criminal offence is extortion by libel under section 302(1) of the Criminal Code. A person who publishes, threatens to publish, or offers to abstain from publishing or prevent from publication, a defamatory libel with the intention of extorting money or an appointment or office of profit or trust commits extortion by libel. Pursuant to section 302(2) of the Criminal Code, it is an additional and separate offence to proceed with the publication.

These defamation-related offences each risk a potential punishment of imprisonment of up to five years.

Section 301 of the Criminal Code, which punishes defamatory libel whether it is true or false, has been repeatedly found by lower courts to be unconstitutional. However, no appellate-level court has analysed its constitutionality.

It should be noted that a civil lawsuit can coexist in parallel with a criminal one. As such, a claimant who filed a civil lawsuit can also apply for a lawsuit before the criminal courts.