4. Defamation

Defamation is a notoriously complex tort. This provides only an outline of the common law tort of defamation as it exists in the common law provinces of Canada. Quebec’s law of defamation is similar but has a few significant variations, and is not addressed below.

4.1 Elements

To establish a cause of action for defamation, a plaintiff must prove that the defendant has made a defamatory statement to a third party regarding him or her. A defamatory statement is any statement that would lower the reputation of the plaintiff in his or her community in the estimation of “reasonable” persons.

Defamation is a strict liability tort — once the plaintiff has established that defamatory words were published, the onus shifts to the defendant to prove that the words complained of are defensible. The usual defences to a defamation claim are the words were:
  • True (justification).


  • Fair comment.


  • Published on an occasion of privilege.

4.2 Defence of Justification

Truth, or justification, is an absolute defence to a defamation claim. A plaintiff has no right to have his or her character or reputation free of an imputation that is true.

Unlike the United States, where the impact of the First Amendment places the onus on the plaintiff to prove that what has been written is false, in Canada the onus is on the defendant to prove that the words complained of are substantially true. Similarly, Canadian common law does not afford any special recognition to “public figures”, other than in the context of meeting a “public interest” test for the defences discussed below, i.e., Canada does not have a New York Times v. Sullivan defence.

4.3 Fair Comment

The defence of fair comment protects honestly-held expressions of opinion on matters of public interest, based on facts. Although some Canadian courts have suggested that the comment must be fair, the better view is that the opinion can be obstinate or prejudiced, as long as it is an opinion that can be honestly held by any person on the proven facts. It is not necessary for the speaker to honestly hold the opinion expressed.

Where the defence of fair comment is established, it can only be defeated if the plaintiff acted maliciously, in the sense that the dominant motive for the publication was not to comment on a matter of public interest, i.e., comment made to injure the subject of comment.

4.4 Privilege

Provincial statutes provide a defence of privilege to various forms of reports, for example, the statutory privilege for fair and accurate reports on court proceedings. In addition to court proceedings, legislation also protects fair and accurate reports on public meetings and communications, and decisions by bodies that represent governmental authority in Canada.
In some cases, the privilege is absolute. In others, it applies as long as the defendant does not act with malice.

In addition to statutory privileges, the common law recognizes a qualified privilege that protects defamatory statements where the defendant had a legal, moral or social duty in making the statement and the recipient of the information had a corresponding interest in receiving the information. Qualified privilege has been recognized in numerous situations, including communications regarding employment (for example, reference letters), family communications, union communications, business to business communications, communications about litigation and medical communications. The question in each case is whether or not there is an interest in publishing and a corresponding interest in receiving the information.

A relatively recent development in Canadian (and English) libel law is the recognition of qualified privilege to protect news reports on matters of public interest where those news reports were prepared and published responsibly. The defence has recently been recognized by the Ontario Court of Appeal and is being considered by the Supreme Court of Canada in a decision that was argued earlier this year and is currently on reserve.

As is the case with fair comment, the defence of qualified privilege can be defeated if the defendant acts with malice.

4.5 Jurisdiction

Due to the absence of the First Amendment and the impact of New York Times v. Sullivan in the United States, Canada is a more “plaintiff-friendly” jurisdiction. Consequently, U.S.-based defendants have sometimes attempted to bring claims in Canada. This tactic has increased with the advent of the Internet. Jurisdiction over Internet-defamation cases in Canada is unclear. So far, lower courts have been receptive to allowing U.S.-based defendants to be sued in Canada, even when they have little or no connection to this jurisdiction, but the matter is before appellate courts. American courts have been reluctant to enforce Canadian libel judgments having regard to the fact that Canada does not have protections to free speech similar to those provided by the First Amendment. Accordingly, even if a libel judgment is obtained in Canada against a U.S.-based defendant, it may be very difficult to enforce this judgment in the United States.

4.6 Damages

In defamation cases, damages are presumed. Canadian awards are much smaller than awards in the United States. The largest award in a Canadian case was for C$1,600,000, half of which was for “punitive” damages, intended to punish the defendants for their highly malicious conduct.

Most Canadian damage awards for libel are under C$100,000. The advent of the Internet may, however, push damage awards upwards, as at least one appellate-level court has found that damage awards for defamation over the Internet should be higher than those awarded for print publication.

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