3. Proving a Claim in Libel and/or Slander
In order to initiate a claim of libel or slander in an action
for defamation, the allegations must prove the following:
i) The statements must be made to a third party. Where a
statement has been made and no one has read it aside from
the individual, organization or corporation about which the
statement has been made, the statement cannot be considered
ii) The statements must be made specifically about individual,
corporation or organization in question. It must be reasonably
inferred that the statement that was published could reasonably
be inferred to be discussing to or referring to that individual,
corporation or organization.
iii) Finally, the statement made must be considered defamatory,
i.e. the statement must be false and disparages the reputation
of the individual, corporation or organization.
4. Limitation Periods
Where an individual, corporation or organization decides
to bring a court action for alleged defamatory statements,
there are important limitation periods that must be noted.
Failure to do so can create a situation in which the proposed
plaintiff in the proceedings loses their ability to bring
their action simply because of a procedural error rather than
for lack of a worth-while claim. Section 5 of the Act
states that a plaintiff cannot bring an action for libel in
a newspaper or a broadcast unless within six weeks after the
alleged libellous statement has come to the plaintiff's knowledge,
the plaintiff has given written notice to the defendant that
they have become aware of this statement and that a statement
of claim will follow.6 Furthermore, at section 6 of the Act,
a court action for libel must be commenced within three months
after the alleged libellous statement comes to the plaintiff's
Actions in libel and slander that do not relate to newspapers
must be brought pursuant to the Limitations Act, 2002,7
which states that there is a two year limitation period from
the date upon which the proposed plaintiff became aware of
the alleged libellous or slanderous statements upon which
to bring a court proceeding. It is important to note that
there are many situations where an individual, corporation
or organization is not aware of the libellous or slanderous
statements until well after those statements have been published.
As such, both the Act and the Limitations Act, 2002
provide protection to proposed plaintiffs in that the time
limitation starts running once the plaintiff becomes aware
of the published or broadcast statements rather than from
the date when those statements were actually made.
5. Defences to Actions in Libel and Slander
There are four main defences to an action for libel or slander,
which are as follows:
The first defence is the defence of truth, meaning that if
a statement made is attacked as being defamatory, the defence
can be made that the statement was truthful and therefore
there was nothing false about the statement, meaning therefore,
that the statement was not defamatory.
b) Fair Comment
The second defence to an allegation of libellous statement
is that the statements made were made as a fair comment. The
defence of fair comment would be considered by the Court in
situations where, by looking at the statement made, the facts
and the situation, a conclusion can be made that the statements
made were in actuality a fair commentary on the situation
at hand and that the comments were fair and were not malicious.
c) Qualified Privilege
The defence of qualified privilege arises normally in situations
where based on public policy, even where a person makes a
statement that is considered defamatory, the individual, corporation
or organization publishing these statements will escape any
liability if it can be proven that the public good could be
furthered in open debate.
d) Absolute Privilege
Situations where the defence of absolute privilege would
apply would be comments made by civil servants, members of
parliament, members of provincial parliament, federal government,
ministers and the like who make comments that may be defamatory,
but were made in the furtherance of investigations, fact finding
missions, and reporting for the benefit of public policy.
C. RECENT DEFAMATION COURT DECISIONS
There are three important defamation decisions that have
been made in Ontario that clearly indicate that the courts
will not be hesitant to award large damages awards, particularly
in situations where someone's professional reputation is destroyed.
In Hill v. Church of Scientology of Toronto et al,8
Hill, who was a criminal prosecutor, brought an action against
the Church of Scientology of Toronto, defendants in a criminal
matter in which Hill was prosecuting. The Church of Scientology
accused Hill of aiding and abetting other Crown Counsel in
improper conduct regarding the sealing of documents and misleading
a judge. The Ontario Court of Appeal found that the church's
allegations against Hill were unfounded and were made through
the church's legal counsel. Mr. Hill was awarded $300,000.00
in general damages, in addition to $500,000.00 in aggravated
damages and $800,000.00 in punitive damages.
Two decisions in favour of plaintiffs bringing actions in
defamation against the Canadian Broadcasting Corporation (the
"CBC") clearly indicate that even a Crown corporation
is not exempt from taking responsibility for the material
it disseminates. In Leenen v. Canadian Broadcasting Corporation9
and Myers v. Canadian Broadcasting Corporation10
in relation to a television program which portrayed a number
of cardiologists in a negative light as using controversial
heart medication. The program was alleged to have portrayed
the plaintiff cardiologists as uncaring individuals who were
using the drugs without any concern of the potential negative
effect of the drug on their patients. In Leenen, $400,000.00
in general damages were awarded, as well as $350,000.00 in
aggravated damages and $200,000.00 in punitive damages. In
the related Myers action, brought by another cardiologist,
the plaintiff was awarded $200,000.00 in general damages,
and aggravated damages in the amount of $150,000.00. The Leenen
and Myers decisions also underline that broadcasters
of defamatory materials created by others are also exposed
D. IMPLICATIONS FOR CHARITIES AND NOT FOR PROFIT ORGANIZATIONS
1. Avoiding Defamation Claims
The law of defamation across Canada and particularly under
the Libel and Slander Act in Ontario is of particular
importance to many, if not most charitable and not-for-profit
organizations for a number of reasons. Most charitable and
not-for-profit organizations, even the smallest entities,
do have some sort of written communication that they send
out to their members, volunteers, donors, supporters and other
interested parties to publicize upcoming events, as well as
their position on particular issues. Other tools used in disseminating
information about the mandate of the organization and its
objects and activities, often include the following:
- Online discussion groups
- E-mail newsletters
- Appearances on college/university campuses, community
radio, press conferences
- Taped sermons
- Journal articles
- Study materials
- Online posting boards
- Press releases
- Taped speeches
- Church bulletin
Given the vast array of options that charitable and not-for-profit
organizations have to disseminate information and to publish
their particular views, it is clear that these organizations
must take steps to ensure that whatever publications or method
of broadcasting they use does not fall offside of the Act.
It is advisable for all charitable and not for profit organizations
to note that any potentially defamatory statements could also
attract human rights complaints through the mechanisms provided
by Human Rights Code (Ontario) (the "Code")11
and the Canadian Human Rights Act,12
in situations where a potentially defamatory statement could
also be construed as a violation of the Code or the
Canadian Human Rights Act provisions that protect a
number of enumerated groups stipulated within those pieces
of legislation at the provincial and federal levels. Readers
are also encouraged to review Charity Law Bulletin
No. 65 entitled "Employment Advertising by Charities
and Not-For-Profits: Issues in Human Rights Law", available
prepared by the writer and Mervyn F. White, which provides
a specific overview of the way in which charities and not-for-profit
organizations can protect themselves from human rights complaints
when preparing and publishing advertisements for their specific
2. Addressing Defamatory Comments against the Organization
It is also important to consider what a charitable or not
for profit organization should do in the event of litigation
whether it is a proposed plaintiff in an action for defamation
for either libel or slander, or if it is a proposed defendant
being accused of publishing or broadcasting libellous or slanderous
statements. In situations where a charitable or not-for-profit
organization believes that there is a possible action for
damages for either libel or slander, the organization must
consider a few issues before proceeding.
a) In situations where the statement has not been circulated
to a number of people or to a number of organizations, the
organization must consider the possibility that by moving
forward with a court action, the statements made by the potential
defendant will now become a matter of public record. In situations
involving large and/or well-known charitable or not-for-profit
organizations, the general media may very well report on these
proceedings, and thereby circulating on a larger scale the
very comments that the organization wishes to quash.
b) Secondly, an action in defamation for either libel or
slander can be, as with any other litigation, very expensive,
time consuming and can consume the resources of an organization
and distract it from its original objects.
c) Finally, the fact that a charitable or not for profit
organization could be exposed to an action in defamation for
libel or slander based on the comments made by one of its
spokespersons underlines the critical importance of ensuring
that any and all communications by an organization is carefully
reviewed and is approved upon by the Board of Directors, or
by a qualified senior staff-person when the Board has delegated
that authority. It is worth repeating that at any time an
organization is unsure whether or not a particular piece of
material or whether an oral presentation could be considered
defamatory, it would be essential to obtain the advice of
legal counsel trained in this specialty.
E. DEFAMATION AND THE INTERNET
The law of defamation with respect to the internet is growing
into a subcategory in and of itself, as the internet provides
virtually unlimited means by which potentially defamatory
material can be disseminated literally across the globe within
seconds and with the potential of reaching millions of people.
Moreover, the speed and breadth of the internet has increased
the number of potential plaintiffs in a proposed defamation
action, as the number of persons that could potentially view
potentially offensive material and object to it is likely
much greater than readers of print materials only.
The Libel and Slander Act is a powerful legislative
tool to protect the victims of unscrupulous statements made
by individuals that can injure or discredit that person or
organization's reputation. In situations involving charitable
and not-for-profit organizations, it is imperative that these
organizations avoid as much as possible making or broadcasting
statements that could expose the organization to liability
due to the comments made that might possibly discredit another.
In addition, it is important for organizations to be aware
of comments that are made about the organization which could
destroy its goodwill, and accordingly, take positive steps
to minimize dissemination of those statements.
1 Part I, The Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c.
2 R.S.O. 1990, c. L.12.
3 Brian A. Garner, ed., 8th ed. (St. Paul: The West Group, 1999).
4 Ibid.at 448.
5 Ibid. at 449.
6 Supra note 1 at s. 5(1).
7 S.O. 2002, c. 24, Sch. B.
8  O.J. No. 961 (Ont. C.A.) [hereinafter Hill v. Scientology].
9  O.J. No. 2229 (Ont. C.A.) [ hereinafter Leenen].
10  O.J. No. 2228 (Ont. C.A.) [hereinafter Myers].
11 R.S.O. 1990, c. H.19.
12 R.S.C. 1985, c. H-6.