There are a lot of considerations when you’re thinking about filing a defamation lawsuit in Canada. It includes looking at what the law says about establishing a claim for defamation and the current trends in defamation cases as provided by Canada’s common law.
How to sue for defamation in Canada
Knowing how to sue for defamation in Canada would require knowledge of its elements and process.
While libel and slander are two different things, Canada’s laws on defamation cover both. The law treats them as the different ways that defamation may be committed.
Libel is defamation through print and online materials, even pictures. Slander is defamation through statements, speeches, or broadcasts.
1. Elements of defamation
Canada’s common law describes three elements that you must prove to win a defamation case:
- That the printed material or statement was defamatory;
- That the defamatory printed material or statement refers to you; and
- That the printed material or statement was communicated to another person/s other than you.
“Defamatory”
A material or statement will only be considered defamatory if an ordinary person identifies you as the subject of that material or statement.
Exceptions or Defenses
Common law and the provincial laws on slander, libel, or defamation also give exceptions that may prevent you from claiming damages. This is important in researching how to sue for defamation, since these may be part of the defense of the other party.
Among these exceptions or defenses are:
- Privileged reports: when the material or statement was made in a legislative or judicial proceeding, e.g., court, administrative body, or in an inquiry;
- Qualified privilege: when the material or statement was fairly and accurately made by a person who has a moral and legal obligation to do so and has a legitimate interest in the matter;
- Truth: when the material or statement is substantially true, which will constitute as an absolute defense, even if it was meant to harm you;
- Fair comment: when the person publishes or broadcasts a fair criticism or review on a matter of public interest;
- Responsible communication: when a journalist publishes a report that is of public interest and reasonable or diligent efforts were made to verify the information in the report;
- Consent: when you gave express or implied consent to the publication or broadcasting of the alleged defamatory material; and
- Innocent dissemination: when the publisher or broadcaster has immediately removed the material upon knowing that it is – or may be – defamatory.
The apology of the defendant, although not a defense, may mitigate the damages that are due you.
It may be made either through a publication or a broadcast. The apology must be offered before the start of the defamation suit or as soon as the defendant can do so.
Here’s an example of a recent defamation case in British Columbia:
The Supreme Court restores a B.C. court’s dismissal of a defamation suit. Read our plain-language summary here: https://t.co/gdgvp3dFFl #cdnlaw pic.twitter.com/GtmUh3mYf1
— Supreme Court of Canada (@SCC_eng) May 19, 2023
Get in touch with a defamation lawyer to learn more about this case, or if you wish to have your case evaluated. If you’re from Vancouver, consult with a Lexpert-ranked defamation lawyer in British Columbia.
2. Process in filing a case for defamation
The steps in filing a case are another important aspect in knowing how to sue for defamation.
Hiring a lawyer
First, you must hire a lawyer whose expertise is litigating defamation cases. Your lawyer can assess the overall circumstances of your case to see whether you have a strong case for defamation or not.
Your lawyer should also prepare all relevant documents that must be submitted to the court.
Gathering evidence
Your lawyer can also help you with gathering evidence in support of your claim for damages in court. This may include the actual publication or broadcast that you allege as defamatory or any other admissible evidence.
Filing a case
Filing a case for defamation in Canada will fall as a civil case or a criminal case.
You – as a private person – may file a civil case to recover damages and compensation against another person. That same person may also be charged with a criminal case for defamation depending on the circumstances.
Jurisdiction of the courts is also vital when learning how to sue for defamation in Canada. Your lawyer can explain this to you in detail. It's important to prevent your case from being dismissed on the grounds of lack of jurisdiction.
Common law may also play a role especially in multijurisdictional cases, e.g., the defendant is not a Canadian, or the defamatory publication or statement was made or published outside Canada.
When a lower court that has jurisdiction over your case renders a decision against you, appeals may be made with higher courts. These courts are the provincial or territorial Court of Appeals, or ultimately, the Supreme Court of Canada.
Costs
When suing for defamation in Canada, the actual costs in filing a case in court (e.g., court fees or filing fees) and lawyer’s fees may depend on several factors, such as the scale of the defamation.
While some of these may be recoverable if you win the case, the balance between the possibility of winning a case and losing it may be best evaluated by your lawyer.
For some background information, read our article on whether it’s worth suing for defamation.
Statute of limitations
Under the statute of limitations, you can be barred from filing a case for defamation after a certain period has lapsed.
Most provinces in Canada have a two-year period for defamation cases. However, there are some exceptions.
Under Ontario’s Libel and Slander Act, an action for defamation or libel in a newspaper printed and published in Ontario, or broadcast from a station in Ontario, must be brought to court within 3 months.
Interested to know more about how to sue for defamation in Canada? Consult with the best defamation and media lawyers in Canada as ranked by Lexpert.