You Cannot Play Gown Up With A Defamation Motion – Litigation, Mediation & Arbitration – Canada

0
15

The law of defamation is subject to many strict rules, which may
vary from province-to-province under respective special libel and
slander statutes. It is also the law that a party cannot dress up a
defamation action as another cause of action to avoid the
well-established defences that are available to defendants in a
defamation claim.

The recent case of Ryan v. Canadian Broadcasting Corp., 2021
SKQB 12
provides some useful insight into the issue of a
dressed up defamation claim and the fact that in certain defamation
cases, particularly those involving the media, the provisions of a
statute may have an impact on a claim.

This action arose out of a CBC news article which reported on a
judicial proceeding involving the plaintiff. The plaintiff had been
charged and convicted by a Provincial Court Judge of possessing a
weapon for a purpose dangerous to the public peace contrary to

s. 88 of the Criminal Code
. The charge stemmed
from an incident where the plaintiff used a knife to remove a
poster advertising a community event from a poster board. A man and
woman who had put up the poster were present at the time of its
removal and were worried about their safety. According to the news
story, the plaintiff stabbed at the poster, narrowly missing the
man’s hand.

The plaintiff complained to CBC about the article’s contents
and its subheadline, and after discussions with the plaintiff the
CBC agreed to amend the subheadline. However, the CBC refused to
publish comments that the plaintiff wanted to make on the
story.

Dissatisfied, the plaintiff sued the CBC for defamation and
“misrepresentation in negligence”.

With respect to the “misrepresentation in negligence”
claim, the plaintiff pleaded that the CBC had represented the
plaintiff’s defence at the criminal trial to be that the knife
was not a weapon because it was dull. “That’s a straw
man’s argument”, the plaintiff pleaded, “that caused
the public to dismiss my defence and accept the conviction as
valid.”

The CBC contended that the plaintiff’s action should be
dismissed because: (1) the article was not defamatory; (2) if the
article was defamatory, either the defence of qualified privilege
or justification applied; (3) the CBC did not owe the plaintiff a
duty of care with respect to the claim in negligent
misrepresentation; and (4) the article was true and therefore
incapable of being a misrepresentation.

Justice R.S. Smith dismissed the plaintiff’s
“misrepresentation in negligence” claim because it was in
substance a claim for loss of reputation. As such, the
plaintiff’s claim could not be framed in negligent
misrepresentation or any other cause of action but for
defamation.

Under Canadian law, defamation claims cannot be “dressed
up” as other claims to avoid the well-established defences
that apply in a defamation action. To do so is considered to be
“embarrassing” and an “abuse of process”.

In Byrne v. Maas, 2007 CanLII 49483
(ONSC)
, Justice Forestell J.
stated
:

Where a claim is not framed as
defamation but is based on harm to reputation, the courts have
concluded that the claims should be struck. A defamation cannot be
“dressed up” as another claim to evade the defences
available in a defamation action.

While the Supreme Court of Canada has recognized that the
possibility of suing in defamation does not negate the availability
of a cause of action in negligence, where the negligence claim is
founded on the same factual allegations as a defamation claim, it
likely will not be viewed as an independent claim.

In Elliott v. Canadian Broadcasting Corp.,
1993 CanLII 5508 (ONSC)
the court struck out several causes
of action based on the publication of a film and book because they
represented an action in defamation. Justice Montgomery
stated
as follows:

In my view, the whole claim rests on
the publication of the film and the book. Attempts to find another
cause of action inexorably lead to the alleged harm and damage to
reputation by the words complained of. The so-called subsidiary
torts are nothing more or less than defamation.

With respect to the plaintiff’s defamation claim, the CBC,
was required to rely on the well-established common law defences
because it was not protected by the defence of absolute privilege
under Saskatchewan’s The Libel and Slander Act, RSS 1978, c.
L-14
. Although s. 11 specifically granted absolute
privilege to reports of court proceedings, only newspapers enjoyed
this protection.

Under the common law, however, privilege existed where a report
of judicial proceedings took place, provided that the publication
was without malice and represented a fair and accurate account of
what had taken place before the tribunal. In Saskatchewan, this
defence had previously been successfully used in Wesolowski v. Armadale Publishers Ltd.,
1980 CanLII 2035 (SK QB)
.

Even though Justice Smith found that the CBC’s article was
not necessarily a perfect replication of the plaintiff’s
criminal proceeding, it was substantially accurate and was
published without malice such that the common law defence of
qualified privilege applied.

Media is not expected to be perfect, and under Canadian law
minor inaccuracies in the coverage of legal proceedings is
tolerated. The article at issue captured the gist of the trial
judge decision and did not mislead the public.

In obiter, Justice Smith also found that the CBC’s
defence of justification also applied because the “sting”
of the article was substantially true.

The defence of justification was recently reviewed by Justice
Côté in Bent v. Platnick, 2020 SCC 23
wherein she
described
:

Once a prima facie showing of
defamation has been made, the words complained of are presumed to
be false…To succeed on a defence of justification, “a
defendant must adduce evidence showing that the statement was
substantially true”…The burden on the defendant is to prove
the substantial truth of the “sting”, or main thrust, of
the defamation”…In other words, “[t]he defence of
justification will fail if the publication in issue is shown to
have contained only accurate facts but the sting of the libel is
not shown to be true.”

The decision demonstrates that it is important to carefully
consider a plaintiff’s pleading where damages are sought for
reputational harm. Where a plaintiff seeks such damages based on a
cause of action other than defamation, it may be possible to have
the claim dismissed on the grounds that it is a “dressed
up” defamation claim and is wrongly constituted.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.