Anatomy of a Defamation Claim

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is a litigation lawyer practicing at Perley-Robertson, Hill & McDougall LLP in Ottawa, Ontario. He may be reached at 613.566.2823 or obourns@perlaw.ca.

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The Court of Appeal has appropriately stated that “pleadings in defamation cases are more important than in any other class of actions”.1  This is because the law contains technical requirements for pleading defamation as a cause of action that must be strictly adhered to.  A misstep here or a misstep there can invalidate your claim.

The starting point for all pleadings, not just defamation action, is found in Rule 25.06(1):2

5.06  (1)  Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

The Rule is necessary and fair.  The requirement must be strictly complied with to allow a defendant to know the case he or she must meet, and for the trial judge to determine if the evidence at trial meets the necessary elements of the claim or any defence to it.  A party will be bound by his or her pleadings.3

A further principle applicable to all actions is that the pleadings should be clear, concise, and focused on the actual issues in dispute, and not be cluttered by matters that are irrelevant, non-sustainable or peripheral to the claim. 4 That is to say, a pleading should not rattle on about everything under the sun between the parties. It should include those factual allegations in support of the causes of actions pled.

In order to prove defamation (libel or slander) against a particular defendant, a plaintiff must show on the balance of probabilities that:

(a)         the statements were made to a third-party;

(b)         the words contained an imputation  which tends to lower the plaintiff in the estimation of right-thinking members of society generally; or to expose him to hatred, contempt or ridicule; and

(c)         the words must be reasonably understood by others in a defamatory sense.

Taking into account both the above requirements applicable to all pleadings and what a plaintiff must prove in a defamation action, there are additional pleading requirements to advance such claims.   The Court of Appeal has cited Gatley on Libel and Slander with approval for that textbook’s summary of the necessary material facts that must be alleged to complete cause of action for defamation:5

[T]he words published, that they were published of the claimant, (where necessary) the facts relied on as causing them to be understood as defamatory or as referring to the claimant and knowledge of these facts by those to whom the words were published, and, where the words are slander not actionable per se, any additional facts making them actionable, such as that they were calculated to disparage the plaintiff in an office held by him or that they have caused special damage.

Those requirements do not require that the Statement of Claim set out the exact words used, but do require the words that are substantially the words allegedly spoken or published to make it sufficiently clear to enable the defendant(s) to plead.6. Mere speculation is not enough. 7

In some limited circumstances a pleading will stand in spite of an inability to state with certainty at the pleading stage the precise words published by the defendant.  In such a circumstance, the follow criteria will need to be satisfied:8

  • that the plaintiff has pleaded all of the particulars available to him with the exercise of reasonable diligence;
  • that he is proceeding in good faith with a prima facie case and is not on a “fishing expedition” (normally this will require at least the pleading of a coherent body of fact surrounding the incident such as time, place, speaker and audience);
  • that the coherent body of fact of which he does have knowledge shows not only that there was an utterance or a writing emanating from the defendant, but also that the emanation contained defamatory material of a defined character of and concerning the plaintiff;
  • that the exact words are not in his knowledge, but are known to the defendant and will become available to be pleaded by discovery of the defendant, production of a document or by other defined means, pending which the plaintiff has pleaded words consistent with the information then at his disposal.

Therefore, if you are commencing an action for defamation and are not certain as to what the precise words spoken or written are, it is imperative to satisfy the above four bulleted points.

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Owen Bourns is a litigation lawyer in Ottawa, Ontario.  He may be reached at 613.566.2823 or at obourns@perlaw.ca

  1. Lysko v. Braley, 2006 CanLII 11846 (ON CA) at para 91
  2. Rules of Civil Procedure, R.R.O. 199, Ontario Regulation 194 at R.25.06(1)
  3. Isaac v. LSUC, 2014 ONSC 6813 (CanLII) at para 70
  4. Isaac v. LSUC at para 71
  5. Lysko v. Braley at para 91
  6. Lysko v. Braley at para 91
  7. Promatek Industries Ltd. v. Creative Micro Designs Inc., [1989] O.J. No. 159 (Ont. Master)
  8. William E. Robb Enterprises Inc. v. ATI Technologies Inc., 2006 CanLII 39466 (ON SC)