TABLE OF CONTENTS. Preface...P-1 Table of Cases... TC-1

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1 TABLE OF CONTENTS Preface...P-1 Table of Cases... TC-1 INTRODUCTION IN:10 IN:20 IN:30 IN:40 IN:50 IN:60 IN:70 Overview... INT-1 What is Defamation?... INT-3 What is the Difference Between Libel and Slander?... INT-10 Innuendo: Do Words Have to be Defamatory in Their Primary Meaning in Order to be Actionable?...INT-12.1 Publication: At What Time is a Libel Committed?... INT-15 Where is a Libel Committed?... INT-16 Criminal Libel: Can There be Criminal as Well as Civil Consequences to a Libel?... INT-19 Chapter 1 THE PLAINTIFF 1:10 When can a Corporation sue or be sued for Defamation? :20 Can Associations and Trade Unions sue and be sued for Defamation? :30 What is the Position of Groups or Classes of Persons who may Consider Themselves to Have Been Libelled? :40 What Significance is There to Whether the Person Defamed is Living or Dead? :50 What can be Said About a Person s Business and Trade? Chapter 2 THE DEFENDANT 2:10 Intention: Does it Matter That a Person Publishing a Libel did not Intend to Defame Anyone? :20 Malice: Can the Mere Telling of an Untruth About a Person Result in Liability? :30 Repetition: Is it a Defence to an Allegation of Libel That the Publisher was Only Repeating Words Uttered by Others? :40 Who is Responsible for a Published Libel? :50 What Right Does a Publisher Have to Refuse to Print a Libel Submitted for Publication by an Author or Advertiser? C-1 October 2014

2 Chapter 3 MEDIA DEFENDANTS 3:10 Right of Retraction :20 Letters to the Editor and Guest Editorials Chapter 4 DEFENCES 4:10 When is a Publisher Entitled to Print Defamatory Material? :20 What is Justification? :30 What is Fair Comment? :40 What is the Public Interest Required for the Defence of Fair Comment? :50 Is There any Special Position With Respect to Public Figures? :60 Privilege: Are There Occasions Whose Special Character Protects Statements Published on Those Occasions? :60.10 Absolute Privilege :60.20 Qualified Privilege :60.30 Periodicals and Newspapers :60.40 The United Kingdom Reynolds Privilege and Media Defendants :60.50 Development in Canada Defence of Responsible Communication On Matters of Public Interest :70 Negligent Publication :80 Republication of Privileged Statements :90 Consent or Authorization Chapter 5 REMEDIES 5:10 Apology :20 Injunctions :30 Damages Chapter 6 CANADIAN DEFAMATION LAW AND PRACTICE LITIGATING A DEFAMATION ACTION 6:10 Statutory Notices and Limitation Periods :10.10 Who is Entitled to Notice? :10.20 Contents of the Notice and Practice Considerations :10.30 Service and Timing of the Notice :10.40 Motions to Strike where no Notice :10.50 Notice to the CBC and Crown :10.60 Limitation Periods Re Newspapers and Broadcasts :10.70 Single Publication Rule and the Internet :10.80 General Limitation Periods :20 Pleadings: Statement of Claim :20.10 Importance of Pleadings in Defamation Actions :20.20 Presumptions :20.30 Publication C-2

3 TABLE OF CONTENTS 6:20.40 Defamatory Communication : Pleading the Entire Article and Books : Audio-Visual Broadcasts and Motion Pictures :20.50 Pleading the Defamatory Meaning :20.60 Where the Plaintiff is not Named in the Defamatory Communication :20.70 Damages :20.80 Jurisdiction and Place of Trial :30 Pleadings: Statement of Defence :30.10 Introduction :30.20 Justification : Polly Peck: Justifying the Defendants Meaning : Partial Plea of Justification :30.30 Fair Comment and the Rolled-up Plea :30.40 Privilege :30.50 Consent or Authorization :30.60 Jest and Implied Facts :30.70 Pleading The Charter of Rights :30.80 Mitigation of Damages :40 Security for Costs :50 Reply :60 Discovery :60.10 Different from Other Actions? :60.20 Documentary Production :60.30 Plaintiff s Discovery of the Defendant :60.40 Defendant s Discovery of the Plaintiff :70 Evidence at Trial :70.10 Burden of Proof and Presumptions :70.20 Evidence for the Plaintiff : Publication : Identification of the Plaintiff : Proof of Defamatory Meaning : Evidence of Reputation and Damages :70.30 Evidence for the Defendant : Proof of Justification : Proof of Privilege : Proof of Fair Comment :70.40 Evidence in Mitigation of Damages : The Plaintiff s Poor Reputation or Imprudence : Apology and Retraction : The Defendant s State of Mind : Other Statutory Provisions in Mitigation of Damages :70.50 Reply Evidence : Proof of Malice C-3 October 2014

4 6:70.60 Motion for Non-Suit :80 Forum/Juries :80.10 Proper Court and Convenient Forum :80.20 Jury or Non-Jury Action :80.30 Functions of Judge and Jury in Defamation Actions :80.40 Jury Addresses :80.50 Jury Charge and Verdicts Chapter 7 CONTEMPT OF COURT 7:10 When may Published Material Constitute Contempt of Court? :20 The Integrity of the Judicial Process :30 The Right to a Fair Trial :40 Other Considerations Chapter 8 SOURCES 8:10 Generally Chapter 9 FICTION 9:10 Introduction :20 Identification :30 Humour, Satire and Irony Chapter 10 THE INTERNET 10:10 The Effect of the Internet on Defamation :20 Liability of Internet Service Providers :30 The Internet and the Definition of Broadcast :40 The World Wide Web and the Issue of Jurisdiction :50 Anonymous Defendants Chapter 11 QUEBEC 11:10 Special Comments Regarding the Province of Quebec :20 The Elements of Defamation in Quebec :20.10 Injury :20.20 Fault :20.30 Causal Connection :30 Defences to Defamation in Quebec :40 Conclusion Regarding Quebec Chapter 12 CANADIAN DEFAMATION LAW AND PRACTICE DEFAMATION LAW AND THE CHARTER 12:10 Introduction :20 Freedom of Expression Before the Charter :30 The Canadian Charter of Rights and Freedoms C-4

5 TABLE OF CONTENTS 12:40 Hill v. Church of Scientology :50 Upsetting the Balance: Developments in the Common Law World :50.10 England :50.20 Australia :50.30 New Zealand :60 The Supreme Court of Canada Trilogy: WIC Radio, Grant and Quan :60.10 WIC Radio Ltd. v. Simpson :60.20 Quan v. Cusson :60.30 Grant v. Torstar Corp :70 Conclusion Chapter 13 RELATED ACTIONS 13:10 Introduction :20 Injurious or Malicious Falsehood or Slander of Goods :30 Intentional Interference and Inducing Breach of Contract :40 Conspiracy and Negligence :50 Intentional Infliction of Mental Suffering :60 Abuse of Process :70 Tort of Intrusion Upon Seclusion APPENDICES LITIGATION PRECEDENTS Appendix A SAMPLE DEFAMATION NOTICE... APA-1 Appendix B SAMPLE STATEMENT OF CLAIM... APB-1 Appendix C SAMPLE STATEMENT OF DEFENCE... APC-1 Appendix D SAMPLE REPLY... APD-1 RELEVANT STATUTORY PROVISIONS Appendix E ALBERTA... APE-1 Appendix F BRITISH COLUMBIA... APF-1 Appendix G MANITOBA... APG-1 Appendix H NEW BRUNSWICK... APH-1 Appendix I NEWFOUNDLAND AND LABRADOR... API-1 Appendix J NORTHWEST TERRITORIES... APJ-1 Appendix K NOVA SCOTIA... APK-1 Appendix L NUNAVUT... APL-1 Appendix M ONTARIO... APM-1 Appendix N PRINCE EDWARD ISLAND... APN-1 Appendix O QUEBEC... APO-1 Appendix P SASKATCHEWAN...APP-1 Appendix Q YUKON... APQ-1 C-5 November 2014

6 CANADIAN DEFAMATION LAW AND PRACTICE DEFAMATION QUANTUM TABLE...Q-1 I. Internet (Excluding s)...Q-3 II. Letter (Including s)... Q-27 III. Mass Media Newspaper... Q-53 IV. Mass Media Radio... Q-67 V. Mass Media Television/Film... Q-71 VI. Public Statement(s)... Q-75 VII. Print Publication (Including CD-ROM)... Q-83 VIII. Republication... Q-89 IX. Telecommunication... Q-99 X. Other... Q-101 Index... IN-1 C-6