Litigation Brief

Can I personally sue for defamation if a group to which I belong is slurred?

Wilson v. Switlo is a recent decision of the B.C. Supreme Court addressing a great many aspects of the law relating to "defamation". This post is the sixth in a series reviewing the claims, defences, and issues raised in the decision.

As we saw in an earlier post in this series, a person can be found liable for defamation even if the party bringing the lawsuit (the "plaintiff") is not individually named in the offending statement.  The key question is whether, in the circumstances, it is more likely than not that the words that the plaintiff complains of would be reasonably understood to be defamatory of that plaintiff. 

In addition, where the words refer to a group rather than individual plaintiffs, members of that group can establish a claim for defamation if they can show that they have been individually defamed.  This requires that the offending statement be reasonably understood to refer to each of the plaintiffs.

Suing John Doe’s: What to do when you want to sue someone, but you don’t know his or her identity.

There are often times when an individual or business seeks to start a lawsuit against a party whose identity is unknown.  Defamation claims against individuals who post online anonymously are one example of such claims; hit-and-run cases against unidentified drivers are another example.  There are a number of ways to address this problem.

One way to address this problem is to start the lawsuit by referring to the unidentified defendants as “John Does.”  Then, either through some early applications requiring third parties to disclose information or through the discovery process involving other defendants, the identity of the defendants may be discovered.  Once the identity of the party becomes known, the Notice of Claim can be amended to include those names.

Another way to address this problem is to bring an application for what is called an “equitable bill of discovery.”  It is a much older and rarely used mechanism in today’s courts, but was recently discussed by the Supreme Court of British Columbia in Dhindsa (Re), 2012 BCSC 217.

Can I sue for defamation if I was not expressly mentioned by name?

Wilson v. Switlo is a recent decision of the B.C. Supreme Court addressing a great many aspects of the law relating to "defamation". This post is the fifth in a series reviewing the claims, defences, and issues raised in the decision.

As we saw in an earlier post in this series, to succeed in a claim of defamation, the party bringing the lawsuit (the "plaintiff") needs to prove, among other things, that the allegedly defamatory words referred to the plaintiff, and not someone else.

In Wilson v. Switlo, some of the letters that the plaintiffs said were defamatory did not specifically name all the plaintiffs.  The Court observed that a defamatory publication can refer to someone even if they are not individually named, citing the earlier decision of Manno v. Henry, 2008 BCSC 738.

Can you be held liable for defaming an elected official?

Wilson v. Switlo is a recent decision of the B.C. Supreme Court addressing a great many aspects of the law relating to "defamation".  This post is the fourth in a series reviewing the claims, defences, and issues raised in the decision.

As we saw in an earlier post in this series, the words complained of in Wilson v. Switlo were allegations of fraud and corruption against the plaintiffs in their capacity as holders of public office, namely as members of the Kitamaat Village Council, the elected band council of the Haisla First Nation.  The Court found that those allegations were defamatory, because they would tend to lower a person’s reputation in the estimation of ordinary, reasonable members of society generally, or to expose a person to hatred, contempt or ridicule.

But what about freedom of expression?  Aren’t members of the public entitled to criticize elected officials?

What is an example of defamatory words?

Wilson v. Switlo is a recent decision of the B.C. Supreme Court addressing a great many aspects of the law relating to "defamation". This post is the third in a series reviewing the claims, defences, and issues raised in the decision.

To succeed in a claim of defamation, the party bringing the lawsuit (the "plaintiff") needs to prove three things:

1. that the party being sued (the "defendant") "published" the words complained of, where "publishing" means communicating the words to a third party, whether orally, in writing, or in some other fashion (e.g. standing and pointing out to passers-by a defamatory sign written by someone else);
2. that the words complained of referred to the plaintiff, and not someone else; and
3. that the words complained of are, in fact, defamatory.

As we saw in the first post in this series, words are defamatory when they tend to lower a person’s reputation in the estimation of ordinary, reasonable members of society generally, or to expose a person to hatred, contempt or ridicule. 

Is defamation a click away? Not According to the Supreme Court of Canada

Online publishers that include hyperlinks to other sites in their publications can rest a little easier in light of the decision released today by the Supreme Court of Canada in Crookes v. Newton, 2011 SCC 47, affirming the earlier decision of the British Columbia Court of Appeal.  A majority of the Court held that posting hyperlinks to another website where allegedly defamatory comments were made was not "publishing" and as such the owner and author of the website that posted the hyperlinks could not be liable in defamation.  In concurring reasons, however, other justices cast some doubt on whether this holding would always be applied so categorically.

Who can sue for defamation?

Wilson v. Switlo is a recent decision of the B.C. Supreme Court addressing a great many aspects of the law relating to "defamation": expression, whether writen or oral, that tends to lower a person’s reputation in the estimation of ordinary, reasonable members of society generally, or to expose a person to hatred, contempt or ridicule. This post is the second in a series reviewing the claims, defences, and issues raised in the decision.

Individuals can bring a claim for defamation if their reputation is damaged in B.C., as can most corporations.  There is an exception, however: muncipal corporations, that is to say cities, districts, townships, and villages, such as Vancouver and Lions Bay, cannot sue for damage to their reputation, because of the risk that such a lawsuit would limit citizens' freedom to crticize government.

In the Wison v. Switlo decision, the plaintiffs included Kitamaat Village Council, which is a band council with powers under the Indian Act. As a result, the Court had to decide, as a preliminary matter, whether a band council can sue in defamation.

What is defamation? And how do you prove it?

"This is a defamation action.  It is a sad tale of a community divided.  It is about reputation in that community.  It is about politics.  It contains elements that are both unique and remarkable."

So begins Mr. Justice R. Punnett's Reason for Judgment in Wilson v. Switlo, 2011 BCSC 1287, a recent decision involving multiple claims of defamation.  As the Court observed, the action arose out of "divisive band politics and a conflict over who speaks for the Haisla, a band of approximately 1600 members of whom 900 live on-reserve at Kitamaat Village, near the City of Kitimat on the north coast of British Columbia."

The case is remarkable in that, among other things, the Reasons for Judgment address a great many aspects of the law of defamation. This post is anticipated as the first in a series that will review the claims, defences, and issues raised in the decision.

$30,000 award for defamation upheld, as defences of qualified privilege and responsible journalism not made out

The B.C. Court of Appeal has dismissed an appeal brought by Derrick Harder and Peak Publications Society, the publisher of the student newspaper at Simon Fraser University.  The appellants had been found liable at trial for defaming the respondent Joey Hansen, the former financial and services coordinator of the Douglas Students' Union (the “DSU”) at Douglas College.  Mr. Hansen was awarded the sum of $30,000. 

Defamation award upheld for statements made "with reckless disregard for the truth"

The Court of Appeal has unanimously upheld a chambers judge's ruling which held the Appellant liable for defamation.  In Smith v. Cross, 2009 BCCA 529 the issue on appeal was whether it is necessary, in circumstances where the defense of qualified privilege applies and in which the law presumes good faith, for a plaintiff to prove that the defendant's dominant motive in publishing defamatory emails was for an improper purpose, and lacked honest belief.  The Court of Appeal noted that the defense of qualified privilege can be defeated by a "finding of malice on the part of the defendant, or by a finding that the limits of the privilege were exceeded."  The Court confirmed that an individual acts with malice if he or she publishes a comment: (i) knowing it was false; (ii) with reckless indifference as to its veracity; (iii) for the dominant purpose of causing harm; or (iv) for some other dominant purpose which is improper or indirect, or, if the occasion is privileged, for a dominant  purpose not related to the occasion. The Court held that because malice is a state of mind and therefore an appropriate matter for the consideration of the trier of fact, the trial judge's finding of express malice was sufficient to defeat the defense of qualified privilege.

To read the full decision of the Court of Appeal, click here.