What is Slander and Libel?

If you are suing for libel in Ontario, technically you do not need to prove that you suffered damages—you only need to prove that a false statement with a permanent record was made about you to a third party, and the court will presume that damages were suffered. If you are suing for slander, however, you usually do need to prove that damages were suffered.

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However, in actuality, the Court usually expects Plaintiff (the person who field the law suit) to submit damage report in defamation cases. Why? Because it’s difficult for the Court to render a damage award that was intended to compensate for the damage caused by the loss of reputation without knowing how much damage the Plaintiff has incurred.

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Damage reports are usually produced in the form of medical reports produced by doctors, psychologist, psychiatrist to showcase emotional distress and trauma caused by the defamation; as well as financial reports produced by accountants showcasing the financial loss suffered by the Plaintiff (the person suing for defamation).

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Do note that, however, a statement MUST be made to a third party in public to be caught by the tort of defamation. If it’s a statement made in private between the Plaintiff and the Defendant (the person being sued) without any third party, you cannot sue for defamation.

Important Cases Regarding Slander and Libel

In Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130, the Supreme Court ruled that “actual malice” is not required to be proven by the Plaintiff in a libel case.

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What is the “actual malice” requirement? It’s an American defamation law concept that a defamatory statement in question Must either made with:

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• Knowledge of the statement’s false nature, or

• Reckless disregard of the truth or falsity of the matter.

The Supreme Court of Canada, in Hill, dismissed arguments that awarding damages in this case would cause “libel chill”—refraining from speaking out for fear of being sued for defamation — in Canada. In other words, if you intentionally made a statement, and it turned out to be false, and it did cause damage, you could be held liable for defamation.

It does create a chilling effect, and it is for that reason, the Supreme Court of Canada crafted a new defence against defamation in Grant v Torstar, [2009] 3 SCR 640, a 2009 decision. In Grant, the Court created a new defense against defamation allegations - the defense of “responsible communications” for journalists. The Court ruled that the existing defamation law in Canada, in comparison to similar countries, was overly strict and that "this, in turn, may have a chilling effect on what is published. Information that is reliable and in the public's interest to know may never see the light of day.

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The defense of “responsible communications” allows journalists to report false allegations if the news is urgent and of public importance, and if the journalist made an effort to verify the information. Even if the statement turns out to be false, the public has an interest in this type of discussion being legally permissible.

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In 2011, the Supreme Court of Canada further made another ruling to further curtail the chilling effect in Crookes v Newton, [2011] 3 SCR 269. In Crookes v Newton (2011), the Supreme Court ruled that publishing a hyperlink to defamatory material does not make one liable for defamation, because hyperlinking to material does not count as publishing that material.