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CANADIAN DEFAMATION LAW FOR NON-CITIZENS

Posted by Annabel Lee on March 31st, 2017


When we're dealing with harassment from a Cluster B disordered person, we may be inclined to just ignore the person with the hope that he or she will eventually stop harassing us. Sometimes that approach is effective, but sometimes it isn't. If you find yourself being harassed by a disordered person over an extended period of time, I encourage you to consider taking steps to hold that person accountable for a couple of reasons.

First, when dealing with a highly disordered person, this may be the only way to put a stop to the harassment. Second, creating a paper trail is an important step in protecting yourself; specifically, by reporting criminal activity such as cyber stalking or harassment to the authorities, you are placing the disordered person onto the radar of law enforcement. Every subsequent act of harassment and stalking provides additional evidence, which is important, as most harassment and stalking laws require that you establish a pattern of behavior. (Ironically, the Cluster B’s relentless harassment and stalking is actually a good thing in the long-term from both a criminal and civil perspective, as with each new act, they’re building a case against themselves.) Finally, taking steps to hold these people accountable, while time-consuming and frustrating at times, is incredibly empowering.

Therefore, if you're being stalked or harassed over a period of time, it's important to report to the authorities. And while you may find that the wheels of justice tend to turn slowly in the criminal arena, thankfully there are other options available to you to hold Cluster B abusers accountable, such as civil defamation action. In the U.S., defamation laws reside primarily at the state level, with federal protections coming into play (First Amendment protection, for example).  This blog addresses pursuing civil action against a Canadian citizen. If you become impatient pursuing criminal charges against a Canadian citizen, a Canadian civil action is an option to consider in the meantime if a Canadian citizen is defaming you online. 

Canada has both criminal and civil defamation laws on the books; this blog entry relates to civil actions. Canadian civil defamation laws provide remediation to its citizens and citizens from other countries for defamatory statements made by a Canadian citizen. Compared to American law, Canadian law is decidedly pro-plaintiff in some respects, specifically in its limited defenses available to a defendant, a requirement that defamatory statements are “provable,” and its approach to damages. Below is information provided by the Canadian Bar Association (CBA) that describes law in provinces other than Quebec. A link to the site is provided at the bottom of the page. But first, here are a few things to keep in mind:

  • In Canadian courts, you can sue for either libel or slander. Detailed descriptions of each are provided below.
  • Libel refers to defamation for which there is a record (a written blog or a video recording, for example) and damages are presumed by the court, meaning you don’t have to prove damages. To win an award of damages in a libel action, the court need only find that the conduct has “caused the listener or reader to think less of you,” absent a viable defense from the defendant.
  • Slander refers to defamation for which there is no record (a one-time, unrecorded verbal statement, for example), and the plaintiff must prove damages (similar to American law).
  • Canadian defendants cannot claim ignorance of the truth of the statements they have made as a defense to a civil defamation action; rather, they must prove the truth of their statements to the Canadian standard of "balance of probability." (See “justification” below.)
  • Canadian citizens do have freedoms to express their opinions (see "fair comment" below); however, when they utter an opinion, they must make it clear that they are uttering opinion, not fact, when making potentially defamatory statements; the statements must be made on facts that can be proven; and the statements cannot have been made maliciously in order to employ a "fair comment" defense. For example, accusing someone of stalking (a crime) is a libelous statement that must be either clearly presented as opinion when the statement was made or proven by the defendant during civil proceedings.
  • It's probably best to get an attorney. Even if you have successfully navigated the complex American judicial system in pro per, attempting to navigate a foreign court will likely be even more difficult. (See Lawyer Referral phone numbers listed below.)

CBA information begins here:

DEFAMATION: LIBEL AND SLANDER

The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. Script 240 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

What is defamation?
Defamation is communication about a person that tends to hurt the person's reputation. It causes the reader or listener to think less of the person. The communication must be made to other people, not just to the person it's about. If defamation is spoken, then it is called slander. If it is written, it is called libel. It can also be a gesture, which is a type of slander.

The law protects your reputation against defamation. If someone defames you, you can sue him or her for money (called damages) for harming your reputation. You have to sue in Supreme Court, not Provincial Court, and you have to sue within 2 years of the defamation. This is the limitation period. It starts when the defamatory statement was made or published. For more on the court system, check script 432, called “Our Court System and Solving Disputes.”

The law doesn't protect you from a personal insult or a remark that injures only your pride. It protects reputation, not feelings. Therefore, if someone calls you a lazy slob, you might be hurt, but you would not have a defamation complaint unless the statement was made to another person.

If a person tells someone that you cheat in your business dealings, then you probably do have a good reason to sue, as long as he says it to someone else, not just to you.

Defamation can be a crime under the Criminal Code, but only rarely. This script is about civil, not criminal, defamation. If someone has defamed you, you may also be able to sue for a violation of your privacy under the provincial Privacy Act. Further, section 7 of the BC Human Rights Code prohibits another type of defamation, namely, a discriminatory publication. For more information on that, contact the BC Human Rights Tribunal at 604.775.2000 in Vancouver and 1.888.440.8844 elsewhere in BC. Also, check script 236, called “Human Rights and Discrimination Protection.”

What is libel?
Libel is the type of defamation with a permanent record, like a newspaper, a letter, a website posting, an email, a picture, or a radio or TV broadcast. If you can prove that someone libeled you, and that person does not have a good defense (see the section on defenses below), then a court will presume that you suffered damages and award you money to pay for your damaged reputation. But going to Supreme Court is expensive and even if you win, you may not get as much as it costs you to sue. In deciding on damages, the Court will consider your position in the community. For example, if you are a professional, damages may be higher.

What is slander?
Slander is the type of defamation with no permanent record. Normally it's a spoken statement. It can also be a hand gesture or something similar. The law treats slander differently from libel: with slander, you have to prove you suffered damages, in the form of financial loss, to get compensation. But with libel, the law presumes you suffered damages. For example, say that Bill told John you were a cheat, and then John refused to do business with you because of that. You sue Bill and prove that you lost business with John because of what Bill said. Bill would have to pay you for the loss of John's business, but not for the general damage to your reputation. It can be very hard to prove this sort of financial loss. That's why most slander cases never go to court.

But in the following four examples, a slander lawsuit may succeed without your proving financial loss. Even though there's no permanent record of the slander, the law will presume damages, as if it were libel, if someone:

  • accuses you of a crime (unless they made the accusation to the police).
  • accuses you of having a contagious disease.
  • makes negative remarks about you in your work, profession, trade, or business.
  • accuses you of adultery.

What about the right to free speech?
The law protects a person's reputation but this protection can restrict other rights, such as the right to free speech. The law tries to balance these competing rights. Sometimes, even though someone made a defamatory statement that hurt a person's reputation, the law considers other rights more important. The law allows the following defenses for a person who makes a defamatory statement.

What are the defenses to a defamation lawsuit?
If someone sues for defamation, the most common defenses are:

  • truth (known in law as "justification")
  • absolute privilege
  • qualified privilege
  • fair comment
  • responsible communication on matters of public interest

1.     Truth or justification

A statement may hurt your reputation, but if it is true, anyone who says it has a valid defence if you sue them for defamation. They just have to prove, on the balance of probability, that their statement is true.

2.     Absolute privilege

People must be able to speak freely in our justice and political systems without worrying that someone may sue them. The 3 main examples of this defence are statements made:

  • in Parliament.
  • as evidence at a trial or in court documents, in a criminal or civil case.
  • to a quasi-judicial body, such as a regulatory professional association like the law society, that is investigating a complaint.

This privilege does not apply if a person repeats their statement outside of Parliament or the court or regulatory process. It also does not apply if a person tells someone they made a discipline complaint.

This defence also allows the fair and accurate reporting of court proceedings in the media, such as newspaper reports of a trial.

3.     Qualified privilege

This defence is where remarks that may otherwise be defamatory were conveyed to a third party non-maliciously and for an honest and well-motivated reason.  Say a former employee of yours gave your name to an employer as a reference and that employer calls you for a reference. You say, "Well, frankly, I found that this employee caused morale problems." As long as you act in good faith and without malice, and your statement is not made to more people than necessary, then the defence of qualified privilege protects you if the former employee sues you for defamation. You gave your honest opinion and the caller had a legitimate interest in hearing it.

4.     Fair comment

We all are free to comment—even harshly—about issues of public interest, as long as we are clear that our comments are:

  • statements of opinion, not fact.
  • based on facts that can be proven.
  • not made maliciously.

For example, a newspaper columnist may write that a Member of Parliament (an MP) says he supports equality and equal rights, but he opposes same-sex marriages. The columnist writes that the MP is hypocritical. If the MP sues the columnist for defamation, the columnist may have the defence of fair comment.

5.     Responsible communication on matters of public interest

In a December 2009 case, the Supreme Court of Canada established this new defence to a libel claim. The court said that journalists should be able to report statements and allegations—even if not true—if there’s a public interest in distributing the information to a wide audience. This defence, which looks at the whole context of a situation, can apply if:

  • the news was urgent, serious, and of public importance, and
  • the journalist used reliable sources, and tried to get and report the other side of the story.

The court defined journalist widely to include bloggers and anyone else publishing material of public interest in any medium.

What effect does an apology have?
A newspaper or a TV or radio station that publishes or broadcasts a libel can limit the amount of the damages they may have to pay by publishing or broadcasting an apology right away.

Summary
The law of defamation protects your reputation against false statements. If a person makes a false statement to someone and it hurts your reputation, you can sue the person who made the false statement for damages. But because of other competing rights in our society, such as free speech and fair comment, you will not always win.

Source: https://www.cbabc.org/For-the-Public/Dial-A-Law/Scripts/Your-Rights/240

 

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