Defamation Law. Toronto defamation lawyers for individuals, professionals and businesses.

What Is Defamation?

Defamation law in Ontario gives an individual or a corporation a remedy when a false statement harms its reputation. Defamation is the publication of a false statement that tends to lower a person's reputation in the eyes of a reasonable person. The tort comprises libel (a statement in written or other permanent form) and slander (a spoken or otherwise transient statement).

Defamation law balances two interests, the protection of reputation and freedom of expression, which is protected by the Charter of Rights and Freedoms. The courts reconcile them by imposing liability for falsehoods while leaving room for public debate, fair comment, and honest reporting.

Defamation claims can arise in numerous settings, including social media posts, news articles, opinion pieces, internal corporate memos, workplace discussions, and televised broadcasts. A statement can be defamatory even if it appears as a suggestion or insinuation. The remedies against a liable defendant range from damages to an injunction against further publication. The firm's defamation and reputation management group covers the claim, the defence, and the removal work that sits beside both.

Elements of a Defamation Claim

To establish a prima facie case of defamation, the plaintiff must prove the three elements set out below.

1. A defamatory statement. Words that would cause a reasonable, right-thinking person to think less of, despise, or ridicule the subject, whether stated directly or by innuendo. Courts examine the "sting" of the words; namely, the harmful imputation at the heart of the expression. Minor insults or name-calling without serious reputational consequence may not suffice.
2. Reference to the plaintiff. The statement must identify the plaintiff, either by explicit identification or by inference. The plaintiff need not be named outright; defamation can arise if listeners or readers would recognize that the statement targets the plaintiff due to surrounding circumstances or identifying details. The test is whether a reasonable person would make the connection.
3. Publication. The statement must have been communicated to at least one person other than the plaintiff. A statement shared only with the plaintiff cannot ground a defamation action, no matter how offensive.

Once those elements are established, falsity is presumed, and in libel cases, damages are presumed without proof of actual loss. The burden then shifts to the defendant to establish one of the recognized defences discussed in Chapter Two.

Context is decisive. A seemingly innocuous phrase in one setting can be defamatory in another if it implies disreputable conduct or moral failing. Conversely, what might appear harsh on its face can be understood, in context, as legitimate comment or obvious hyperbole that no reasonable person would take as fact.

Publication and Communication

Publication means communicating the defamatory statement to at least one person other than the plaintiff. Without third-party communication, a statement cannot found a defamation action.

Online, a single post can reach a wide audience within hours, and the harm grows with it. Liability attaches even if the defendant did not intend extensive circulation; once the statement is accessible to others, it is "published." Canadian courts generally consider material posted on social media or websites to be "published" as soon as it becomes accessible to other internet users, regardless of how many actually view it. Whether the platform itself can be sued is a separate question, answered in our note on Google and platform liability for defamation in Canada.

This can lead to multiple layers of potential liability. Each act of re-publication, such as a share, a forward, or a retweet, may constitute a fresh act of publication attracting its own liability, extending the reach of a defamation claim both in scope and in time. Certain defences or immunities may still apply, including for innocent disseminators who had no knowledge of the defamatory content, but the default rule in Ontario is that anyone who participates meaningfully in bringing a defamatory statement to a third party can be liable. Where the priority is getting the material taken down rather than suing over it, that is the work of our reputation management practice.

The threshold for a prima facie defamation claim is low; namely, a communication to a third party about the plaintiff that tends to lower the plaintiff's reputation in the eyes of a reasonable person. Most defamation cases are decided on the defences. Ontario law recognizes several defences that protect a defendant from liability even after the plaintiff proves a prima facie case. The overview table below summarizes the principal defences.

Absolute Privilege

Absolute privilege is a complete defence in a narrow class of situations in which free communication is treated as more important than reputation. The defence applies even if the speaker acted maliciously or knowingly published a falsehood. Common contexts include parliamentary debates, judicial or quasi-judicial proceedings, and certain high-level executive functions.

Statements made on the floor of the Ontario Legislative Assembly, for example, are fully protected, so that members can speak without fear of civil liability. A similar immunity extends to participants, including judges, lawyers, and witnesses, in judicial settings. The courts accept that the immunity will sometimes protect an unscrupulous statement, and treat frank discourse in these settings as the greater good.

Absolute privilege is limited to recognized official contexts. A witness repeating the same allegations outside the courtroom, or a politician defaming a private citizen in a press release, typically loses absolute privilege and must rely on other defences or face liability.

Qualified Privilege

Qualified privilege provides protection similar to absolute privilege, but the privilege is "qualified" because it can be lost. It arises when the defendant has a moral, social, or legal duty to communicate information to someone who shares a corresponding interest or duty to receive it. Classic examples include reference letters for employees, workplace incident reports, and communications among shareholders regarding a company's affairs. The law encourages candid communication of relevant facts, as long as the speaker acts honestly and without malice.

Malice defeats qualified privilege. If the defendant published out of spite, for revenge, or with reckless disregard for the truth, the defence is lost. Courts look for evidence that the defendant distorted facts or harboured ill-will unrelated to the legitimate purpose of the communication.

Justification (Truth)

Justification, commonly known as the truth defence, holds that an otherwise defamatory statement cannot result in liability if it is substantially true. The defence reflects the principle that defamation law protects a person from false statements rather than from accurate ones, however harmful. If the defendant proves that the allegations are true in substance, the claim fails.

In practice, the defendant must prove the key elements or "sting" of the statement are correct. Minor inaccuracies will not necessarily defeat justification if the central allegations remain substantially true. The burden is on the defendant to prove the truth, which can be difficult where the evidence is thin or the events are complex. Once the court finds the material parts of the statement to be accurate, the plaintiff cannot succeed.

Responsible Communication

The responsible communication defence protects a person, often a journalist or commentator, who publishes on a matter of public interest after responsible inquiry. The law does not penalize someone who researches a story responsibly, seeks the subject's side, and presents the story fairly, even if some details turn out to be wrong.

The Supreme Court of Canada in Grant v. Torstar Corp.2009 SCC 61. The responsible communication test weighs seriousness, public importance, urgency, the reliability of sources, the efforts at verification, whether the subject's side was sought, and the tone of the reporting. established the defence, holding that the public has an interest in receiving information on matters of public concern. The Court set out the factors that bear on responsible conduct, including the seriousness and public importance of the allegation, the urgency of the matter, the reliability of sources consulted, efforts made to verify information, whether the subject's perspective was sought, and the prominence given to any denial or response. The defence is a departure from the pre-Grant common law, under which good faith journalism on public interest matters could be defeated by a single failure to establish justification.

Statutory Privilege

Statute confers a privilege on fair and accurate reports of official proceedings and documents, which protects the publisher from a defamation claim. Parliament and the provincial legislatures have decided that the public should have access to reports of legislative debates, municipal meetings, judicial proceedings, and quasi-judicial inquiries. The privilege generally depends on the report not departing materially from the record and, under some statutes, on the publisher correcting an error when it is found.

Fair Comment

Fair comment protects opinion-based statements about matters of public interest. Unlike justification, which focuses on proving factual truth, fair comment applies to expressions of subjective judgment, criticism, or commentary, provided that four conditions are met.

1. The comment is on a matter of public interest.
2. It is based on true or widely known facts.
3. It can be recognized as an opinion rather than a statement of fact.
4. It is made honestly, without malice.

The defence allows a critic, a journalist, or any citizen to voice a strong, even hyperbolic, opinion on politics, art, or social policy. Courts consider whether a person could reasonably hold the view, given the facts. Evidence of malice (a hidden or vindictive motive) defeats the defence, because the law distinguishes an honest opinion from an attempt to harm another's reputation.

Consent

Consent defeats a defamation claim where the plaintiff expressly or impliedly agreed to the publication. A plaintiff who permitted the defendant to publish, broadcast, or circulate the remarks cannot later complain of what the plaintiff authorized. Written or contractual authorizations are the clearest form of consent, but implied consent can also arise, for example when someone agrees to an interview and knowingly provides negative details about themselves.

Consent is confined to the scope of what the plaintiff intended to allow. If the defendant exceeds that scope, by adding unapproved content, distorting the statement, or disseminating it far more broadly than agreed, the defence may not apply. Consent obtained through coercion or misrepresentation is also invalid.

Notice Requirements

Ontario's defamation legislation imposes notice requirements and short limitation periods for actions against newspapers and broadcasters. The plaintiff must give the publisher or broadcaster written notice of the libel within six weeks after it came to the plaintiff's knowledge, before commencing the action. The notice alerts the defendant, allows a retraction or correction, and may narrow the litigation if the defendant acts promptly.

The limitation period for an action against a newspaper or a broadcaster is three months, shorter than in other civil matters, and a plaintiff who misses it is barred. The courts enforce these periods strictly, on the policy that a defamation dispute should be resolved while the statement and its context are fresh. See our article on notice requirements in Ontario defamation law for the detail. The firm's notice of libel deadline calculator computes the six-week notice date, the three-month limitation period and the two-year general period from the day the publication came to the plaintiff's knowledge, and its checklist covers what the notice must contain and how it is served.

Damages

Damages in libel compensate for reputational loss, console for distress, and vindicate the plaintiff. The proportions vary from case to case. In libel, general damages are presumed without proof of actual loss; slander typically requires proof unless it falls within slander per se categories or a statute removes that requirement.

Courts look at several factors in assessing quantum. The aggravating factors include the seriousness of the allegation; wide or repeated publication; targeting a professional whose reputation is tied to livelihood; evidence that the words were actually believed (for example, regulatory inquiries, lost credit, or changed business relations); and the defendant's conduct in continuing or amplifying the publication. The mitigating factors include a prompt and prominent retraction; an apology published to the same audience; provocation by the plaintiff; the plaintiff's pre-existing reputation; limited actual readership; and the defendant's honest belief in the truth of the statement at the time of publication.

Aggravated damages address the additional emotional harm, distress, or indignity inflicted on the plaintiff by the defendant's conduct, such as where the defendant persisted in the defamation after being told it was false. Punitive damages focus primarily on punishing and deterring misconduct, and are reserved for cases where the defendant's behaviour is so malicious, wanton, or oppressive that mere compensation is insufficient to express the court's condemnation.

Apologies and Retractions

Apologies and retractions can materially reduce exposure in a defamation dispute when they are prompt, unequivocal, and publicized to the same audience with comparable prominence to the original publication. Courts give little weight to efforts that are hedged, "lame and late," or made on the eve of trial.

Under Ontario's Apology ActSO 2009, c. 3., an apology is not an admission of liability and does not void insurance coverage or count toward fault determinations, yet the wording should still be careful and direct.

Under the Libel and Slander ActRSO 1990, c. L.12. A full and fair retraction with the same prominence as the original may restrict recovery to special damages., where a newspaper or broadcaster publishes a defamatory statement in good faith and by mistake, and the defendant promptly issues a full and fair retraction with the same prominence as the original, a plaintiff's recovery may be restricted to actual (special) damages. Headline libel calls for a headline-level retraction; a statement that the publisher is merely "not aware of evidence" supporting the allegations is inadequate. The error itself must be stated plainly.

Injunctions

An injunction in a defamation case is an equitable remedy that stops continued or repeated publication. Ontario courts are reluctant to grant one before trial, because restraining speech before liability is determined encroaches on freedom of expression. To obtain an interlocutory injunction, the plaintiff must satisfy the three-part test from RJR-MacDonald Inc. v. Canada (Attorney General)[1994] 1 S.C.R. 311. The three parts of the test are a serious issue, irreparable harm, and the balance of convenience..

1. Serious issue. The words must be plainly defamatory and the defendant must have no viable defence. A higher bar than the ordinary interlocutory standard, given free expression concerns.
2. Irreparable harm. Monetary damages must be insufficient to remedy the harm, often established where the defendant is likely to continue publishing or where reputational damage is ongoing.
3. Balance of convenience. The harm to the plaintiff from refusing the order must outweigh the harm to the defendant, and to free expression, from granting it.

Post-trial, once the defendant's liability is established, a permanent injunction can prevent renewed circulation of the same false statements. Because an online post can remain accessible indefinitely, an injunction is the remedy that matters most when a defendant persists in repeating the statement.

Anti-SLAPP Legislation

Ontario's anti-SLAPP provisions, in s. 137.1 of the Courts of Justice Act, address "Strategic Lawsuits Against Public Participation," that is, lawsuits filed to silence or intimidate individuals or groups who speak out on matters of public interest. The legislation allows the court to dismiss such a case at an early stage where the defendant shows that the expression relates to a matter of public interest, unless the plaintiff satisfies the court that the claim has substantial merit, that the defendant has no valid defence, and that the harm suffered is serious enough that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression.

Once a defendant raises the anti-SLAPP motion, the plaintiff must satisfy the court on each of those points. If the plaintiff fails, the court dismisses the proceeding, and it may award the defendant costs on a full indemnity basis and, where the proceeding was brought in bad faith or for an improper purpose, damages. By allowing the early dismissal of a groundless suit, the provision protects discussion of public affairs while leaving the remedy for a legitimate defamation claim in place.

Slander vs. Libel

Slander generally refers to defamatory statements expressed orally or through other transient forms, as opposed to libel, which typically involves written or more permanent media. Canadian law treats slander and libel alike in most respects. The difference is that slander ordinarily requires proof of actual damage, unless the claim falls within one of the categories of "slander per se," in which harm is presumed.

Slander per se

In slander per se cases, the law presumes damages, just as it does for libel, so the plaintiff need not prove a specific loss. There are four established categories.

• Allegations of a crime. Accusing someone of a criminal offence.
• Imputations of loathsome disease. Claiming they suffer from a contagious or shameful illness.
• Attacks on professional or business reputation. Stating they are unfit or incompetent to carry on their vocation.
• Imputations of serious moral failing. Historically recognized, albeit applied less frequently in modern litigation.

The rationale is that allegations of this kind are so harmful that damage to reputation is presumed. If the defendant raises a recognized defence, such as truth or qualified privilege, liability may still be avoided despite the presumption. Absent such a defence, a finding of slander per se entitles the plaintiff to at least nominal damages, with the potential for aggravated or punitive damages depending on the circumstances.