Defamation Law Explained: How the Parties’ Conduct Impacts Ontario Cases

Denis Grigoras

Denis is a lawyer who draws on his background in complex legal disputes and transactions to problem-solve for his clients.

When the invisible line of respect between individuals in society is crossed through defamatory comments, the law provides a remedy through defamation lawsuits. However, these cases are not black-and-white. Their outcomes can be influenced by the actions and behaviour of involved parties – both before and after the publication of the defamation. In Ontario, this scrutiny of conduct plays a pivotal role in shaping legal outcomes.


When the invisible line of respect between individuals in society is crossed through defamatory comments, the law provides a remedy through defamation lawsuits. However, these cases are not black-and-white. Their outcomes can be influenced by the actions and behaviour of involved parties – both before and after the publication of the defamation. In Ontario, this scrutiny of conduct plays a pivotal role in shaping legal outcomes. In this blog post, we will delve deeper into the nuances of how conduct impacts defamation lawsuits.

Part 1: The Defendant’s Conduct and Its Legal Implications

A. Pre-Publication Conduct: The Start of the Legal Journey

Before the alleged defamatory statement is even published, the actions of the defendant come under the judicial lens. If the defendant publishes potentially damaging content about the plaintiff without due diligence to verify the veracity of these claims, this reckless behaviour may increase the damages awarded to the plaintiff.

In the context of media libel, journalists are expected to adhere to established reporting policies. Ignoring these guidelines may not only tarnish their credibility but also lead to an escalation of damages awarded.

Furthermore, if the defendant has a history of publishing other defamatory remarks about the plaintiff, this pattern of behaviour can factor into the court’s decision. However, it’s crucial to note that while such evidence may influence the court’s perspective, the damages should not account for the direct repercussions of these publications if they are not under the current lawsuit’s ambit.

Finally, the defendant’s response (or lack thereof) to others pointing out potentially defamatory statements is of consequence. A mere lack of disagreement with third-party comments displaying malice towards the plaintiff may be seen as a tacit endorsement of these views, reflecting an ill motive on the defendant’s part. This evidence, though, must be carefully weighed within the case’s entire context.

B. Conduct at the Time of Publication: The Moment of Impact

When the defamation is published, the context and choice of words carry considerable weight. If the defendant has purposefully targeted an audience to maximize harm to the plaintiff’s reputation or has orchestrated the defamation’s publication to boost its credibility, the court may interpret this as a calculated attack and increase the damages.

In the landmark case of Hill v. Church of Scientology of Toronto, the court gave significant weightage to the credibility-enhancing factors surrounding a defamatory statement, demonstrating the court’s attentiveness to the circumstances of the defamation.

C. Post-Publication Conduct: The Aftermath

The aftermath of a defamation’s publication is as crucial to the court’s decision as the prelude. If the defendant doubles down on their statements, makes attempts to dissuade the plaintiff from seeking legal recourse, or participates in further harassment, such actions can significantly increase the plaintiff’s damages.

For instance, in the Saskatchewan case of Rubin v. Ross, the court heightened the damages due to the defendant’s dismissive attitude towards the ramifications of their defamatory allegations. Similarly, in Turley v. UNITE the Union & Anor, the aggressive strategy employed by the defence counsel resulted in a substantial increase in the plaintiff’s damages.

Part 2: The Plaintiff’s Reputation and Conduct: The Other Side of the Coin

A. Initial Considerations: The Plaintiff’s Stand

The defence may argue for a reduction in damages based on the plaintiff’s pre-existing poor reputation. But, it is important to note that Ontario courts have traditionally resisted such a “libel-proof” argument, asserting that every individual, irrespective of their character, is entitled to a legal remedy for defamation.

B. Examination of the Plaintiff’s General Reputation: Factoring in Public Perception

In the legal tug-of-war, the defence may provide evidence of the plaintiff’s general reputation at the time of the publication. However, such evidence must be directly relevant to the case and should originate from individuals who are acquainted with the plaintiff.

C. Scrutiny of the Plaintiff’s Conduct: A Balance of Interests

The court also examines the plaintiff’s behaviour related to the defamation’s context. This includes evidence indicating the plaintiff might have provoked the libelous statement or demonstrating the plaintiff’s higher tolerance for harm due to specific behaviour associated with the defamation.

However, evidence concerning unrelated past misconduct cannot serve to mitigate damages, and unsuccessful attempts to undermine the plaintiff’s credibility might inadvertently lead to increased damages.

In essence, the conduct of both parties in a defamation lawsuit can significantly steer the direction of the court’s judgement and the assessment of damages. Therefore, it is of utmost importance to approach these cases with a keen awareness of one’s actions and their potential legal implications. This interplay of behaviour and legal outcome underpins the complexities of defamation cases, making them some of the most challenging and intriguing cases within the ambit of civil law.

D. Apologies and Retractions: Role in Mitigating Damages

Ontario’s Libel and Slander Act provides an opportunity for the defendant to mitigate potential damages by publishing an apology and retraction. This avenue is not an admission of guilt but a peace offering of sorts, indicating a willingness to correct their actions.

The timing, sincerity, and prominence of the apology play a significant role in its effectiveness. An apology issued promptly after the defamation’s publication, sincerely worded and given prominence equal to the original defamatory statement, can substantially influence the damages assessed. However, a delayed, insincere, or buried apology may even aggravate the damages due to its perceived lack of genuine remorse.

Part 3: Court Proceedings: Conduct within the Courtroom

A. Legal Strategy and Courtroom Behaviour

A party’s legal strategy and behaviour in the courtroom can also impact the case’s outcome. A respectful and professional demeanour can leave a positive impression on the judge, while aggressive or disrespectful tactics may lead to negative consequences.

Again, see Turley v. UNITE the Union & Anor, where the defendant’s aggressive defence strategy was counterproductive, substantially increasing the plaintiff’s damages.

B. Misleading the Court

Both parties are expected to present evidence truthfully and accurately. Misleading the court, either by presenting false evidence or withholding relevant information, can have severe repercussions. This conduct may lead to the dismissal of the case, increased damages, or more significant cost awards.

C. Compliance with Court Orders and Directives

Complying with court orders and directives is also vital. Failure to follow court instructions can negatively affect a party’s credibility and possibly lead to penalties or other legal consequences.

Part 4: Post-Judgment Conduct: Beyond the Courtroom

The judgment does not mark the end of scrutinizing the parties’ behaviour. Post-judgment conduct can also influence the proceedings, especially in the case of appeals or when calculating damages.

A. Complying with Judgments

Compliance with judgments, including payment of damages or issuing public apologies, is crucial. Failure to comply can lead to enforcement actions, additional costs, or even civil contempt in the most extreme of cases.

B. Post-Judgment Remedies and Appeals

If the defendant continues to publish defamatory content even after the judgment, the plaintiff may seek additional legal remedies such as injunctions. Similarly, the plaintiff’s continued engagement in provoking the defendant could impact the outcome of any appeal proceedings.

C. The Need for Continued Civility

After the judgment, parties are expected to continue behaving civilly. Disparaging remarks about the other party or the court can lead to further legal repercussions and may impact any future legal interactions between the parties.

In conclusion, the legal journey of a defamation lawsuit is a complex dance, filled with numerous variables that extend beyond the merits of the case. The behaviour of parties is one such variable that can have far-reaching consequences on the lawsuit’s outcome. Understanding these nuances can help parties navigate these lawsuits with more clarity and effectiveness and perhaps foster a more respectful discourse in our society. It also helps legal practitioners in Ontario – and other jurisdictions with similar legal frameworks – to handle such cases more strategically and sympathetically.

Example: Murphy v. Alexander (at paras. 40 and 41)

This Ontario Court of Appeal case centers around defamation and wrongful dismissal of Murphy by the defendant Re/Max Professionals. Murphy was terminated after complaining about the practices at the company. The defendant Morris, who was the office manager of Professionals, spread rumours that Murphy was dangerous and had shown up at his office with a gun. These rumours severely tarnished Murphy’s reputation in the real estate community and contributed to his subsequent dismissal from his new employer.

In the above-referenced paragraphs, the court addresses how damages in defamation cases should be assessed, particularly when malice is evident. The court notes that additional defamatory remarks made by the defendant, both before and after the main defamation, can be taken into account to demonstrate the surrounding circumstances and history of animosity between the parties. Thus, all conduct of the defendant, even outside of the direct defamation event, can be considered in determining the extent of damages.

However, the court also highlights that while such evidence is admissible in aggravating damages, damages can’t be directly awarded for any defamatory remarks, not the subject matter of the cause of action. In other words, while these additional defamatory statements can amplify the damages awarded for the main defamation, they cannot independently result in their own separate damages.

Ultimately, the Court of Appeal emphasized that the trial judge failed to distinguish between damages stemming from the defamatory remarks made by Morris in March, which were statute-barred, and those made in August, leading to an inflated defamation award. The Court of Appeal rectified this by reducing the defamation award to account only for the damages resulting from the August statements, as the majority of harm resulted from the March statements. The court concluded that the failure of the trial judge to distinguish between the damages resulting from the two separate sets of statements was a reversible error.

The above-referenced paragraphs emphasize the nuanced approach required when considering all defamatory actions and remarks of a defendant, as they can significantly influence the calculation of damages for defamation, yet can’t independently lead to their own separate awards.

Facing defamation allegations or believe your reputation has been unjustly tarnished? Your past and present actions could influence your case. Let our litigators guide you through the intricacies of defamation law in Ontario.

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