In Ontario, when someone is accused of making a defamatory statement, they may have eight different defences available to them.
The first defence that probably comes to mind is proving that the statement in question is true. If the defendant can prove that what they said is (substantially) true, they will not be found liable for defamation. This is known as the defence of justification.
A second defence is legal immunity. This means that the defendant may have published the statement in a context that gives them immunity from defamation claims. This can include statements made by politicians in legislative assemblies, statements made by judges, counsel, and witnesses during legal proceedings, and complaints to regulatory authorities.
A third defence is privilege. This means that the statement was made in a context that is protected by law. This can include statements made in the media, such as fair and accurate reports of court proceedings, legislative or other government functions, official information releases, and certain public meetings.
A fourth defence is qualified privilege. This means that the defendant had a duty or legitimate interest in publishing the statement, and the person or people to whom the statement was published had a duty or legitimate interest in receiving it. However, this defence can be defeated if the plaintiff can prove that the defendant’s main motivation in publishing the statement was to harm the plaintiff, or that the defendant’s conduct went beyond what was necessary in the privileged context.
A fifth defence is responsible communication on matters of public interest. This means that the statement was made on a matter of public interest and was made responsibly. This defence applies when the statement is based on reliable information, even if it cannot be proven in court. This defence also applies to “reportage,” which is a fair and neutral report of both sides of a dispute that is a matter of public interest.
A sixth defence is fair comment. This defence applies when the defendant can prove that their statement was an opinion or comment, rather than a statement of fact. For the fair comment defence to be successful, the defendant must demonstrate that the statement was made on a matter of public interest, was based on facts, was clearly recognizable as an opinion, and was made in a fair and honest manner. Even if the defendant is able to prove these elements, the defence can still be defeated if the plaintiff can prove that the defendant acted with malice.
A seventh defence is consent. This means that the plaintiff consented to the publication of the statement. This is rare, but can be inferred from a prior agreement or the plaintiff’s conduct.
An eighth defence is that the plaintiff’s action may be barred by statute. This may be the case if the defendant establishes that the plaintiff failed to comply with a statutory requirement, such as providing written notice to the defendant prior to the commencement of an action, or if the plaintiff failed to commence the action within a statutory limitation period. Additionally, if the defendant published an appropriate retraction in circumstances prescribed by statute, the plaintiff may only be able to recover actual or special damages, and may not be able to prove such damages.
