Sorry, Not Sorry: Apologies & Retractions in Defamation Law

Denis Grigoras

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

In defamation cases, an apology may play a crucial role in the assessment of damages. However, it is important to note that courts lack the jurisdiction to order defendants to apologize. The existence of an apology, the sincerity of the defendant, and the extent of the publicity given to the apology are factors that courts consider when determining damages.

Apologies and Retractions in Defamation Law

The Role of Apologies in Defamation Cases

In defamation cases, an apology may play a crucial role in the assessment of damages. However, it is important to note that courts lack the jurisdiction to order defendants to apologize. The existence of an apology, the sincerity of the defendant, and the extent of the publicity given to the apology are factors that courts consider when determining damages. If a defendant promptly and sincerely apologizes, admits to the falsity of the statement, and widely publicizes the apology, the impact of the libel may be significantly reduced.

On the other hand, if a defendant declines to apologize or offers an unconvincing justification for not doing so, courts may consider this as a factor that exacerbates the assessment of damages. Apologies made just before the trial or those perceived as insincere, dismissive, or inadequately timed and presented corrections will not carry any significance in determining damages.

It is essential to note that a failure to apologize does not always increase damages, as the court will evaluate the significance of this failure based on the specific circumstances of the case. If a defendant has pleaded justification or fair comment, their failure to apologize may be consistent with a sincere belief in their position, even if their defences ultimately fail.

Crafting a Clear and Unequivocal Apology

An effective apology must be clear, unequivocal, and rehabilitate the plaintiff’s reputation to the greatest extent possible. A retraction should clearly state that the defendant published incorrect information. In some cases, an apology may expose the defendant to a complaint by a third party. Defendants must carefully craft their apologies to avoid defaming third parties if possible. Lawyers may face liability if they participate in drafting an apology that defames a third party, and involving the third party in the negotiation of the apology’s terms may be appropriate.

Apology Legislation

Apology legislation has been introduced in many provinces and territories to facilitate the making of apologies as a means of promoting early and beneficial dispute resolution in civil cases. This legislation generally states that apologies are not considered express or implied admissions of civil liability and cannot be used to determine fault or liability in a matter. Courts have applied this rule narrowly, and lawyers advising clients on apologies should be cautious in recommending language that contains statements of fact beyond what is strictly necessary.

Retractions Restricting Plaintiff to Actual Damages

Provincial and territorial statutes may restrict plaintiffs in defamation cases involving newspapers or broadcasts to the recovery of “actual” or “special” damages, provided that the defendant publishes an apology within a specified time and follows prescribed conditions. Actual or special damages refer to specific losses that can be proven, as opposed to general damages, which are assessed based on the circumstances of the case.

These statutory provisions apply to a limited class of libels, requiring that the defamatory matter be published in good faith, not involve a criminal charge, and in Ontario, be published due to a mistake or misapprehension of the facts. In Ontario, a “full and fair retraction” must be published in the manner specified by the provisions for the plaintiff to be restricted to actual or special damages.

Publishing Retractions and Apologies

In Ontario, retractions and apologies must be published in as conspicuous a place and type as the original defamatory matter. For newspapers, the retraction must be published either in the next regular issue or within three days after the plaintiff’s libel notice. For broadcasts, the retraction must be published either within a reasonable time or within three days after the plaintiff’s libel notice, and as conspicuously as the original libel.

Additional Timing Requirements for Public Office Candidates

In cases where the plaintiff is a candidate for public office, additional timing requirements apply. The retraction or retraction and apology must be published in the newspaper or broadcast, as the case may be, at least five days before the election in which the plaintiff is a candidate. This ensures that the retraction is made public and has the opportunity to mitigate any potential harm to the plaintiff’s reputation before the election takes place.

The Importance of Statutory Formalities

To benefit from provisions that limit a plaintiff to actual or special damages where a retraction is published in prescribed circumstances, defendants must comply with statutory formalities. These formalities ensure that potential plaintiffs have the necessary information to address a defamatory statement with the newspaper or broadcaster.

In Ontario, newspapers must provide the names of the proprietor and publisher, along with the address of publication, either at the head of the editorials or on the front page of the newspaper. For defamation in a broadcast, when a person alleging defamation by a broadcasting station requests the name and address of the owner or operator of the station through a registered letter, the owner or operator must deliver that information or send it by registered mail to the person requesting it within 10 days of receipt of the request.

Waiver of Time Requirements

A plaintiff may choose to waive the time requirement for publishing a retraction, either expressly or through their conduct. For instance, waiver by conduct may occur if the plaintiff demands that the retraction be published in a specific section of a newspaper that is not scheduled to appear until after the statutory time period has lapsed. By making such a demand, the plaintiff effectively waives the time requirement, allowing the defendant additional time to publish the retraction.

The Role of Apology Legislation

Apology legislation has been introduced in many provinces and territories to facilitate the making of apologies as a means of promoting early and beneficial dispute resolution in civil cases. This legislation stipulates that an apology with respect to a matter is not considered an express or implied admission of civil liability, does not affect insurance or indemnity coverage, and may not be taken into account when determining fault or liability in the matter.

Courts have applied the statutory rule narrowly, and counsel advising on apologies should take care to avoid recommending forms of apology that contain statements of fact beyond those strictly necessary. This ensures that the apology serves its intended purpose and does not inadvertently cause further legal issues.

Conclusion

In Ontario defamation law, apologies and retractions can significantly resolve disputes and mitigate damages. A defendant’s prompt and sincere apology can have a substantial impact on the plaintiff’s damages, while a failure to apologize or a delayed apology may increase the plaintiff’s damages or prolong the litigation process. Understanding the nuances of apology and retraction requirements can be essential for both plaintiffs and defendants in defamation cases, and legal counsel should be well-versed in these matters to effectively advise their clients.

Example: Bird v. Ontario

In the case of Bird v. Ontario, a lawyer sued a conservation officer and the province, seeking damages for a defamatory voicemail message left by the officer for her client. The plaintiff was representing a client charged with offences under the Fisheries Act and Provincial Offences Act, with charges laid by the defendant conservation officer. A plea bargain was negotiated, but the client instructed the plaintiff not to accept the offer. The defendant, concerned that the client was unaware of the offer, called the client and left the impugned message, in which he questioned the client’s lawyer’s competence.

The court found that the statement “I basically feel your lawyer is pretty much incompetent” was defamatory and held the province vicariously liable for the conservation officer’s actions. The defendant claimed that his reason for leaving the message was concern about the expiration of the plea bargain, though he admitted it was not his normal practice to make such calls. The court determined that the defendant, as a peace officer with involvement in the case, did not have a moral duty to make the call and failed to establish the defence of qualified privilege.

The court also noted that only the client heard the message, which limited the publication of the defamatory statement. While the plaintiff’s competence as a lawyer was the cornerstone of her professional reputation, the court found that she had not been materially harmed by the defamation. The defendant expressed regret for the message but did not offer a clear and unequivocal apology. As a result, the court awarded the plaintiff $10,000 in general damages.

However, the court did not award any aggravated damages, as malice was not pled in the case. Additionally, the defendant’s conduct was not deemed to be so malicious, oppressive, or high-handed as to warrant punitive damages. Thus, the court allowed the action only in part, awarding the plaintiff $10,000 in general damages without awarding any aggravated or punitive damages.

Have you or your business been impacted by defamatory statements? Unsure about the power of an apology or retraction?

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