Think Before You Speak: How Ontario’s Defamation Laws Are Evolving

Think Before You Speak: How Ontario’s Defamation Laws Are Evolving

Defamation is a legal issue that arises when a false statement is made about an individual or business, causing harm to their reputation. In Ontario, defamation can take two forms: libel, which refers to written or published statements, and slander, which pertains to spoken statements. To succeed in a defamation claim, the plaintiff must prove that the statement was defamatory, referred to them specifically, and was communicated to at least one other person.

However, not every negative statement will amount to defamation. There are several well-established defences available under Ontario law that can protect individuals and organizations from liability. These include the defence of truth (also known as justification), fair comment, absolute and qualified privilege, and responsible communication on matters of public interest. Each of these defences serves a distinct purpose in balancing the protection of reputation with freedom of expression.

Recent legal developments in Ontario have significantly impacted the application of these defences, particularly in the context of anti-SLAPP (Strategic Lawsuits Against Public Participation) legislation. Anti-SLAPP laws are designed to prevent individuals and businesses from using defamation lawsuits to silence critics engaging in matters of public interest. Recent court decisions have clarified how these defences are applied and have reinforced the importance of balancing free speech with reputational protection.

One of the most notable developments has been the Ontario Court of Appeal’s ruling in Mondal v. Kirkconnell, 2023 ONCA 523, which clarified the limitations of the fair comment defence. The court found that the defence was unavailable due to insufficient factual backing, emphasizing the importance of ensuring that any public statements are well-supported and grounded in fact. This ruling serves as a cautionary tale for individuals and businesses making statements in the public sphere without a solid evidentiary foundation.

The Supreme Court of Canada also weighed in on defamation law with its decision in Hansman v. Neufeld, 2023 SCC 14. The court reinforced the importance of counter-speech in defending marginalized groups, affirming that statements made in the public interest can be protected under anti-SLAPP provisions. This case highlights the courts’ commitment to balancing the protection of reputations with the need for robust public debate on matters of significant concern.

In the employment context, Williams v. Vac Developments Ltd., 2023 ONSC 4679, serves as an important reminder of the risks associated with defamation claims arising from workplace disputes. The Ontario Superior Court dismissed an employer’s counterclaim for defamation after an employee publicly raised concerns about workplace discrimination. This decision highlights the courts’ increasing reluctance to allow defamation claims that may deter individuals from speaking out about legitimate workplace grievances.

Another recent case, 40 Days for Life v. Dietrich, 2024 ONCA 599, addresses the tension between free speech and reputational harm. The Ontario Court of Appeal ruled that the public’s right to free expression does not automatically shield individuals from defamation claims. This ruling reinforces the need to carefully consider whether statements genuinely serve the public interest or merely serve to harm another’s reputation.

Similarly, in Marcellin v. London (City) Police Services Board, 2024 ONCA 468, the Court of Appeal allowed a plaintiff’s defamation claim to proceed, emphasizing that public institutions must be held accountable for defamatory statements. This decision serves as a reminder that even government bodies and public institutions are not immune to defamation claims if their statements cause reputational harm.

The impact of these legal developments is far-reaching and will influence how individuals and businesses approach communication in various contexts. Employers must be cautious when making public statements about employees or workplace matters to avoid potential defamation claims. Businesses engaged in commercial disputes should ensure that any public commentary about competitors or partners is accurate and substantiated, as courts are becoming increasingly stringent in assessing fair comment defences. Additionally, companies in the construction and real estate sectors should verify the factual basis of public statements made during disputes to mitigate defamation risks.

In an era of rapid digital communication, it is essential to take proactive measures to ensure online statements are factual and defensible. Whether responding to customer complaints, addressing workplace issues, or engaging in public discourse, individuals and businesses must be aware of the evolving legal landscape surrounding defamation. Staying informed about these legal changes is crucial for protecting your reputation and legal interests

Sources:

• Mondal v. Kirkconnell, 2023 ONCA 523 
• Hansman v. Neufeld, 2023 SCC 14
• Williams v. Vac Developments Ltd., 2023 ONSC 4679
• 40 Days for Life v. Dietrich, 2024 ONCA 599
• Marcellin v. London (City) Police Services Board, 2024 ONCA 468