Class 5 & 6 – February 3 The Plaintiff’s Case
- Libel must be of an identifiable individual
- Only person libelled can sue
- Can’t libel large groups or classes of people
- Identification can be by small group
- Can’t libel the dead
- Ontario class proceedings
- Publications don’t just mean the conventional media – also connects about all kinds of social
media, internet publications – when talking about defamatory and putting down someone’s
- If a person is being named in a publication then it should be the exact details must be accurate
because if there are mistakes then there is a chance that it is wrong information and the person
could be humiliated in society (the case study in the text book about a terrorist who was being
written about in a paper and when the picture was shown they by accidentally put the picture of
the lawyer and the lawyer was humiliated in society even after the mistake was made clear and
apologies were publically said. )
- Must be accurate and have correct names, pictures, or anything that identifies and applies to
that person or even different people that are connected with that person, they are liable and
you can be sued if wrongly identify – questioning character of a certain person or group.
Identification isn’t always as simple as it sounds – because it can cause a lot of serious problems
if the identity is rushed.
- Only the person who has been libeled can sue.
- If a group of people want to sue for libel, each and every single one of those people ,must be
libeled, if so then each of those individuals can sue.
- If to sue as a group it has to be that each and every single person must be identified as a body or
class of persons – when talking about a comment on citizens of an area – cannot be libeled
because they it was not an injury to an individual’s character and reputation. That is why it does
not fall under the Ontario class proceedings act because there is no specific identification in a
- Individuals sue as individuals.
- In law (judge) and in fact (jury)
- (objective test) When the judge decides that something is capable of being defamatory in law
that they have the ability to ruin a reputation and that the jury comes to the decision from the
indication of evidence that the said words are defamatory and are capable of defamatory
towards an individual then it is convicted.
- Some words in law are capable of being defamatory which are automatic libels, if you allege that
someone is connected with a criminal act (calling someone a pedo, or a murderer) than there is no question about it being defamatory because it is capable of running a reputation in society.
Prima facie defamatory
- Not only interested in the words said but who the words are directed against, also the context
of the publication, how the meaning of words change over time in different social context. Must
keep in mind how people derive a certain phrase or word. For example the word ‘gay’ some see
that word as a way to say that a person is overly happy or some see it as a way to describe a
- Defamatory can also be identified in calling someone gay when they are straight.
- The jury decides whether or not the words are capable of being defamatory towards the specific
plaintiff in that specific case.
In law – subjective test
- Whether ordinary reader would interpret the message as lowering the reputation of the plaintiff
in the eyes of others in the community
- Allegations of criminal behaviour, sexual misconduct or impropriety, or other immoral behaviour
are prima facie defamatory
- Context of defamatory allegation
- Effect on people generally, average citizens – not special interest groups
In fact – objective test
- Jury decides based on defences pleaded evidence at trial
- Words that may be capable of being defamatory in law may not be in a particular case
The plaintiff’s case
- The publication on its face is correct and true but
- Implies misconduct or wrong – doing
- Applies to words and pictures etc.
- Example: Jane Doe doesn’t beat her husband on Sundays.
“Red flag” allegations
- Criminal conduct
- Sexual impropriety or other immoral behaviour
- “loathsome” disease
- Professional misconduct or incompetence in one’s trade and or business
- Poverty or financial irresponsibility
- Disgraceful or unusual behaviour Defamatory words?
- Harry smith of 100 bly st. is a member of the mafia.
- Joe’s morality varies with the weather
- The bespectacled elederly man, who usually wears green swimming trunks with white polka
dots, and a black bathing cap, sits on the edge of the Carleton swimming pool, ogling young girls.
- Ben Affleck can’t act
- The lawyers in the law firm of Oglethorpe and smith are bunglers
- Tom cruise is gay
- A photo of a man and woman with the caption “lovers”
- Ben Affleck is a terrible actor. Most of the time he’s either drunk or high on drugs.
Class 6 Legal limitations arising out of private rights Civil Defamation
Syms v. Warren
In the Manitoba Court of Queen’s Bench, (1976) 71 D.L.R. (3 ) 558d
Vogel v. The Canadian Broadcasting Corp., Bird and Good
In the Supreme Court of British Columbia, (1982) 3 W.W.R. 97
Banks v. Globe and Mail
In the Supreme Court of Canada, (1961), 28 D.L.R. (2 ) 343
Jerome Wiley v. The Toronto Star Newspapers Ltd., Beland