August 2020

The following recommendations were submitted to the Federation of Ontario Law Associations in response to the Law Commission of Ontario Report on Changes to Libel and Slander Act

  1. Section 38 of the Ontario Trustee Act

The Ontario Trustee Act contains an exception which prohibits trustees from continuing defamation litigation. Section 38 of the Act states:

(1) Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased; but, if death results from such injuries, no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act.

This is an unjust exception. The author has found no explanation in the case law as to what makes “cases of libel and slander” different from, for example, a car accident or a contract dispute.

Corporations can live forever; people do not. But under the current law, a deceased claimant’s estate is allowed to continue an action, so long it is not in defamation. Why not?

Defamation is an area of law that is rarely updated, and the notion one’s reputation does not survive one’s passing is from a bygone era.

The Report on Changes to Libel and Slander Act comes out of a 4-year project, the results of which will be put to Parliament.

The Report, notably, focuses on the internet, and does not address the Trustee Act.

It is time for the Trustee Act exception to be excised.

The following fact pattern illustrates the necessity of this simple amendment:

A plaintiff, who is advanced in age, with a sterling reputation earned through decades of community service, is systematically defamed by an anonymous group.

A sole defendant is finally identified, but litigation was delayed due to attempts to evade service.

Subsequent to service, attempts to execute Mary Carter agreements fail, because the sole defendant refuses to divulge the identities of potential co-defendants without being totally insulated from damages.

Then, due to the fact the alleged defamation pertains to fraud, the plaintiff’s case is slowed down by burdensome undertakings.

After much effort, a sufficient quotient of undertakings are fulfilled. But, days before mediation, the plaintiff dies.

Why is the Estate estopped from pursuing the claim?

Defamation is a unique tort, for several reasons. For one, it is based on the principle that rumours live on indefinitely and take on a life of their own (there is, in fact, in the jurisprudence, a vampire metaphor).

If the damages live on, why shouldn’t the claim?

Plaintiffs frequently bring defamation claims not just to restore their good names, but for the sake of their children and grandchildren.

Under the Family Law Act, general damages incurred by a plaintiff’s children are compensable in a personal injury claim.

Reputations, historically, are known to last for generations. Trustees, then, should no longer be shut out from pursuing only this type of claim.

Further, punitive damages are always available in defamation claims. Punitive damages speak to denunciation and deterrence, considerations which relate solely to the defendant.

Why is the death of the plaintiff a bar to what is effectively civil sentencing? Is there an analogue to this exception?

Last, general damages are difficult to quantify in defamation cases; there are myriad factors, such as the sting of the publication, the size of the audience, or readership, and the length of time the publication was available. To determine damages precisely is time-consuming and expensive.

Why should those costs be thrown away when a plaintiff shuffles off?

What if the plaintiff wishes to make a bequest to a charity? Is that not a productive use of settlement funds?

If the plaintiff was seeking to maintain the esteem of his beneficiaries, why should they be so denied?

Further, champerty is essentially dead, so why cannot trustees see a defamation matter to the very end?

The exception to s. 38 of the Ontario Trustee Act needs to be removed, finally.

2. Anti-SLAPP Motions

Regarding the law of defamation generally, the jurisprudence surrounding the Anti-SLAPP legislation has become unruly. The legislation was essentially copied from an American law, which was too broadly worded.

First, we need clearer definitions of “the public interest”.

Anti-SLAPP legislation had a laudable purpose: To prevent powerful political or commercial interests from stifling criticism (from below, frankly).

It is no surprise that political discourse is rife with untruths.

But Anti-SLAPP legislation could easily fulfil its purpose, if we had a statute that simply defined public-interest speech qua public-interest speech. Or, to use a more apt word, political and/or commercial speech, rather than ad hominem attacks. A better definition, reflecting legislative intent, is all that is required.

Second, the jurisprudence currently treats untrue statements (Step One in the legal definition of defamation) as defensible. The statute should bar that allowance.

The impetus behind allowing untrue statements protection under s. 137.1 of the Courts of Justice Act (CJA) was surely the volume of online claims. Interestingly, the Report appears to be designed to combat this bit of judge-made law, with its vision of an online tribunal.

Take an example which speaks to both issues – that of the definition of “public interest” and that of the allowance of untrue statements. An employee at a chain store tells all the world that automated checkouts are reducing jobs where they are employed. That statement is opinion and defensible. If that employee objectively prevaricates, saying they were harassed by store management, and then the employer store sues, there remains an almost airtight Anti-SLAPP defence.

That defence runs counter to the whole point of the tort, which is to protect truth in the public discourse. An online statement that is untrue, which lessens one’s reputation, and is transmitted to a third party, is a defamatory statement; a trier of fact should not be granted latitude to find an untrue statement defensible, simply because they feel that dealing with online statements is a waste of court time.

Such a trier of fact does not recognize the damage that the internet can do, likely because they are not on the internet, as many of us are, for work and for leisure, virtually all of the time.

Third, another built-in and somewhat surreptitious problem in the current Anti-SLAPP law is that a punitive purpose is fatal for a plaintiff/responding party. The problem here is that, as mentioned above, punitive damages are readily available and granted out of hand in defamation actions. Punitive damages are a distinguishing feature of this tort. This is a clear internal contradiction, and one which creates cognitive dissonance for litigants and counsel.

Section 137.1 of the CJA should be reviewed and amended, as outlined above.