Who Is That Guy? A Lesson In The Law Of Defamation

• Published date: 11 December 2020
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Trials & Appeals & Compensation, Libel & Defamation, Crime
• Law Firm: Gardiner Roberts LLP
• Author: Mr Stephen Thiele

The law of defamation is about protecting a person's reputation. Accordingly, as determined by the Supreme Court of Canada in the seminal case of Grant v. Torstar Corp., 2009 SCC 61, in order to establish defamation a plaintiff must show that the impugned words:

a) were defamatory in the sense that they would tend to lower the plaintiff's reputation in the eyes of the reasonable person;

b) were in fact referring to the plaintiff; and

c) were published by communication to at least one person other than the plaintiff.

In L.R. v. Saskatoon Star Phoenix, 2020 SKQB 310 (currently unavailable on CanLII), the plaintiff learned this lesson in an action he brought against the defendant newspaper over a story about the removal of posters in an area of Saskatoon.

The article was entitled "What a rip-off: Broadway Ave. stripped of posters overnight" and began with the sentence "There's a poster pest on Broadway".

The story explained that someone had ripped down every single poster that had been displayed on public poster barrels in the Broadway area and quoted from a Twitter post in which the executive director of the Broadway Business Improvement District said: "We think it's a guy who's mad I asked for a review of the poster bylaw last year. My office door is locked."

However, the story noted that the person who tore down the posters had deposited them in garbage bins and that littering could not be added to the "crime of vandalism".

The plaintiff sued the newspaper over these words on the grounds that the words were about him, that he had been alleged of committing a crime and that he was a violent criminal.

But the newspaper story never identified the plaintiff by name, so the newspaper brought a summary judgment motion to have the case dismissed on the basis that words were not directed in any way whatsoever against the plaintiff.

In the alternative, the newspaper argued that the words were protected by the defence of fair comment in any event.

An examination of the newspaper story clearly showed that the plaintiff was not named in it. Yet the test for identification in the law defamation did not require the person being defamed to be actually named. As set out in a leading authority, Brown on Defamation, the test for identification, where person is not specifically named, is:

.whether or not the words used are such as to lead an ordinary sensible person, or reasonable persons, who pays reasonable attention to the contents of the communication, to understand...