You Can't Play Dress Up With A Defamation Action

• Published date: 22 February 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Libel & Defamation
• Law Firm: Gardiner Roberts LLP
• Author: Mr Stephen Thiele

The law of defamation is subject to many strict rules, which may vary from province-to-province under respective special libel and slander statutes. It is also the law that a party cannot dress up a defamation action as another cause of action to avoid the well-established defences that are available to defendants in a defamation claim.

The recent case of Ryan v. Canadian Broadcasting Corp., 2021 SKQB 12 provides some useful insight into the issue of a dressed up defamation claim and the fact that in certain defamation cases, particularly those involving the media, the provisions of a statute may have an impact on a claim.

This action arose out of a CBC news article which reported on a judicial proceeding involving the plaintiff. The plaintiff had been charged and convicted by a Provincial Court Judge of possessing a weapon for a purpose dangerous to the public peace contrary to s. 88 of the Criminal Code. The charge stemmed from an incident where the plaintiff used a knife to remove a poster advertising a community event from a poster board. A man and woman who had put up the poster were present at the time of its removal and were worried about their safety. According to the news story, the plaintiff stabbed at the poster, narrowly missing the man's hand.

The plaintiff complained to CBC about the article's contents and its subheadline, and after discussions with the plaintiff the CBC agreed to amend the subheadline. However, the CBC refused to publish comments that the plaintiff wanted to make on the story.

Dissatisfied, the plaintiff sued the CBC for defamation and "misrepresentation in negligence".

With respect to the "misrepresentation in negligence" claim, the plaintiff pleaded that the CBC had represented the plaintiff's defence at the criminal trial to be that the knife was not a weapon because it was dull. "That's a straw man's argument", the plaintiff pleaded, "that caused the public to dismiss my defence and accept the conviction as valid."

The CBC contended that the plaintiff's action should be dismissed because: (1) the article was not defamatory; (2) if the article was defamatory, either the defence of qualified privilege or justification applied; (3) the CBC did not owe the plaintiff a duty of care with respect to the claim in negligent misrepresentation; and (4) the article was true and therefore incapable of being a misrepresentation.

Justice R.S. Smith dismissed the plaintiff's "misrepresentation in negligence" claim because it was in...