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Torts - Defamation - Justification

. Kohlenberg v. Canada (Attorney General)

In Kohlenberg v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismisses an appeal from a labour JR, which in turn dismissed an earlier defamation damages grievance.

In these quotes the court considered defamation law, here regarding 'justification':
[25] Relying on Green v. Bush, 2017 MBQB 83, [2017] M.J. No. 135 (QL) at paragraph 38, and Jian v. Sing Tao Daily Ltd., 2014 ONSC 287, [2014] O.J. No. 3351 (QL) at paragraph 46, ADM Eid observed that establishing that a defamatory expression is substantially true is a defence to a defamation claim. As noted in Jian, it is not necessary to prove the truth of each word so long as the substance of the allegations is justified. In Bent v. Platnick at paragraph 107, the Supreme Court confirmed that to establish the defence of justification, a defendant must "“prove the substantial truth of the ‘“sting”, or main thrust, of the defamation’”" [citations omitted].
. Bell v. Amini

In Bell v. Amini (Ont CA, 2024) the Ontario Court of Appeal confirmed the defamation defence of 'truth':
[12] Moreover, truth is a complete defence to a defamation claim: Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 32-33; Haskett v. Equifax Canada Inc. (2003), 2003 CanLII 32896 (ON CA), 63 O.R. (3d) 577 (C.A.), at para. 54. The motion judge concluded that the respondent’s statements to LAO were truthful and accurate.
. 2110120 Ontario Inc. v. Buttar

In 2110120 Ontario Inc. v. Buttar (Ont CA, 2023) the Court of Appeal considers the defamation defence of 'justification':
(1) The defence of justification

[65] Once a plaintiff makes a prima facie showing of defamation, the words complained of are presumed to be false. To succeed in the defence of justification, the defendant must establish the substantial truth of the "sting", or main thrust, of the defamatory words. “The sting of the words includes the expressed defamatory meaning of the words and any implication that is found to have been a correct defamatory meaning of them”: Peter A. Downard, The Law of Libel in Canada, 4th ed. (Markham: LexisNexis Canada, 2018), at paras. 6.2-6.3; CUPW, at para. 23; Bent, at para. 107; Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, loose-leaf, 2nd ed., (Toronto: Thomson Reuters, 2017), at paras. 10-1, 10-47, 10-50, and 10-59. See also the Libel and Slander Act, R.S.O. 1990, c. L.12, s. 22.

[66] In assessing this defence, as well as the other defences the appellants have raised, it is important to keep in mind what was said that was allegedly defamatory, together with what reasonably would have been understood by the audience for the impugned statements. The defamation that is alleged in the Action is in relation to the words “thief alert”, “stolen” and “pay your drivers now” (in both English and Punjabi).

[67] The appellants contend that the impugned defamatory words were true because at the time they made their statements, an order existed for the respondents to pay the appellants a significant amount of money. They point to the fact that two of the appellants had received orders to pay, and decisions that they were employees and not independent contractors. In other words, they say that the “sting” of the impugned communication is properly understood to be that Cargo County was withholding money from them for work they had performed as drivers, and at the time they made their statements, that was, at its core, the true state of affairs. This is an argument that the impugned statements should not be taken literally, and that they should be understood in the context of the legitimate wage dispute the appellants were involved in with Cargo County.

[68] Whether the argument that the statements were true could prevail is informed by the interpretation given to the statements. Determining the defamatory meaning of the words complained of requires the court to ask: what would a reasonable member of the public who saw and heard the impugned statements at the time they were made understand them to mean? A statement that is alleged to be defamatory must be considered in the full context in which it is made, that is, in the context that was available and reasonably known to the intended and actual audience for the statement: WIC Radio v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420 (sub nom. Simpson v. Mair), at para. 56. The meaning of the impugned statements is determined on the basis of the record before the court and the court is not required to accept the interpretation proposed by the appellants: Catalyst, at para. 50. That said, in interpreting the words, the court “is to avoid putting the worst possible meaning” on them: WIC Radio, at para. 56.

[69] Words, even those that seem to impute a criminal offence, may be open to two meanings as different shades of meaning derive their colour from context: Brown on Defamation, at paras. 8-11. Here, the setting and background to the impugned words are the words on the banners, placards and pamphlets as well as the chanting at a protest over labour practices in a particular industry. Viewing the wider context, the ordinary listener might have understood the words “wage thief” to refer to wages wrongfully withheld. However, it is also reasonable to believe, at this stage of the proceeding, that the ordinary listener or reader could have interpreted the impugned statements quite literally: that Randeep Sandhu had committed a criminal or illegal act.

[70] Moreover, without taking too deep a dive into the record, there is evidence that the appellants did not communicate the context of the dispute that they were involved in, in particular that the CLC Proceedings were still underway, and that Cargo County had appealed the two orders to pay and had paid the full amount as a condition of its appeal. A reasonable trier of fact could conclude that the impugned words meant that either Cargo County did not owe any amounts to the appellants at that time, or it was withholding payment for good reason.

[71] To be clear, the meaning of the expression is something the court will need to determine at trial in assessing the defamation claim. However, at this stage, based on the defamatory meaning that could reasonably be given to the impugned expression, I am satisfied that there is a basis in the record and the law to support a finding that the statements that the respondents were “wage thieves” or had “stolen” the appellants wages were not substantially true. Accordingly, the defence of justification cannot be considered to weigh more in favour of the appellants such that it may be considered “valid” under s. 137.1(4)(a)(ii).


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Last modified: 01-07-24
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