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Torts - Defamation - 'Publication'. Wurdell v. Paramount Safety Consulting Inc. & Ben Scipione
In Wurdell v. Paramount Safety Consulting Inc. & Ben Scipione (Div Court, 2023) the Divisional Court considered whether a private letter, first disclosed in related litigation, could constitute 'publication' for defamation purposes:[15] Defamation may take the form of libel when the defamatory communication is in written or otherwise permanent form. In Torstar, at paragraph 28, the Supreme Court of Canada set out the three elements required to be established, on a balance of probabilities, in order to prove defamation:(i) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
(ii) that the words in fact referred to the plaintiff; and
(iii) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. [16] Only the third condition is in issue on this appeal.
[17] It is clear from Torstar that words can be “published” by way of a written communication sent from one person to one other person. It is not necessary that the written communication be sent to multiple recipients.
[18] Here, the statement of claim contains allegations that satisfy the Torstar conditions. That is, the materials before the motion judge permit a finding that the Letter was “published” since it was sent from Mr. Scipione to Mr. Zylstra, a person who is not the Appellant. Thus, the third condition in Torstar is satisfied.
[19] The motion judge did not state or apply the correct test for defamation in his reasons. As a result, I find that he erred in holding that a defamatory statement must be made to “third parties, plural” and that it must be “disseminated to the public”. He further erred in finding that the Letter “has not been published” because it is a “private communication between two parties, not intended to be publicized or shared outside of the two of them in a private setting”.
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