Introduction
An email accusing a business or professional of fraud or dishonesty can be defamatory, and Canadian courts have awarded substantial damages for it. The target must prove that the words were published to a third party, referred to them, and would tend to lower their reputation in the eyes of a reasonable person. Truth is a defence, and the sender bears the burden of proving it. A "reply all" accusation lands in dozens or even hundreds of inboxes in seconds, and readers form impressions before the target even knows the email exists.
In Bent v Platnick, 2020 SCC 23 ("Bent"), a medical professional filed evidence that a single email led to "mass cancellations" of his referrals, with a claimed financial impact of $578,949 (Bent at para 98). The Supreme Court's decision came at a preliminary stage and held that the claim could proceed to a decision on the merits. Courts in Ontario, British Columbia, and Alberta have treated accusations of fraud, criminal conduct, and dishonesty as among the most damaging a business or professional can face. The decisions that follow show how those accusations are proven, which defences the law allows, and the damages that have resulted.
What Makes an Email Defamatory?
The Supreme Court of Canada confirmed the test for defamation in Bent. A plaintiff must establish three things. The words must have been published (communicated to at least one person other than the plaintiff), they must have referred to the plaintiff, and they must have been defamatory in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person (Bent at para 92). Defamation is a strict liability tort, meaning the plaintiff does not need to show that the defendant intended to cause harm or was even careless, because "the tort is thus one of strict liability" (Bent at para 96, citing Grant v Torstar Corp, 2009 SCC 61 ("Torstar") at para 28).
For a group email, the first two elements are usually easy to prove. The email was "published" to every recipient, and if the plaintiff is named or identifiable from context, the reference element is met. The contested question is whether the words would tend to lower the plaintiff's reputation in the eyes of a reasonable person. Accusations of fraud, scams, or criminal conduct would rarely fail on this point.
Why Accusations of Fraud Are Treated So Seriously
Calling someone a fraudster is not the same as calling them incompetent. Courts have recognized that "the injurious effects of defamatory statements regarding a professional are particularly acute" and that this is "certainly so for professionals in the investment management sphere, were [sic] honesty and integrity, as well as competence, are critical" (Anson Advisors Inc v Stafford, 2023 ONSC 5537 ("Anson") at paras 96–97). In Anson, the defendant published statements alleging that the plaintiff had "systematically engaged in capital markets crimes, including insider trading and fraud, to rob North American shareholders of countless millions" (Anson at para 79). Those statements were disseminated through websites, online investor forums, and emails to media contacts. The Court awarded $450,000 in general damages and a permanent injunction (Anson at paras 105, 106, 115).
In Port Alberni Shelter Society v Literacy Alberni Society, 2021 BCSC 1754 ("Port Alberni"), a campaign of emails, social media posts, and videos accused the plaintiffs of fraud, criminal negligence, and mismanagement of public funds. The plaintiffs work to reduce homelessness and addiction, two of the very harms the statements accused them of causing (Port Alberni at para 86). The Court described the allegations as "very serious" (Port Alberni at para 86), noting that:
"They allege criminal acts causing multiple deaths, betrayal of trust of a vulnerable population, financial dishonesty, mismanagement of public funds for vulnerable populations, and creating homelessness and addiction, two of the very things that the plaintiffs work to ameliorate." (Port Alberni at para 86)
Weighing the traction the defamation gained and the harm to the plaintiffs' reputation, the Court awarded $100,000 in general damages to each individual plaintiff and $75,000 to the corporate plaintiff (Port Alberni at para 145). It added $25,000 in aggravated damages to each individual plaintiff and $15,000 in punitive damages shared among the three plaintiffs (Port Alberni at paras 150, 158). The Court also granted a permanent injunction and ordered all the defamatory content removed from the internet (Port Alberni at paras 177–178).
The "Truth" Defence: Proving the "Sting"
The most intuitive defence to a defamation claim is justification, the claim that the statement was true, and the burden of proving it falls on the defendant. In Bent, the Supreme Court of Canada confirmed that "to succeed on the defence of justification, a defendant must adduce evidence showing that the statement was substantially true" and that the defendant must prove the substantial truth of the "sting, or main thrust, of the defamation" (Bent at para 107, citing Downard, The Law of Libel in Canada). Partial truth is not enough. If a material part of the justification defence fails, the entire defence fails (Bent at para 108). Where the sting of the defamation is an accusation of fraud, it is not sufficient for the defendant to show that an investment performed poorly or a business relationship went sour, because the defendant must prove the substantial truth of the accusation itself.
In Holden v Hanlon, 2019 BCSC 622 ("Holden"), the defendant emailed and posted online that the plaintiff was a "con artist" who committed "fraud" and "scams her clients." The Court held that these words alleged "that Ms. Holden is dishonest, acts fraudulently, defrauded her regulator, and lacks the requisite skills and training to be a private investigator" (Holden at para 194). The defendant maintained that all his statements were true. The Court found otherwise, holding that "the evidence falls short of establishing that Ms. Holden is a fraud and fraudulently obtained her private investigator licence" (Holden at para 202). His reliance on unnamed sources who did not testify was of no help; the Court applied the repetition rule, which provides that a defendant cannot justify a defamatory statement simply by showing that someone else said it first (Holden at paras 171–172). Compensatory damages of $20,000 and aggravated damages of $7,500 followed (Holden at paras 320, 325).
In Huff v Zuk, 2019 ABQB 691 ("Huff"), a dentist accused a colleague of misconduct through emails, a website, and an e-book. The Court found no evidentiary foundation for the allegations and rejected the defence of justification entirely (Huff at para 156). It awarded the plaintiff $50,000 in general damages (Huff at para 278).
Justification is not the only defence available. Defendants may also raise qualified privilege, fair comment, or responsible communication on a matter of public interest, among others, each with its own requirements and limitations. None of these defences is automatic, and each places the evidentiary burden on the defendant.
Evidence and Timing in a Defamation Claim
A defamation claim over a group email turns on evidence that tends to disappear. The original email, the identities of the recipients, and screenshots of any online postings record what was published and to whom, and replies or forwarded copies matter because republishing defamatory material carries the same liability as the original. A single statement can also give rise to more than one defendant.
Timing and procedure shape these claims more than most. Limitation periods, notice requirements, and the effect of apologies or retractions all bear on a defamation action, and where a publisher or broadcaster is involved, statutory notice requirements can govern whether the right to sue survives. The rules differ from province to province, and the strategic decisions come earlier than in other kinds of litigation.
Baker Law Firm litigates defamation actions through all steps, including trial and appeal. The firm acted for the plaintiffs at trial in a defamation claim against a national broadcaster, a matter now before the Court of Appeal of Alberta. It regularly acts for both plaintiffs and defendants in defamation claims.
If a group email has accused you or your business of fraud, dishonesty, or criminal conduct, contact Baker Law Firm's defamation group.