DEFAMATION

In Canadian law, a statement will be considered defamatory if it tends to lower a person's reputation in the eyes of a reasonable observer. For the purposes of a claim, a plaintiff must show that the statement or its implied meanings would cause people to think less of them. The plaintiff must also be identifiable either in the statement itself or through circumstances, and lastly, to be defamatory the statement must be published or spoken to at least one other person. Once these elements are met, a plaintiff is presumed to be defamed and it falls on a defendant to show they have one of several possible defences.

There is nothing about an online review that prevents a business from suing for defamation. Corporations can sue for defamation and can recover for lost reputation or related business losses. However, honest opinions are protected by the defence of fair comment, and some courts have been clear that it is not reasonable for a business to expect only five star reviews. If an online review is false or incites hatred towards a business or its personnel, it may be actionable. Many local businesses rely on online reviews and a good reputation to attract customers. If your Alberta business has been negatively reviewed online and you believe the review may have crossed a line, contact us for an assessment of your options.

The cost of any lawsuit or claim is highly dependent on the situation and the goals of a particular client. A client who only wants to issue a demand and who is lucky enough for that demand to be effective will pay far less than a corporate plaintiff who seeks an immediate injunction and is prepared to carry their claim through to the end of trial. It is not possible to estimate or fix fees on a defamation action, but in certain circumstances Baker Law Firm will consider contingency or partial contingency fee arrangements. Also, in Alberta, a successful party is presumptively entitled to recover some measure of the legal costs of their claim. This can offset the cost of pursuing your claim.

Being sued for defamation is stressful and is something one wants to avoid. There is no cap on the amount of damages that the Court can award against a defendant who has defamed a plaintiff. Awards exceeding $2,000,000 are rare but have been made against some Canadian defendants. There are many steps required before a judgment is entered against you, and each step offers ways for you to potentially mitigate the risk and costs. We can provide individualized advice that is specific to your circumstances and act in your defence through all stages of a defamation claim, including at trial before the Court of King's Bench of Alberta or on an appeal.

A demand letter is not a court order, and the law does not obligate you to respond. Ignoring it still carries risk, as the sender may follow up by filing a Statement of Claim. In Alberta, defamation claims must be filed in the Court of King's Bench, as the Alberta Court of Justice does not have jurisdiction to decide defamation claims. If a demand is received and not a claim then you have more choices available, including whether a publication is removed or an apology is offered. Early and decisive action can sometimes defuse a defamation claim before it is ever filed. You can request to have the letter reviewed by our firm and to have us respond on your behalf.

If you have been served with a Statement of Claim the clock is running, and a Statement of Defence needs to be filed within 20 days or sometimes more. It is important to seek advice and representation promptly. Canadian law recognizes several defences to defamation, including justification, fair comment, qualified or absolute privilege. In certain circumstances a genuine apology might be recommended as a path to reducing damages and resolving your matter without a trial. Under the Alberta Rules of Court, a trial is not automatically set, and settlement can be discussed while continuing to advance your defence.

You may have heard of Anti-SLAPP legislation, which does not exist in Alberta at this time. Ontario and British Columbia have legislation aimed at the early dismissal of lawsuits that unfairly target expression on matters of public interest. The statutes of Ontario and British Columbia do not govern Alberta disputes. A defendant in the Court of King's Bench of Alberta instead relies on applications for summary dismissal or applications to strike a claim, together with the recognized defences to defamation. Whether such an application is warranted in your situation is a conversation worth having with experienced defamation counsel.

This might not seem intuitively obvious at first, but a person who shares or reposts a defamatory statement can be held equally responsible for it in Canadian law even though the words originated with someone else. Alberta courts have made substantial damages awards against defendants who republished allegations they did not write. Links can be treated differently and there are nuanced rules for internet service providers. However, the standard sharing features of Facebook, TikTok, X.com, Instagram, or Reddit all have the potential of attracting a claim in defamation. Whether a particular share attracts liability depends on what was repeated and deleting the post does not automatically erase exposure for the period it was visible. This is something to keep in mind when scrolling on your phone.

The Courts can and routinely do order injunctions which direct defamatory materials to be removed and order persons not to post further about an individual or business. The stage of proceedings is important to consider when asking for materials to be removed. At trial a removal order may form a natural part of the Court's decision, however it takes a long time for matters to reach trial, and many plaintiffs want to see the offending materials removed as soon as possible. This makes seeking an interlocutory injunction a consideration. Injunctions are not automatically granted and the cost of seeking an injunction would be in addition to the usual costs and risks of suing for defamation. If you retain Baker Law Firm, we would be pleased to advise you on whether to seek an early injunction and to explain the unique risks associated with these applications.