Defamation Defences
A defamation claim can arrive without warning: a lawsuit, a demand letter, or a formal complaint alleging that something you said or published has damaged someone's reputation. If you are on the receiving end, understanding the defences available to you is the critical first step. Ontario law provides several well-established defences that, if proven, can defeat a defamation claim entirely.
This article explains what defamation is, the elements a plaintiff must prove, and each defence available to defendants in Ontario and British Columbia, including truth, fair comment, absolute and qualified privilege, and responsible communication on matters of public interest.
A defendant may also challenge whether the plaintiff has proven the required elements of the claim. If any element fails, the claim falls before defences even need to be considered. Each defence has its own requirements and limitations, and the right strategy depends on the specific facts of your case.
What is defamation?
Defamation occurs when a person makes a false statement about another person or business that is communicated to at least one third party and that harms their reputation in the eyes of a reasonable person. In Ontario, defamation law is primarily governed by common law and the Libel and Slander Act, RSO 1990, c L.12.
Defamation takes two forms depending on how the statement was communicated.
Libel
- Written or published statements
- Includes online posts, articles, emails, and broadcasts
- Permanent or semi-permanent form
- Presumed to be more harmful: no proof of financial loss required
- Governed by the Libel and Slander Act for newspapers and broadcasts
Slander
- Spoken or temporary statements
- Includes verbal remarks communicated to third parties
- Transient form
- Some categories require proof of actual financial loss
- Exceptions: slander affecting professional reputation or alleging criminal conduct
To succeed in a defamation claim in Ontario, the plaintiff must prove three elements: the statement was defamatory and would lower their reputation in the eyes of a reasonable person; the statement referred to the plaintiff; and the statement was communicated to at least one third party. Once all three elements are proven, the burden shifts to the defendant to establish a defence.
Challenging the plaintiff's case
Before the defences themselves are considered, a defendant should assess whether the plaintiff can actually prove all three required elements. If any element fails, the claim falls entirely without the need to establish a defence.
The statement was not defamatory
The defendant can argue the statement would not lower the plaintiff's reputation in the eyes of a reasonable person, or that the statement was understood as satire, hyperbole, or clearly not a factual assertion. Context matters significantly in this analysis.
The statement did not refer to the plaintiff
If a reasonable person would not understand the statement to be referring to the plaintiff, the second element fails. This defence is relevant where the statement is general in nature or where the plaintiff's identity is not apparent from the statement itself.
No communication to a third party
Defamation requires publication to at least one person other than the plaintiff. A statement made only to the plaintiff, or never actually received by a third party, cannot form the basis of a successful claim.
Limitation period expired
Under Ontario's Limitations Act, 2002 and the Libel and Slander Act, defamation claims have strict time limits. For libel in a newspaper or broadcast, notice must be given within six weeks of the plaintiff becoming aware of the publication. Missing this deadline can bar the claim entirely.
The main defences to defamation in Ontario
Truth (justification)
Truth is a complete defence to defamation. If the defendant can prove that the statement was substantially true, the claim fails entirely. The defendant bears the burden of proving truth on a balance of probabilities. Where the statement concerns the quality of goods or services, independent testing, documentary evidence, or expert opinion may be used to establish truth. The defence does not require the statement to be true in every detail: substantial truth is sufficient.
Fair comment
Fair comment protects expressions of opinion rather than statements of fact. To succeed, the defendant must show the comment concerned a matter of public interest; it was based on facts that were either true or protected by privilege; it was recognizable as opinion rather than fact; and it was one that any person could honestly hold, even if extreme or exaggerated. The defence fails if the plaintiff proves the comment was made with malice, meaning an improper purpose beyond genuine expression of opinion. Public interest matters attracting this defence include criticism of public figures, reviews of goods and services, commentary on corporate conduct, and political speech.
Absolute privilege
Absolute privilege provides complete protection against defamation claims regardless of the content of the statement and regardless of whether it was made maliciously. It applies in specific high-importance contexts: statements made during judicial and quasi-judicial proceedings; statements made in legislative debates and proceedings; and communications between certain government officials acting in their official capacity. The policy rationale is that open and frank discussion in these settings serves the public interest in a way that justifies full protection even for false or malicious statements.
Qualified privilege
Qualified privilege protects statements made in circumstances where the defendant had a legal, social, or moral duty to make them and the recipient had a corresponding duty or interest in receiving them. Common examples include employee performance evaluations, references provided to prospective employers, complaints made to regulatory or professional bodies, reports made to police in good faith, and communications between members of a shared interest group. Unlike absolute privilege, qualified privilege can be defeated if the plaintiff proves the statement was made with malice or that publication went beyond what was reasonably necessary in the circumstances.
Responsible communication on matters of public interest
Established by the Supreme Court of Canada in Grant v. Torstar Corp., 2009 SCC 61, this defence protects publishers and communicators who report on matters of genuine public interest, even where the statement later proves to be false, provided they acted responsibly in verifying the information before publication. To succeed, the defendant must show the statement was on a matter of public interest and that they took reasonable steps to verify its accuracy. Courts consider factors including the seriousness of the allegation, the importance of the subject matter, the reliability of sources, whether the plaintiff was given an opportunity to respond, and the urgency of publication. While the defence originated in media contexts, Ontario courts have applied it beyond traditional journalism.
Facing a defamation claim and unsure which defence applies?
The right defence depends on the specific facts, the evidence available, and how the statement was made and received. Achkar Law can assess your situation and advise on the strongest strategy. See our defamation and injurious falsehood practice page for more.
Speak With a Defamation Lawyer Or call us: 1-800-771-7882The role of malice in defamation defences
Malice is a concept that can defeat otherwise available defences, particularly fair comment and qualified privilege. In the defamation context, malice does not simply mean ill will: it means the defendant was motivated by an improper purpose other than the honest expression of opinion or the discharge of a duty.
Evidence of malice can include the defendant's knowledge that the statement was false, reckless disregard for whether it was true or false, use of the privileged occasion to pursue a personal vendetta, or publication that went significantly beyond what the occasion required. Where malice is established, it can strip a defendant of defences they would otherwise have had.
This is why the context and motivation behind the statement matter as much as the statement itself. A defendant who can demonstrate they genuinely believed their statement, acted in good faith, and had a legitimate purpose in making it is in a much stronger position than one whose communications reveal personal animus toward the plaintiff.
Defamation defences in British Columbia
BC defamation law applies the same common law principles as Ontario. The same five defences are available: truth, fair comment, absolute privilege, qualified privilege, and responsible communication. The Grant v. Torstar decision of the Supreme Court of Canada applies equally across all Canadian provinces.
The primary legislative difference is that BC's defamation law is governed by the Defamation Act, RSBC 1996, c. 75, rather than Ontario's Libel and Slander Act. BC's limitation periods and procedural rules also differ from Ontario's. Defendants in BC defamation proceedings should obtain advice from a lawyer familiar with BC Supreme Court procedure and BC's specific defamation legislation.
Received a defamation claim or demand letter? Act before you respond.
Responding to a defamation claim without legal advice can inadvertently strengthen the plaintiff's case. The statements you make in response and how you make them can affect your available defences. Get advice before you say or write anything in response.
Call: 1-800-771-7882 Speak With a LawyerPractical takeaways
Frequently asked questions
What are the defences to a defamation claim in Ontario?
The main defences are: truth (justification), which is a complete defence if the statement was substantially true; fair comment, which protects honest expressions of opinion on matters of public interest; absolute privilege, which protects statements in judicial proceedings and legislative debates; qualified privilege, which protects statements made in circumstances of duty and corresponding interest; and responsible communication on matters of public interest. A defendant may also challenge whether the plaintiff has proven the required elements of the claim.
Is truth a defence to defamation in Ontario?
Yes. Truth, also called justification, is a complete defence to a defamation claim in Ontario. If the defendant can prove the statement was substantially true, the claim fails entirely. The defendant bears the burden of proving truth on a balance of probabilities. The defence does not require the statement to be true in every detail: substantial truth is sufficient.
What is the defence of fair comment in defamation?
Fair comment protects expressions of opinion on matters of public interest. To succeed, the defendant must show the comment concerned a matter of public interest, was based on true facts, was recognizable as opinion rather than fact, and was one that any person could honestly hold. The defence fails if the plaintiff proves the comment was made with malice, meaning an improper purpose beyond genuine expression of opinion.
What is qualified privilege in defamation law?
Qualified privilege protects statements made where the defendant had a legal, social, or moral duty to make them and the recipient had a corresponding interest in receiving them. Examples include employee performance reviews, references to prospective employers, complaints to regulatory bodies, and reports made to police in good faith. The defence can be defeated if the plaintiff proves the statement was made with malice or that publication exceeded what was reasonably necessary.
How long does someone have to sue for defamation in Ontario?
The limitation period under Ontario's Limitations Act, 2002 is generally two years from discovery of the defamatory statement. For libel published in a newspaper or broadcast under the Libel and Slander Act, the plaintiff must give notice within six weeks of becoming aware of the publication. Missing these deadlines can bar the claim entirely regardless of its merits.
What is the difference between libel and slander?
Libel is defamation in written, published, or permanent form, including online posts, articles, and broadcasts. Slander is defamation in spoken or temporary form. In Ontario, libel is generally treated as more serious: no proof of financial loss is required for a libel claim, while some categories of slander require proof of actual damages. Both are actionable under Ontario defamation law.
Facing a defamation claim in Ontario or BC? Get advice before you respond.
Defamation cases are fact-specific and time-sensitive. The strength of a defence depends on the evidence available, the circumstances in which the statement was made, and whether malice can be established or refuted. Achkar Law represents defendants in defamation and injurious falsehood disputes across Ontario and British Columbia. We can assess your position, identify the strongest available defence, and help you resolve the dispute as efficiently as possible.
Call us at 1-800-771-7882 or fill out the form below and we will be in touch.