By Joel Hill
Wilson v. Switlo is a recent decision of the B.C. Supreme Court addressing a great many aspects of the law relating to defamation. This post is the third in a series reviewing the claims, defences, and issues raised in this important recent decision.
To succeed in a claim of defamation, the party bringing the lawsuit (the “plaintiff”) needs to prove three things: (1) that the party being sued (the “defendant”) “published” the words complained of, where “publishing” means communicating the words to a third party, whether orally, in writing, or in some other fashion (e.g. standing and pointing out to passers-by a defamatory sign written by someone else); (2) that the words complained of referred to the plaintiff, and not someone else; and (3) that the words complained of are, in fact, defamatory.
As we saw in the first post in this series, words are defamatory when they tend to lower a person’s reputation in the estimation of ordinary, reasonable members of society generally, or to expose a person to hatred, contempt or ridicule.
In Wilson v. Switlo, the words complained of were allegations of fraud and corruption against individuals in their capacity as holders of public office, namely as members of the Kitamaat Village Council, the elected band council of the Haisla First Nation. The Court noted that defamation on the basis of alleged criminal conduct “does not require a technical description of the crime in question:
… [I]t is defamatory to charge someone with a criminal act or omission. The accusation need not describe the crime in a precise and technically correct way, or be phrased in language sufficient to meet the technical necessities of a statute or the requisites of an indictment. Nor is it necessary to specify the particular offence, or to refer to it by name. The criminal charge may be made by way of implication or insinuation. It is sufficient if the words convey the idea that a person is guilty of acts constituting a crime. …” (emphasis added)
In other words, it could be defamatory to say “John took the money belonging to Jane”, as much as if you had said “John committed theft under s. 322 of the Criminal Code.”
With regard to allegations of fraudulent conduct, the Court further explained that “defamation may be established on the basis of words that allege illegal, if not specifically criminal behaviour:
“… There are other comments, equally defamatory, which suggest some sort of illegal, though not necessarily criminal misbehavior. In this category are general comments to the effect that an organization is “fraudulent” or a “rip-off”, or that a person is crooked, a grafter, a “racketeer”, or a bandit, or that a person generally travelled one step ahead of the law. An organization may be charged with fraud. It may also be defamatory to say that an official running for office was being sued for fraud which was conveniently adjourned until after the election, or that shareholders and a town have been defrauded by the plaintiff company, or that the public generally has been defrauded, …”
The Court concluded by citing the Concise Oxford English Dictionary:
“The following definition is therefore of assistance in determining whether the reasonable reader or listener would have understood the impugned statements in this case to impute fraudulent conduct to the plaintiffs: fraud n. 1 wrongful or criminal deception intended to result in financial or personal gain. 2 a person or thing intended to deceive … fraudulent adj. done by or involving fraud – deceitful or dishonest – derivatives fraudulence n. fraudulently, adv.”
In light of that definition, the Court held that the majority of the words complained of by the plaintiffs were defamatory at law.
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