“This is a defamation action. It is a sad tale of a community divided. It is about reputation in that community. It is about politics. It contains elements that are both unique and remarkable.”
So begins Mr. Justice R. Punnett’s reasons for judgment in Wilson v. Switlo, 2011 BCSC 1287, a recent decision involving multiple claims of defamation. As the Court observed, the action arose out of “divisive band politics and a conflict over who speaks for the Haisla, a band of approximately 1600 members of whom 900 live on-reserve at Kitamaat Village, near the City of Kitimat on the north coast of British Columbia.”
The case is remarkable in that, among other things, the reasons for judgment address a great many aspects of the law of defamation.
One of the first questions that the Court had to ask was “what is defamation?”, which was answered as follows:
“The law of defamation concerns the civil wrongs of libel and slander. At common law, libel is defamatory expression in writing or some other permanent form while slander is an oral statement or some other form of transitory expression.
Generally, expression that tends 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 is defamatory…
An allegation of defamation may rest on the literal meaning of a statement or on its inferential meaning, or on the claim that the statement constitutes a legal innuendo. In this case only the literal and inferential meanings of the impugned statements are in issue.
Where the literal meaning is in issue, it is unnecessary to go beyond the words themselves. A claim based on the inferential meaning relies on what the ordinary person will infer from the statement. That is, it is a matter of impression.”
Having explained that defamation consists of communication, oral, written, or otherwise transmitted, with a meaning, express or implied, that tends to lower a person’s reputation in the eyes of ordinary society, the Court cited the elements need to prove such a clam in court:
“A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) 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; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.”
The Court noted that, importantly, a person making a claim of defamation does not have to prove that the defamatory words were false, or that the person publishing those words intended to harm or careless. In fact, in most cases, a person making a claim for defamation does not even need to prove that they suffered any harm from the words.
The Court continued:
“Determining if a statement is defamatory involves a two step analysis. At the first stage, the court exercises a gatekeeper function to determine whether, as a matter of law, the statement is capable of carrying a defamatory meaning. At the second stage, the trier of fact determines whether the statement is defamatory in fact.”
(In other words, a judge would first ask whether the allegedly defamatory words could possibly be defamatory, and then would ask a jury whether the words were in fact defamatory in the case before them.)
The Court observed that the test for whether statements are defamatory is “objective”: in determining whether the words would be understood in such a way that they would lower the claimant in the eyes of society, the Court does not ask what meaning the claimant or the people who heard or read the words actually understood, but instead the Court asks what a “’reasonable and right-thinking person’, rather than someone with an overly fragile sensibility, would have understood from the words.”
Finally, the Court found that when there are, as in the case before it, “multiple statements on a related subject and they are referable to one another, they should be read together in order to determine whether the words used are defamatory.” Since the multiple statements complained of in the case related to one another, the Court into consideration the entire series of impugned expressions in determining if the words are defamatory.
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