Say What? Blending the Canadian and American Approaches to Common-Law Defamation Claims

by Keith Edmund White


A June 2011 issue of the (publicly available) Osgoode Law Journal offers a very well crafted proposal for how Canadian Courts should handle defamation claims.  The author:  entertainment lawyer and visiting lecturer at the University of Western Ontario Bob Tarantino.  Why is this of interest to Canada-U.S. law & policy wonks?  It reflects Canada’s distinct rejection of the American defamation approach enshrined in the U.S. Supreme Court (USSC) case Sullivan, while also showing a Canadian entertainment lawyer’s well-reasoned suggestion to have Canadian courts blend the advantages of America and Canada’s defamation approaches.


The key difference between Canadian and U.S. defamation law is the burden a “public figure” must meet in order to win a defamation claim.  In the U.S., the public figure plaintiff must prove that the defendant acted with “actual malice” (read:  a conscious disregard as to assessing the truth of the claim or actual knowledge that the claim was false).  In Canada, as Tarantino reviews, there is no public figure test.  Instead the CCS has engaged in tests to assess if reputation or free expression should be privileged.  From my sense of reading Tarantino’s article, these elaborate balancing tests seem—to me—perplexing vague.

Tarantino offers the following proposal:

Where a public figure is present in the matrix of facts giving rise to a claim of defamation, then a modification is called for in how the common law treats that individual as a plaintiff. This proposal seeks to retain the broad contours of the existing tort, with the following modifications: 

-Public  figure  plaintiffs  should  be  entitled  to  bring—indeed  should, subject to the remainder of this proposal, be limited to bringing—an action that seeks to “correct the record”;

-Public figure plaintiffs should be restricted in recovering damages from defendants, except for special damages that the plaintiff can prove and punitive damages in egregious situations (such as publication with malice);
-Public figure plaintiffs should bear the burden of proving the falsity of the impugned statement; 

-Subject to having made a timely request for a correction, and having demonstrated falsity, a public figure plaintiff should be entitled to a court declaration as to the falsity of the impugned statement and an order that the defendant publish a prompt and relevant correction. Such correction would  contain a positive substantive statement incorporating an acknowledgement that the defendant published incorrect and  defamatory statements about the plaintiff and would also set out the truth relative to the impugned statement. Failure by the defendant to comply would result in the plaintiff being entitled to receive general and punitive damages; and

-Pre-trial discovery for the modified tort should be limited to the issues of standing, falsity, and, if the plaintiff so pleads, special damages.

Tarantino then reviews how his proposal is different from the Sullivan test, and how it seeks to address the CCS’s Sullivan concerns:

Another concern about this proposed public figure distinction is that it resembles the Sullivan approach rather too closely, which would represent a change in Canadian defamation law precluded by the express rejection in Hill (subsequently reaffirmed in WIC Radio and Grant) of adopting a Sullivan-style approach.  Though there is a superficial similarity between Sullivan and this proposal (in that there would be a shifting of the burden of proof to the plaintiff and that fault, falsity, and damages would no longer be presumed and subject to rebuttal by the defendant), this proposal accords with the reasons given by the SCC in rejecting the adoption of Sullivan and, further, actually addresses the concerns raised by it. The fundamental criticism of Sullivan set out in Hill is that the actual malice inquiry shifts the focus of the tort away from determining the truth of the impugned statement and toward an inquiry into the conduct of the defendant, which deprives plaintiffs of an opportunity to establish falsity and increases the costs of litigation by involving parties in extensive (and meddlesome) discoveries about the news reporting process. The most damaging aspect of Sullivan, in the eyes of the SCC, is that potentially false statements of fact are left unrebutted, exacting “a major social cost by deprecating truth in public discourse.”  The proposal advanced in this article strives to work in precisely the opposite direction of Sullivan, while retaining the SCC’s avowed goal of expanding the ambit of freedom of the media—toward, rather than away from, determinations of truth and falsity; and away from, rather than toward, complexity and increasing cost in litigation. In this regard, if anything, this proposal demonstrates greater fidelity to the aims of the SCC than the modifications contained in Grant, Cusson, and WIC Radio.

Thus, Tarantino shows the deep common law relationship between Canada and the United States, and how these two bodies of law can inform each other in their ultimate goal:  to appropriately balance competing societal values.