Articles by our Lawyers

by James Yousif, Lawyer

Qualified privilege allows an otherwise defamatory publication to escape civil liability, if the person who made the defamatory expression had a duty to communicate, and the person who received it had a corresponding duty to receive the information.  It is based upon the idea that there are some things the public needs to know, and that the importance of expressing such knowledge may outweigh the protection of a particular person’s reputation.

Introduction

In the first step of a defamation lawsuit the plaintiff must prove three things:

  1. That the words spoken by the defendant were defamatory, in the sense that they would lower the plaintiff’s reputation in the eyes of a reasonable person.
  2. That the defendant’s words referred to the plaintiff.
  3. That the words were published, that is, communicated to at least one person other than the plaintiff.

Grant v. Torstar Corp., 2009 SCC 61 at para 28.

When these are established in court, the falsehood of the defamatory words are presumed and damage is also presumed.  This way of automatically attributing falsehood and damage is sometimes referred to as “strict liability”.  The subjective motives or intentions of the defendant are not relevant at this stage of the analysis.  The focus at this stage is upon the words, not the intent.

However, once a prima facie finding of defamation is made, the trial shifts to a consideration of whether one of the legal defences to a defamation finding is available to the defendant.  One such defence is “qualified privilege.”

Qualified privilege might also be called the “duty defence”.  The defence of qualified privilege permits the publication of otherwise defamatory statements on the basis that the person who said the defamatory words had a duty to say them, and that the person who heard the defamatory words also had a reciprocal duty to hear them.  (Hill v. Church of Scientology of Toronto at para. 143. )

Examples of the Defence of Qualified Privilege

Let’s consider some examples, variations of actual cases which have been simplified:

  • Physicians are sometimes required by law, and by the rules that govern their profession, to report certain information about their patients to the hospital where they may be working.  The doctor has a legal duty to provide the information.  The hospital has a legal duty to receive it.  If the doctor’s communication included a defamatory component, it may be protected by a finding of qualified privilege.
  • An employee has a duty to keep their company informed of the conduct of a fellow employee that might negatively affect the company.  Performing that duty may require the employee to communicate something defamatory.  The employee has a duty to report, and the company a corresponding interest in receiving that report.  A qualified privilege would defend the employee in this circumstance.
  • The dean of a professional school may have a duty to post a notice that a student had been suspended while a charge of theft was being investigated.  The dean may have a duty to notify the students, and the students a corresponding interest in receiving that information.  Any damage to the reputation of the student who was the subject of the notice may be excused as the result of a finding of qualified privilege.
  • A qualified privilege may exist for ordinary citizens.  A citizen may have a duty to report suspected crimes to law enforcement officers, who have a corresponding duty to receive such information.  Citizens should not be afraid of a defamation action when considering whether to call 911.
  • Citizens may also have a duty to report a wide variety of other things to various relevant authorities.  One example would be a citizen reporting an accountant who is practising without the proper license to the professional regulator of accountants.
  • The privilege may also arise in personal relationships.  For example, a father may have a duty to complain to relevant authorities about the language and conduct of another student who attends school with his child.  The facts he reports may have a defamatory effect.  However, both the father and the authorities have a duty to make and receive that communication.  The defence of qualified privilege would protect the father if a defamation action was initiated against him.
  • Even within a single family, a brother may have a duty to warn his sister about the character of her fiance, and the sister a corresponding interest in receiving that information.  If the fiance were to sue the dutiful brother in defamation, the latter may establish the defence of qualified privilege.

Again it is not the words per se that decide the defence.  The Supreme Court of Canada has made clear that a qualified privilege attaches to the occasion upon which the communication is made, and not to the words themselves.  The context of the expressed words will always be assessed carefully.

Limits of Qualified Privilege:  Malice

It was noted earlier that when a court finds a publication to be defamatory, it is presumed to have been made with malice.  The defence of qualified privilege works by nullifying the presumption of malice.  A finding of qualified privilege locates the  defamatory communication within a context of reciprocal duties, recognized by society.  That good purpose supplants the imputation of a malicious motive. 

While that may be the end of the imputed malice, a finding of actual malice will still defeat a qualified privilege.  The Supreme Court defines actual malice as follows:

Malice is commonly understood, in the popular sense, as spite or ill‑will.  However, it also includes … “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created.  …  Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. 

(Hill at para. 145)

Limits of Qualified Privilege:  Exceeding the Duty

A qualified privilege will be limited in scope to the duties upon which it is based.  The fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion.  Any defamatory words that go beyond the legitimate purpose of the occasion will not be privileged.  Words that are not relevant to the duty or interest that gave rise to the qualified privilege are not protected (Hill at para. 146).

Conclusion

Qualified privilege is a common defence to defamation lawsuits.  Establishing the defence requires that the occasion upon which defamatory words are published is the result of a duty on the part of the plaintiff to express those words, and a corresponding duty on the part of another person or organization to receive those words.

If the words are determined to have been motivated by an ulterior motive or actual malice, this defence will not succeed.  The defence is also not available in the event that the words published go beyond the duty upon which the privilege is based.

https://www.flickr.com/photos/slightlyeverything/8214124711/in/photolist-dvRx6R-6v2rcZ-wYK2bN-jCcWbQ-snYgWD-6tXvwF-aqEVsc-roCJtM-4EjNgb-gwmAC2-daCWks-6X9CYT-bxZNNo-51egFD-5cuE1j-6LVTWT-6jpvsz-5XTNTN-318DSb-ej5L6f-cP3yMb-gwmN7H-5tFwKC-9Ti743-sHC6yq-n6ZyP8-4MBoja-cuYoEC-bJsTcF-8j8qYR-dGVhdr-eR7hdr-gh7GK2-8fqNNS-d7nwL9-skE6S9-b9edw2-oQUHfe-r8rn6C-kgHCjT-hDbR45-cAveHL-obHfzD-cAvhk3-7uQYTv-9Njohw-bCWhDp-s6uEnB-iFiov3-cp4c1Q

The defence of fair comment allows for the free expression of opinions on matters of public interest.

By Pete O'Shea [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

Defaming someone in a publication may be allowed by the courts if it’s in the public interest and the author was diligent in their reporting.

https://www.flickr.com/photos/cutiemoo/3111207407/in/photolist-5JVKz2-4wYqHp-64QeX1-nQGynk-4wYuun-4x3Ezu-4y63jV-cNUTPW-7qHgcj-5bmdB7-a5FMNo-cvuSr-9J5K2z-2gm67s-hnvZg-dfYFfL-vSRjF-vjTfRe-eXcx29-aTZfAe-vuaqP-aTZfh2-2ZxtZm-drB6y-hTNeHj-cERdho-5Msngx-4pxv9k-aT7VoV-9u5uyM-7C1d2f-dYX6Xg-bvWwvd-9AbU4F-bvWwfS-bJRgSZ-bJRjqR-bvWxPN-bvWxxQ-aTZfbZ-aTyFjg-aTyFWM-2Zxswy-2ZsWm4-7tVtRj-8Kp5Fu-72nVwg-bvWurj-bJRn7X-bJRmap

Ontario has an anti-SLAPP law intended to encourage expression and debate on matters of public interest, by discouraging meritless lawsuits meant to stifle that expression.

https://www.flickr.com/photos/jtellier/6819171177/in/photolist-4CVCDR-4XNXxb-7giv2u-5gApBa-5PCmnm-cxhoy-fQvs6X-5TLqbd-iddSx-nyZ8xp-9L4e9d-qewYe-pCTZ8p-gty4x-pCWrpN-3dUN6F-46edgW-agwjpA-gty4z-i7SMQv-EPW8n-parXzs-eijbdk-2CkJMx-bozS3n-epuFGB-4nTa7A-aaPJEb-8wmuU7-75aD6f-6szvJ9-boA31R-4upXea-2fq3Uh-ohaLJp-ee7SY4-2qYqF-8P72hV-2c6LX-4nTa8h-bDE9AB-6LDHjQ-3oq8mv-uNGeg8-26oQDu-r6Xyxy-5BZsMM-3orCDV-77oj4P-5TG6cH

Defamation Lawyer, Gil Zvulony successfully defended an Anti-SLAPP motion for his client. The case involved postings about a real estate agent on WeChat.

An Anti-SLAPP motion seeks to have a legal proceeding dismissed because it is a proceeding that limits freedom of expression on a matter of public interest (Gag Proceeding). Mr. Zvulony was one of the first to test Ontario’s anti-SLAPP legislation in the courts in another case.

The full day motion was argued virtually using Zoom. The judge found in favour of Mr. Zvulony’s client and dismissed the Anti-SLAPP motion.

In his judgment, the judge thanked Mr. Zvulony for the superb quality of his oral and written submissions. The case can be found here: Niu v. Cao, 2020 ONSC 5407 (CanLII), <http://canlii.ca/t/j9kt8>

DISCLAIMER: This description is intended only to provide information about the activities and experience of our lawyers and should not be understood as a guarantee or assurance of future success in any matter. 

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    By Karen Zvulony, Toronto Employment Lawyer

    Due to the fallout from the Covid-19/ Corona-virus pandemic, many employers have had to layoff employees, that is they have temporarily reduced employee hours or have had to stop them completely. Can an employer do so and expect an employee to return to work when business resumes to normal? 

    A temporary lay off occurs when an employer significantly reduces an employees work hours, or fails to provide them with any work and tells them to stay home but expects to recall the employee back to work at some future time. The employer does not tell the employee that their employment has ended. 

    In Canadian common law, the general rule is that employers do not have any legal right to “lay off” employees temporarily. There are some important exceptions to this general rule, such as unionized employees, if an employment contract provides for temporary lay-offs, if the nature of the employment contemplates layoffs (i.e. seasonal workers), or if the employee agrees to the layoff arrangement.  

    If an employee is temporarily laid off (Covid-19 related or not) and, it does not meet any of the one exceptions noted above then the law of Ontario treats that lay-off as a termination of the employment relationship.

    The employee could then claim any entitlements the employee may have such as damages for wrongful dismissal (i.e. for severance/pay in lieu of notice).  

    If the employee is later recalled to work, then any entitlement to damages for wrongful dismissal would be limited to the period of layoff. 

    Does Covid-19 Change the General Rule?

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    Would it be different for employees who are laid off because the government has mandated that their employer’s close their business due to Covid-19? It is too soon to tell for sure, as the courts have not dealt with this issue, but it is reasonable to presume Covid-19 precautions will change the general rule. 

    An employer who has been forced to close because of a government order due to Covid-19, could make a strong argument that the employment contract has been frustrated rather than terminated. 

    Frustration of contract refers to situations when the contract is incapable of being performed due to an unforeseen event (or events), and through no fault of either party. Whether or not the current pandemic would be considered as a “frustrating event”, is a legal argument that the courts will no doubt have to deal with. 

    If an employment contract is frustrated, then the employer is not terminating an employee, but rather the employment contract has simply come to an end. Since there is no termination, the employee would not be entitled to common law damages for severance or pay in lieu of notice. However, the employee is not completely out of luck as the Ontario Employment Standards Act provides that an employer must provide an employee with termination pay and severance in the event of frustration. This amount would be limited to the minimums outlined in the Employment Standards Act, 2000.

    If you have been laid off due to Covid-19, you may be entitled to severance. As each case is different, it is best to speak to an employment lawyer to see what your entitlements may be. 

    https://www.flickr.com/photos/54027476@N07/4999919941/in/photolist-8BPU1e-dRgyWX-nTrNNG-Kyreb-PgGaX-PgGbt-PgyVt-PgaXh-PgyTD-PgGdr-PgGeK-Pg3JQ-Pgz2P-Pg3WW-PgySX-PgyQn-PgyUv-Pg3Ym-PgyYH-PgaVw-PgyWx-Pg3Rd-PgGck-Pgz1i-Pg3Pu-A2X6r-46gC4V-azxChm-azuY3T-azuYhc-A2WpK-5SyvKo-AGhPc-7m6tqS-Ed22H-4j4FsQ-buTeAg-dvgxEf-8XguaX-9Afp1-dp1W6L-hWX3qc-9bbHtb-7q7h2y-nXgzsg-ciTnXf-obKUK9-cXXr2S-daSriS-9E3FHo

    The fear and danger of Coronavirus (COVID-19) has caused significant economic upheaval in Canada. Employees have had to cope with the crisis and adapt to the current reality.

    We have identified a number of legal issues in the form of employment law questions from an employee’s perspective resulting from the COVID-19 situation.

    If these questions affect you then you may wish to speak to Karen Zvulony our employment lawyer who can discuss your particular situation with you and offer some answers to your legal questions.

    Coronavirus Questions from An Employee’s Perspective

    • Does my employer have to pay me if I am unable  to work due to Covid-19? 
    • Can I lose my job if I have Covid-19?
    • Can I lose my job if I am looking after someone with Covid-19?
    • Am I entitled to any additional severance if my employment is terminated at this time? 
    • Does my employer have to accommodate me to work from home? 
    • Can I lose my job if I have to look after children who are home from school due to Covid-19 and cannot work as a result?
    • If I have paid holidays/vacation do I have to exhaust this first if I am not able to work due to Covid -19 or can I save my vacation pay/days and apply for EI? 
    • If I have paid sick days do I have to use my paid sick days before collecting a benefit from the government? 
    • If a family member is sent home due to a potential contact with a positive Covid-19 person can my employer refuse to allow me to come to work? If so, do they have an obligation to pay me?
    • Can my employer force me to self-isolate? If so, do they have to pay me during this time? 
    • Can I tell my employer I do not feel comfortable coming into work even though the company is still open and I am not showing symptoms?
    • A co-worker recently returned from abroad, I am nervous, can I refuse to go to work? 
    • Can my employer force me to get a doctor’s note?
    • What happens if my employer is refusing to give me an ROE because they say I can continue to work on a limited basis?
    • I am limited for what I can do while working at home. Can my employer make me take a pay cut or reduce my hours?
    • I am under a probationary period with my employer. How will this affect me being laid off during the Covid-19?
    • I was on sick leave unrelated to COVID-19 and am now able to return to work. My employer is saying to stay home. What do I do?
    • Can an employer still terminate me during this time, even if my job has not been affected by COVID-19?
    https://www.flickr.com/photos/marcobellucci/3534516458/in/photolist-6okjAW-5nRsb3-rrtnoF-aiEhXH-2FNUzm-rphyCW-4ms8ZA-9grzfE-bTQwfx-56eXRT-4mzmoq-4HaGH6-aeXN2Z-5hJgbT-qJ8iU-8vT9yB-7Fguhp-4VwGmg-bTQwf4-dco18n-5GLFEo-8giHbr-dR6rbS-aA9usm-zh7vG-ddyx4t-7Er6af-rrv51P-4Bom3q-7k5o9D-8gmor5-7JnRdX-7vB7fR-oRNywn-5huQJc-9oGwvq-h5uim-5giDsZ-sG3xvz-8HDJ5B-85Rk9G-6ABmJx-JhptkQ-FEdBM-o4n6iU-2vVkpu-cgNkhu-5JE9tz-akUamc-cRMpS

    The fear and danger of Coronavirus (COVID-19) has caused significant economic upheaval in Canada. Businesses and individuals have had to cope with the crisis and adapt to the current reality.

    We have identified a number of legal issues in the form of employment law questions from an employer’s perspective resulting from the COVID-19 situation.

    If these questions affect you or your business then you may wish to speak to Karen Zvulony our employment lawyer who can discuss your particular situation with you and offer some answers to your legal questions.

    Coronavirus Questions from An Employer’s Perspective

    • Do I have to continue to pay employees who have tested positive for Covid-19 or are in quarantine? What about employees who have chosen to self-isolate?
    • I have been forced to close my business temporarily, what are my obligations to my employees? Does it make a difference if I voluntarily choose to close? 
    • As an employer, what are my liabilities if an employee in my workplace tests positive for Covid-19?
    • Can I fire an employee who has Covid-19 and did not report it?
    • I have an employee that was underperforming for some time and want to terminate them now, can I?
    • Am I required to allow employees to work from home? 
    • What are my obligations if an employee refuses to come to work? 
    • What if an employee cannot work remotely or otherwise due to childcare responsibilities due to the school closures?
    • If I have to lay off some employees but not all, how can I lay off without showing favoritism or the employee claiming a Human Rights issue?
    • I recently hired some employees who have not yet started, given the current situation, I no longer have work for them, what are my obligations if any?
    • Can I retract any offers of employment due to the current situation? 
    • What if one of my employees is using this crisis as an excuse?
    • Can I stop an employee from travelling? 
    • Can I give an employee the option of taking a wage cut/reduced hours in lieu of a layoff or termination? 
    • What can I ask employees or potential employees about their health?
    • Can I fire an employee that refuses to come to work because they want to self-isolate, yet I see on their social media that they are out in public places? 
    • I have an employee that has family members whom they live with that recently returned from abroad, can I refuse to allow them to return to work? If so, do I have to pay them? 
    • Do I have to give employees severance who are terminated due to Covid-19? 
    • Do I have to rehire the same employees back after they have been laid off due to Covid-19?
    • Do I have to accommodate employees to work remotely from home? What if this is not possible? 

    https://www.flickr.com/photos/ohai_spackwood/3646090332/in/photolist-6ycaCq-cCroVG-bCuooj-j1Br8q-8j8mTY-oazbj1-fv2onq-No5Tp-EpaJ5S-8gzBZD-8gCT7o-8gCTdY-5vkEMc-8kf9va-okHnd-8natuB-REwjC-qrXVFi-4SWr2y-3NbtiK-8NU38q-3YsNPu-awJteg-6u4MHr-r8xj7p-721gik-cnGyrL-6HYFmw-9qWkv1-4pLwrj-dFmdQA-6zTFJM-aAn1XZ-9vyPnW-6nzmTG-5TCPcD-tp9Fi-6mrrNc-e1NXfQ-8gzyEZ-aAn1QM-eKbK9-nTLKB-zzhz5-dnUTr6-czrUJ-6e1d7B-cxvkpQ-6pPjn6-ra29nB

    Toronto Internet lawyer discusses the law with respect to online pranks and challenges.