Claim
There is no separate claim in defamation in the Civil Code of Quebec. The usual article 1457 of Civil Code of Quebec (on civil responsibility) applies. The requirements are, therefore, quite well known:
— the claimant has to prove that he or she suffered an injury (prejudice, loss, other damage);
— the claimant has to prove that the injury was directly caused by the other party’s words;
— the claimant has to prove that the other party caused the injury due to its fault (be it intentionally or by negligence);
Proving is made on the balance of probabilities. To put it simply, the Court should believe the story presented by the claimant more than the interpretation of the other party. In other words, 51% probability in the eyes of the Court is enough.
As the injury itself and the causal connection are more or less straightforward things to prove, let’s concentrate on the question of fault. Again, if there is an evident intent to cause damage in bad faith, then the discussion would be over. Most of the cases is not so simple, though. The information might be spread by oversight, out of ingnorance, negligence, recklessness and similar reasons. For example, if the person spreading unfavourable information truly believed in it, yet missed an opportunity to do research and verify the facts, then being a true believer will not help.
Defence
Fundamental freedom and public interest
When it comes to the question of fault, the fundamental right to freedom of expression comes into play. Oversimplified, if the person had the right to say something, then the person was not wrong, was not at fault. Of course, the question of context and balancing rights against one another make an application of this simple rule a much more complicated exercise. The Courts will ask if using one’s freedom of expression for spreading the potentially defamatory information was in public interest (as it is usually seen in cases of political speech or when an act of whistleblowing would prevent some serious damage or when the questions raised is important for the society in general.)
Prescription
Second most obvious defence is the time limit (prescription). Time limits to bring up a claim in defamation are shorter than usual: one year in general and three months when it comes to a publication in a “newspaper” (including any “newspaper or periodical writing the publication whereof for sale or distribution free of charge is made at successive and determined periods, appearing on a fixed day or by irregular issues, but more than once a month and whose object is to give news, opinions, comments or advertisements”, according to the Quebec Press Act, art. 1).
Due diligence
Also, making honest and diligent verification of facts (and having good proof of that) can exonerate a person, even if the facts later turned out to be not true.
In case of a member of some professional journalist or news making community it might be beneficial to show that an applicable code of ethics was duly observed.
No actual loss
A significant part of the defamation claim is about damaging one’s reputation, therefore it might be useful to prove that this reputation was already ruined (for example, by the person’s own actions), so that the offensive information did not add much to that. As you may note, this goes to the causal link argument: it is to show that the information spread did not directly cause the reputational loss and its consequences.
Consult a lawyer
If you have a real situation involving a defamation claim, do not hesitate to contact your lawyer.
Allen Madelin Law firm works hard to protect rights and freedoms of our clients. You can call us at 514-904-4017 or write and email to [email protected].
This blog post contains only general information, please don’t take it for a legal advice. For all legal questions regarding your particular situation do not hesitate to consult your lawyer.
