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Thursday Thinkpiece: Bourrie on Fundamental Law for Journalists

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Fundamental Law for Journalists

Author: Mark Bourrie
Publisher: Irwin Law Inc.
Publication Date: January 1, 2023
ISBN: Print (Paperback): 9781552216699
Page Count: 232 pages
Regular Price: 40.00 $

Excerpt: Introduction and Chapter Six “The Civil Law System”, pg. 111 [Footnotes omitted]

Introduction

I went to law school after working in the media for more than thirty years. My journalism had been published in Canada’s best newspapers and in magazines, including legal publications. I was fortunate enough to have taught at one of the country’s largest journalism schools. Journalism is a great way to make a living. Journalists are eyewitnesses to history on large and small stages. They get to satisfy their curiosity on someone else’s dime and to learn how things work. It’s a fantastic way to make a living and, like most journalists, I probably would have done it for free.

I believe journalists have an obligation to keep themselves educated and informed. As professionals, they need continuing education that keeps them up to date on important issues and on changes to their craft. They also need some expertise on the issues they cover. In the mid-twentieth century, journalists explained the world to readership that had grade school and high school educations. Now, the typical reader and viewer has a university education, some technical or academic expertise, and easy access to information from media sources throughout the world. Many can’t be bluffed by reporters and opinionists who don’t know their file. Journalists who aren’t keeping up, or who are not bringing something new to the table, are likely to find their careers stalled. This is especially true as more people realize the value of solid journalism. People with access to high-quality information will get ahead. Those who won’t or can’t keep well-informed will stagnate socially and economically. So will media outlets: we are seeing high-value media properties like the New York Times finding a new economic footing because enough people are willing to pay to be informed. Publications that print or post trivial, unimportant, simplistic, or old news are dying.

The practice of journalism requires lifelong learning. Some of the best journalists are self-educated; others go into it with university degrees and college diplomas. No matter their academic background, all good journalists have hungry minds. Over the years, I picked up a BA in history, master’s in journalism, and a PhD in media history. I’d written the definitive book on media censorship in Canada during the Second World War — a project that involved a lot of law, including the War Measures Act — and had spent twenty years on Parliament Hill, watching law being made. I wrote about Supreme Court of Canada decisions. I’d covered complicated trials, been sued for libel, and sat through hearings of administrative tribunals.

I thought I knew a bit about law. Then, for some bizarre reason that I still don’t understand, I wrote the Law School Admission Test (LSAT) and went to law school.

It took about two weeks to realize that I knew very, very little about the law and the way it’s applied. I also quickly concluded that my peers and editors knew almost nothing. Far worse, I saw that much of what journalists take for granted about law is simply wrong. The media law — mainly defamation and contempt of court — we’d learned in journalism school was usually out of date the day we were taught it, and a lot of the other “law” we knew came from television, media articles we’d read over the years, and even from our high school law class. Errors and misconceptions about law show up in media coverage all the time, even though many of the journalists who write the stories are very bright people doing their best and working with the most up-to-date information they can get. They simply don’t have the legal training or the resources to deal with elements of law that are arcane or are not instinctive and logical.

I also realized, with no small amount of horror, we live in a society that functions with a mind-bendingly complicated set of rules and legal procedures that most people don’t understand. It doesn’t seem fair that we are often left to guess the law, or to scramble for answers, or pay a lawyer to tell us about the law that, in a democracy, belongs to us. Too often, we fall back on conventional wisdom that is simply wrong. As well, we are seeing a lot of what Toronto Star columnist Bruce Arthur brilliantly called “crayon law” — nonsense legalese drafted by people who have no clue about basic law. This was the case when the so-called Freedom Convoy published a “Memorandum of Understanding” (MOU) before occupying downtown Ottawa in February 2022. The MOU was a scrambled mess of misused legal concepts combined with nonsense that purported to be constitutional law. In that same protest, one of the organizers came up with the bogus legal claim that police would not, or could not, arrest people carrying white flags. Police quickly disabused flag-carrying people of that nonsense.

We’re also seeing more crazy talk from people who buy into “freemen on the land” nonsense, where they claim they are immune from laws because they have not personally consented to them. Their attempts to explain this to police have generated an entertaining genre of YouTube videos that tend to end with the roadside pseudo-lawyers being dragged out through shattered car windows.

But the “freemen on the land” movement is just the fringe of a serious problem. We are brought up on American movies and TV shows and consume a lot of American news and analysis. Arguably, we’re so immersed in them that we know more about US law, especially relating to civil rights, than we do about Canadian rights. How many shows have you seen where people are arrested by Canadian cops? Do you know if, or when, Canadian police officers are supposed to tell you why you are under arrest and let you know your rights? Are you sure?

American legal concepts and procedure find their way into Canadian media stories, so, as journalists, we sometimes get the law right but the place wrong. Now, as a lawyer, it saddens me to see bright, enthusiastic journalists fall into legal traps and, even worse, make mistakes about law that become embedded in public opinion. It’s also grim to see journalists make decisions about their own coverage based on outdated ideas of the laws of defamation and contempt of court. And to see them end up getting sued when they could have avoided it, or be frightened by lawsuits that have no chance of success.

This is both a textbook and a handbook. I want the reader to be able to quickly find the answers to the questions they have about law because I expect it to be used by people bound by tight deadlines. This book is written in a way that makes it useful for fast fact-checking and shows how to do deeper research. I also want journalists — whether they are still in school or working in the media — to have the chance to learn some fundamental law with as little pain as possible. I hope this book will be a useful tool in their workplace, one that will save them time and make their journalism better.

This book is not meant to replace legal vetting. If you are a journalist who’s concerned about defamation, contempt of court, source protection, or some other area of law where you might need legal advice, you should call a lawyer. And a few other warnings: our law is not written down in some great book, where everything can be looked up. Laws made by Parliament, legislatures, and city councils change all the time. Judges interpret the law in different ways, and law is constantly evolving. That’s why journalists cover these institutions: these changes are often news. The courts also cause the law to evolve. Most law books start becoming out-of-date the day the author sends them to the publisher. This book deals with basic legal rules, but it will have to be updated from time to time as the law evolves.

In the 1929 Persons case, Viscount Sankey of the Judicial Committee of the Privy Council of the United Kingdom, which was, at the time, Canada’s highest court, said, “The British North America Act planted in Canada [is] a living tree capable of growth and expansion within its natural limits.”[1] Courts have used that doctrine to create a rapidly-changing body of legal interpretation while, at the same time, the various levels of government create new laws and, as importantly, new regulations at a rate that taxes the brainpower of some of the country’s best lawyers. Many fundamentals of law and procedure do remain constant for some time, but, as the Judicial Committee of the Privy Council of the United Kingdom has said, the Canadian Constitution and, by extension, the law itself, are expected to change and evolve. And they do. Just look at issues such as abortion, drug laws, and national security law.

This book will give you some idea of fundamental law and legal principles and show you how to check to ensure what you think is law is still, in fact, law. Better to learn them from a book than read about your error in a letter to the editor or end up issuing a correction because your legal knowledge came up short or was outdated. This book will help you sharpen your journalism and dodge common mistakes. Keep it on your desk, highlight stuff that’s valuable, and bend the pages. Use it.

 

Chapter Six “The Civil Law System”

Civil law is, in effect, private law and private litigation using, for the most part, common law made by judges. To understand the common law, a person needs to go back a thousand years to the Norman Conquest of England. The English spoke a language that we would not understand today, something that resembled the language of Frisia, in the northern part of the Netherlands. The Normans spoke French. When William the Conqueror, Duke of Normandy, seized England in 1066, he took control of a country that already had established laws and legal customs that seemed to work well enough.

William added some new laws, all of them written in French and Latin. William and his knights had no desire to be bilingual or bicultural. The point of the Conquest was to generate as much wealth for William and his men as the country could pay, at the least expense. There were no Norman lawyers to appoint to the bench. The Anglo-Saxon judges were, for the most part, kept on. They enforced the common law, which was created to deter people from using force to settle disagreements.

The old Germanic law codes used by the Anglo-Saxons imposed fines for offences such as wounding and theft (as did the law of many First Nations, including the Iroquoian peoples). They gave judges power to enforce property rights by, for example, ordering the payment of damages for trespass. Agreements were sworn before judges or priests. These became contracts, enforced by the courts using the old, unwritten common law. Law — or, as it’s sometimes crudely called — judge-made law is, in fact, anchored in hundreds of years of legal debate and consensus that reflected the values of the society that it helped to regulate.

But the king retained his right to be the final arbiter in law. If you didn’t like a legal verdict and you were able to get into the presence of the king to make your case, the king could overturn a judge’s decision and make an order in your favour. He could do it in an arbitrary way, but kings took coronation oaths to uphold justice, and most kings took these oaths seriously. The better ones would not make a decision that went against common law unless he could find a reason why common law needed to be corrected. The use of royal power to correct gaps or injustices in common law was called “equity.”[1] During the reign of William the Conqueror, there were only about two million people in England. A person with any kind of wealth or social standing had a real chance of seeing the king. All the nobles were entitled by law to address the king. Over the generations, as England’s population grew, there was not enough king time to go around. The power of equity was given to a royal official, the lord chancellor. Some were crooked and lazy. But some codified logical, fair decisions of equity. When the country grew large and complicated, the lord chancellors delegated power to courts of Chancery.

At the same time, there was a third great power in the land: the church. It had its own courts, which heard cases dealing with internal church matters, issues involving its huge land holdings, and offences such as slander (a breach of the commandment against bearing false witness).

For hundreds of years, England and its colonies and possessions had three court systems. Starting with the Reformation under Henry VIII, the power of the (now Anglican) church courts was pruned away until they became unimportant to the legal system. But through the early modern age, right up until the middle of the 1800s, we had courts of law — common law — and courts of equity. The latter were not appeal courts. They continued to fix gaps in the common law and in the laws passed by parliaments (statutes). They were more likely to deal with cases that involved things in the future. As noted in Chapter 1, an injunction is a remedy in equity. Rules of trust law are laws of equity.

Courts of Chancery and courts of law are now melded into one system. Amalgamations happened in most Anglosphere jurisdictions, although three US states, including Delaware, still have courts of Chancery. In Delaware, the court is needed to handle all the trusts and business law generated under the state’s absurdly corporate-friendly laws.

Modern civil courts end up dealing with anything that’s not criminal and sometimes deal with the fallout of criminal actions, like wrongful death lawsuits in murder cases, especially when the killer has been acquitted by a criminal court. These courts handle private conflicts and cases where a government seeks money from an individual for a debt. That means these courts rule on contract disputes and listen to cases involving business law (such as claims by shareholders that they’re being cheated). They hear claims in accident (negligence) cases, adjudicate defamation claims, and review decisions made by government agencies. So it’s no surprise that, in a country like Canada, where the population has doubled in the last sixty years and few new courthouses have been built, the civil courts are busy and often backlogged.

You, as a journalist, will likely spend some time in court. You’re much more likely to cover criminal cases than civil disputes. They’re complicated, and I hope this book helps make them understandable. They can also be gold mines for stories, though the process is usually so slow that it requires you to be organized and doggedly determined not to lose track of the case or miss a settlement that’s been made behind closed doors. You may also find yourself in the stressful situation of being a defendant in a defamation lawsuit. It’s part of the job, and a libel suit almost always comes out of the blue on seemingly minor stories.[2]

Civil law procedural rules are almost insanely complicated, and, to make things worse, they vary from place to place. There are, however, some basic steps in a lawsuit, usually starting with the filing and delivering of a statement of claim by the plaintiff, the serving and filing of a statement of defence by the defendant, and the negotiation of a litigation timetable by the lawyers involved.

The disclosure process begins at that point. Parties are required to disclose all relevant documents, so they exchange affidavits of documents. These can simply be a list of documents under the parties’ control. Sometimes, the parties will exchange the whole documents at the same time. The lawsuit may be filed in a place that has mandatory mediation, though that is still rare outside of Alberta, Toronto, Ottawa, and Windsor. The next step is usually oral discoveries, which are done in private boardrooms or in space owned by companies that host these kinds of sessions, record them, and sell transcripts to the parties.

If there’s still no deal, the case is set down for trial. Usually, a judge will knock heads together in a case conference and try to narrow the issues for trial. Then — and this is rare in civil cases — the case goes to trial and may end up being appealed.

Lots of other things can happen. Lawyers argue motions when they think the process needs guidance from a judge or master. These could be motions to order more disclosure of documents, orders to people to answer questions in oral discovery, and orders to make parties stop using delaying tactics. Some jurisdictions require parties to engage in mandatory mediation. The justice system encourages parties to settle. Lawyers have an ethical rule about taking on frivolous litigation and getting in the way of a settlement. Judges can punish stubborn or obsessive unsuccessful litigants with stiff cost awards and can give small cost awards to plaintiffs who win cases that should never have gone to trial.

Provincial and the federal courts post their rules of civil procedure online, but they don’t make much sense to lay people. New lawyers have trouble with them too. Lawyers with more years of practise can charge more for their work because they’ve got more experience and they have, usually quite painfully, learned the rules and can work faster. So rather than try to figure them out using rules posted online, go to a law library, try to find what you’re looking for in an annotated book of the rules of civil procedure, and ask the librarian or a lawyer if you’ve got it right.

Rules differ for each common law province and for Quebec, which uses the Civil Code, and they also differ between levels of court. For example, small claims courts are — as in Ontario — officially part of the same courts as those that hear cases for larger sums of money. The rules for small claims court are different, and their rules can usually be found in the back of reference books of civil procedure.

A. Basic Common Law

1) Contracts

No complex society can operate without contracts, and the nations with honest enforcement of contract law are also the most prosperous on earth. This is not a coincidence: consistency of rules and good faith dealings make commerce possible. We are awash in contracts: we work on employment contracts, whether we are staffers, freelancers, or gig workers. Those employment contracts exist and are enforceable even if they are not in writing. We have contracts for cellphones. Contracts that give us the right to live in our homes, apartments, and condos. We have contracts for online shopping, for our social media accounts, for plane tickets, car rentals, and video streaming services. If we took the time to read them, we’d lose hundreds of hours that we could put to far better use. So, when we click “accept” on an online contract, we expect the contractor won’t be able to loot our bank accounts or have naming rights for our first-born. We are sure that the contract we’ve accepted fits into a set of norms. Which they usually do, until they don’t.

People mistake “law” for “fairness.” The common law is ancient, and elements of fairness are built into it, but fairness is just one element of contract law and not always the dominant one. People’s ideas of fairness vary. Does fairness mean honouring one’s word so that the expectations raised by promises are not shattered? Does it mean honouring Indigenous law and respecting its concepts? Or giving aid or special consideration to traditionally disadvantaged groups? Should our deal be made within the legal concepts of our religion? Should a contract be so onerous that fulfilling it makes no economic sense? What if one party is smarter, richer, more sophisticated, and has better lawyers than the other party?

And are contracts just about the exchange of money for goods and services? For example, I promise you a job, you start working for me, and you love the job. It is all you ever talk about. Your mom is very proud. You and I have an employment contract — a verbal one, which most people have, not a written contract or a collective agreement with a union — and I decide to break it because I don’t like your work. Where does economic loss end and emotion begin to be a factor in what you can do and what you can get in a settlement or court judgment?

To be blunt, contract law is made for commerce, and it values economic efficiency much more than it values human feelings. But because it is common law, there’s no big book where you can look up the answers. Its roots lie in legal cases going back centuries. Unless a legislature steps in and makes a law, the rulings of thousands of judges over hundreds of years shape the rules of contract law. And lawyers are always pushing the boundaries of common law, hoping for new interpretations and new causes of legal action.

There are no completely “right” or “wrong” answers, only ranges of what’s possible. That gives lawyers leeway to argue facts and law in court, but it’s frustrating for someone trying to write a concise piece about the potential outcome of a contracts case. Understanding and explaining contract law is like trying to dig a hole in quicksand. The real lesson: don’t go out on a limb and say that, based on a set of facts, a party to a contract can expect a certain result.

Why are contracts the lubricant of commerce? Why do we rely on them and, in rule of law countries, expect them to be complied with or, if need be, enforced honestly by a court? Contracts are among the oldest kinds of law we have. They predate jails, which is why they are enforced by the payment of damages. They were created by the merchant class at a time when many people with power were armed warriors and simply took what they wanted. You can’t do business in a country where agreements aren’t kept and powerful people can simply take what they want. Eventually, kings realized they risked losing their merchant classes altogether unless royal courts enforced contracts and protected property from theft and trespass. Kings were not huge supporters of upwardly mobile urban merchants, but they did know that they generated vast amounts of wealth for royal tax collectors and could be tapped for “loans” in times of war.

The business classes of Europe carefully protected their contract rights for centuries, basing the legal foundation, at various times, on philosophical ideals. First, oath-taking was central to keeping the peace in preliterate societies. People — almost always men, since few women had full property rights — were expected to keep their promises and sinned when they broke oaths made before God. With the rise of capitalism in the 1600s, economic liberals argued that commerce breaks down when deals aren’t kept. Contracts needed to be enforced or agreements would keep changing as parties tried to manipulate situations to their advantage, stiffed customers and trading partners, or walked away from what they thought were bad deals.

Through the centuries, legal philosophers argued that efficient, enforced contracting prevents economic waste. Then they went further, saying some contracts were unenforceable because they created economic waste. In fact, economic waste came to be seen as a bigger sin than oath breaking. And with that, people had to start writing contract law texts because this field of law had become incredibly complicated.

This chapter will help guide you through those complexities.

Binding Contracts

Let’s look at what’s needed for a binding contract:

  • An intention of the parties to enter into a legal agreement
  • The legal ability of the parties to make the agreement
  • A meeting of the minds
  • Action taken to put the agreement into effect
  • Anything else required by statute or common law, such as the special requirement for written contracts and seals for real estate transactions

So what is a contract? At its simplest, it’s an agreement. Unless it’s for real estate or the forgiveness of a debt, it doesn’t have to be in writing. It doesn’t have to be signed. It just needs to be a meeting of the minds that has been acted upon.

A promise, by itself, is not a contract.

There must be an intention to create a legal relationship (ICLR). The parties must want to make an agreement; they can’t do it by accident. There’s a legal presumption that agreements made between family members are not contracts unless there’s clear proof (usually in writing) that the people involved wanted to make an enforceable deal. (People in family relationships make empty promises to each other all the time.) Extended further, parties to any contract — family members or not — must show clear signs that they planned to make a contract. Gratuitous promises like “Yes, my dear, I will love your cat for the rest of my life” are not enforceable contracts. Nor are deals where one of the parties says the agreement will not be a contract. A “letter of comfort,” a written promise by one party saying it will be able to perform some service later (such as providing financial help or pre-approval of a mortgage), is usually written in language so vague that it can’t be enforced, and they’ve become rare in the past century.

There must also be some action. If, for example, you have a puppy for sale, and I agree to buy it, there’s probably no contract. Something must change hands, either the puppy or at least part of the money I promised. This is “consideration.” But consideration doesn’t always have to be money. You, the puppy owner, might have turned down other offers while waiting for me to pay. Now the puppy is bigger and harder to sell. You gave up something. That’s consideration too.

So now that we understand a basic contract, what can you do if I haven’t paid and I didn’t take the puppy? You may be angry, and you may think a fraud has been committed, but you still have your puppy. I didn’t come to you with a fake name to steal your puppy, so this is still a civil action, not a criminal one that warrants state involvement. You may be furious at being lied to, but the law limits what you can do to me and what you can get. And the biggest surprise to any student of contract law, and to pretty much every right-thinking person, is that, despite our deal, you can’t make me pay you all that I promised and force me take the puppy.

Breaches of contract happen all the time and at much higher stakes than the puppy trade. In the early years of this century, the city of Ottawa planned to build a light rail system. The plan was controversial: Ottawa already had a network of special dedicated bus routes to the suburbs that bypassed rush-hour traffic, and the proposed light rail system would replace just part of it. The line was supposed to cost $778 million, which was promised to the winning bidder, Siemens PCL-Dufferin. But there was no consensus in the city about the project, and many people were unhappy that the new line would connect just one suburb to the city’s downtown. A few months after the deal was signed, a new mayor and council cancelled the deal.

So what should the contractor have received? An order forcing the city to honour the contract, pay the builders, and accept delivery of the line? The out-of-pocket expenses that the contractor had spent to put together its complicated bid, and for money spent so far on engineering and other work? Something more, to compensate the contractor for the fact that it had been led to believe it was going to make a profit on building the line? Or the lost profit itself?

The contractor demanded $28 million for the money it had spent to date and $150 million for what it called “lost opportunities.” The city balked at that figure, so Siemens sued. In the end, the parties settled for just under $37 million. One of the reasons for the lower settlement: parties in a breached contract are expected to do what they can to mitigate damages. Being on the wrong side of a contract breach can’t be expected to be a lottery win. Siemens had done a lot to shield itself from out-of-pocket losses, though it was undoubtedly disappointed by the city’s about-face.

The builders didn’t ask for a court order for the city to build the light rail line because full enforcement of contracts is very rare. It’s called “specific performance” and only happens when cash damages are inadequate. Courts will impose an order for specific performance only if there is no other way to deal fairly with a breach of contract.[3] Almost always, orders for specific performance are made for unique items. Say you have made an agreement to buy a certain Rembrandt painting. The seller refuses to deliver it. There is nothing quite like this painting anywhere in this world, so no award of damages will compensate you for losing out. A court can order the owner to deliver the painting.

Nor does the item have to be as rare as a Rembrandt. In one Canadian case, a man made a deal to buy a building that used to be a bank. The building owner refused to close the deal. The old bank building had real character. And in the buyer’s culture, ownership of a bank, or even something that used to be one, was a status symbol that had value that could not be bought easily. The court made the owner transfer the building. There are many other real estate cases where judges ordered specific performance. Deals for land abutting a buyer’s farm or gravel quarry have been enforced because the expansion of those properties was important to the buyer and no amount of damages could replace the positive aspects of the purchase.

But specific performance does not apply to people, who are all unique and irreplaceable. A sports team can sign a contract with a star player, but no court will order that player to play who chooses not to. (A league will usually make it happen by compelling the player to play or be suspended, and the league’s rules will likely be upheld by the courts.) The same holds for an actor who is signed to make a movie. The court may order the reluctant athlete or actor to pay damages for breach of contract and make good on any real losses faced by the employer, but it will not grant an injunction that would force the actor or athlete to perform. It may, however, issue an injunction that prevents the actor or athlete from working for anyone else for a set period of time.[4]

If you make a deal for a 2015 Toyota Corolla, put down a deposit, and then are told the car can’t be delivered, you’re not going to get specific performance. You’ll get damages.

Will you get a lot of damages?

First, you will be entitled to your deposit. After that, things get tricky. Used Toyotas are good cars, but they are far from rare. Will you, after scanning the marketplace, find that you can’t get that car at that price? The difference between what you were supposed to pay under the original contract and what you ended up paying is also part of damages. The things that bother you the most — the aggravation, disappointment, and the wasting of your time — are also damages, but they’re very hard to calculate. Time is quantifiable. Your time has a certain value (and here, the classism of law will show itself), and you may get compensated for that. The court will try to put you in a position where you’d be if the contract was completed, with the caveat that specific performance is a last resort.

And this gets us back to economic waste, that concept developed a few centuries ago by economic liberals.

In 1954, the Garland Coal & Mining Co of Oklahoma came knocking on the door of Willy and Lucille Peevyhouse. Their farm had a coal seam, and Garland wanted to strip mine[5] the farm. The Peevyhouses agreed, on the condition that a stream that ran through the property be protected and that the land be rehabilitated so that the Peevyhouses could farm it again. The coal company agreed, the deal was signed, and the farm was strip-mined. When the mining was over, the company gave the land back. It was full of coal pits and unfarmable.

So the Peevyhouses sued. They claimed the Garland Coal & Mining Co had promised to rehabilitate the land. The company argued that keeping its promise would have created economic waste. The cost would have been enormous. The highest courts in Oklahoma agreed, and the Peevyhouse family was awarded the value of their farm, minus what they could get for the ravaged land. The judgment worked out to about one-sixth of the cost of restoring the property.

Lawyers and law students have argued over this case for years.[6] Didn’t Garland Coal & Mining Co act in bad faith? The company was in the strip-mining business. Surely it knew it was stringing the Peevyhouse family along. Can there be a contract when one party knows the law has stacked the deck against the people on the other side of the negotiation table and that an important aspect of the contract to the farm family was unenforceable? On the other hand, did the Peevyhouses have the obligation to get legal advice? And if they did get bad advice, how much should their lawyer have to compensate them? This is an old case, but it is still considered good law in Oklahoma and many other jurisdictions.

What happens if someone tries, in good faith, to carry out the terms of an agreement and makes a gross error? Say you pay for a swimming pool with a diving board. You really wanted a diving board. You got a pool that looks great and has that diving board, but the pool is only two metres deep, so it’s too shallow for diving. The highest court in the United Kingdom heard a case like this. Lower courts had ordered the pool builder to empty the pool, dig a deeper hole, and make the pool safe. This seems like the logical, fair conclusion, but, if the reader has learned anything thus far, it’s that contract law is neither logical nor fair. In effect, the lower courts had ordered the builder to spend what it took to restore the pool buyer to the financial place she would have been if the contract had been properly fulfilled. The highest court in Britain, the House of Lords, awarded about one-tenth of the cost of fixing the pool. The court didn’t care about the pool buyer’s disappointment. It looked at the market value of the house with a pool deep enough for diving and compared it to the market value of a house with a shallow pool. This “loss of amenity” turned out to be worth just £2,500 and that was after the family spent a lot of time and money on litigation.[7]

Employees who have a term contract and are fired or laid off before it’s over will also face an unpleasant surprise if they think they are owed the wages from the entire contract. In fact, they are only entitled to payment for their notice period. This period of time depends on several factors, but the law of contracts not only protects the employer from making a big payout, it also requires the laid off employee to try to find a job or in some other way mitigate their losses from being fired.

A manufacturer’s lost profits can be recovered if one of its suppliers fails to deliver materials that are of the quality that was promised and profits are lost,[8] but that can depend on whether there was a written warranty.

Sometimes, a contract dispute can occur over whether a person has the power to bind an employer in a contract. If you are a journalist working for a media outlet, it’s reasonable that you would use a company credit card and sign a car rental contract on behalf of your employer that would be binding on your media company. But if you work as a newspaper reporter, you are not the person that a paper mill should turn to if it wants to create a binding contract for a hundred rolls of newsprint paper. This issue becomes less obvious in some other industries. For example, in 1978, Cornwall Gravel, an Ottawa area quarry company, drafted a bid for a road contract. The government agency handling tenders for the contract put a strict deadline on the submission of bids. One of the gravel company’s employees gave the bid documents to a courier company employee and asked the employee if they could promise that the documents would be delivered to the government office on time. The clerk made that promise. The documents arrived at the government office seventeen minutes late. There were no special circumstances, such as a freak snowstorm. Cornwall Gravel, which had the lowest bid, was disqualified. The gravel company sued for lost profits and won.

And the gravel company was successful even though there was a clause on the waybill that said the courier’s liability was limited to $1.50 per kilogram of the package’s weight if the document was lost. At trial, the courier tried to use that clause to limit its liability. But the documents weren’t lost, they were late, and the promise made by the courier’s employee, although not in writing and probably in breach of the courier company’s policies, still legally bound the company. It was reasonable for the gravel company to expect the clerk to know the delivery capabilities of the courier company. It was also foreseeable that the envelope contained something that could result in a big loss to Cornwall Gravel if it was not delivered on time.[9]

That employee might have been fired. In that case, the employer would have breached the employment contract, though the courier company could argue that it had good cause. Just as no one can be forced through contract to work, a contract can’t force an employer to keep an employee on the payroll. Parties to employment contracts are entitled to reasonable period of notice, which they can work off or be paid in a severance payment.[10]

The law allows an employer to fire a party for cause. In that case, the employer is claiming the employee was the person who broke the employment contract. If that happens, there’s no reason for the employer — the aggrieved party — to pay severance or give notice. No matter what happened, an employee with a written fixed-term contract can only sue for the wages of the notice period specified in the contract. It’s different for people employed under open-ended written or verbal contracts. A set of factors comes into play: the age of the employee and the job market for people of that age, and the length of service of the employee. Mental distress can be included in the calculation if the firing can be shown to be the cause of the distress. That distress must be more than trifling. Punitive damages, that stuff of movies, are not common in Canada. Real misconduct or vindictiveness by the employer must be shown for an employee to have a serious chance of getting punitive damages.

A party is much more likely to get punitive damages if an insurance company has breached a contract to pay health benefits (or any other claim) for no good reason. Judges don’t like it when insurance companies deliberately drag parties through the court process to shake them off from collecting from a policy.

Some contracts must be in writing. For example, the ancient Statute of Frauds[11] requires all real estate sales contracts to be written down and sealed. That’s why homebuyers are given a standard contract when they make an offer on the house and must immediately give what’s usually a nominal deposit as consideration for the contract. (Don’t confuse this token payment with a down payment, which comes later.)

Any contract dealing with marriage must also be in writing (you can’t have a verbal pre-nup). Co-signing agreements with third parties, such as a family member or friend guaranteeing your payment of a car loan, must be in writing. So do agreements lasting more than a year (like cellphone contracts), contracts for the sale of goods worth more than $500, and contracts requiring the executor of a will to pay the debt after a contracting party dies.

Sometimes seals are required too, such as in the purchase of real estate (as noted earlier) and in agreements to reduce debt. These seals can be little plastic stamps, but even the making of a round shaded-in mark will be enough to satisfy the court. But writing “signed, sealed, and delivered” won’t count unless the contract really is signed, sealed, and delivered.

Often a contract that must be in writing does not have to be signed to be valid. Confirmation of acceptance of the written contract can be made by letter or email. “Click contracts,” the “I accept” button on a website, are also valid, and there’s no defence in a claim that no one could be expected to read the giant, complicated contract behind the “I accept” button. The fact that a person knew there were terms and chose not to read them is usually enough to make the contract binding.[12]

There are exceptions to requirements for written contracts. As noted earlier, the Statute of Frauds requires real estate promises to be made in writing. But there have been times when the law of equity can be used to correct a gross injustice caused by the strict enforcement of this rule. This happens when both parties know that one of the parties is performing its part of the agreement. For instance, an elderly Ottawa woman promised to leave her nephew a beautiful house that she owned near the University of Ottawa if he ran errands for her and did some work on her property. So they had a contract that, in law, should have been in writing. The nephew, who started doing the errands and the work while in high school, held up his end of the bargain for some eighteen years. Then the aunt died without a will, so the house automatically went to her children. The young man, who was by then a police officer in the city, sued. The Supreme Court of Canada found that the nephew’s work counted as part performance of the contract and an exception to the requirement for a written contract was created in equity. The court would not enforce specific performance — the estate was not required to hand over the house — but the nephew was awarded the market value of the property, paid by the aunt’s estate.

There must be a great injustice in play if a court is going to resort to equity. Usually, what’s needed is something called “unjust enrichment” where someone receives an undeserved benefit. In the real world, it’s usually such a big benefit that most people would see it as grossly unfair.

In this case, the nephew could show that he had relied on the aunt’s promise. This is called “detrimental reliance” in law and comes up in other ways in contract law. In another detrimental reliance case involving a verbal promise for the sale of land, a quarry owner was promised the right of first refusal for a sale of land. The seller reneged, leaving the buyer, who needed to assemble a large tract of land to qualify for a licence, unable to complete his project. The court ordered specific performance of that contract.

But not all written contracts are enforceable. “Gun-to-head” contracts won’t stand up in court. Those aren’t just contracts made under duress, but ones in which the terms are so unfair that one party benefits outrageously at the expense of another. At its most extreme, this aspect of contract law would apply to a person drifting in a lifeboat, who is forced to promise to pay the captain of a rescuing ship an absurd sum for being fished out of the sea. In a more realistic scenario, a tow truck driver who finds you stuck on an isolated road on the coldest night of the year out of cellular range, can’t charge you many thousands of dollars to save you from freezing to death.[13] At the same time, the owners of a tow truck and ambulance that show up at an accident scene to help unconscious victims and bill a reasonable price for their work can expect to be paid.

Unenforceable Contracts

Contracts are unenforceable when:

  • A party to the contract was drunk or otherwise intoxicated when they agreed to it
  • A party is under 18 years of age
  • A party has a mental incapacity that prevents them from understanding the contract
  • A party uses force, threats, or an unfair advantage to coerce the other party into making the agreement
  • A contract was obtained by fraud or trickery (yet Peevyhouse is supposedly still good law in Oklahoma and some other jurisdictions)
  • A deal is so unfair that it would “shock the conscience” of a reasonable person
  • A contract in which a party agrees to be physically harmed (This gets into areas of criminal law, in which a person can agree to bondage and sado-masochistic sex. The line between kink and “harm” can be an important question at trial.)
  • A contract is for an illegal act or product
  • There is a mistake by one or both parties on an issue that is central to the contract. For example, both parties miss a typographic error that says a kitten will be sold for $10 million instead of $10
  • A contract is impossible to fulfill
  • Contracts are varied without new consideration

The law of estoppel gives rights to parties of a contract who have agreed to a new version of a contract and have acted upon it, even if it’s an oral agreement to change a written contract. But estoppel can only be claimed by a party being sued. Generally, a contract variation without consideration is unenforceable.[14] Promissory estoppel is an exception to this.

Another important contract law rule involves “privity.” Only the parties of a contract can be sued on that contract. The flip side — the word used by defence lawyers when they say their client is not part of a contract — is “remoteness.” (This is also an important term in torts, especially in negligence law.) Think back to the Ottawa gravel company’s lawsuit against the courier company that delivered a bid too late, after the company’s clerk promised that it would be delivered on time. What if that driver worked under contract for the courier instead of being full-time employee, or was an Uber driver who was just trying to calm worried employees of the gravel company? That driver might not have a contract with the gravel company that could bind the courier.

What about offers to the world at large? Does an advertisement count as an offer, which, if accepted and acted on, constitutes a contract? This is a question that is almost unanswerable, and the law around it clearly shows that law is fluid.

For example, London was hit with an influenza pandemic in the late nineteenth century. A patent medicine maker placed an advertisement in the city’s newspapers for something called a “Carbolic Smoke Ball,” which was supposed to cleanse homes of whatever caused influenza (scientists of the time didn’t know about viruses.) The company that sold the Carbolic Smoke Ball offered to pay £100 to customers who could show the ball did not work. Its makers claimed it had deposited £1,000 — about C$300,000 in today’s money — in a bank in case anyone made a claim. Louisa Carlill bought one of these smoke balls, used it, and caught influenza. It was the Carbolic Smoke Ball Company’s bad luck that Louisa Carlill’s husband was a good lawyer.

When the case went to court, the Carbolic Smoke Ball Company claimed no intelligent person would take a patent medicine advertisement seriously. The British courts ruled otherwise: the offer looked like an invitation to form a contract, with plenty of detail about what amounted to a warranty. Louisa Carlill had laid down her money — given consideration — and found the Carbolic Smoke Ball to be ineffective.[15]

But let’s look at another case that seems to have the same basic structure. Late in the twentieth century, the Pepsi company ran a points campaign in the United States. People who bought Pepsi products collected points and cashed them in for various useful things. The company hired a Harrier Jump Jet for its advertisements, offering one to any person who collected just over 7 million Pepsi points.

A wealthy young man in New York named John Leonard read the fine print: people could buy Pepsi points as well as collect them from Pepsi products. The points turned out to be worth a dime each. Leonard realized he needed to spend $700,000 to buy enough points for the Harrier, a plane worth $33 million. (He started out with fifteen points that he earned from buying Pepsi and deducted their value from the cheque that he sent to Pepsi.) Pepsi said the company wasn’t serious, so the case went to court, with Leonard claiming breach of contract and fraud. In this case, the judge said the “offer” was ridiculous: Pepsi could not be expected to deliver a Harrier. Its advertisement showed a callow youth flying a Harrier to school, which was absurd. And the judge said there was no fraud, as the company had not cashed Leonard’s cheque.

But by the end of the twentieth century, the Harrier was becoming an outmoded military aircraft. Harriers and other military aircraft, usually stripped of their weaponry, are sold to wealthy collectors around the world.[16] Delivering one to Leonard might have been a publicity coup for Pepsi, which could easily afford a surplus Harrier.

Where do politicians fit into this? Is a campaign promise an offer, which, if agreed to and acted upon by one of the parties, becomes a contract? The Canadian Taxpayers Federation went to court early in this century to find out. In September 2003, Ontario Liberal leader Dalton McGuinty was running to oust the Progressive Conservative government led by Ernie Eves. The Canadian Taxpayers Federation set up a photo op where McGuinty signed an oversize contract in which he promised never to raise taxes. The spectre of increased taxes had dogged the Liberal campaign, and McGuinty used this contract with the Canadian Taxpayers Federation to put voters’ minds at ease. At the time of the election, Ontario already had the Taxpayer Protection Act, 1999,[17] which required a provincial referendum on any new taxes.

McGuinty was elected. His government amended the Taxpayer Protection Act, 1999 and brought in a Medicare “premium,” a surtax on middle- and high-income taxpayers. The Canadian Taxpayers Federation sued for breach of contract. But the Ontario Superior Court of Justice found there was no contract. The favourable publicity from the Canadian Taxpayers Federation was not, in law, consideration. The court found the contract was too vague: there was nothing in it that required the Canadian Taxpayers Federation to take steps to produce a quantifiable amount of good publicity.[18]

Nor can an industry sector enforce a policy promise made to it by a government. In other words, if a federal, provincial, or municipal politician promises to come to the aid of the lumber or automobile industries, to farmers, or anyone else, no individual company can enforce that pledge in court.[19] However, a promise made to a single company is enforceable.

2) Negligence: The Law of Accidents

In 1992, Stella Liebeck was a passenger in her grandson’s car when she bought a cup of coffee at a McDonald’s in Texas. The grandson parked the car while Stella added cream and sugar to her coffee. There were no cupholders in the car, so she held the paper cup between her thighs. The cup collapsed, and hot coffee spilled on Stella’s lap, setting in motion one of the most famous accident law cases in history.

It’s held up as an example of the outrageousness of tort law. A woman who spilled coffee on herself sued a restaurant for millions of dollars. In reality, it’s a great example of how a complicated legal case can be reduced to simple talking points by media and politicians. It’s also a useful case for Canadians trying to understand negligence law. The judge and jury in the 1995 case of Liebeck v McDonald’s[20] used the same common law analysis that a Canadian court would use and brought in a verdict that would have likely been upheld by an appeal court in Canada. Only the quantum of damages would be different, for reasons that will be explained below.

Why should McDonald’s have been responsible for damages caused by an ordinary accident? And why should Liebeck get several million dollars in damages? Critics of American tort law hold this case up as a symptom of a rogue justice system in which plaintiffs end up as lottery winners. The facts don’t live up to the claims.

First, it wasn’t a minor accident. The coffee was served at 190°F, which is much hotter than the industry standard. The spilled coffee caused painful third-degree burns over 6 percent of Liebeck’s body, mainly in the pelvic area and the thighs. She required several skin grafts, needed long-term care, and was permanently scarred.

Before she hired a lawyer, Liebeck asked McDonald’s for US$20,000 to cover her medical bills. The company counter-offered with $800.

At that point, Liebeck hired a lawyer. It turned out McDonald’s had a company policy of serving very hot coffee. People had already complained that it burned their mouths. That was hardly the worst of it: more than 700 people had already sued McDonald’s over injuries from its hot coffee. McDonald’s had made substantial settlements with many of these people, and franchisees were told to reduce the temperature of their coffee. Many hadn’t done so.

The Liebeck case went to arbitration, where a recommendation was made that McDonald’s pay a $225,000 settlement. The arbitration agreement wasn’t binding, and McDonald’s rejected the deal. The case went to trial four years after the accident. In those years, Liebeck’s medical and legal bills kept growing. A jury awarded Liebeck $200,000 in compensatory damages and $2.7 million in punitive damages. This became evidence of runaway juries and crazy verdicts.

It was simpler to report the case that way than explain that the jury found Liebeck was 20 percent at fault, so the compensatory damages were reduced by that amount, to $160,000. The punitive damages were suggested by the jury as a way of punishing McDonald’s for making Liebeck fight so hard and wait so long for a substantial compensation offer. (Remember, when she first approached McDonald’s, she would have signed away all her rights for $20,000.)

The trial judge reduced the punitive damages to three times the compensatory damages, which worked out to $480,000, for a total of $640,000. In the end, the parties sat down and worked out a deal, presumably for less than the $640,000. From that, Liebeck paid her medical bills, her lawyer, and her continuing home care. (She lived for another decade and needed help to maintain her independence.)

She also spent the rest of her life enduring the use of her story as a punching bag by conservative media, politicians, insurance companies, and corporations.

So why would this case have been decided the same way in Canada? Because the laws of negligence are similar in common law jurisdictions. There are four elements that have to be met to make a claim for negligence in Ontario, Texas, British Columbia, or London, England. At the most basic, a claimant must prove these things that Liebeck’s lawyer was able to show to a jury:

  1. The defendant (in this case, McDonald’s) had a duty of care to the victim. McDonald’s and Liebeck had a seller-customer relationship that created a duty of McDonald’s not to harm Liebeck.
  2. There was a standard of care in that industry that McDonald’s failed to uphold. If everyone in the coffee business sold coffee that was 190°F, Liebeck would have had no case. She would be expected to know that any restaurant coffee could cause an accident and could have handled the coffee more carefully. The fact that McDonald’s coffee was unexpectedly dangerously hot meant McDonald’s had failed to uphold the standard of care that a reasonable person could expect.
  3. Foreseeability. The accident didn’t come out of the blue. Any reasonable person who knew the facts could see that such an accident was possible.
  4. The hot coffee caused the suffering.

All of these will be expanded on below, but these factors are the framework for negligence cases, from dog bites to car accidents to slip and falls. They are also the factors assessed in consumer law and product liability cases. Prove them all, and a lawyer wins the case (or, more likely, will get the opposing party to the negotiation table with its chequebook.) If Liebeck’s lawyer had failed to prove any one of these factors, we would never have heard about the McDonald’s coffee case.

These tests are set in common law, and most English-language jurisdictions have negligence statutes as well. Some clarify the test, while many others seek to place limits on, or create more certainty about, damage awards. But a journalist who relied only on a negligence statute, without an understanding of common law, has a very good chance of getting a story wrong.

Keep in mind, too, that criminal negligence causing death or bodily harm are offences under the Criminal Code. The bar for criminal negligence is much higher: the accused must have reckless or wanton disregard for others or breach a duty that is imposed by law. The common law of torts is much more subtle. A simple, sloppy mistake or a momentary lapse of attention or good judgment can easily be enough to set off the chain of events that results in a negligence judgment. Negligence law is not usually interested in the intent of the defendant or even their mental state, unless they have an undiagnosed disorder that is so severe that they cannot foresee the accident that they cause. The fact that a person did or did not do something is all most civil judges care about. In intentional torts cases, such as defamation, intent and malice can be key factors, but even there, some honest mistakes are not forgiven.

This structure applies to individuals, corporations, and some aspects of government, though federal and provincial governments have the ability to limit their exposure to negligence claims and to shield individuals from them. For example, in 2020 the Ontario government used its legislative power to protect long-term care homes from lawsuits over their failure to protect residents from COVID-19.

Governments have a duty of care, which has been a factor in assessing claims of Indigenous victims of residential schools. They are protected, however, from lawsuits related to their core policy decisions. Courts have found that this protection does not extend to the provision of basic services. In the fall of 2021, municipalities were found to have a duty of care for road maintenance and snow clearance on city streets. The city of Nelson, British Columbia, was sued by a woman who was injured when she slipped on a snowbank. The city argued its snow clearance system was based on policy decisions, but the court found the city council had never made decisions about the order in which streets were plowed and where snowbanks were placed.[21] Some provinces had already protected their municipalities by passing laws limiting cities’ and rural communities’ liability for injuries caused by accidents on snow and ice.[22]

Let’s expand a bit on the factors that must be proven:

1. Duty of Care: This is the duty that people have to ensure their actions don’t cause harm. Sometimes the duty is fairly narrow. For instance, the duty of care of someone operating a kiddie ride at a fair is primarily to the children who are riding it. Duty of care becomes more complicated when dealing with the world at large. Owners of a shopping mall clearly want people to come in and shop. What is their duty to someone who comes in drunk? What is their duty to someone who is just walking through and slips on a wet floor?

What is the duty of care of people playing sports? Of drivers on a highway? Of ship captains? These are all questions that are worked out in court cases. For example, courts have, in the past few decades, ruled that people who host parties have a duty to protect their guests from driving drunk. Bars have a duty of care to cut people off when they’ve had too much to drink and to try to ensure that they get home safely. Do professors have a duty of care to the students they teach? Courts have found that police have a duty of care to people they are investigating because there is a close relationship between cop and suspect.

Negligence on the part of the police can do real harm to an innocent person. This duty also extends to people who are wrongly targeted by intelligence agencies. The 2002 Maher Arar case, in which an innocent man was hustled off by American authorities to a Syrian torture chamber because of faulty intelligence from Canadian intelligence agencies, is a case in point. However, government regulators do not have a duty of care to the public at large and cannot be sued by a member of the public if they make a mistake that harms a large group of people.[23]

Do you, as a journalist, have a duty of care to everyone you come across in your work? If, for instance, you are covering a disaster and you can rescue someone, do you have to do it?

The rather sick answer is no. As far as the common law is concerned, you have no duty to rescue anyone in a situation that you did not cause. So, in theory, you can sit on a beach and calmly watch a child drown, and you can’t be sued. (Don’t try to do this. Some jurisdictions have statute laws that require rescue if possible.)

Do you have a duty of care to the people who read or view your journalism? For example, could you be sued if you wrote or broadcast a piece that had faulty information about vaccines or gave bad financial advice? Almost certainly not, because you don’t have a relationship with the reader that would be recognized in law. If there was one, most journalists would spend a lot of time fending off lawsuits from people who claimed they got their stories wrong. (Interestingly, as we have seen with the old Carbolic Smoke Ball case described in the Contracts section of this chapter, your publication’s or station’s advertisers may have a stronger legal relationship with readers or viewers than you do.)

The question of how far a duty extends is at the core of many legal cases, especially for product liability. Lawyers will often argue that a claimant is too remote from a person who caused a situation that ended badly. For example, in a case that went to court, a man carrying a suitcase full of fireworks got off a train in the United States. Somehow, the fireworks ignited. One rocket bounced around the station platform, hitting various things before striking a woman. The court found the victim was too remote (see section below on “foreseeability”).[24]

2. Standard of Care: This is based on the idea of what’s reasonably expected from the people involved. For example, Uber drivers who keep their cars in good condition, drive while well-rested, and are cautious on the road, are working at the standard of care that is expected of them and others in their line of work. Amateur waterworks employees who drink on the job and forget to refill the chlorination system are not. It gets tricky in fields like medicine, where a judge in a malpractice case must decide whether a doctor performed at the expected professional standard. The law does not expect perfection. The idea that people are allowed to accidentally make small errors has even crept into defamation law. But people are expected to diligently and thoughtfully engage with the world, whether they are driving a car, mopping a restaurant floor, installing electrical wiring, or removing a gall bladder.

3. Foreseeability: There must be foreseeable harm to a foreseeable victim. A person can be held responsible for an accident only if a reasonable person in the same circumstances could have seen the accident coming. People firing pistols at a gun range can’t be held responsible if someone climbs a fence and wanders into the line of fire. (If there’s no fence at the gun range, the owner may have failed in their duty of care, just as a swimming pool owner who fails to put a fence around the pool has both failed to do what’s required by their duty of care and has allowed a situation to exist where a drowning is a foreseeable outcome.) A baseball player who hits a ball out of the park can’t be held responsible if the ball hits someone — though a lawyer might try to argue otherwise.[25] Plaintiff’s counsel would be smart to argue that it would have been a reasonable expense for the ballpark owner to string nets over the outfield. Like most areas of civil law, torts law is a numbers game in which the cost of a preventative measure can be weighed against the perceived risks. The law does not require heroics. When a player swings, they can hope the baseball flies out of the park, but the chances of that happening are minimal. The chances of someone being hit by that ball and of the hit causing serious harm are also extremely low. (In the real world, the team’s insurer will likely settle with the victim rather than fight an extended court case. That would have good public relations value for the team too.)

It’s foreseeable that a person would get into an accident while driving drunk, and that a medical intern would make mistakes after working a twenty-four-hour shift. A janitor who mops a restaurant floor without putting out a “wet floor” sign (one of the most common causes of accidents resulting in negligence claims) has failed to perform their duty of care and has done their work below the expected standard of care. Any accident that results is foreseeable by a reasonable person. This is often reduced to a “but for” test: “But for the janitor’s failure to post a ‘wet floor’ sign, Mr. Mohammed would not have fallen and broken his wrist”; “but for the waiter tossing drunken Mr. Jones out of the bar on that moonless night in the country, Mr. Jones would not have been run over by the truck as he wandered down the middle of the road.”

4. Causation: The defendant’s negligence caused the damages. Journalists covering negligence cases often have a hard time keeping the standards straight. Most people are also more generous than courts when analyzing foreseeability. (Most of us would think carrying a suitcase full of explosives at a train station was an obvious mistake, but the law is more likely to say that a particular rocket in a certain bag is not likely to harm a specific woman if, somehow, the fireworks ignite.)

Most court cases in negligence suits deal with all four requirements, just to cover the bases, but the dispute will likely turn on just one analysis. For example, a high-profile case could involve the death of someone who arrived at a party uninvited and impaired by narcotics, and whether the homeowners had any duty of care to ensure the person got home safely. There will be a long duty of care analysis in that decision. Or the case may be about the competence of a doctor, with an analysis of their shortcomings compared to the expected standard of care. The challenge is to keep from confusing “standard of care” and “duty of care.”

You may sometimes see cases where children are suing their parents over a car accident or an accident in the home. Invariably, media portrays these lawsuits as bizarre fights within families. In fact, the children, through their lawyers and usually with the agreement and even supervision of the parents, are trying to unlock money from home and car insurance, which would otherwise be unavailable without litigation.

The goal of tort litigation is to restore victims to the same position that they were in when the incident happened. This is impossible, since tort settlements almost always involve the exchange of money, and nothing more. Restaurant customers who slip and fall on the slippery floor of a restaurant may get money for pain and suffering, but they will still feel that pain unless or until the injury heals. A person who has been defamed may get a judgment or money from a settlement, but the taint of the defamation may last a lifetime. People often think that accused people are probably guilty. Lies are often more interesting than truths, and many people want to think the worst of people.

Tort cases do give victims a feeling that their complaint has been heard and, if things work out well for them, that their anger was validated. They can deter people from future careless or harmful conduct, and, unlike victims of a crime, someone who sues in tort can leave court with money that can help them get back on their feet. A careless driver who causes a serious accident may be fined by a criminal court, but that money goes to the government. A civil court may order drivers (likely through their insurance companies) to pay a very large amount of money to cover the lifelong needs of victims.

Tort scholars argue that tort litigation is a terrible way to deal with accidents and that we need reform of the insurance industry so far fewer of these cases go to court. A child who falls in a bathtub should not have to sue their parents to unlock an insurance settlement. Many jurisdictions have no-fault car insurance where, once a damage figure is negotiated, the insurers agree to pay. The insurance adjusters may come up with a deal that isn’t accurate, but, with thousands of cases a year, it’s expected that insurance payouts will, on average, be the right amounts and that each company will end up paying a fair share. Factored into this calculation is the enormous amount of money that insurance companies pay for litigation in places that haven’t brought in no-fault car insurance.

But no-fault systems undermine one of the benefits of tort law: the ability of individuals to take matters into their own hands and go to court to get justice for themselves as well as for society at large. In recent years, victims of sexual assault have gone to court in much greater numbers to get compensation from their attackers and abusers. And since the standard of proof is “balance of probabilities” rather than the much higher bar of “reasonable doubt,” they may well get a judgment against an assailant who has been acquitted in a criminal court.

Yet tort lawyers are often portrayed as unscrupulous operators who are in business to pry as much money as they can from insurance companies and to skim a big fee off the top. Canada’s justice system usually won’t tolerate this kind of behaviour. Law societies have rules about the percentages lawyers can take (contingency fees) and about how they can advertise. But it would be right to say that some of the problems of the United States’ accident bar are seeping into Canada.

a) Analyzing the Standards and Duties

Breach of standard of care and duty of care are usually the central issues in a negligence case. Analyses are based on the “reasonable person” test of behaviour. Moral blameworthiness is not the standard. This idea of “reasonableness” is an objective standard that is applied to individuals to assess their capability, using the standard of “reasonable person.” Minors and people with mentally disabilities can’t be held to a “reasonable person” standard that we would use to judge the actions of professional people. This is especially true for people with undiagnosed mental illness. People in strange situations can’t be held to the same standards as someone accused of failing to meet the standards that they use in a normal part of their job or life experience.

Judge Learned Hand, a spectacularly monikered New York jurist who flourished in the early years of the twentieth century,[26] tried to bring some clarity to the duty of care. What could be expected of a reasonable person? To be more precise, how much were individuals supposed to spend to prevent others from being harmed? Take the case of backyard swimming pools. Until the 1970s, some people didn’t build fences around them. In some cases, young people and a few strange older ones would sneak into neighbours’ pools and drown.

Cities responded by clarifying the standard of care of pool owners. They were required to build fences of a certain minimum height and quality around their pools. Usually, these fences are high enough to stop a toddler but can be scaled fairly easily by a middle-school-aged child or a teenager. Some people still climb these fences, and children do drown. Cities could have demanded eight-foot chain-link fences, which are expensive and are scalable only by determined people. They could have ordered barbed wire on top of that, but the author assures his readers that his experience as a juvenile delinquent shows these fences can also be climbed. So the solution is obvious: to prevent deaths in swimming pools, fences must be high and topped with razor wire. They should also extend deep into the ground so kids can’t tunnel underneath them.

That’s not going to happen. We, as a society, try much more than our ancestors, and even other modern cultures, to prevent harm, but we don’t ask for heroics. Judge Hand tried to create a mathematical formula in United States v Carroll Towing: If the probability of an injury is called P, the injury itself is L, and the financial burden on the possible defendant is B, then liability depends on whether B is less than L multiplied by P, i.e., whether B is less than PL and L = B is less than LP.[27] Working out “probability” is the tough part, but actuaries can sometime do amazing things. Or, more simply, does it cost less to fix a problem than the defendant stands to make if the problem is not fixed? You can’t profit from negligence.

In the US, makers of a defective product have a strict liability, but the negligence issue must be calculated by Hand’s formula. This is one of the reasons substandard goods end up on the market. But when Ford refused to recall exploding Pintos in the 1970s because the recall would cost more than payouts to people killed or injured by exploding gas tanks, policy-makers drew the line. This kind of recklessness and callous disregard for human safety is debated in law school classes and courtrooms in North America: courts will punish corporations that use cost-benefit analyses to determine whether to take measures to prevent injury rather than respond to a moral duty to care for others. This type of American law often finds its way into Canadian judgments.

Another problem of our system is that it fails to define “reasonable person.” We expect that person to be thoughtful, careful, intelligent, and mature. After a while, the “reasonable person,” created by a British court in 1837 in a case where a careless farmer left wet hay lying around his property, which caused a big fire,[28] starts to look a lot like a judge or what we expect a judge to be. In a trial, lawyers will argue that the farmer’s actions should be judged against those of other farmers, children’s against other children.[29] (In some jurisdictions, such as Ontario, parents are held responsible by statute for the actions of their children. Ontario has the Parental Responsibility Act, 2000). At the same time, courts are loathe to make stupidity a valid defence. How a court can make that assessment is one of the great mysteries and challenges of tort law.

On the other side of the coin, people with expertise are held to a higher standard of care when performing the work of their profession.[30]

Courts will give a break to reasonable people who have done their job as well as can be expected. A company that installs a water main that is expected to keep flowing through the coldest winter won’t be liable for damage caused if the pipe freezes in a winter that is far colder than anyone’s ever seen.[31] Again, the law expects people to behave in a reasonable way, not heroically.

Things can become very strange in places where there are local customs that don’t fit with what people outside the region may see as reasonable behaviour. There have been cases in which accident victims lost slip and fall lawsuits because it was common practice for local people not to put salt on sidewalks. (The wealthy village of Rockcliffe, Ontario, used to have a no-salt policy to protect the tender paws of dogs. Other jurisdictions are taking a hard look at salting because of its environmental impact.) Some scholars, such as Allen M. Linden, see these local idiosyncrasies as a dangerous practice that should be snuffed out by the courts. But new lawyers are often surprised at how local practices and ways of doing business, including some civil procedure rules and the way highway traffic offences are dealt with, vary across single provinces.

In the end, no amount of repetitious careless practice will dilute the fact that the practices are bad and that people who engage in them are negligent.

The law does accept the idea that accidents happen, but courts won’t find a situation to be an accident if a reasonable person could foresee the possibility of it happening.

It’s not an accident to take a swing at someone, miss, and hit someone else. Nor is it an accident if Mr. X kills Mr. Y, and Mr. Z, an innocent bystander, is killed as well. Perpetrators are just as liable in tort as they are in criminal law.

The tort of false imprisonment is an old one, going back to feudal times when plenty of powerful people had castles with dungeons where they could lock up people who had somehow drawn their ire. These days, the tort survives. People who trap or lock up others are obvious potential defendants, but the government locks up far more people than anyone. For obvious public policy reasons, it’s very difficult to make out a claim for false imprisonment. If it were easy, every acquitted person who spent time in jail before being set free would have a case.

To succeed, a person claiming false imprisonment against a government must satisfy the following test:

  • Legal proceedings must be initiated by the defendant (the state/police) against the plaintiff (the imprisoned person)
  • The proceedings must terminate in the plaintiff’s favour
  • The proceedings must have been instituted without reasonable cause
  • The defendant (state/police) must have been malicious

Proving the first three parts of the test is usually easy. Showing the government and/or the police acted maliciously — i.e., proving the state of mind of police and officials — is very difficult. Usually, the formerly imprisoned person must show police or prosecutors did highly unethical or illegal things to have them imprisoned. And even that may not be enough to prove to a judge that the state actors were malicious. They may be able to argue that they were just incompetent.

Common law does not allow parents to be liable for damages caused by their young children, although some provinces do have statutes that allow parents to be sued.[32] (In the United States, children, through their parents, or, more to the point, their parents’ home insurance company, can be sued in many states. In one case, a five-year-old was held liable for pulling a chair from behind a woman, who injured herself when she landed on the floor.)

The insanity defence for tort is different than the criminal insanity defence. In criminal cases, defendants must prove they did not understand the nature and consequences of their actions and that what they were doing was wrong. In tort, failing to understand the nature and consequence of an action rarely succeeds as a defence.[33]

b) Causation: “I Didn’t Do It!”

Causation is one of those legal terms that seems simple until it’s not.

Let’s start simply. Smith is in an intense conversation on their cellphone when they drive through a stop sign and run over Jones, who is crossing the street. Smith caused the damages and is completely at fault. We can use the “but for” test here. “But for Smith’s carelessness and their actions, Jones would not have been hurt.” Justice John Sopinka
of the Supreme Court of Canada explained causation as the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim. It need not be proven with scientific precision.[34] But, of course, the world is not always that simple. And when causation is this obvious, cases get settled quickly and are unlikely to come onto your reporting radar.

In the fictional case of Smith v Jones, what happens when we change up the facts a bit? Say Smith is still on the phone but Jones jaywalks? Or if Jones is hit at the intersection and claims damages for injuries to their liver, which is already shot because of years of binge drinking? Part of the analysis will always be speculative. Would Jones, with a bad liver, necessarily have a shorter life plagued with illness, or is it possible that they might have quit drinking and the liver might have healed? Remember, damages must be calculated at the time of a trial or a settlement. A victim can’t come back years later with a list of problems that arose after a verdict or an out-of-court deal.

And there could be multiple causes for the same accident. Two cars could collide, and flying debris could hit a passerby. Who pays then, and in what proportion? To complicate matters, it’s up to the defendants, the people in the car accident, to fight over who is most to blame. The victim will get the full amount of damages from one or both drivers. In this case, a court will apply the “substantial factor test” to determine if both defendants engaged in tortious behaviour and must pay, or if one party did.[35] In later cases, the Supreme Court found the “but for” test isn’t always workable and that courts could find causation when a defendant’s negligence “materially contributed” to the situation that caused the defendant’s injury.[36] Still, the “but for” test remains the primary way of assessing causation, unless the facts of the case make a “but for” analysis impossible and a breach of the defendant’s duty of care can be proven.[37]

c) The Unforeseeable Plaintiff

Tort law seems strict, but it does require foreseeability. Courts will give damages to someone who is hit by a motorcycle but not to a spectator who is so shocked by what she sees that she wrenches her neck and her baby is stillborn a month later.[38] And in Canada, a mother has no duty of care to her unborn child, although the law does allow damages against a third party who damages a fetus that is later born alive.[39]

Nor is a person required to rescue another from danger or do anything in a situation to help another person, unless the victim relies on the potential rescuer. (A person walking on a beach has no duty in law to come to the aid of someone drowning offshore. Lifeguards working at a swimming pool do have a duty to rescue because they accepted that responsibility when they took the job.) People who have created a dangerous situation have a duty to rescue anyone caught in it.[40] Some jurisdictions have passed laws requiring people to help each other when it is safe to do so. These laws are usually created after news stories of a terrible incident in which a bystander invokes their right to refuse to rescue and the public became aware of the cold-heartedness of tort law.

As we’ve seen in negligence law, hosts have a duty to protect guests impaired by alcohol or drugs from harming themselves and others. That’s why a smart host will stay somewhat sober and take away the car keys of drunk or stoned guests. (The inebriated state of a host is no defence in tort law.) Bars are required by liquor laws to stop serving guests when servers know guests have become impaired. They are also required to ensure that impaired patrons get home safely. Not only are they required to prevent drunken patrons from driving, they also, at least as far as the law is concerned, can’t turn them loose to walk down dangerous streets or roads where they might get hurt. The leading Supreme Court case (Jordan House) had judges arguing among themselves that there were two duties: to stop serving a patron when he was drunk and to make sure he got home safely.[41] (This kind of lawsuit drove up insurance rates for bars and resulted in “Smart Serve” training programs in Ontario and other provinces.)

Party hosts do have some duty of care to their guests and anyone they might injure, especially if they are serving liquor or are supervising a bring-your-own-booze party. This is very limited: the Supreme Court has found that partygoers do not check their autonomy at the door. But a duty may be created where hosts ply their guests with booze or drugs or act in some other way that involves them in the creation or exacerbation of the risk.

Because of the rule of joint and several liability — the idea that the party with the deepest pocket pays — some defendants have tried to drag more affluent parties into their litigation. In that case, the new defendants are stuck with an onus to prove they are too remote from the cause of the damage. In the case of Canadian National Railways v Norsk Pacific Steamship Co,[42] the Supreme Court of Canada asked if there was a duty relationship sufficient to support recovery and is the extension of the duty desirable from a practical point of view? Does it serve useful purposes or, on the other hand, open the floodgates to unlimited liability? Justice Beverley McLachlin said, “Proximity may be usefully viewed, not so much as a test in itself, but as a broad concept which is capable of subsuming different categories of cases involving different factors.”

In 2011, a tobacco company, facing class action lawsuits, attempted to have the federal government dragged in as a party. The company claimed the government had promoted low-tar cigarettes as an alternative to regular cigarettes and that cigarette companies relied on the federal government’s claim that low-tar cigarettes were a good alternative (this was a claim of negligent misrepresentation). If the company had been successful, the federal government would have been stuck with much of the expense of the litigation and a large percentage of any damage payout. But the Supreme Court found the tobacco company could not point to an instance where a government had been held liable for any negligent misrepresentations to an industry. While the government did not owe a duty of care to Canadians due to its promotion of low-tar cigarettes, there was sufficient proximity for a duty of care to the tobacco companies since the government had given cigarette makers expert advice on how to reduce tar and other noxious ingredients. The company’s claim failed because the advice, though wrong, had been given for valid public policy reasons and governments cannot be sued for policy decisions.[43]

Can the law create a duty of care and a standard of care? It helps, but it’s not absolute.

Drafters of legislation and regulations often include both a duty of care and a standard of care. They exist in some criminal law, but they’re more likely to be found in legislation that regulates the activities of individuals and corporations. Breaking these laws is not absolute proof of negligence, but proof that the rules were broken can go far in court. (In the United States, proof of the breach of a statutory duty is enough to prove negligence.)

In one case, grain growers had delivered part of their crop to a grain storage elevator in Thunder Bay for shipment through the St. Lawrence Seaway. The grain arrived clean and free of pests. When the grain was loaded onto ships, it was found to be contaminated with the larva of rust beetles. Sailors noticed the contamination, and the ship was diverted to Kingston, where it cost $100,000 to fumigate and store the tainted grain. Rather than argue the fine points of negligence, the Canadian Wheat Board, which owned the grain, was able to rely on a clause of the Canada Grain Act,[44] which required grain to be delivered in the same condition as when it was accepted by the shipping company. The statutory breach was not proof of negligence, but it did clearly set out the standard of care.[45]

On the flip side, scrupulously following the laws enacted by the various levels of government will not protect a person or a corporation from a negligence suit. A city may allow a railway to build a crossing at grade, and the railway may follow every rule about how it’s built, but the railway can’t say it should not be responsible for damages when a motorcyclist gets their wheel caught in the track and has an accident. The railway still has the same duty of care and must fulfill its standard of care obligations, and can’t hide behind the argument that it checked all the boxes required by a bylaw.[46]

3) Intentional Torts

It’s important to keep in mind that tort law, like so many other laws, is gelatinous, if not fluid. Legislatures can make or define tort law, but most of it is ancient and made by judges. Some torts go back a thousand years. Others are being defined right now. Lawyers often go into court to ask a judge to accept the idea of a new tort. If the judge buys the idea, they will issue a ruling that defines it. The new tort circulates in legal literature and is tested by appeal courts. This is the legal equivalent of kicking tires in a car showroom.

Take the brand new tort of portrayal in a false light. In Yenovkian v Gulian, the Ontario Superior Court of Justice recognized it as a new branch of the invasion of privacy tort, defining it as engaging in the creation and spreading of “publicity which places the plaintiff in a false light in the public eye.” [47]

The test for a false light privacy tort will be met if:

  1. An individual gives publicity concerning another before the public in a false light
  2. The false light in which the other was placed would be highly offensive to a reasonable person
  3. The individual had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed

This tort concerns the waging of campaigns of hatred, smear, ridicule, and defamation. In the original case, the defendant waged a sustained and nasty online campaign against his wife, using lies and partial facts to portray her as evil and contemptible. Many of the online posts weren’t, in themselves, defamatory, but the campaign was meant to create a new, false reputation of the victim.

So far, the tort has been recognized by higher courts, though it has been criticized by one academic as a potential chill on free expression and of limited value to the public at large.[48] It has, however, already been accepted by courts in other provinces.[49]

This tort has a lower evidentiary burden than a claim of defamation. The trial judge in Yenovkian wrote:

[W]hile the publicity giving rise to this cause of action will often be defamatory, defamation is not required. It is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. The wrong is in publicly representing someone, not as worse than they are, but as other than they are. The value at stake is respect for a person’s privacy right to control the way they present themselves to the world.[50]

A similar new tort, intrusion upon seclusion, is also becoming entrenched in Canadian law.

Several offences that are crimes can also be punished through civil claims as torts. In fact, some were only punished through the pursuit of damages until the 1800s, when they were finally included into criminal law statutes by parliaments and legislatures. These were originally offences dealt with by the issuing of writs. Early English society, where these laws arose, placed great value on the rights of individuals to live without harm from others. This was a violent world, where people often came to blows over relatively minor issues. There were no police (as we’d know them), and the legal system had to find ways to keep violence from escalating and to deter people from lashing out at their neighbours by beating or wounding them. (Matters of honour between members of the aristocracy were another matter. As a warrior class, they were expected to solve disputes with violence, either through pitched battles between their retainers or ritual violence such as dueling, which survived until the early 1800s.)

Property was considered sacred, partly because the people of that era were often very poor, and any loss of crops or livestock or encroachment on land endangered their ability to subsist. As you will see below, there were very few defences for anyone who interfered with property. These rights may not be protected in the Canadian Charter of Rights and Freedoms, but they are deeply entrenched in our rule of law. These property rights have been used in environmental law, Indigenous land claims, zoning law cases, expropriation, and other cases that don’t seem, at first glance, to be connected to ancient laws of trespass.

Trespass on the case writs were used to punish intentional torts like defamation, which deliberately wronged an individual but did not involve violence. (Defamation of the state or the sovereign was treason, which had its own nasty punishments.)

Trespass vi et armis writs were issued to punish violent intentional torts. Surprisingly, of the three major types of torts — negligence, trespass on the case, and trespass vi et armis —violent intentional torts are the least likely to be pursued in a civil court. There is a growing movement in Canada, however, to sue perpetrators of sexual assault. And there are many good reasons why a victim of sexual assault may want to go to civil court as well as to the police.

The tort of battery covers both sexual and physical assault. To succeed in an action for battery, victims need to prove that the contact, which does not need to be severe or cause injury, was directly caused by the defendant, that they did not give verbal or non-verbal permission to be struck, and that they were entirely blameless. The battery can be accidental. A person carelessly moving around in a store can knock someone down and be liable. So can someone pushing their way through a crowd. Medical malpractice is also included in the tort of battery,[51] and here, we see how torts of negligence and intentional torts can bleed into each other. There’s a vague limit on how far carelessness or deliberate action can be found to be battery, but the “but for” test is usually suitable. “But for the action of Ms. X, the battery of Ms. Y would not have happened.”

There are defences to this tort. Several of them exist in criminal law as well. The defendant may claim that it was necessary for them to touch or push the defendant to protect either of them from further harm. One mid-twentieth century case involved a referee at a wrestling match who was driven from the ring by an ugly crowd that was throwing things at him and threatening him with violence. Police escorted the referee out of the arena. He was covering his face with his arms and ran into a litigious member of the crowd, who later sued for battery. The court found the battery had happened, but that the referee’s actions were necessary to save himself from serious harm.

A golfer who hooked a ball and sent it a hundred metres into the head of a fellow golfer would also have been on the hook for battery if he had not been able to show that the ball took an unusual and unpredictable turn. (A hunting accident could be a tort of negligence or battery. The trial would use pretty much the same tests for causation, duty of care, and standard of care.)[52]

The tort of assault can be confusing, since the word has developed a different meaning in criminal law and tort law. In the latter, assault is simply the making of a threat with the ability to carry it out. One 700-year-old case involved a man who pounded on the door of a pub after closing time, got into the building, and used an axe to menace the wife of the publican. While he didn’t hurt her, he was guilty of assault and required to pay damages.[53]

In our world, people who make threats while committing road rage and who make threats in bars could be sued for assault, even if they haven’t touched anyone. The threat is in the eye of the potential victim, using a “reasonable person” standard, and it’s no defence to say the threat was not credible because the maker of the threat was certain to lose the fight if it had gone ahead.[54] In another Ontario case, a man who had been cut off on a highway by a careless driver claimed the driver was at fault for the subsequent roadside fight. The driver’s actions behind the wheel were, he claimed, a kind of assault. The court did not agree.[55]

Deliberately blocking a person’s way so that they cannot lawfully travel can be found to be assault. Strikers preventing people from crossing a picket line can be liable, even if they have not made any kind of verbal or non-verbal threat.[56]

“Outing” a person on the internet and whipping up online hatred to the point where the victim has a real fear for personal safety has also been found by Canadian courts to be assault. Other torts might also be in play, such as defamation and invasion of privacy.[57]

The tort of trespass to land was considered a tort of violence. The medieval English placed a great value on the right to property.[58] The attitude survives in the old English saying, “a man’s home is his castle.” It is the reason why homes cannot be entered by state actors like police and government inspectors without a warrant or a very compelling reason that would survive a Charter challenge. Trespass is one intentional tort that sometimes makes it to court.

Trespass need not involve people physically putting themselves or their property on other people’s land. Anything that violates the owner’s rights is, arguably, trespass. Toxic waste seeping from a dump and polluting the groundwater under another landowner’s property is trespass. Allowing livestock to roam onto a neighbour’s property is also trespass. A hunter who shoots across someone’s land is liable for trespass, even if the bullet travels over that land without hitting anything.[59]

Indigenous land claims are sometimes framed in trespass law, if someone from outside the community has intruded on the claimed land by, for example, building a pipeline. The issue then becomes one of property ownership. Reserve lands are, in law, anyway, property held in trust by the federal Crown property. Property rights to unceded land and traditional territory are still being worked out, and the lack of control by Indigenous people over land they own has sparked serious disputes between Indigenous nations, governments, and corporations.

Not all trespass is worth pursuing in court, and most instances come nowhere near the situation of a dispute over the construction of an unwanted pipeline under Indigenous land. You might sue a neighbour who accidentally or deliberately drove a car across the edge of your lawn and ruined it. Still, simple trespass without damage is more likely to be punished with a provincial offences ticket to save the victim the time and aggravation of a lawsuit. Angry landowners who do pursue trespass claims face a different test than do the prosecutors of a criminal case. A prosecutor must prove intent to trespass. A plaintiff only needs to prove the trespass happened, and the onus then shifts to the defendant to prove they did not do so intentionally or by negligence.[60] Some defences can be quite colourful. One man set a precedent in 1646 by convincingly claiming he’d been carried onto the plaintiff’s property by evildoers.[61] However, at about the same time, another man who said he was forced by criminals to steal a horse was found liable because he had still formed the intent to take the animal.[62] (He might have been acquitted by a criminal court.)

Courts have, over the past 350 years, found that mistakes are no excuse for damage to property or the removal of material from another’s land. Farmers who wander across property lines and harvest from their neighbours’ lands can’t claim they thought they were still on their own property.[63] And people who believe they own a piece of land or have some other right to be on it or take from it have the onus to prove it.

4) Free Expression and Defamation

a) Free Expression Is the Right to Speak and to Hear

Laws related to expression balance several sets of rights, some of them in competition. First, there’s the right of free expression guaranteed in section 2 of the Charter. It is not identical to the free speech right guaranteed in the First Amendment of the US Constitution. The American right is actually, in its wording, quite narrow. The clause says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” In effect, the law prohibits the federal government from infringing on speech and press rights, but the states, municipalities, and the private sector are, in theory, free to do so. In practice, Americans put an extremely high social value on free speech and a free press, especially media free from government interference, and the First Amendment is respected by American courts, which apply it broadly to actions at all levels of government.

The constitutional provision is interpreted so broadly because it reflects the norms of that society and is fiercely defended by American media and civil libertarians. In the United States, free speech and press rights are sometimes stretched to limits unseen in any other common law country. For example, anyone with a high public profile is fair game to any journalist, unless the person who is defamed can prove malice, or the defamation is so obscene that it shocks the conscience of a judge or jury. That’s why there are so few high-profile defamation trials in the United States.

Our Constitution is also a reflection of the way Canadians see themselves. It mirrors our unbroken link to British common law. Journalists fought for the public’s right to know, a right that is not enunciated in any bill of rights but is recognized through the law. For example, the principle of open courts, which, arguably, applies to Parliament and legislatures, protects individual rights, democracy, and press rights. Censorship, something abhorred by most Canadians, has only been imposed twice in our history, under regulations passed during the world wars under the War Measures Act. (When that Act was invoked in 1970, the federal government did not pass censorship regulations.) Freedom of information and access to information laws at the various levels of government exist because of a presumption of the public’s right to know what data is held by the government.

At the same time, the law must protect individuals from reckless and careless assault on their reputation. In Canadian society, a person’s reputation has a high value in law, though that value seems to be eroding in recent years. (In the United States, courts do very little to protect the reputations of people in public life, including politicians and celebrities.) Canadian law claims to see a reputation as part of the inherent dignity of every individual. Those who tear down a reputation are required to prove their claims, unlike in the United States, where the defamed person must prove the expression is wrong. Canada’s social take on free expression might be summed up as, “You can say what you like about someone (or some corporation), but you better be able to prove it.”

Canadian law makes two presumptions that are alien to American law and so to most people who learn their defamation law from television shows. In Canada, a defendant walks into a courtroom where two things are presumed and must be disproved: that the expression was false and that it caused real damage to the person who is suing. This presumption has, however, been undermined by court interpretation of anti-SLAPP (Strategic Lawsuit Against Public Participation) laws, with courts in Ontario demanding proof of real damages. An argument can be made that the reputational rights of the poor, the elderly, and others who cannot demonstrate real economic loss have been undermined by recent jurisprudence of the appeal court and Supreme Court of Canada.

Section 1 of the Charter is an escape hatch for governments to pass laws that limit expression rights. It guarantees expression rights “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” That Constitution caveat allows the federal government to criminalize hate speech and terrorism propaganda. It also forms the underpinning for obscenity and child pornography laws. But within those boundaries, Canadian law places a very high constitutional value both on the right to speak and the right to be heard.[64]

At the same time, the common law recognizes the right of society to be informed. A democracy cannot exist without an informed public. That is the third right that is balanced in any examination of an expression issue. The right of society to know underpins several defences in Canadian defamation law, including rules of privilege and responsible communication on a matter of public interest. And it doesn’t have to be all of the public, the entire readership of a newspaper, or viewers of a web page. An identifiable group will do. If there’s a group of people with a legitimate interest in receiving your story, and you’re communicating information that is of interest to the public, that information is probably protected. Even if you damage someone’s reputation. And even if your story has minor errors. But there’s an implicit social trust at work too. Unless you are covering one of the bodies that has its own privilege — ​Parliament, a legislature, or a court of law — you must be fair and honest in your reporting.

b) Nuts and Bolts of Defamation

Slander is defamation by the spoken word when the words are not broadcast. Libel is defamation that is published in writing or by broadcasting. The difference between slander and libel lies in whether there is a record of the defamation.

Most people would likely say they know defamation when they see it, that defamation is something that harms the reputation of another. The law uses the “reasonable person” test again. Does the complained of statement bring hatred, contempt, fear, ridicule, dislike, or disesteem down on someone? Does it cause a person to be shunned for being evil or having a contagious disease?[65] Does it adversely affect the person’s standing in the community? The claims made against the plaintiff can’t be trivial. You can’t be sued for saying a person eats with their fingers and has never washed them unless you make the claim against someone whose work and reputation require the individual to have clean hands.

The allegation must be a credible claim about a person. It can’t be an insult, nor can a person be sued for defamation for swearing at someone or telling them to, for example, burn in hell.[66] While the bar is not nearly as high as it is in the US, where politicians must prove malice if they sue a media outlet or an individual, Canadian courts will let people get away with holding politicians up to ridicule. But there is a line: falsely accuse them of criminality, such as bribery or sexual assault, and they may well win a lawsuit against you. (Whether they choose to go that route and give long-term publicity to the allegation is another matter.)

And, of course, what’s considered scandalous or is something that holds a person up to public contempt or ridicule is very fluid. The pianist Liberace got what was considered at the time to be a huge award, £8,000, against London’s Daily Mirror newspaper in 1959 for claiming he was gay. (In fact, he was, but the author and publisher of the piece shouldn’t attract much sympathy, since the anonymous writer called Liberace “a deadly, winking, sniggering, snuggling, chromium-plated, scent-impregnated, luminous, quivering, giggling, fruit-flavoured, mincing, ice-covered heap of mother love.”) Today, falsely implying someone is LGBTQ2S+ would be considered a social error but might not meet the threshold of defamatory.[67]

Defamation on the internet is libel. However, many provincial defamation laws have different rules about defamation that is published in writing, presumably on paper, and defamation that is broadcast. Unless legislatures rewrite their laws, courts must decide whether an internet post is a “broadcast” and, if so, when the “broadcast” ends. Defamation laws in some provinces, including Ontario, have limitation periods that differ for various media and can be much shorter than the standard two-year limit on the filing of lawsuits.

Most journalists see defamation, or, more specifically, lawsuits for defamation, as one of the hazards of their profession. While most news agencies have libel insurance that cushions the financial blow of a lawsuit, a defamation lawsuit can open a journalist’s work to scrutiny and is also certain to add stress to the defendant’s life. Even the receipt of a libel notice in a province where these are required by law before a suit can be launched can be a chilling experience. Fortunately for journalists, Canada’s once notoriously strict defamation law and court practices have evolved since the introduction of the Canadian Charter of Rights and Freedoms. Before the Charter was entrenched in the Constitution in 1982, Canadian courts tended to put very high values on the reputations of companies and individuals, and treated the media as a group with no more rights and professional acumen than any other individual.

Now, Canadian law recognizes expression rights as having two parts: the right to convey information and the right to receive it. This shows up in discussions of whether communications are on matters of “public interest.” If they are, they get much more protection than expression dealing with private matters, individuals who are not in the public eye, and salacious gossip.

The law now looks at how journalists do their work. If a reporter tries to be fair and comes at an issue without malice or prejudice, they’ll get the protection of the law — flowing from Charter rights — even if they get their facts wrong. This is not an issue of whether there’s malice. It’s an examination of whether journalists have upheld the standards of their craft, approached the story with as much objectivity as possible, and really tried to get the story right.

A person can be sued even if they did not create the defamation but they did help to spread it. There are limitations: Canada Post can’t be sued for distributing a newsletter that contains defamation. Google can’t be sued for distributing an email on its Gmail platform. That appears to hold true even if the defamation has been brought to the attention of the company that operates the service. But what about someone who posts a link on social media to a defamatory article? They are safe unless they write something that draws attention to the defamation (and so repeats it). The Supreme Court of Canada weighed the rights of the person being defamed against the impact of making link posters into potential defendants and found the social value of the internet to be higher than the reputational rights of a plaintiff.[68] Internet defamation law is fluid now, and it’s being tweaked and crafted by Canadian and other common law jurisdiction courts.[69]

Defamation Cases

To make a case for defamation, a plaintiff needs to prove three things:

  • That the material in dispute refers to the plaintiff
  • That the material was published, so that a third party could see it
  • The published material damages the reputation of the complainant in the eyes of a reasonable person

Definitions of defamation often use the term “words” instead of material, but a person can be defamed by an image, such as an editorial cartoon.[70]

Notice that the plaintiff does not have to show the words are false. That is presumed, and the onus is on the defendant to refute that presumption.[71]

The court will look at the article as a whole, along with its constituent parts. That works both ways: a plaintiff who picks out a part of an article and claims it is defamatory can lose their lawsuit if, somewhere else in the piece, their side of the story is given. The success of “bane and antidote” defence will depend on whether the cure was enough to kill the disease. Simply adding a line at the bottom of a story saying the subject of the story denies the claims may not be enough.[72] But a “death by a thousand cuts” type of story that has many small “stings” can be seen as being quite defamatory. Courts will look at the material in the context of what the public already knows and what members of the public can be expected to believe the words mean.

A mistake or sloppy wording is no defence in a defamation action. The meaning of the words is assessed at what they would mean to a reasonable person. The law does not protect careless writers or people who try to hide behind ambiguities. In fact, a defendant’s claim that their words were the result of a sloppy mistake may have their carelessness used against them, as carelessness can be an element of malice.

The words themselves are interpreted in their “natural and ordinary meaning.” Presenting a dictionary entry as evidence that a word that is commonly believed to have one meaning actually has some other obscure definition will not save a defendant. Nor will framing the defamation as a question, if it’s clear the question is meant to spread a falsehood. Nor can spreading the defamation by reporting on it as a rumour. Suggesting a person or organization’s conduct warrants investigation by the police or other authorities is also defamatory.

Unlike in the United States, where people in public life must prove malice by the defendant, Canadian courts do not accept absence of malice as a defence. There has been pressure to work that concept into Canadian law, but it has been resisted by the court.

The defamation need not be published to the world at large. It can be posted on a private internet site or printed in a condominium newsletter. In theory, damages in defamation are assumed. The plaintiff need not prove them. In reality, especially in British Columbia and Ontario, which have anti-SLAPP (Strategic Lawsuits Against Public Participation) laws, a plaintiff will likely have to show some actual damages for a case to make it to trial. Courts are still working out whether those damages need to be financial. If proof of financial harm becomes an important factor in deciding if a case has merit, it’s arguable that the reputations of retirees, the poor, and the very rich are fair game.

c) The Defences for Defamation

  1. Justification/truth. The truth of a statement of fact is an absolute defence for defamation. The defence only needs to prove the truth at the core of each “sting” — supposedly false statement — argued in the statement of claim. However, in Quebec this defence only exists when there is a public interest in the reporting of these facts.
  2. Responsible communication of facts on a matter of public interest. At its core, it’s a defence of honest and fair journalism. The whole public need not have an interest in knowing the facts. The defence just needs to show a segment of the public has a genuine interest in receiving the information. A person may publish something that, at the time of publication, to a reasonable person would appear to be true, based on the available evidence. An included defence of “reportage” allows defendants to be protected if their expression is a fair and neutral report of an issue that is a matter of public interest.
  3. The report may be an account that is protected by absolute privilege. Fair reports to parliamentary and legislature debates and court arguments have long been protected by this privilege. It extends to coverage of some public meetings and official releases of information, although care should be taken to ensure the accuracy of the reporting that’s based on the release.[73] This defence does not exist in Quebec unless the defence can prove there was a public interest in the reporting.
  4. The report may have qualified privilege. This defence can be confusing, but at its heart, the law protects people who have a legitimate interest in publishing the defamation and the people receiving this information have a legitimate interest, or a duty, to receive it. This defence is defeated if the target of the defamation can prove the defamation was malicious or the author’s conduct exceeded the limits of the privileged occasion. In the case of journalists, a plaintiff would probably try to defeat this defence by claiming the journalist acted unprofessionally or maliciously, or the defamation was not appropriate or necessary considering the purpose of the occasion. The defence of qualified privilege does not exist in Quebec unless the journalist can prove the reporting was in the public interest.
  5. A fair comment defence is available for material that is obviously opinion and, preferably, labelled as such. The comment must be on a matter of public interest or, more precisely, of interest to a segment of the population. This rules out opinion that is a personal attack on someone who has no public profile. The opinion must be based on facts that are either known to the public at large or cited in the article. (Journalists would protect themselves more effectively and, frankly, write better opinion pieces if they clearly spelled out the facts. The inferences from those facts are open to debate, but the facts themselves should be accurate.) The comment must be made fairly, being an opinion that a reasonable person might come to when presented with the same facts. Malice, including an ulterior motive, defeats this defence.
  6. The defendant did consent to the publication of the libel.[74]
  7. There are procedural defences: lack of notice to the defendant, which is required by some provincial defamation statutes; failure to sue within the time limits set by defamation statutes, which may be different from other time limitation statutes for civil cases; failure to enunciate the complained of defamations in the statement of claim; or failure to meet one of the three basic elements of defamation: that the material was defamatory, that it was published, and that it was about the person who is suing.
  8. The target of the defamation was dead at the time of publication or has subsequently died. Estates may not sue for defamation of people who were alive when the defamatory material was published. In common law, the dead may not sue at all.[75] However, in Quebec, families or others can sue if they can show that the defamation of a dead person affects their reputation.
  9. The lawsuit is a Strategic Lawsuit Against Public Participation (SLAPP). This is not a defence per se; it is an argument that can be used in some provinces to have a case dismissed. While the lawsuit may have some merit, judges in Ontario, British Columbia, Quebec, and possibly in other provinces, may dismiss the lawsuit if they find it has been filed for the primary purpose of stifling expression on matters of public interest or for an improper purpose. Anti-SLAPP laws exist in Ontario and British Columbia, but it’s possible that the arguments made in SLAPP motions in those two provinces could be used in the rest of Canada’s common law jurisdictions during motions for summary judgment. These are motions, usually argued early in the litigation process, to determine if a case warrants a trial (See section below.)

Mitigation is not, in itself, a defence, but a person who publishes a defamation will be able to evade a big judgment for damages if the individual makes a full retraction as soon as they have been informed of an error. Some provincial defamation laws limit damage awards on retracted material to the amount of provable financial loss to the plaintiff. Punitive, aggravated, and special damages are not available to plaintiffs in these cases, so they rarely go far in the court system. Once a retraction is published, plaintiffs usually stop their legal action.

d) Anti-SLAPP Law

For generations, journalists, activists, and people who engaged in public expression were subject to “libel chill,” the fear that they would be dragged through the expensive and stressful litigation process for some minor error or for simply expressing an opinion.

Activists were often targeted with threats of lawsuits. For years, animal rights activists had protested what they claimed were abuses by zoos and marine attractions in Canada. Others found themselves in court with mining and forestry companies. Thin-skinned politicians at all levels of government were quick to sue to shut down their critics, knowing they would drop the lawsuit months or years later when interest in the issue died down.

It’s been estimated that 95 percent of defamation lawsuits never saw the inside of a courtroom, but that did not prevent members of the legal profession who specialized in defamation from making a very good living. These lawyers had fine homes and their kids had straight teeth because defamation litigation is expensive and a very large amount of money can be spent early in the process. The system was stacked against the poor and the powerless, so much so that some Canadian provinces became destinations of choice for “libel tourists” who brought their cases to plaintiff friendly jurisdictions.

The Charter put a damper on these practices but didn’t extinguish them. Following the example of several US states, British Columbia passed a law against SLAPP. For a time, the law was repealed by the provincial Liberal government but was reinstated by the New Democrats when they won power. Interestingly, the courts in British Columbia were receptive to the expression rights analysis in the law, even after it was no longer on the books.

In 2015, the Ontario legislature passed the Protection of Public Participation Act, 2015,[76] which protected people who engaged in public debate. There had been several high-profile lawsuits filed against environmentalists, animal rights activists, political candidates, and media outlets to stifle public debate and criticism. News media in Ontario were often targeted with libel notices and even statements of claim from corporations and powerful individuals that were meant to frighten them into silence or to keep journalists and activists in a state of anxiety. These were labelled “Strategic Lawsuits Against Public Participation” (SLAPPs). Free expression advocates in the United States have lobbied for years for anti-SLAPP laws, and have succeeded in getting them passed in about thirty states. Many of them require parties that were found to have engaged in SLAPPs to pay the entire law bill (full indemnity costs) of defendants whom they’ve hit with SLAPPs. The Ontario law has the same teeth. The court may also award damages to people who have been hit by SLAPP suits.

The Protection of Public Participation Act, 2015, was incorporated into the Ontario Courts of Justice Act,[77] starting at section 137.1. The law is supposed to give SLAPP targets an easy, fast, and relatively inexpensive process to have SLAPPs thrown out. British Columbia has a similar law, and anti-SLAPP concepts are incorporated into the Civil Code of Quebec.[78] It’s possible that many anti-SLAPP concepts could be argued in any province, even those without anti-SLAPP laws, using section 2 of the Charter of Rights.

The laws, as interpreted by the Supreme Court of Canada,[79] have a multi-step test to meet the two conflicting social and personal interests that are in play. Anti-SLAPP laws are supposed to be a way to screen out lawsuits that unduly limit expression on matters of public interest through the identification and pre-trial dismissal of such actions. But the law has to ensure that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to pursue it.[80] The reconciliation of these potentially competing goals is reflected in the multi-faceted, multi-stage, statutory process established by anti-SLAPP laws and, arguably, applicable in summary judgment motions in all defamation cases in common law jurisdictions in Canada.

First, is the expression on a matter of public interest? This taps into the Charter’s free expression rights and the common law’s privilege concepts. If the defendant shows this to be the case, the onus for the rest of the test shifts to the respondent/plaintiff in the main action.[81]

If plaintiff in the lawsuit satisfies the judge that there are grounds to believe that (1) the proceeding has substantial merit and (2) the moving party (the party that filed the motion) has no valid defence in the proceeding, they will have gone a long way to winning the motion and having their case move along toward trial.

But the judge will do an important weighing exercise, determining whether the harm likely to be or has been suffered by the plaintiff because of the defendant’s expression is so serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

In other words, if the person who claims to have been defamed can’t show real damage to their reputation or livelihood, the case will be thrown out, even if they have been defamed. Libel chill cases involve minimal real damages, and a party that is notorious for suing for relatively minimal harm or has a long-standing dispute with the defendant has much less of a chance of seeing their case survive an anti-SLAPP hearing.

Notice that motivation is not part of the test, but courts will look at the way the plaintiffs handled the lawsuit. For example, in unrelated cases, municipal politicians in Ontario lost their SLAPP cases partly because they sent process servers to their critics’ homes at Thanksgiving and Christmas, respectively. This behaviour was evidence the lawsuits were brought in bad faith, for improper purposes. That element is not in the statute law of British Columbia and Ontario because it already existed in common law. Bad faith — the idea that the lawsuit was filed to stifle expression rather than to seek compensation for real harm — is one of core aspects of SLAPPs, and that bad faith argument should be something that is argued by lawyers in provinces that do not have anti-SLAPP statutes.

SLAPP motions are usually filed quite early in the litigation process. In Ontario, they can be initiated before a statement of defence is filed, although this is very rare.

SLAPP motions are heard by a judge, not a master. All the factual evidence is in affidavits from the parties and some of their witnesses. Judges do not hear evidence from witnesses during the SLAPP hearing.

The judge decides whether the case should be dismissed immediately or go on to trial. A plaintiff who wins a SLAPP motion may still lose at trial if a court believes the defence put forward during the trial.

It’s an open question whether the anti-SLAPP process has always been effective at helping sort out valid cases from those filed to create libel chill. Certainly, it’s been effective in some cases, including a lawsuit filed by Rebel News against Al Jazeera, where a judge found the Qatari news agency had made minor errors that were not serious enough to harm Rebel News’s reputation.[82] In another case, B’nai Brith, which was sued by the Canadian Union of Postal Workers for implying the union supported a Middle East terror group, lost its SLAPP motion, and the case was ordered to proceed toward trial, with the court ruling that public interest in upholding the union’s right to protect its reputation from serious defamation outweighed the public interest in protecting B’nai Brith’s expression rights.[83]

There is also a problem when a high-profile person or organization finds themselves unfairly targeted by an online mob. Whom do they sue? The first poster? The one with the deepest pockets (to ensure being able to collect under joint and several liability rules)? Everyone?[84] How do you prove that a particular defendant caused serious, or any, harm when so many people were involved? And if the person who incited the mob is sued, can they say that their post caused little damage and that the real harm was caused by the entire mob? Can they say the online discussion is protected speech on matters of public interest? What about a very high-profile organization that is targeted with sloppy or malicious reporting by a news outlet? Will courts decide that there’s an important public interest in receiving this reporting, flawed as it is, such that it outweighs the right of the organization to sue to protect its reputation? What about the rights of politicians, who are expected to have thick skins, but can now have their reputations defined and destroyed by anonymous online posters who can claim they are engaged in honest public debate? How can they prove real harm to themselves when so many political careers end in defeat at the polls or because of minor lapses in judgment that are termed as “scandals” by the media and their political opponents (who, these days, can often be the same people, as the lines between political actors and media have blurred in recent years)?

SLAPP motion cases have sometimes become very complex, with massive pre-motion affidavits filed; days of cross-examination of witnesses, pre-hearing motions and conferences; and long hearings, all of which cast doubt on the claim that these laws are an inexpensive, fast way to separate valid cases from lawsuits that are meant to stifle free expression on matters of public interest. In British Columbia, Steven Galloway, former head of the University of British Columbia’s creative writing school, sued a former student with whom he’d had an affair, claiming she had lied to get him fired. He also sued twenty-four people who, he claimed, defamed him on social media. After sixteen months of pre-SLAPP hearing motions — including one that went all the way to the Supreme Court of Canada — the case finally went before a judge in a twelve-day hearing. The judge found that Galloway’s lawsuit was, with a few exceptions regarding peripheral defendants, not a SLAPP.[85] Then the case began to work its way through the regular litigation process.

SLAPPs are not always about defamation in the media. In fact, the most important SLAPP case, which went all the way to the Supreme Court of Canada, was a breach of contract case. In 1704694 Ontario Ltd v Pointes Protection,[86] a developer (the numbered company) wanted changes to zoning rules for a subdivision that the company’s owners wanted to build near Sault Ste. Marie. The development was opposed by some neighbours and environmentalists, who formed Pointes Protection Association. During negotiations over the subdivision plan, the opponents made an agreement not to oppose the plan at the Ontario Municipal Board (OMB). One of the opponents went to the OMB anyway, and the developers sued for breach of contract. The SLAPP issue turned on whether the testimony was discourse on a matter of public interest, whether the people being sued had a defence, and if the wrongful actions of the defendants — if there were any — caused the plaintiffs real harm:

Components of SLAPP Cases

  1. Is the lawsuit about a matter of public interest?
  2. Does the case of the plaintiff have substantial merit? Is there a real defence?
  3. Is the harm suffered, or likely to be suffered, by the plaintiff serious enough to justify stopping public expression?

In Bent v Platnick, the companion ruling to Pointes, the Supreme Court of Canada identified the two policy goals embodied in Ontario’s anti-SLAPP regime: first, “to function as a mechanism to screen out lawsuits that unduly limit expression on matters of public interest through the identification and pre-trial dismissal of such actions” and second, “in addition to protecting expression on matters of public interest, s 137.1 must also ‘ensur[e] that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to pursue it.’” [87] The reconciliation of these potentially competing goals is reflected in the multi-faceted, multi-stage statutory process established by section 137.1 of the Courts of Justice Act, based on the three-part test outlined above.

The defendants need to prove to a judge in a SLAPP motion hearing that their actions involved expression on a matter of public interest. (This is called the “threshold burden.”). If they do so, the onus shifts to the plaintiffs to show that their lawsuit has merit (the “merit-based hurdle”). Usually, both sides will argue the facts of the case and the law, usually citing the defences of truth and fair comment. Each party will try to put their case forward in the best possible light.

Then the plaintiffs in the lawsuit will try to show they have suffered real harm that outweighs the value of protecting the expression rights of the defendant. Those rights are valuable to society as well as to the defendants. (This is the “public interest hurdle.”) Proving actual damage can be tricky in defamation lawsuits, where financial harm can be difficult to prove. What is the value of a reputation? And how can a person who’s suing show what the harm to their reputation will cost them in the future?

Determining reputational harm raises other interesting questions that have yet to be addressed by the courts, and, presumably, the drafters of the law. If the person who has been defamed cannot show real economic loss — being fired from a job, for instance — are they no longer protected by defamation law? What about pensioners? Poor people? Economic loss is difficult to prove. For example, how does a business owner prove that a drop in customer spending was caused by the publication of defamatory material? How does a politician prove they lost an election because of a defamatory statement?

At the same time, by giving a high level of protection to expression on matters of public interest, the courts have put some teeth into claims by the Supreme Court of Canada in cases like Grant v Torstar[88] that journalism on issues of public interest is vital to democracy.

Many great articles were never written, films were never made, and issues were never covered because wealthy people and corporations would have turned their lawyers loose. Many editors lived in fear of receiving libel notices, which were little more than letters of complaint written by lawyers. They knew that a lawsuit, even one that was quickly thrown out of court, would cost thousands of dollars in legal fees. Whether anti-SLAPP laws have solved the problem remains an open question.

e) Damages for Defamation

Governments can’t sue for defamation, though some municipalities have tried to sue local critics of councils and administrations. (The individual councillors and administrators, and people in similar positions in senior levels can sue, if the defamatory material names them or it’s obvious who’s being defamed.)

Corporations can sue, but only for real losses. It has become entrenched in common law that corporate reputations have value only in terms of commerce. This concept, which is shared by common law in most English-speaking countries, was recently applied to two SLAPP cases involving Rebel News and its owner, Ezra Levant. In Levant v Day,[89] a lawsuit by Levant was allowed to proceed toward trial because the court found the plaintiff likely caused some damage to Levant’s reputation (Day v Levant[90]). However, in the past when the plaintiff has been Rebel News, courts have found no evidence of lost profits, and have therefore dismissed libel cases filed by that company.[91]

Otherwise, in cases where the plaintiff is a person, damages are presumed. That doesn’t mean plaintiffs can sit on their hands and expect a judge or jury to calculate them. Unlike in negligence cases, there are no “meat chart” publications to give triers of fact and litigants a general idea of the expected quantum of damages. Damages will be awarded to compensate for actual loss, the defendant’s erosion of the inherent human dignity of the target of the defamation, the malice of the author of the defamation, the defendant’s conduct through the trial, and other factors that the plaintiff’s counsel will bring forward.

Canadian courts are inconsistent in their damage awards, and, compared to other jurisdictions, they tend to be on the low side. If you are covering a defamation trial, you should carefully examine the court’s cost award, if any. That may be where the court makes a clear statement of what it really thought of the case and of the litigants involved. Defamation litigation expenses, now that SLAPP motions and motions for summary judgment are common, are very high. A losing party that has substantial indemnity or full indemnity (as happens in SLAPP motions) awarded against it can end up responsible for a far greater amount of money than the actual judgment.

f) Libel in the Criminal Code

Libel is a crime as well as a tort, but Crown attorneys tend to avoid laying charges, leaving cases to be fought in the civil courts. Details of what constitutes the offence and its defences can be found at sections 298 to 317 of the Criminal Code. Libel was an offshoot of treason law, partly because it was seen to be disruptive to social order and a direct or indirect threat to the state.

Usually, the accused must engage in utterly outrageous behaviour, such as when an Ottawa restaurant owner, enraged by a customer’s negative comment on an internet website, set up bizarre profiles of the customer on straight and LGBTQ2S+ dating sites and sent defamatory material to her employer, the Canadian Federation of Municipalities organization, and to mayors of hundreds of communities across the country who were members of the organization. In a criminal case, the intent of the defendant is an important issue, and a defence of accident or lack of malicious intent might succeed.

Defamatory libel has a set of defences that are similar to, but not quite the same as, the tort of defamation. First, because of the need for mens rea — a guilty mind — in criminal law, a publication cannot be charged with defamatory libel if the newspaper proprietor did not know the material was libelous. Tort law does not allow this defence.

Reports of parliamentary and legislature debates, committee hearings of legislative bodies, and court proceedings are privileged, as are reports of some public meetings. Municipal council meetings are not mentioned, but fair reporting on a matter of public interest is protected by sections 309 and 314 of the Criminal Code.

Truth is a defence in defamatory libel, as is fair comment and fair artistic criticism. People are also allowed to publish to refute defamation, or if challenged by the person who has been defamed to expand on the topic or prove the allegation. The person publishing the information must believe it is true at the time it is published (section 311 of the Criminal Code).

The criminal law looks at motivation as well as action. If the intent was to extort money, property, an appointment, or office of profit and trust (i.e., a government job) by threatening to publish defamatory material, a person can be charged under section 302 of the Criminal Code.

If a person is asked for information by someone who has an interest in receiving a truthful account of that information, or the publisher believes has such an interest, and the material is published in good faith, the accused has a defence if the publisher believed the information to be true, the defamatory material is relevant to the inquiry, and the defamatory material does not in any respect exceed what is reasonably sufficient in the circumstances (section 313 of the Criminal Code).

An accused may also argue that the defamation was made in the pursuit of a remedy for a public or private wrong. This is a sweeping defence. It allows people to claim they have the right, in good faith, to redress a private grievance or a wrong done to them by a government if they do so in good faith. They need not prove the grievance, only that they had reasonable grounds to believe there was one. The accused must believe the defamatory material was true, that it was relevant to the remedy or redress sought, and that the defamatory material published did not exceed what was reasonable in the circumstances.

Note how hard it is to prove some of these factors. In tort law, a person who relies on a defence of truth must prove that the material published was true. In criminal law, the defendants need only prove that they believed it to be true. The information may, in fact, be false, and the onus is on the prosecution to prove the person who published it knew it was false. That’s a very high bar, unless the defendant has left evidence that demonstrates that the claim of belief is false.

5) Damages in Tort

There are four main types of damages awarded by Canadian courts:

1) Nominal
2) Compensatory
3) Punitive
4) Aggravated

a) Nominal Damages

Nominal damages are self-explanatory. There are rare instances of juries and judges in common law countries awarding token amounts to litigants to send a signal that, while they won their case, they were objectionable people, pursued an unfair claim, or won because of a loophole in the law. People who win nominal damages may still get court costs under the arcane and complicated rules that govern cost awards. But a simple rule: if the other party offered a settlement that was higher than the court’s award, the person who “won” the lawsuit will likely have to pay at least part of the losers’ costs.

b) Compensatory Damages

This type of damages is meant to, as much as money can, restore the victims to the position they would be in if the tort had not happened. There are two kinds of compensatory damages: (1) special damages (those that occurred before the trial) and (2) general damages (those that are expected in the future). Courts will also try to sort out pecuniary damages, such as payment for care, added expenses caused by the injury, and lost income. In negligence cases involving lifelong disability, the calculation must include an estimate of the expected lifespan of the victim. As noted elsewhere, this is a complicated process based on inexact science. No one knows what inflation and interest rates will be in the near future, let alone in decades. As well, income calculations are often based on the premise that the victim would have never progressed in their career, which is a bias against young people.

People who receive a court judgment can only do this calculation once. Courts are very averse to litigants coming back to court to argue for a change in the court order. Judges are more open to listening to arguments for recalculation of spousal and child support in family law cases due to changing circumstances. This is one of the inconsistencies in our legal system.

Non-pecuniary damages such as pain, grief, misery, anxiety, loss of mental function, impairment of relationships, and lack of companionship are also part of compensatory damages. Big jury awards for pain and suffering make the news in the United States, but Canadian courts are usually much less generous, and provinces have passed laws to cap those awards. In Ontario, the maximum is now $350,000 (it was $100,000 in 1978).

These awards can be in the form of structured settlements if both parties agree. An annuity company is hired to administer payouts from a pool of money invested and held in trust. The settlements can have some flexibility in their terms, but they cannot be varied once the parties agree on their terms. Payment is not taxed because interest on annuities is not taxed. In Canada, in theory, they can’t be sold. In the United States, there’s a predatory industry that buys structured settlements from accident victims with lump-sum payments, leaving disabled people at the mercy of the welfare system once the money is gone. Between lawyers who take a huge percentage of awards as payment of contingency fees, state tort laws that cap damages, and companies that advertise on trash television to buy structured settlements at deeply discounted prices, American accident victims have the deck stacked against them.

c) Punitive Damages

We get most of our ideas about punitive damages from the Unites States, where juries have made some spectacular punitive damages awards, especially against unethical corporations. Canadian courts are far less likely to give punitive damages awards. General damages are supposed to fully compensate for losses. (In Quebec, the Civil Code does not allow for punitive damages, but recent legislation makes them available in a few instances.)

The defendant must engage in actions that warrant punishment: “malicious, oppressive, and high-handed” misconduct that “offends the court’s sense of decency.”[92]

The law of punitive damages was codified by the Supreme Court of Canada in Whiten v Pilot Insurance Co.[93] It set down a list of principles that courts should follow when deciding whether to award punitive damages:

  • Punitive damages are very much the exception rather than the rule.
  • They are imposed only if there has been high-handed, malicious, arbitrary, or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.
  • Where they are awarded, punitive damages should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff, and any advantage or profit gained by the defendant.
  • They are calculated having regard to any other fines or penalties suffered by the defendant for the misconduct in question.
  • Punitive damages are generally given only where the misconduct would otherwise be unpunished or where other penalties are or are likely to be inadequate to achieve the objectives of retribution, deterrence, and denunciation.
  • Their purpose is not to compensate the plaintiff, but to give a defendant their just deserts (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community’s collective condemnation (denunciation) of what has happened.
  • Punitive damages are awarded onlywhere compensatory damages, which to some extent are punitive, are insufficient to accomplish these objectives.
  • They are given in an amount that is no greater than necessary to rationally accomplish their purpose.
  • While normally the state would be the recipient of any fine or penalty for misconduct, the plaintiff will keep punitive damages as a “windfall” in addition to compensatory damages.
  • Judges and juries in our system have usually found that moderate awards of punitive damages, which inevitably carry a stigma in the broader community, are generally sufficient.

When deciding whether punitive damages are warranted, a judge or jury is supposed to consider whether, and to what extent, the defendant engaged in actions that warrant punishment by the civil courts. Among those factors are:

  • Whether the misconduct was planned and deliberate
  • The intent and motive of the defendant
  • Whether the defendant persisted in the outrageous conduct over a period of time
  • Whether the defendant concealed or attempted to cover up its misconduct
  • Whether the defendant knew what they were doing was wrong
  • Whether the defendant profited from the misconduct
  • Whether the interest violated by the misconduct was known to be deeply personal to the plaintiff

Punitive damages are much more likely to be awarded in intentional tort cases, such as defamation lawsuits, but the leading case on punitive damages, Whiten v Pilot Insurance Co, involved an insurance company that refused to pay a claim from a family in Haliburton, Ontario, that lost everything they owned in a house fire in the dead of winter. The company insisted the fire was arson, even after an onsite investigator wrote a reporting letter saying the fire was accidental.

d) Aggravated Damages

It’s difficult to understand where punitive damages end and aggravated damages begin. Think of aggravated damages as “punitive damages light.” These are given to compensate the victim for additional harm caused by the defendant’s reprehensible or outrageous conduct. Note how these are compensatory rather that punitive. Punitive damages are allowed to be a windfall for plaintiffs, according to the decision in Whiten, and are meant to punish and deter defendants from future bad conduct. Losses of the victim are not a main factor. Aggravated damages are supposed to be calculated with the victim’s tangible and intangible losses in mind.

Lawyers will always include a request for compensatory damages in any statement of claim in tort and breach of contracts cases. They are likely to ask for punitive and aggravated damages as well, even though they know they are unlikely to get them. It’s important for journalists to understand that a statement of claim asks for all the compensation that a person might possibly get. The demand for damages — both the quantum and the type — almost always bears no relation to what, if anything, changes hands in a settlement negotiation or after a trial.

6) Time Limitations

Usually, lawsuits must be filed within two years of the commission of the tort or the accident that is pursued in a claim for negligence. This two-year time limit applies to most other civil cases, with sexual assault being an important exception. Limitations are prescribed in federal and provincial statutes and can be changed for policy reasons. For example, the Ontario Occupiers’ Liability Amendment Act requires potential litigants to quickly serve a notice on the potential defendants in slip-and-fall cases (usually the property owner and whoever is in charge of keeping the premises clean and dry). Ontario, unlike many other provinces, also has a requirement for written notice in written libel cases and for quick filing of statements of claim in those cases. Whether those limitations extend to material posted on the internet is still up in the air, but most lawyers act as though they do, just to be safe.[94]

In extreme cases, provincial limitations laws allow the filing of lawsuits up to seven years after an incident. Plaintiffs must prove to the court that they did not know about the nature of the incident or the identity of the potential defendant. A judge will decide when the case was “discoverable,” which is the time when it would be clear to a reasonable person that a lawsuit was warranted. This can be a serious question when a potential defendant leads the potential plaintiff on and on with promises and excuses.

There are also statutory rules that waive all limitations in certain cases (for example, as noted earlier, claims for victims of sexual assault).

A lawsuit can also, effectively, die of old age if it is not moved forward by the plaintiff. In Ontario, cases expire five years after the last action on them. So, for instance, if someone files a statement of claim against you and takes no further steps such as filing a litigation timetable or scheduling discovery, the clerk of the court will issue a notice five years after the filing of the claim saying the case is officially over.

All jurisdictions have limitations laws. If you think there’s any chance that limitations will be an issue in the story you are covering, find the applicable law (which will be online and shouldn’t be hard to find using Google.) Most are fairly short. Ontario’s Limitations Act[95] is a five-minute read. Alberta’s is just seventeen pages long, though you likely can quickly find what you’re looking for by using the table of contents and scrolling down to the appropriate section of the Act.

 

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