My colleague Joel Hill has written a rather good series of defamation notes. This is the most recent installment in that series (see below for links to the earlier posts):
Wilson v. Switlo is a recent decision of the B.C. Supreme Court addressing a great many aspects of the law relating to defamation. This post is the fifth in a series reviewing the claims, defenses, and issues raised in this important, interesting and wide-ranging decision.
As we saw in an earlier post in this series, to succeed in a claim of defamation, the party bringing the lawsuit needs to prove, among other things, that the allegedly defamatory words referred to the plaintiff, and not someone else.
In Wilson, some of the letters that the plaintiffs said were defamatory did not specifically name all the plaintiffs.
The Court importantly observed that a defamatory publication can refer to someone even if they are not individually named, citing the earlier British Columbia Supreme Court decision Manno v. Henry, 2008 BCSC 738.
In Manno, the judge had “determined that documents that did not name the plaintiffs nevertheless identified them, allowing their claim for libel to succeed,” and had also discussed the requirements for establishing that the allegedly defamatory words “refer” to the plaintiff:
“In order for any plaintiff to succeed, that plaintiff must establish on a balance of probabilities that, in the circumstances, the words would be reasonably understood to be defamatory of that plaintiff. As is stated by Professor Brown in The Law of Defamation in Canada (2nd Ed., 1999) at pp. 6-7 to 6-10:
‘It is essential to the cause of action that the words be defamatory of the plaintiff. It is not necessary that the plaintiff be named specifically, or identified by his or her proper name, or even mentioned at all, if it is otherwise shown that the words would be reasonably understood to refer to the plaintiff. Nor is it necessary for the person to whom the publication is made to know the plaintiff by name.
Direct evidence that the plaintiff is pointed to is not essential. He or she may be indicated by designation or description, or pointed to by the circumstances … It may be clear from other evidence that he was the one alluded to, but he must satisfy the court in that regard. This may be done by introducing evidence, apart from the publication, connecting the plaintiff with the defamatory publication. The extrinsic facts do not have to coincide exactly with the facts detailed in the publication so long as they enable a reasonable person to identify the plaintiff.’”
The judge also cited “the seminal case” of Knuppfer v. London Express Newspaper, Ltd., [1944] A.C. 116, which held that:
“There are two questions involved in the attempt to identify the [plaintiff] as the person defamed. The first question is a question of law – can the article, having regard to its language, be regarded as capable of referring to the [plaintiff]? The second question is a question of fact – Does the article in fact lead reasonable people, who know the [plaintiff], to the conclusion that it does refer to him?”
In other words, you can sue for defamation even if the offending statement does not specifically mention you by name. The defamatory words will “refer” to you if: (i) they could possibly refer to you, and (ii) they in fact lead reasonable people, who know you (even if not by name), to conclude the words refer to you.
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