Litigation

Defamation is widely understood as public statements that damage a person’s reputation. While this may seem a simple concept, the legal test for defamation is quite onerous and, depending on the circumstances, bringing a legal action for defamation may be quite complex.

The general rule is that a plaintiff must file a claim within 2 years from the date they first knew of the defamatory statement. However, it is important to note when the alleged defamatory statement is broadcast or published in a newspaper, the Defamation Act requires the plaintiff to provide notice of their intention to bring an action within 3 months of the date the statement first came to their attention.

In the 2009 decision of Grant v Torstar, the Supreme Court of Canada held that a plaintiff must prove three elements for a successful defamation claim.

First, the statement must be defamatory. A defamatory statement is one that “would lower the plaintiff’s reputation in the eyes of a reasonable person or expose the plaintiff to hatred or ridicule.” The court will assess both the plain meaning of the words used and the circumstances surrounding the statement.

Second, the statement must refer to the plaintiff. In most cases, this will involve the defendant referring to the plaintiff by name, although this is not necessarily required. Where the defendant does not explicitly name the plaintiff, the court will ask whether an ordinary person who is reasonably informed would know the statement was made about the plaintiff.

Third, the statement must have been communicated to at least one person other than the plaintiff, as their reputation cannot have suffered if they were the only one to hear the defamatory statement.

Importantly, there is no requirement that the defendant intended to defame the plaintiff. If a plaintiff can prove each of the elements, intention does not matter.

However, arguments in a defamation case will rarely end there. In most cases, the available defences to defamation play a key role. A defendant will not be held liable if they can prove they had a valid defence, regardless of whether each element has been proven by the plaintiff.

One of the most common defences to a defamation claim is truth, or justification. If a statement is true, it cannot be defamatory. The truth of the statement is to be determined as of the time the statement was made. Importantly, the defendant’s subjective belief in the truth of a statement is not sufficient; the actual truth of the statement must be proven under this defence.

Another important defence is “fair comment”, which applies to statements of opinion that are “generally incapable of proof.”. As stated by the Supreme Court in Grant v Torstar, this defence will apply when the statement is: (1) about a matter of public interest; (2) based on fact; (3) is recognizable as comment, not a statement of fact; and (4) satisfies the test of whether a person could honestly express the stated opinion on the proven facts. The opinion stated does not need to be reasonable, so long as it was honestly expressed and based on the facts.

Qualified privilege is a defence which attaches to the occasion upon which a statement was made and not to the communication itself. This will apply where there is a special relationship characterized by a “duty” to communicate information and a reciprocal interest in receiving that information. A common example is a reference provided in the employment context.

For both the defences of fair comment and qualified privilege, the defence will not apply if the plaintiff can demonstrate that the defendant was motivated by “express malice”. In that case, defamation will be made out.

However, where a statement is subject to absolute privilege, it can never serve as the basis for a defamation claim. Recognized examples include statements made in Parliament or testimony given by a witness in court or other quasi-judicial proceedings.

Lastly, the Supreme Court’s decision in Grant v Torstar created a new defence deemed “responsible communication on matters of public interest.” This defences applies mainly for journalists and media organizations. The defendant will be required to demonstrate that the publication was about a matter of public interest and it was communicated responsibly, having regard to the seriousness of the allegation, public importance, urgency, reliability of the source, whether they sought comment from the plaintiff or presented their side of the story accurately, and other relevant circumstances.

If a defamation claim is successful, the plaintiff may be entitled to monetary damages or an injunction preventing the plaintiff from making further statements. The defendant may also be required to issue a retraction of the statement and apologize. An apology will often reduce the damages to which a plaintiff is entitled.

General damages are intended to compensate for harm to reputation and will be determined with references to amounts awarded in previous cases. In some instances, special damages will be awarded if there is evidence of quantifiable monetary loss—i.e. loss of business, contracts, etc.

Punitive damages are awarded in rare cases where it is necessary to punish the defendant for behaviour that is overly malicious, oppressive, or high-handed. This is more likely where malice has been found on the facts of the case.

As shown above, defamation claims have many components. If you need advice to bring or defend a defamation claim, please contact our civil litigation team. Our experienced and knowledgeable Calgary and Strathmore litigation lawyers can assist you in navigating through the process.

For parties who have never been involved in a lawsuit before, the court process can seem daunting. That is why we have provided below a comprehensive overview of the civil litigation process in Alberta, from start to finish.

A civil action can usually be broken down into four stages: (1) pleadings; (2) discovery; (3) settlement; (4) trial. The process will differ depending on whether the action is brought in Provincial Court or the Court of Queen’s Bench. Actions for $50,000 or less fall under the jurisdiction of Provincial Court and all other actions must be filed in the Court of Queen’s Bench. This article will focus only on actions brought in the Court of Queen’s Bench.

(1) Pleadings

A claim is commenced when the Plaintiff files a “Statement of Claim”. For most types of claims, the Statement of Claim must be filed within 2 years from the date the plaintiff first knew they had a claim against the Defendant. The Statement of Claim outlines the underlying facts and the remedy being sought by the Plaintiff. It does not provide any evidence to support the Plaintiff’s claim—that comes later at the discovery phase. The Statement of Claim must then be served upon the Defendant within 1 year of the date it is filed with the Court.

Once the Defendant has been served, they have 20 days to file a “Statement of Defence” (assuming they are served in Alberta; they will have 1 month if served elsewhere in Canada and 2 months if served outside Canada). If the Defendant wishes to make a “Counterclaim” against the Plaintiff, they must do so at the same time. The Plaintiff would then have to respond with a “Statement of Defence to Counterclaim” within the same time requirements. If there is no Counterclaim, the Plaintiff may also file and serve a “Reply to Defence” within 10 days of receiving the Statement of Defence.

If other parties are involved in the dispute, the process gets more complicated. The Rules of Court set out the applicable timeframes for the Defendant to add a Co-Defendant or a Third Party to the lawsuit.

In cases where the Defendant fails to respond, the Plaintiff may have the Defendant “noted in default” and then apply for what is known as “Default Judgment”. This means the Plaintiff will automatically obtain judgment in their favour and may take steps to enforce it.

(2) Discovery

After the pleadings phase, the next step is the discovery process, which can be further broken down into: (a) exchange of documents; and (b) oral questioning.

Both parties are required under the Rules of Court to disclose all documents that are relevant and material to the issues in dispute between the parties. First, the Plaintiff will provide all documents under their possession and control through what is called an “Affidavit of Records”. The Plaintiff must serve their Affidavit of Records on the other party within 3 months of the date they are served with the Statement of Defence.

The Defendant will then be required to provide their own Affidavit of Records within 2 months of receiving the Plaintiff’s Affidavit of Records.

Any documents that subsequently come to light must be served on the other party through a “Supplemental Affidavit of Records”. If either party is unwilling to disclose relevant documents, the other party may apply to the court for a production order.

After documents have been exchanged, the parties will then schedule dates for questioning. Both parties will be questioned under oath with respect to the documents provided. Transcripts of the questioning will be produced by a court reporter.

During questioning, the other side’s lawyer may ask the witness to search for additional documents or to confirm information which is not readily available at the time of questioning. These requests are called “Undertakings” and parties are required to provide responses to Undertakings within a reasonable period of time. If one party refuses to provide responses or objects to proper questions, this must be dealt with by an application to the court to compel answers.

It may also be necessary for parties to re-attend for further questioning after undertaking responses have been provided.

(3) Settlement

In practice, the settlement process will usually span the entire course of an action. In most cases, the Plaintiff will inform the Defendant of their potential claim and propose settlement before the claim is even filed, through what is colloquially referred to as a “Demand Letter”.

As the action proceeds and the evidence gains greater clarity, the parties will usually make frequent attempts to negotiate a settlement, in order to avoid the significant time and expense associated with taking a claim all the way to trial. In fact, the vast majority of actions do “settle” before making it to trial. A settlement will usually involve a payment to the Plaintiff in exchange for discontinuing the action and signing a Release preventing them from bringing another claim arising out of the same facts.

After the discovery process but before trial, the parties are required by the Rules of Court to undergo a settlement process called “Alternative Dispute Resolution” (“ADR”). ADR comes in different forms, such as mediation, arbitration, or “Judicial Dispute Resolution” (“JDR”). These processes are more informal than a trial and require the consent of the parties to come to a final determination. The parties will need to certify to the court that they have engaged in ADR, or obtain an order waiving the ADR requirement, before they will be allowed to proceed to trial.

It is important to note the parties can reach a settlement agreement at any point in the litigation process. It can occur before a claim has even been filed or after a trial has already begun—or at any time in between.

(4) Trial

If the parties are unable to resolve the matter, a trial is the last resort. After all other steps have been completed, the parties must file a “Certificate of Readiness” with the Court, advising how long the trial will be and the number of witnesses who will testify. The parties are required to provide further confirmation of readiness 3 months prior to the trial date, as well as advise of any changes to the number of witnesses or days required.

Most cases are heard by a judge alone, without a jury. The parties will put forward their evidence in an effort to prove their respective claims or defences. The judge will then issue a decision which is final and binding upon the parties, subject to any successful appeal to a higher level of court. The successful party will typically have a portion of their legal costs reimbursed by the other side. Parties can expect an action to last between 2 and 5 years from the date a claim is filed to the end of a trial. The length of the process depends on a variety of factors, such as the complexity of the issues, availability to schedule questioning and trial dates, requests for extensions, and any applications brought by either party throughout the course of the litigation.

Winning a court case or being granted default judgment is a huge step for a successful party in litigation. Where the court makes a monetary award (called “damages”) the person who owes the money is called a judgment debtor and the person to whom the damages are owed is called a judgment creditor.

A judgment creditor being awarded damages may not be the end of the process, as the judgment debtor may be unable or unwilling to repay the debt. In that case, enforcement measures such as garnishment or seizure, will be necessary in order to collect what is owed.

“Garnishment” is an enforcement procedure which allows judgment creditors to essentially intercept money before it gets to the judgment debtor. Where a third party, called a garnishee, owes money to the judgment debtor for wages or other payments, the Alberta Civil Enforcement Act allows for a process by which the third party is required to pay money into court for the benefit of the judgment creditor.

The two most common garnishees are the debtor’s employer and the debtor’s bank. . In order to garnish, the judgment creditor will have to identify the garnishees, as this information may not be readily available.

Once a judgment debtor does not respond and it becomes clear that enforcement steps will have to be taken, the judgment creditor should file a Writ of Enforcement with the court. A Writ of Enforcement confirms the identity of the debtor and creditor, as well as the amount currently owed.

After it is filed with the court, the Writ of Enforcement should also be registered at the Personal Property Registry. This serves as notice that the judgment debtor owes the judgment creditor money. (The Writ of Enforcement form is located on the Alberta Courts website).

Writs expire after 2 years. The judgment creditor must file a Status Report with the Personal Property Registry prior to expiry to renew the Writ. Status Reports must also be filed to change the amount owed by the judgment debtor whenever a payment is made on the debtor’s account. The Status Report form is located on the Government of Alberta website.

Once a Writ is filed at the Personal Property Registry, the next step is to file a Garnishee Summons with the Court. The Garnishee Summons directs the third-party garnishee on their obligation to pay money into court. The Summons must be accompanied by a supporting affidavit and information directed to the court clerk including the amount owing. The Garnishee Summons form is also located on the Alberta Courts website.

After the Garnishee Summons is filed with the court, three copies of the Summons should be served on the garnishee along with a $25 administration fee. If the garnishee is an individual, they may be served via personal service or recorded (registered) mail. For corporate garnishees, service may be affected by recorded (registered) mail to the registered corporate office or through personal service upon an officer or director of the corporation.

Once the Summons has been received, the garnishee has 15 days to serve a copy of the Summons upon the debtor, either personally or by mail. The garnishee must also, within 15 days, deliver a response to the court clerk along with the funds or a statement denying that the garnishee has any obligation to the debtor. The Garnishee Summons includes instructions on what exactly must be provided.

Where the garnishee is an employer of the debtor, there are limits as to how much can be garnished from a single pay cheque. The debtor will be allowed to keep $800 per month, plus an additional $200 per dependent. Garnishee Summons for employers expire 2 years after it is issued unless it has been renewed.

Where the garnishee is the debtor’s bank, there is no limit as to how much funds can be garnished. The judgment creditor is entitled to all the money in the debtor’s account, up to the amount of the debt. Garnishee Summons upon financial institutions expire 60 days after issuance unless it is a joint account. In the case of a joint account, only half the amount in the account can be garnished and the Summons is considered a one-time obligation.

All garnishment amounts will be paid into the Court. The Court will then distribute the funds to the judgment creditor. If there is more than one registered judgment creditor and the amount will not cover all the debts, the amount will be distributed pursuant to a Proposed Distribution, which is required by law in those circumstances. Receiving a Garnishee Summons or garnishing a judgment debtor can be a confusing process. If you need advice or have questions, please contact our team.