The use of social means to engage in defamation is nothing new.
Indeed, defamation requires the very social element of publication.
Social media - Facebook pages or posts, tweets, blogs and online
comments - merely make defamation easier and more pervasive.
Canadian courts have struggled to balance the interests of free
speech with the interests of individuals who wish to challenge and
find redress for defamatory statements. A recent Ontario case has
framed the issue as follows:
"There are few things more cowardly and insidious than an
anonymous blogger who posts spiteful and defamatory comments about
reputable member of the public and then hides behind the electronic
curtain provided by the Internet. The Defendant confuses freedom of
speech with freedom of defamation. There are, undoubtedly,
legitimate anonymous Internet posts: persons critical of autocratic
or repressive regimes, for example, or legitimate whistleblowers.
The Defendant is not one of those people. The law will afford his
posts all the protection that they deserve, which is to say
none." Manson v. John Doe, 2013 ONSC
The test laid out by the Supreme Court of Canada (Grant v.
Torstar Corp., 2009 SCC 61 (CanLII)) is as follows: In order
to establish a claim for defamation a plaintiff must establish
a) the impugned words are defamatory, in the sense that they
would tend to lower the plaintiff's reputation in the eyes of a
b) the words in fact refer to the plaintiff; and
c) the words were published, i.e., that they were communicated
to at least one person other than the plaintiff.
In Manson, the court ordered the defendant to pay
damages of $100,000 plus aggravated damages of $50,000 and
costs. However, the defenant remains anonymous.
Another recent decision in Baglow v. Smith, 2012 ONCA 407
(CanLII), hints at the court's willingness to permit parties to
engage in a heated online political debate, without crossing the
line of defamation. In that case, the court observed:
"Commentators engaging in the cut and thrust of political
discourse in the internet blogosphere can be fervent, if not
florid, in the expression of their views." In the lower court,
the statements made in this "cut and thrust" were
determined not to constitute defamation. However,
on appeal, the court decided the matter was suitable for a full
trial and overturned the lower court findings. This is one case to
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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