1. INTRODUCTION
[T]hreats of lawsuits, or even just the fear of threats of lawsuits, can suppress scholarly debate and thereby compromise academic freedom.1
Researchers and academics are routinely required to defend statements they have made in the course of their work — at conferences of their peers, in the context of internal reviews, in complaint and discipline proceedings, and in peer-reviewed publications. But the prospect of defending the same statements in a court when faced with a defamation claim (or even the dark threat of a defamation claim) is another beast entirely — one that can have the devastating effect of inhibiting academic freedom.
Academic freedom has been defined as the freedom to teach, discuss, research, and publish works without institutional censorship or other unreasonable interference. Without academic freedom, post-secondary institutions cannot achieve their goals of conducting independent research, disseminating knowledge, or fostering independent thinking and expression.2 Defamation law is meant to protect reputations against harmful false statements. In Canada, defamation law places a heavy burden on defendants to justify their statements (i.e. prove their truth) or otherwise defend them. Moreover, the time, expense, and emotional toll of litigating a defamation claim can, and does, intimidate academics into silence, sometimes even inhibiting them from entering a field of inquiry. Settlement of defamation claims can result in agreements that restrict expression by including confidentiality and non-disparagement clauses.
This paper will explore the legal and practical limits placed on academic freedom in the context of a defamation claim in Canada.3 It will begin by providing an overview of the concept of academic freedom, the law of defamation, and the defences that have developed which are most pertinent in the academic context. The paper will then address how allegations of defamation most commonly arise in a post-secondary environment and the ways in which these claims can impact academic freedom. It will go on to suggest practical measures that academics and institutions can take to counteract the chilling effect of defamation allegations on academic freedom, such as ensuring robust indemnification and defence obligations and providing defamation insurance which clearly applies to academics acting within the scope of their work, defined broadly. The paper will close by reviewing recent legislative reforms in the area, including legislation addressing strategic lawsuits against public participation (SLAPP) and the development of a peer-review privilege defence.
2. DEFINING ACADEMIC FREEDOM AND DEFAMATION, AND THEIR LEGAL RELATIONSHIP
(a) Academic Freedom
It is important at the outset to understand the contours of academic freedom and the values at stake. La Forest J. in McKinney v. University of Guelph described academic freedom as a "free and fearless search for knowledge and the propagation of ideas" that is "essential to our continuance as a lively democracy."4
Academic freedom is "a negotiated employment right . . . unique to universities (and, increasingly, to community colleges) in Canada."5 Four components of academic freedom have been endorsed by the Canadian Association of University Teachers (an association of Canadian faculty unions, known as the CAUT) and are found in most university collective agreements across Canada:
(i) freedom to teach,
(ii) freedom to research and publish,
(iii) freedom of intramural expression, and
(iv) freedom of extramural expression.6
Intramural expression includes the "freedom to express one's opinion about the institution, its administration, and the system in which one works."7 Freedom of extramural expression permits expression beyond the confines of campus in the public realm, including in relation to matters that are outside a faculty member's area of academic expertise. The CAUT states that without academic freedom, post-secondary institutions cannot achieve the goals of "searching for, and disseminating knowledge, and understanding and . . . fostering independent thinking and expression in academic staff and students."8
(b) Defamation and Defences to Defamation Claims
Defamation is an umbrella term covering both libel (written defamation) and slander (spoken defamation). The law of defamation balances two values that are sometimes in tension with each other: freedom of expression and reputation.9 In the Grant case, the Supreme Court of Canada succinctly explained the elements of the cause of action and burden of proof in a defamation claim:
A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism . . . . (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se . . . .) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.
A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism . . . . (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se . . . .) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.
If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability.10
Compared to other jurisdictions like the United States where, for instance, plaintiffs are required to plead and prove the falsity of the allegedly defamatory statement,11 Canadian defamation law has been described as "plaintiff-friendly." 12 Canadian courts have imported and developed various defences to defamation, including justification, fair comment, qualified privilege, absolute privilege, and responsible communication.13
(i) Justification, or truth, is a complete defence to a defamation claim.14 The defence of justification will succeed if the defendant proves, on a balance of probabilities, the truth of "every injurious imputation which the jury find to be conveyed by the publication." 15 However, it is difficult to prove truth in a courtroom. A plea of justification followed by a failure to make out the defence at trial can also lead to an increased damages award. As a consequence, defendants may be dissuaded from pleading this defence.
(ii) The defence of fair comment requires that the comment be made on a matter of public interest, based on a "substratum" of true facts and recognizable as comment, which any person could honestly make on the proved facts.16 The facts relied on must either be notorious or stated in the publication containing the comment. The rationale is that, by basing the comment on a particular substratum of facts, readers can decide to agree or disagree.
Commentary, the courts have found, includes "deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof." 17 A finding that the dominant purpose of conveying the defamatory remark was malice defeats the defence.18 In Hill v. Church of Scientology of Toronto, Cory J. of the Supreme Court of Canada explained the concept of malice as follows:
Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes . . . "any indirect motive or ulterior purpose" that conflicts with the sense of duty or the mutual interest which the occasion created . . . . Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth.19
(iii) The defence of qualified privilege is a situational protection. Essentially, a statement will be immunized from a defamation claim if there is a duty or interest in communicating the information and a corresponding interest in receiving that information.20 It is the occasion that is privileged and once an occasion is shown to be privileged, "the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff."21 This privilege is what allows investigators, for example, to report on their suspicions in the furtherance of an investigation. However, a "publication must not exceed the limits of the duty or interest created by the occasion," for instance, by including individuals who do not have a legitimate interest in receiving the communication.22 As with fair comment, a finding of malice defeats the defence.23
(iv) Absolute privilege, or immunity, also attaches to the occasion. Specifically, it attaches to "communications which take place in the course of, during, incidental to, and in the processing and furtherance of, judicial or quasi-judicial proceedings"24 and to statements made in Parliament and provincial and territorial legislatures.25 The purpose of this privilege is to protect the administration of justice and allow participants in the legislatures and in judicial or quasijudicial proceedings to speak freely. This privilege is absolute and cannot be defeated by a finding of malice (hence the name).26
(v) The defence of responsible communication on a matter of public interest was recognized by the Supreme Court of Canada in Grant.27 Acknowledging that justification may be difficult to prove, and that democratic society benefits from free expression on matters of public interest, the Court recognized a more recent defamation defence.28 Two requirements must be met for a publication to be protected by the defence of responsible communication. First, the publication must be on a matter of public interest. Second, the defendant must show that publication was responsible — or duly diligent — in trying to verify the allegation(s), having regard to all the relevant circumstances.29 While developed in the journalism context, the Supreme Court did not limit the defence to members of the press, which is why the Supreme Court of Canada refers to "responsible communication," as opposed to the English formulation of "responsible journalism." 30
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Footnotes
1. Kate Sutherland, "Book Reviews, the Common Law Tort of Defamation, and the Suppression of Scholarly Debate" (2010) 11:6 German LJ 656 at 667.
2. Canadian Association of University Teachers, "Academic Freedom: CAUT Policy Statement" (November 2018), online: (www.caut.ca/about-us/caut-policy/lists/caut-policystatements/policy-statement-on-academic-freedom) [CAUT Policy Statement].
3. Other legal limits on academic freedom and freedom of expression such as prohibitions on hate speech are beyond the scope of this paper.
4. [1990] 3 SCR 229 at 282, 286–287, [1990] SCJ No 122.
5. Michael Lynk, "Academic Freedom and Labour Law in Canada and the Scope of Intra-Mural Expression" (2020) 29:2 Const Forum Const 45 at 49 [Lynk].
6. Ibid
7 CAUT Policy Statement, supra note 2, art 2.
8. Ibid, art 1.
9. Grant v Torstar Corp, 2009 SCC 61 at para 3 [Grant].
10. Ibid at paras 28–29.
11. Vincent R Johnson, "Comparative Defamation Law: England and the United States" (2017) 24:1 U Miami Int'l & Comp L Rev 1 at 24: "[I]n the United States, there is generally no presumption that a defamatory statement is false. Rather, the falsity of the charge must be proved by the plaintiff. This makes it difficult for a libel or slander plaintiff to prevail under American law."
12. Dean Jobb, "Responsible Communication on Matters of Public Interest: A New Defense Updates Canada's Defamation Laws" (2010) 3:2 J Int'l Media & Entertainment L 195 at 201: "This feature of Canada's libel laws — a low threshold for establishing defamation, coupled with shifting the burden from the accuser to the defendant — has been criticized as making Canada's libel laws, like Britain's, too plaintiff-friendly."
13. Other defences such as consent exist. See Raymond E Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2d ed (Toronto: Thomson Reuters, 2022), ss 9–16 [Brown on Defamation].
14. Ibid, s 10:1.
15. Ibid, s 10:4, citing Price v Chicoutimi Pulp Co (1915), 51 SCR 179 at 199–200, 23 DLR 116.
16. WIC Radio Ltd v Simpson, 2008 SCC 40 at paras 26, 59.
17. Ibid at paras 26–28, citing with approval Ross v New Brunswick Teachers' Ass'n, 2001 NBCA 62 at para 56.
18. Ibid at para 106.
19. [1995] 2 SCR 1130, CarswellOnt 396 at para 145 [Hill].
20. Brown on Defamation, supra note 13, § 13:1.
21. Hill, supra note 19 at para 147.
22. Brown on Defamation, supra note 13, § 13:144.
23. RTC Engineering Consultants Ltd v Ontario, [2002] OJ No 1001, 2002 CanLII 14179 (ONCA) at para 18.
24. Brown on Defamation, supra note 13, § 12:17 [footnotes omitted].
25. Ibid, § 12:12.
26. Ibid, § 12:17.
27. Grant, supra note 9.
28. Ibid at paras 33, 65.
29. Ibid at para 98, citing Cusson v Quan, 2007 ONCA 771.
30. Ibid at para 126.
Originally Published by Canadian Labour and Employment Law Journal
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