Ontario Defamation Law: Libel, Slander, and Online Defamation

The Legal Framework

Defamation in Ontario is governed by a combination of common law principles and the Libel and Slander Act, RSO 1990, c L.12 (LSA). The LSA modifies the common law in important respects, particularly regarding notice requirements for libel in newspapers and broadcasting, and the recovery of general damages for slander.

Defamation is the communication of a false statement of fact that tends to lower a person in the estimation of right-thinking members of society, or to cause them to be shunned or avoided. The tort protects reputation — not hurt feelings or personal offence, which may ground other causes of action (harassment, intentional infliction of mental distress) but not defamation.

Libel vs Slander: Why It Matters

The distinction between libel and slander has practical significance in Ontario:

Ontario courts have consistently held that email and social media posts constitute libel, not slander, given their permanent and reproducible character.

Elements of Defamation

A plaintiff must establish three elements on the balance of probabilities:

1. The statement was defamatory — it would tend to lower the plaintiff in the estimation of right-thinking members of society. The test is objective. Courts look at the natural and ordinary meaning of the words, as well as innuendo (implied meanings that readers would understand from surrounding context).
2. The statement referred to the plaintiff — it was understood by at least one third party to refer to the plaintiff. The plaintiff need not be named — sufficient description or identification is enough. Group defamation requires the group to be small enough that a member is personally implicated.
3. The statement was published to at least one third party — communication to the plaintiff alone is not publication. Each republication is a fresh tort. In Ontario, the "single publication rule" has not been formally adopted for online content, meaning each new access may constitute fresh publication.

Once these elements are established, falsity and damage are presumed for libel. The burden then shifts to the defendant to plead and prove a defence.

The Six Principal Defences

Online Defamation

Online defamation has become the dominant category of defamation in Ontario practice. Key issues include:

• Anonymous defendants: John Doe actions are available. Courts have ordered platforms (Google, Reddit, Twitter/X, Facebook) to disclose identifying information for anonymous posters where a prima facie case of defamation is established. Norwich orders and Equustek-style injunctions are tools of choice.
• Platform liability: Online platforms in Canada are not protected by a statutory equivalent to the US Communications Decency Act s.230. Platform liability turns on whether the platform had knowledge of the defamatory content and failed to act. After notice, continued hosting may engage liability.
• Google delisting: Following Google Inc v Equustek Solutions Inc, 2017 SCC 34, Ontario courts can order search engines to globally delist defamatory content in appropriate circumstances.
• Review site defamation: Google Reviews, Yelp, and similar platforms are increasingly the source of defamation actions by businesses against former employees or customers. The "responsible communication" defence rarely applies to consumer reviews.

The Libel and Slander Act Notice Requirement

The 6-week notice must specify the matter complained of. Courts have held that notice must be sufficiently specific to allow the defendant to identify and consider retraction. Vague notice has been found insufficient. Serve it promptly and precisely on intake.

Damages

Ontario defamation damages are not capped in the same way as personal injury general damages. Three categories apply:

• General damages — compensate for loss of reputation, hurt feelings, and the natural and probable consequences of the defamation. The landmark Ontario case is Hill v Church of Scientology of Toronto [1995] 2 SCR 1130, where the Supreme Court upheld a $1.6 million general damage award. General damages in most cases are more modest ($50,000–$300,000 for serious defamation).
• Aggravated damages — available where the defendant's conduct was high-handed or the defendant failed to retract after demand. They compensate for additional injury to feelings.
• Punitive damages — available for malicious, oppressive, or high-handed misconduct that warrants denunciation. The court in Hillawarded $800,000 in punitive damages on those facts.

Special damages (provable economic loss) are recoverable in addition to general damages. Injunctive relief restraining continued publication is available but courts are cautious about prior restraint orders on expression.

Limitation Periods

The basic 2-year limitation period under the Limitations Act, 2002 applies to defamation claims. The clock runs from the date of discovery — when the plaintiff knew or ought to have known of the publication.

For online content, the limitation period raises complex issues: does a webpage that was posted years ago but remains accessible today constitute continuing publication, or did the single original publication start the clock? Ontario courts have generally applied the single publication rule from the original date of posting for static web content, though the issue is not fully resolved.

Note: the 6-week LSA notice requirement operates separately from and in addition to the 2-year limitation period for newspaper and broadcast libel.

Practical Tips for Ontario Defamation Lawyers

• For plaintiff counsel: check immediately whether the LSA 6-week notice applies and serve it on day one if so.
• Preserve evidence: screenshot defamatory posts with timestamps, URL, and metadata before the defendant can delete them.
• For online anonymity cases: move quickly for a Norwich order — platforms often have short retention periods for IP logs.
• Assess the responsible communication defence early for media defendants — it has significantly changed the landscape for public interest reporting.
• Consider whether a demand for retraction and apology better serves the client than litigation — retraction can reduce damages significantly under the LSA.
• Anti-SLAPP motions under s. 137.1 of the Courts of Justice Act can be brought by defendants in expression cases — plaintiff counsel must assess this risk on intake.