When one thinks of weapons by which persons can commit a tort, the mouth rarely comes to mind. Yet the court registries are full of defamation claims - libel and slander.
Drafting a defamation claim is not straight-forward. In most claims, the plaintiff will want to set out the facts upon which his or her claim is based in law; essentially, a road map for the judge, if the court takes the allegations as fact at trial, to grant the relief being claimed.
But the statement of claim rarely has a high level of detail. This could be intentional but let's face it: most lawyers are trained to keep their statements of claim short and sweet. The more vague and general they are, and the shorter on detail, the more a plaintiff can shape his/her final case without facing a complaint that they are outside the ambit of their formal allegations of fact. This strategy also presents to the defendant a wide front and keeps the plaintiff's options open.
That is where defamation claims differ.
As the 10th edition of Gatley on Libel and Slander advises:
"Statements of case in an action for defamation are extremely important....
"The increasing tendency has been to require the parties to set out their respective cases with as much clarity and openness as possible."
Similarly, these words of the Manitoba Court of Appeal in Laufer:
"Pleadings are of critical importance in a defamation action, and the technical rules which are featured in a defamation action must be complied with strictly. A party will be bound by his or her pleadings."
As Justice Himel of the Ontario Court of Justice wrote in Richmond:
"The law governing the pleading of actions in libel and slander is that such pleadings must be strictly construed and that the allegations must be precise to enable the court to determine whether the matter complained of is defamatory and to enable the defendants to meet the exact allegations made against them."
Quoting a Canadian treatise on the law of defamation (Brown, The Law of Defamation in Canada), Justice Satanove adopted these words in Robak which serves nicely as a small code of law in these matters:
"Since publication is an essential element of an action for libel or slander, the failure to allege it will be fatal and the pleading will be struck out.
"In addition, a plaintiff must provide in his or her pleading sufficient particulars of the publication to enable the defendant to identify the basic upon which liability for the publication is to attach. A defendant is entitled to the fullest particulars as to the place where, the time when and the person to whom the words alleged to be defamatory were spoken. He or she is entitled to the names of the persons to whom the words were published.
"The defendant is entitled to particulars of when and in what circumstances and by whom and to whom the allegedly defamatory words were published.
"In the absence of particulars in this regard, the court will strike the objectionable pleading....
"It has been suggested that a court will not order particulars as to the persons to whom a slander has been uttered if it would be unreasonable or oppressive to do so.
"A defendant is also entitled to particulars of the date, times and places of publication. However, if due to the infirmity of memory or if the plaintiff is able only to specify the week and not the exact day on which a defamatory statement was made, it may be considered unreasonable or oppressive to require him to particularize further before he has had an opportunity for discovery, and particulars will be refused until after discovery."
Many jurisdictions don't take chances with lay litigants or lazy lawyers and have specifically provided for the unique nature of defamation claims within their Rules of Court. For example, albeit more windy than ought to be required, the 2010 Supreme Court Rules of the Canadian province of British Columbia, at Rule 3-7(21):
"In an action for libel or slander, (a) if the plaintiff alleges that the words or matter complained of were used in a derogatory sense other than their ordinary meaning, the plaintiff must give particulars of the facts and matters on which the plaintiff relies in support of that sense, and (b) if the defendant alleges that, insofar as the words complained of consist of statements of fact, they are true in substance and in fact, and that insofar as they consist of expressions of opinion, they are fair comment on a matter of public interest, the defendant must give particulars stating which of the words complained of the defendant alleges are statements of fact and of the facts and matters relied on in support of the allegation that the words are true."
In practice, that means that the exact words being complained of must be set out in the claim.
In a libel action, that would include the method, date and place of publication, the relevant and alleged libellous words published, and the names of the persons other than the plaintiff to whom the words were published.
As Gatley wisely counsels:
"In a libel claim, the words used are material facts and they must be set out verbatim in the particulars of claim, preferably in the form of quotation; it is not enough to describe their substance, purport or effect."
In regards to spoken defamation (a slander claim), the Ontario High Court of Justice adopted these words in Meredith (relying, in part, upon the 3rd edition of Gatley, op. cit.):
"In an action for slander the defendant is entitled to be told the names of the person or persons to whom the slander was uttered, and an order for particulars will in a proper case be made before defence. Slander uttered to one person might not be actionable if uttered to another person; in that sense, therefore, it becomes essential to see to whom it is uttered, and that is part of the case which has to be stated, and which the other side is entitled to know for the purpose of meeting the charge. If the slander was uttered in a public room the defendant is entitled to 'the best particulars the plaintiff can give of the persons present when the alleged slander was uttered'. The Court will not order such particulars where it would be unreasonable or oppressive to do so, e.g., where the slander is alleged to have been uttered in the public street. The plaintiff must furnish the best particulars he can give of the persons present when the alleged slander was uttered."
This high standard for particulars works both ways as the defendant has to specify any defence he wishes to rely on at trial.
One area of the law where a dismal state of judicial confusion reigns supreme is the scenario where the plaintiff suspects that defamation has occurred but is not in possession of the full circumstances (this was alluded to by Justice Satanove in the last paragraph of the quotation from Robak above). For example, he heard but was not privy to the slander. Or perhaps the libellous documents remains in the exclusive possession of the defendant.
In such a case, the plaintiff must strike a claim with as much particulars as possible and withstand attacks by the defendant who seeks to dismiss the claim unless particulars are provided - all citing the law as stated above. Such a defendant knows that he or she may be liable for defamation if they reach the discovery stage as in that circumstance, the smoking gun document, or the names of relevant witnesses would have to be disclosed.
So complex and fraught with danger is drafting in defamation cases that they constitute a domain of the law where legal advice is almost a necessity.
- DeHaas v. Mooney, 2003 OJ 549
- Laufer v. Bucklaschuk, 181 D.L.R. (4th) 83 (2000, MBCA)
- Libel and Slander Act, R.S.B.C. 1996, c. 263, §17 re specifics of obscene material need not be pleaded
- Meredith v. Dalton,  O.W.N. 676
- Milmo, P. and Rogers, W., editors, Gatley on Libel and Slander, 10th ed. (London: Sweet & Maxwell, 2004), pages 805-806.
- Richmond v. North American Life Assurance Co., 18 C.P.C. (4th) 98 (1998)
- Robak Industries Ltd. v. Gardner, 2006 BCSC 41