In Welch v. Quast, 2021 ONSC 5083, Justice Tranquilli allowed an appeal of a Small Claims Court judgment that awarded the plaintiff damages for defamation.
The purported defamatory statements were contained in e-mails the defendant sent in February 2016. The plaintiff amended his claim to plead defamation in March 2019.
The plaintiff provided no evidence of when he learned of the e-mails. Therefore, Justice Tranquilli stated that it has to be presumed that he learned of the e-mails on the day they were sent. Since the plaintiff first advanced a claim in defamation more than years later, the claim was out of time.
Moreover, the claim for defamation was not sufficiently pleaded. Justice Tranquilli noted that defamation actions must plead the following elements: (i) particulars of the alleged defamatory words; (ii) publication of the defamatory words by the defendant; (iii) to whom the words were published; and (iv) that the words were defamatory of the plaintiff in their plain and ordinary meaning or by innuendo.
Further, the plaintiff did prove that he was defamed. In order to prove defamation, a plaintiff must establish three elements on a balance of probabilities: (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.
Lastly, Justice Tranquilli held that the Deputy Judge failed to consider the defences put forward by the defendant, in particular, truth (justification), fair comment and qualified privilege.