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A recent decision of the Alberta Court of King’s Bench considered a number of “defences” raised during a defamation action.1 West Edmonton Mall (“WEM”) and David Ghermezian brought an action against Dana Proctor. Ms. Proctor, through videos and online posts, had “relentlessly attacked, insulted and heaped scorn” on WEM and Mr. Ghermezian.2
Elements of Defamation
There are three elements of a defamation action. The plaintiff must prove on a balance of probabilities (it is more likely than not) that:
1. The comment was defamatory: it would tend to injure the reputation of the person to whom it refers in the eyes of a reasonable person in the community;
2. The comment identified a specific person or group of people; and
3. The comment was communicated to a third party.
In this case, WEM and Mr. Ghermezian were successful in proving all three elements of their claim. The Court found Ms. Proctor specifically referred to both WEM and Mr. Ghermezian as criminals, thieves, and “terrorists” in multiple public posts on the internet.
Defences to Defamation
After a plaintiff has successfully proven the elements of defamation, the defendant has the opportunity to raise a defence. There are a number of recognized defences to defamation, including:
1. Truth or justification: the defamatory comment was true;
2. Absolute privilege: the defamatory comment is protected by the law of privilege (ex. legislative proceedings, judicial or quasi-judicial proceedings);
3. Qualified privilege: the defamatory comment was made in a certain occasion when there is a public interest or duty in making the defamatory comment and the recipient has a corresponding interest or duty to receive the comment (ex. complaints made to the police). However, there is no defence if the comment was made with malice;
4. Fair Comment: the defamatory comment is based on fact, the ordinary reader or listener would consider the defamatory comment to be an opinion, the comment was an honest expression of an opinion, and the comment is on a matter of public interest. However, there is no defence if the comment is made with malice;
5. Consent: the person who is allegedly defamed consented to the defamatory comment;
6. Apology and retraction: a partial defence if the person who made the defamatory comment apologized and retracted the comment.
In this case, Ms. Proctor attempted to raise a number of novel defences including the “not a racist” defence, the satire defence, and the Donald Trump defence. None of these defences were accepted by the Court.
“Not a Racist” Defence
In her defence, Ms. Proctor claimed that “she is not a racist.”3 In support of this assertion, she provided several examples, including, that she is an admirer of Drake, who is both black and Jewish; that she is a fan of Britney Spears, whose current partner is of Iranian extraction; and she has posed for and posted pictures of herself standing next to black people. In addition, she claimed that WEM and Mr. Ghermezian were racist by closing her store at WEM because she is female, white, and blond.4
The Court held it was irrelevant whether Ms. Proctor is racist. A racially provoking comment can be made by a person, regardless of whether they are found to be racist. The Court refused to make a determination on whether she was racist and held “not being a racist does not give rise to a triable defence in law”.5
The takeaway from this failed defence is the law of defamation does not care who you are as a person. Even if Ms. Proctor successfully convinced the Court she was not racist, this does not change the content of the comment. Similarly, Ms. Proctor could not defend the defamation by proving she is a nice person, cares about others, or is extremely charitable. The law of defamation considered the content and perception of the defamatory comment, not the characteristics of the person who made the comment.
Ms. Proctor claimed her comments were satirical and, therefore, not defamatory. The Court held there is no legal defence of satire. Satire is a genre. A satirical comment could fit into the defence of fair comment, a recognized defence to defamation. However, to fall under fair comment, the defamatory comment must be an expression of opinion, not an expression of fact. The Court found Ms. Proctor had no triable defence for making a satirical comment and the Court found Ms. Proctor stated a matter of fact, not an opinion.6
The takeaway from this claim is the intent behind the defamatory comment does not matter; it is the public perception of the comment that matters. If the Court found Ms. Proctor made the comment as satire, the defence would still fail. An intention to be funny or satirical is not a defence to a defamatory comment.
Donald Trump Defence
Another novel defence raised by Ms. Proctor was the “Donald Trump defence”. Ms. Proctor claimed the defamatory comments she made were “no more or no different than Donald Trump, President of the United States, does in his daily tweets and pronouncements.”7 In essence, she claimed that if Donald Trump, President of the United States, is doing it, she can do it.
The Court found there was no legal paradox between Ms. Proctor’s defamatory comments and the activity of Donald Trump. The Court refused to assess the activities or comments of Donald Trump. The Court held “in Alberta, there is no ‘Donald Trump defence’ to a defamation action.”8
The takeaway from this failed defence is the Court will only consider the relevant parties and do not care if a third person’s conduct, completely unrelated to the action, is equally or more unlawful. Unless a defendant is referring to previous case law where similar conduct was considered by a Court, it is useless to say “that person did it too.”
If you are a defendant in an action, it is important to know the defences available to you. There is always a possibility the Court will consider a new, novel defence. However, the defence must typically be consistent with the intent and purpose of the law.
1West Edmonton Mall Property Inc v Proctor, 2020 ABQB 161 [Proctor].
2Proctor, ibid at para 21.
3Proctor, ibid at para 88.
4Proctor, ibid at para 88.
5Proctor, ibid at paras 90-91.
6Proctor, ibid at paras 108-110.
7Proctor, ibid at para 115.
8Proctor, ibid at paras 116-117.