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Torts - Defamation - Defences - General. Galati v. Toews
In Galati v. Toews (Ont CA, 2025) the Ontario Court of Appeal dismissed a plaintiff's appeal, here where the appellant-plaintiff "commenced an action against the respondents alleging that their statements caused him harm and that the respondents were liable to him on several bases, including defamation, conspiracy, unlawful means, intentional infliction of mental suffering and harassment" and the defendants successfully moved for a CJA 137.1(3) dismissal.
Given that claims in defamation are subject to specific defences (fair comment, qualified privilege, justification, etc) that don't apply to other torts, there can be a temptation for plaintiffs to locate their claims outside of defamation. The law anticipates this technique:[66] In any event, “[a] defamation [claim] cannot be ‘dressed up’ as another claim to evade the defences available in a defamation action": Byrne v. Maas, 2007 CanLII 49483 (ON SC), [2007] O.J. No. 4457 (S.C.), at para. 9; Kanak v. Riggin, 2017 ONSC 2837, at para. 64, aff’d 2018 ONCA 345, leave to appeal to S.C.C. refused, 2019 (January 17, 2019). The motion judge found the conspiracy claim to be derivative of the defamation claim. A defence of absolute privilege that would defeat a defamation claim cannot be avoided by asserting a conspiracy claim derivative of defamation: Guergis v. Novak, 2013 ONCA 449, 364 D.L.R. (4th) 70, at paras. 84, 93.
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