I’m often consulted by potential clients who have fallen victim to social media weaponsization, either through others posting online attacks against them or their being sued over sometimes pretty innocuous online comments about others. It all involves “defamation,” the global term that includes libel and slander.
In an earlier post (Fighting Online Defamation in Canada: Top 3 Things You Can Do Without Going to Court for Combatting the Really Horrible Terrible Things People Say on the Internet) I covered what could legally be done about defamation short of going to court. But sometimes those softer measures fail, and you’re propelled into the judicial system. Here’s what I tell my potential defamation clients about the basics of what they need to know prior to ever going near a courthouse.
1. Know Your Court Jurisdiction
Every province and territory of Canada has “civil courts” which are distinct from criminal and family courts or administrative tribunals. These civil courts deal mostly with disputes between private parties involving rights of some sort: rights to monetary damages for a car crash, rights to a real property easement over a neighbour’s land, and occasionally rights to say certain things about other people.
There are no specialized “defamation” courts in Canada; the civil courts deal with defamation actions along with 100 other types of law suits. However you’ll often have a choice between proceeding in a Small Claims Court or in the Superior Court for defamation. How do you choose?
Small Claims courts are usually limited to awarding smaller amounts of money or the return of less valuable property. They can’t so anything else. The money limit in Ontario is $25,000. Alberta’s limit is a little higher, in other provinces it may be lower.
If you’re willing to settle for less money - and in defamation it can be a real struggle to get much - Small Claims can save you huge amounts of time, hassle and money in pursuing your case. I usually tell my clients Small Claims could be more than 80 percent cheaper than Superior Court!
But you’ll need the jurisdiction of Superior Court for one of three reasons:
you’re going after a lot of money (the record award in Canada is $1.6 million in Hill v Church of Scientology);
you need an order extending beyond money, like an order for a defendant to stop posting defamatory comments or to take down comments already posted;
provincial legislation prohibits defamation suits in Small Claims (for example Manitoba), perhaps in a misguided attempt to stop frivolous claims but resulting in massively pushing up defamation litigation costs for everyone.
You’ll also need to verify the territorial jurisdiction of the court you proceed in, meaning that it’s willing to take on your case because there is a substantial link with the offending conduct, the defendant or the plaintiff in that territory (online territorial jurisdiction can get very complicated).
2. Know What You’re Likely to Get Out of Court
Regardless of whether you’re the plaintiff or defendant, you should know the odds of defamation court outcomes before you ever set foot in court, because they’ll drive whether you should start or settle a defamation suit.
The most common thing to ask for in court is money (and if you’re in Small Claims it’s probably all you can ask for). But how much should you ask for if you’re the plaintiff? And how much is at risk if you’re the defendant?
For Small Claims, it’s often not a bad strategy to ask for the maximum limit which usually is not more than $25,000 (though there’s talk of bumping that to $50,000). You might not get it, but it’s not a ridiculous amount to demand for defamation.
As a defendant, if you’re dragged into Small Claims you can at least be confident that you won’t get hit with anything more than the maximum of the court’s monetary damages limit. And even having legal fees awarded against you as costs at Small Claims can be quite modest - in Ontario, costs are capped at a maximum of 15% of the total amount claimed.
As plaintiff or defendant if you’re in Superior Court the sky’s the limit on money claims. But to get your lawsuit taken seriously, asking for amounts like $200 million that are hundreds of times more than have ever been awarded by any Canadian court for defamation will just make your claim look silly.
Really, you’ve got to base your claimed damages on “loss” which breaks down into economic losses, damages to reputation, and maybe a little aggravated and punitive damages. How much this amounts to really depends on who you are, and how outrageous the defamatory conduct was. While $1.6 million may have been the record defamation award in Canada (Hill v. Church of Scientology - be aware that the legal costs of fighting this case up to the Supreme Court of Canada were huge), $25,000 or even $10,000 is more common.
If your primary goal is to “just make it stop” - especially if the defendant could be judgment proof, meaning no matter how much money is awarded against him/her you won’t find any assets to collect your judgment from - you’ll need to weigh the deterrence value of being sued just for money (even in Small Claims) versus going to a court that can truly issue an order for it all to stop, and even jail defendants who repeatedly breach court orders. Although getting a lot of money out of defamation can be tough, simply getting an order for it to stop could in fact be much easier (though you’ll be spending more to get that result because you’ll need to be in Superior Court).
3. Know How Much Court is Going to Cost You
If you want to try doing it yourself or hire a lawyer on the relative cheap to help you, stick to Small Claims. Filing fees are cheap, exposure to costs are relatively low, and even full lawyer service should run you no more than $3000 to $9000 (depending on how far down the road to trial you get, though a very drawn out trial could certainly cost more).
The reason lawyer bills so run up in court cases is because of the amount of time going to court burns. When you hire a lawyer to help you with your real estate purchase or will drafting, all you are usually paying for is a few hours of time. For court, lawyer time is measured in days and even weeks.
There are a lot of documents lawyers need to carefully draft for court, the evidence must be carefully studied and organized, witnesses must be prepared, settlement negotiations must be conducted, and court appearances made for settlement conferences, motions, trials and appeals. Online dispute resolution for very low value claims is being experimented with in British Columbia at the Civil Resolution Tribunal, but for the most part the court process of lawyers making multiple appearances at local court houses hasn’t changed much since Charles Dickens’ time.
For Superior Court, all that lawyer time could mean you risk spending more on legal fees than you might recover in damages. The same goes for defendants: even winning at trial will be a loss if you’ve spent too much on lawyers that you can’t fully recover in costs from the other party.
What kind of fees are we talking for Superior Court? Many lawyers will ask for an opening retainer of $10,000, and you’ll be lucky to finish documentary and oral discoveries at under $25,000. Currently the average cost to run a full blown civil action to trial in the Ottawa area (which is neither the cheapest nor most expensive area in the country for lawyers) is about $100,000, assuming there are several (but not a ridiculous number) of trial days.
Yes, many cases settle far short of a full blown trial. But you can’t bet on your case being one of them So both plaintiffs and defendants need to carefully assess is it worth it - meaning bitterly contested fights in court rather than some kind of out of court solution - at an early stage. Remember, the problem here isn’t the hourly cost of a lawyer, it’s the number of lawyer hours burned by protracted court proceedings.
4. Consider Saving Money with a Superior Court Application Rather Than an Action
The civil procedure rules of many jurisdictions permit “Applications” as alternatives to “Actions.” Applications are a lot more like motions than full blown trials because they usually rely mostly on written evidence through affidavits with attached exhibits, and skip the drawn out discovery process completely.
An Application is going to cost you more than Small Claims, but the end cost could nonetheless wind up as a fraction of an Action’s costs. How much less? Try $15,000 to $30,000 total for an Application to final judgment, so somewhere between 1/6th and 1/3rd of the price of a Superior Court action.
The downside to Applications is you can’t ask the court for monetary damages. But you can get an injunction to stop offensive defamatory conduct. And can claim legal costs.
Since I always warn my clients about how much a hassle it can be to collect from a defendant for any level of damages award, everyone should give the Superior Court Application serious thought in defamation situations. It might not cost too much more than Small Claims, but you really will need to retain a lawyer for it due to its complexity.
5. Perfect all Your Evidence Before You Pull the Trigger
I’ve seen many plaintiffs rush off to court without having carefully pinned down every last piece of possible evidence. They figure it’s up to the court to later sort out what might be very muddled or thin evidence, and that the strength of their legal arguments alone will carry the day. They couldn’t be more wrong.
You need every email, every social media message, every written note, and a statement from every potential witness long before you venture into court. Only with that evidence can you and your lawyer figure out the odds of winning.
If it sounds like I’m telling you to act like a homicide police squad, that’s exactly what I’m advising. Except you won’t have any coercive powers to gather evidence, so everything you collect must be offered voluntarily by anyone willing to help.
The court won‘t figure out your case for you. Only by presenting cogent, compelling and well organized evidence are you going to get anywhere. Cases are won on evidence, not by legal bluster.
Gordon S. Campbell is a trial and appellate civil litigation lawyer practicing throughout Ontario who has appeared on cases as high as the Supreme Court of Canada. Learn more at acmlawfirm.ca