Defamation
What is defamation?
The courts have defined a defamatory statement as “...one which has a tendency to injure
the reputation of the person to whom it refers, which lowers him in the estimation of the
right-thinking members of society, and which exposes the individual to the feelings of hatred,
contempt, ridicule, fear, dislike or disesteem.”1 Defamation is either libel or slander. In libel,
the defamatory communication is made in a visible and permanent form. In slander, it is
spoken words.
Three elements must be proved for a defamation lawsuit to be successful:
1. The meaning of the communication itself
If the ordinary meaning of the words or images tend to tarnish their subject’s reputation,
they can be deemed to be defamatory even if the defendant says there was no intention
to defame.
2. Unfairness or lack of justification of the communication
The implications of the communication must be false or unfounded in some way. Compelling
evidence of truth-telling can be a complete defence to defamation.
Vol. 12, No. 3,
September 2003
“Reputation is
an idle and most
false imposition;
oft got without
merit, and
lost without
deserving.”
– William Shakespeare, Othello
3. Publication of the communication
In the law of defamation, publication means the communication must have been conveyed
to a third party (or parties), not simply to the defamed person. Beware of electronic methods
of communication which make wide-spread publication very easy.2
Defamation, therefore, is a published communication, either written or spoken, which unfairly
tends to lower the reputation of its subject in the opinion of society. Nurses should bear this
in mind when communicating with patients and about patients. They should ensure their
commentary, both verbal and written, is accurate and made only to those who are entitled to
receive it.
Because the very crux of the damage is to one’s reputation, defamation statutes typically
require that a legal action be commenced quickly.3
Someone made a complaint to my manager about my practice.
Is this defamation?
Your manager has many responsibilities which include monitoring the quality of nursing care
and handling personnel problems. Reporting concerns of this nature to a manager will usually
lack the necessary elements of defamation because of the nature of the management role.
More than
liability
protection
This does not mean that all complaints and negative commentary about nurses are immune from legal action. A
health care aide was sued in defamation after she wrote a note entitled “Re: R.N. Negligence”, naming a nursing
colleague in the unit’s communication book.4 Given the purpose and readership of a communication book, the RN
plaintiff would argue that the note was published within the meaning of the law of defamation.
Someone made a complaint to my licensing body about my practice. The investigation has concluded in my favour. Can I sue the complainant in defamation?
Professional licensing bodies are empowered by statute to investigate and decide upon their members’
adherence to professional standards, for the protection of the public. Consequently, reporting to a licensing
body an honestly-held belief that a nurse’s practice warrants investigation is not defamation but participation in
a legitimate regulatory process. Making such a report is a “privileged occasion” meaning it is: “... an occasion
where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the
person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive
it. This reciprocity is essential.”5
A defamation suit commenced after a licensing body concluded an investigation in the nurse’s favour would be
unsuccessful unless the nurse could provide evidence that the person making the report knew the allegations
were false. The Quebec Court of Appeal came to just this conclusion when a registered nurse sued a dissatisfied
patient’s husband in defamation after he complained about her practice to the Montreal Graduate Nurse
Association. The Court of Appeal decided that the patient’s husband acted in good faith, believing he had several
legitimate concerns about the RN’s practice. He did not defame the nurse when he reported those concerns to
the association.6
1. Willows v. Williams (1951), 2 W.W.R. (N.S.) 657 (Alta. S.C.). In this case, a nurse successfully sued the chairman of the hospital board
for slander. At a board meeting in which her application for matron was being considered, the chairman said, “We made a mistake a year
ago and we don’t want to make the same mistake again. She’s of the same calibre as the other one. The matter referred to is ‘dope’.”
2.
For further reading, see A. Tapp, The Legal Risks of E-mail, Canadian Nurse, 97(3), March 2001, 35.
3.
Consider prompt consultation with a lawyer in your jurisdiction if you want to commence a defamation lawsuit. Limitation periods and
notice periods for this kind of lawsuit tend to be short.
4.
Mendoza v. St. Michael’s Centre Hospital Society, [1998] B.C.J No. 914 (B.C.S.C.). At the time of publication, no decision had been
reported on this aspect of the lawsuit.
5.
Hill v. The Church of Scientology of Toronto, [1995] S.C.J. No. 64.
6.
Moore v. Lenkorn, [1996] A.Q. No. 77 (Que. C.A.).
N.B. In this document, the feminine pronoun includes the masculine and vice versa.
THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE
FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.
© Canadian Nurses Protective Society
www.cnps.ca
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