Dyck v. The Canadian Association of Professional Employees
Court decides you can’t defame someone, simply by replying to an email
Can you defame someone simply by replying to an email? According to the Ontario Superior Court of Justice in the recent case of Dyck v. Canadian Association of Professional Employees, the answer is no.
An employee of the Canadian Association of Professional Employees believed that one of the union’s local leaders was following the employee’s daughter on Twitter. He emailed the vice-president of the union, copying two other employees, asking that the union instruct the local leader to stop following his daughter on Twitter and going after his family.
The vice-president replied by email to the employee alone, saying “ok”. He also asked for the local leader’s email address and proof that she was following the employee’s daughter on Twitter.
When this brief email exchange later came to the attention of the local leader, she sued the employee, the vice-president, and the union for defamation.
The vice-president brought a motion under the rules of civil procedure to strike the statement of claim as against him on the ground that it disclosed no cause of action.
One of the essential elements of a defamation action is that a plaintiff must prove that the defendant’s words were “published”. The Court found that, in replying only to the sender of the email, the vice-president did not republish the alleged defamatory material originally sent by the employee. Relying on older defamation case law, the Court explained that “if the defamatory information is sent back, only to the person who supplied the allegedly defamatory information in the first instance, such as in replying to an email, this does not constitute publication or republication for purposes of a defamation action.”
The plaintiff’s statement of claim alleged that, when the vice-president replied to the employee’s email, he may have blind copied other people at the same time. The Court, relying on Guergis v. Novak, 2013 ONCA 449, was not convinced by this argument, holding that the assertions about possible blind copies were pure speculation and that no material facts had been included in the statement of claim to support the bald allegation.
As a result, the Court ordered that the claim against the vice-president be struck, without leave to amend.
In the Internet age, where correspondence can easily be forwarded or copied to many people with the push of a button, the risk of being found to have participated in the publication of defamatory statements has increased. However, this case is a good example of how the courts are applying traditional principles of defamation law to email correspondence to limit the occasions when someone will be found to have published an alleged defamatory statement.