If you are going to be sued for defamation, you want to be sued in the U.S., says David Salter
The high-profile defamation lawsuits underway south of the border, in which two election-technology companies are suing figures associated with former president Donald Trump’s post-election voter fraud claims, highlight the differences between Canadian and American defamation law.
After their products were ensnared in Trump’s post-election vote-rigging allegations, Dominion Voting Systems and Smartmatic launched a series of billion-dollar defamation claims against Trump’s former lawyers Rudy Giuliani and Sidney Powell, as well as Fox News Channel. In its lawsuit against the network, Smartmatic has named Fox hosts Jeanine Pirro, Maria Bartiromo and former host Lou Dobbs (Fox cancelled Dobbs’s show in February). Dominion is also suing Republican donor and Trump backer Mike Lindell.
Dominion and Smartmatic claim each defendant helped spread the viral disinformation campaign that alleged their technology was used to rig the 2020 election in favour of President Joe Biden.
“At the end of the day, I think if you're a defendant in a defamation case, you want to be sued in the U.S.,” says David Salter, a civil litigator at Lenczner Slaght LLP in Toronto. “U.S. defamation law is probably the most defendant-friendly among the common law countries.”
“The idea in America that the marketplace of ideas cures all problems with speech remains a very powerful idea,” he says. “Canadian defamation law is generally more interested in balancing freedom of expression with the right to protect one's reputation.
While the U.S. litigation practice, generally, has had an “outsized impact” on Canadian tort law – punitive damages, class actions, contingency fees, for example – defamation is one area that has failed to migrate north, he says.
“Defamation is one area in which Canadian courts have expressly rejected the American approach.”
For example, in the 2009 Supreme Court of Canada case Grant v. Torstar Corp., Canada’s top court “extensively canvassed” the U.S. approach to defamation, and said it was “extreme,” says Salter.
Salter joined Lenczner Slaght earlier this year, previously practising at Sullivan and Cromwell LLP in New York City. He also has experience with political messaging. He was press secretary for Ontario’s Office of the Minister of Infrastructure and Transportation, as well as communications director for the Office of the Minister of Energy.
In Canada, when a party brings a defamation claim, the burden is on the defendants to prove the statement is true or argue some other defence, says Salter. In the U.S., that is flipped. The plaintiffs are required to prove the defamatory statements are false. Dominion and Smartmatic will likely also have to show that the defendants knew their statements were false, or that the statements were “so obviously wrong that it was reckless to believe otherwise,” he says. That is the “malice standard,” which must be demonstrated if the plaintiff is considered a public figure.
“A lot of the action in the case is going to be whether the defendants can successfully argue that Dominion and Smartmatic are public figures,” says Salter.
As to proving the defendants knew their voter-fraud allegations were false, actions by Giuliani and Powell will play in Dominion’s and Smartmatic’s favour. Both lawyers made public appearances claiming to have evidence the companies had helped rig the election. But their public statements and their statements in court tell different stories, he says.
While he was challenging the state’s election procedures, Giuliani told a federal court in Pennsylvania that he was not alleging fraud, says Salter.
“If you were saying one thing out of court but refuse to repeat it in court, that would suggest that you may not actually believe that your out-of-court statements are supported.”
Powell has filed a motion to dismiss Dominion’s lawsuit with a “core defence” that she was expressing opinions no reasonable person would believe, he says. But, what undermines that position is that she also filed lawsuits in several states alleging voter fraud. Those claims were dismissed.