Depp v. Heard: What if This Lawsuit Had Been Commenced in Ontario?

Background

In the spring of 2022, all eyes were on the spectacle that was the Johnny Depp and Amber Heard defamation trial. Held in Fairfax County, Virginia, the trial was livestreamed on television for viewers across the world to watch the litigation unfold.

In 2018, Heard had authored a Washington Post op-ed, an article in which the author states their opinion about a given topic, referring to herself as a “public figure representing domestic abuse.” Depp, who was not named in the article, commenced an action for defamation against Heard in Virginia. Heard, in turn, filed a countersuit for defamation. Depp was ultimately successful on all three of his defamation claims, while Heard was successful on one counterclaim.

In August 2023, Netflix and U.K. broadcaster Channel 4 released a three-part docuseries titled “Depp v. Heard” which presented both individuals’ testimonies at trial side by side. The docuseries examines the social media reaction to the trial and how public opinion may have impacted its outcome. The docuseries has also resurfaced questions about whether this type of case could occur in Ontario. While that answer is yes, the process here would be quite different, likely affecting the judicial outcome.

Last summer, Aird & Berlis LLP published an article about this trial and the underlying policies and principles with respect to defamation. Our article set out below examines how various aspects of the litigation, particularly an anti-SLAPP motion, may have affected the outcome had the action been commenced in Ontario.

Requirements of Defamation

The requirements to prove defamation are different in Ontario and Virginia. Under Virginia law, a plaintiff claiming defamation must demonstrate the three following requirements: (i) publication of (ii) an actionable statement with a false statement of and concerning the plaintiff (iii) with requisite intent.^[1] While private plaintiffs in Virginia only need to prove the elements of defamation and ordinary negligence in order to recover compensatory damages, public officials and public figures must prove the publication was done with “actual malice.”^[2] Both Depp and Heard are considered public figures in the U.S., and therefore the higher standard of “actual malice” applied to the requirements to meet defamation.

In Canada, the tort of defamation is one of strict liability and does not require the plaintiff to show that the defendant intended to do harm or was careless.^[3] The bar for establishing defamation is reasonably low. A plaintiff claiming defamation must demonstrate the following requirements:

1. the defendant has made a statement;
2. the words complained of are defamatory;
3. the words referred to the plaintiff (it is not necessary that the plaintiff be specifically referred to by name); and
4. the words were published, meaning that they were communicated to at least one person other than the plaintiff.^[4]

Defamation Defences

Once the plaintiff has demonstrated the above requirements for defamation, the words complained of are presumed to be false and the onus shifts to the defendant to prove one of many available defences to the defamatory statements including, but not limited to:

1. Justification: a defendant must adduce evidence showing that the statement was substantially true;
2. Statutory Privilege: broadcasts or publication of fair and accurate reports of certain public meetings and proceedings are statutorily protected by s. 3 of the Libel and Slander Act, unless the publication is made with malice and provided the statutory conditions are met;
3. Qualified Privilege: the defendant has some interest in making the statement and those to whom the statement is made have some interest in receiving it;
4. Responsible Communication: the publication must be on a matter of public interest, and was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances;^[5] and
5. Fair Comment: the comment must be based on a matter of public interest and fact, must be recognizable as comment, and the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?^[6]

The plaintiff may defeat the defence of fair comment if the defendant is shown to have acted with malice towards the plaintiff. Malice occurs in instances of spite or ill will, when statements are spoken recklessly and when there exists any indirect motive or ulterior purpose which can be proven by the plaintiff if the defendant was not acting honestly when they published the comment.^[7]

Anti-SLAPP Legislation

Anti-SLAPP (strategic lawsuits against public participation) legislation also differs in Virginia and Ontario. SLAPP is a phenomenon used to describe exactly what the acronym refers to: lawsuits initiated against individuals or organizations that speak out or take a position on an issue of public interest.

There is no defined procedure for defendants to challenge SLAPPs in Virginia, despite recent amendments to state laws. A defendant in Virginia may raise anti-SLAPP immunity only as a defence to the jury at trial. Therefore, a defendant in a defamation action commenced in Virginia faces significantly more financial risk than defendants in other jurisdictions.^[8] 

Ontario’s anti-SLAPP laws are more robust. A defendant may move under s. 137.1 of the Ontario Courts of Justice Act (CJA) for an order dismissing the proceeding at any time after the proceeding has been commenced. The purpose of s. 137.1 is designed to prevent the legal process from being used as a weapon to limit debate on matters of public interest. An analysis under s. 137.1 would proceed as follows:

1. The threshold burden (which means that it is necessary for the moving party to meet this burden in order to even proceed to the ultimate determination of whether the proceeding should be dismissed) is on the moving party – the defendant – to show, on a balance of probabilities, that:
   
   1. pursuant to s. 137.1(3), the proceeding arises from an expression made by the moving party; and
   2. pursuant to s. 137.1(4), the expression relates to a matter of public interest.^[9]
2. The burden shifts to the responding party – the plaintiff – to satisfy the motion judge that:

1. pursuant to s. 137.1(4)(a), there are grounds to believe the proceeding has (i) substantial merit and (ii) the moving party has no valid defence; and
2. pursuant to s. 137.1(4)(b), the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression, which is the key portion of the s. 137.1 analysis.^[10]

Once harm has been established and shown to be causally related to the expression, s. 137.1(4)(b) requires that the harm and corresponding public interest in permitting the proceeding to continue be weighed against the public interest in protecting the expression. Therefore, as under s. 137.1(3), public interest becomes critical to the analysis.^[11]

“Public interest” is not defined in the legislation, but a matter of public interest has to be distinguished “from a matter about which the public is merely curious or has a prurient interest,” and it is important to interpret an “expression” that “relates to a matter of public interest” in a generous and expansive fashion.^[12] Four particular factors that may bear on the public-interest weighing exercise under s. 137.1(4)(b) were recognized by Justice Doherty in Platnick v. Bent,  2018 ONCA 687.

There have been several cases in Ontario where allegations of sexual assault, sexual and emotional abuse, harassment or bullying have constituted as expressions that relate to a matter of public interest.^[13] In Bullard v. Rogers Media, the plaintiff radio personality sued a magazine that published an interview with his former partner, in which she claimed the plaintiff had harassed her following their breakup. The court held that the comments were of public interest, in part because they related to “gendered based harassment which is a legitimate area for public concern.” The court in Smith v. Nagy also pointed out that “not every allegation of sexual misconduct by one person against another engages the public interest, even if one or more of them is a public figure.”

If the responding party cannot satisfy the motion judge that it has met its burden, then the motion will be granted and the proceeding will be consequently dismissed.^[14]

In Smith v. Nagy, the court dismissed an anti-SLAPP motion and ultimately concluded that the defendant’s allegations in a Facebook post had a devastating impact upon the plaintiff. His career had been derailed; he had suffered the retraction of industry awards and been banished from industry events; past collaborators would not work with him; he had lost publishing contracts; he had lost most of his revenue stream from internet platforms and had his art removed from exhibitions. The plaintiff’s evidence concerning his damages appeared to have been quite high. Weighing the public interest in allowing the case to proceed and the public interest in encouraging debate on the matters raised in the Facebook post, the court concluded that the case should be determined on its merits.

Conversely, in Marcellin v. LPS,  2022 ONSC 5886, the court granted an anti-SLAPP motion and ultimately concluded that the action for – among other allegations – harassment, defamation, libel and slander is a culmination of escalating family law proceedings and that highly acrimonious family law matters ought not to diverge into defamation actions.

Jury and Televising Trials

In Virginia civil trials, seven jurors are required. The Depp v. Heard trial included a seven-person jury and the trial was televised. In Virginia, a court may “solely in its discretion” permit cameras in judicial proceedings, but a judge may prohibit coverage only “for good cause shown.”^[15]

In Ontario, there is no longer any special right to a jury trial in defamation cases. In fact, jury trials for civil actions are rare in the province. Where there is a jury trial in a civil matter, there are six jurors. However, defamation actions in Ontario have usually been tried by both judge and jury.^[16]

Pursuant to s. 136 of the CJA, it is an offence to record or otherwise broadcast any hearings, without leave from the judge. In making the determination to grant leave, a judge in Ontario is required to balance freedom of speech and the protection of the parties. In doing so, the court will only permit broadcasting of a trial when the subject is of “public importance.” Recording a trial or hearing is uncommon in Ontario courts.

Damages

Depp’s initial US$15 million success was comprised of US$10 million in compensatory damages or general damages and US$5 million in punitive damages (later reduced to US$350,000 due to Virginia’s state limit on punitive damages).^[17]

The factors to be considered in determining the appropriate quantum of general damages for defamation include: (i) the plaintiff’s position and standing; (ii) the nature and seriousness of the defamatory statements; (iii) the mode and extent of the publication; (iv) the absence or refusal to retract the defamatory statement or to apologize for it; (v) the conduct and motive of the defendant; and (vi) the presence of aggravating or mitigating circumstances.^[18]

In Ontario, the range of general damages awarded in defamation cases is broad:

• In Rutman v. Rabinowitz,  2016 ONSC 5864, the defendant posted numerous defamatory statements on the internet that the plaintiff, a chartered accountant and businessman, was engaged in tax fraud and was a thief and a cheat. The plaintiff was awarded C$200,000 in general damages, C$200,000 in aggravated damages, and C$250,000 in punitive damages for a total award of C$650,000.
• In Paramount v. Kevin J. Johnston, 2019 ONSC 2910, the defendant defamed the plaintiff, a Muslim-Canadian businessman, and his business with vile hate speech. The plaintiffs were granted permanent injunctions and awarded general, aggravated, punitive and special damages in the amount of C$2.5 million.
• In Clancy v. Farid, 2023 ONSC 2750, the court awarded 53 plaintiffs C$4.245 million in general damages (an average of $80,094.33 per plaintiff) against an individual who had posted several thousand defamatory statements about the plaintiffs on the internet. It is the highest defamation award in Ontario to date.

Under Ontario law, there is no statutory limit for a punitive damages award. That said, in defamation cases, punitive damages are only appropriate where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence. In an Ontario decision from earlier this year, the plaintiff was awarded C$1.5 million in punitive damages. That said, high awards for punitive damages in Ontario are extremely rare and awarded only in the most exceptional cases. ^[19]

Depp’s punitive damages award of US$5 million would have been the highest punitive damage award in both Ontario and Canadian history.

Conclusion

Given the above, if Depp v. Heard had been tried in Ontario, the process may have unfolded differently as follows:

1. If Heard brought a SLAPP motion before she defended the action and was able to meet the requirements under s. 137.1 of the CJA – in particular, that the statements at issue related to “a matter of public interest” and, if so, that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression – the action may have been dismissed.
2. If the action proceeded to trial, the challenge for Depp claiming defamation would have been to overcome potential defences. That said, Depp would likely have run a significant risk that his action would succumb to one of the defences of justification or fair comment.
3. A jury trial, as opposed to a judge-only trial, may have occurred, but the trial likely would not have been televised. One could argue this would have impacted the outcome immensely.
4. The general damages and punitive damages awarded likely would have been much lower.

The Litigation & Dispute Resolution Group at Aird & Berlis advocates for a broad range of clients involved in disputes of all types. Please contact a member of the group if you have questions or require any assistance regarding defamation requirements and/or anti-SLAPP legislation in Ontario.