CBC reported earlier today that the BC Federation of Teachers (BCTF) has commenced a defamation lawsuit against Richard Walker, the current chair of the BC College of Teachers, for comments he made in an opinion piece published in a May edition of the Vancouver Sun.  (A link to the court document filed by the BCTF. which contains excerpts of the opinion piece, is available through the CBC article above.)

In the opinion piece, Walker noted that 270 complaints against teachers from members of the public (through the “person complaint” process) have been filed with the College since 2003 but no teacher has been disciplined, a fact which he alleged raises serious questions about how the BCTF has been using the College illegitimately to protect certain teachers to the detriment of students.  He also argued that changes should be made to the way the College functions in relation to the BCTF, specifically the endorsement by the BCTF of candidates for election to the governing body of the College.  Walker referred to Tom Ellison (Vancouver Sun), a teacher and convicted sex offender, to highlight the need for a procedure to identify and deal with troublesome teachers early on.  The opinion piece, among other factors, prompted Education Minister Margaret McDiarmid to launch a review of the College, which was not supported by the BCTF.

BCTF claims that Walker’s allegation that it interferes with, or bears undue influence upon, the disciplinary process maintained by the College is false and untrue and that BCTF suffered loss as a result on Walker’s defamatory words.

Is it likely a court will side with BCTF?  Here is a summary from the Canadian Encyclopedia of the law of defamation in Canada by Lewis N. Klar, a renowned author and expert on Canadian tort law:  

Defamation law protects an individual’s reputation and good name. Defamation law does, however, restrict freedom of speech. Thus, in deciding defamation actions, the courts must carefully balance these 2 important values…  

With the advent of the electronic mass media, such as radio and television, the difference between the written and spoken word became less important. Widely disseminated speech can cause as much harm as something which is written down. As a result, some provinces have even eliminated any practical distinctions between libel [i.e. written defamation] and slander [i.e. oral defamation].

In order to succeed in an action for defamation, the claimant must prove 3 things. First, that the material was defamatory. This means that it lowered the person’s reputation in the eyes of the “right-thinking” person. Second, it must be proved that the material referred to the claimant. In other words, people who heard or saw the material must have realized that it was the claimant whose reputation had been tarnished. This requirement prevents individual members of defamed groups from suing for defamation since it is the group itself that has been targeted. Third, it must be proved that the material was communicated to or published for someone other than the person actually defamed.

Even if the claimant can prove those three things, the onus shifts to the defendant to provide a defense.  There are two defenses, among others, that Walker may assert in these circumstances:

  1. It’s the Truth.  Generally, you can’t sue someone to stop them from saying things that are true about you.  The protection of one’s reputation under defamation cannot be stretched that broadly.  Since the onus to prove the truth of the allegations contained in the opinion piece are on Walker, it will be interesting to see what facts are brought in support.
  2. It’s a Fair Comment.  Opinions on matters of public interest that can be honestly-held on the proven facts are protected.  This is a softer defense than the truth – while the truth is an “absolute defense”, the defense of fair comment is eroded if the writer or speaker acted with the intent to injure the target of the comments or otherwise pursue their reputation with malice.  This is addressed pre-emptively by the BCTF in their document filed with the court.

Thus far, only BCTF’s perspective on this matter has been presented in the media.  It will be interesting to see how Walker chooses to respond.  In any event, this news reminds all of us, even in the world of education, that our words carry legal consequences and that in the age of the internet – where everyone with a modem has a megaphone – is becoming increasingly important for us to use those words with caution.

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