Draft claim sent to party’s employer may be subject to defamation suit in circumstances

31 Aug

On August 21st, the Ontario Superior Court of justice declined to strike a defamation claim as barred by absolute privilege because the manner in which the defendants delivered the draft claim to the plaintiff’s employer suggests, as alleged, it was sent to harm the plaintiff and not for the purposes of forwarding the defendants’ litigation.

The defendants, the plaintiff alleges, served the draft claim on his employer with a warning that “‘We didn’t know’ will not be an adequate explanation in this case.” Regardless, the plaintiff also alleges, after the employer sent a brief e-mail to the defendants saying there was no basis for a claim against it, the defendants promptly withdrew their allegations and proceeded against the plaintiff alone. The Court held that these allegations cast sufficient doubts on the defendants’ motives to let the plaintiff’s (counter)claim proceed.

Nuvius Bankcard Services v Dowty, 2012 ONSC 4835 (CanLII).

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