Documentation:Torts/Injurious falsehood

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Injurious falsehood
The tort of injurious falsehood, also called slander of title, involves the publication of false statements by a defendant that cause damage to a plaintiff's business or property.[1] The false statements must be made maliciously, without cause or excuse, and cause the plaintiff to suffer pecuniary loss by inducing third parties not to deal with the plaintiff.[1] While similar to the tort of defamation, the tort of injurious falsehood differs in several significant aspects.[2]

The elements of the injurious falsehood tort

Elements of injurious falsehood[3]
1. [A] false statement disparaging a plaintiff's business, goods, or property;
2. [P]ublished to a third person;
3. [M]aliciously and without just cause or excuse; and
4. [R]esulting in special damages in the form of pecuniary loss.

False statement

Actions for injurious falsehood require the plaintiff to prove the falsity of the defendant's impugned statements concerning the plaintiff's business, goods, or property.[4][5] Minor discrepancies regarding certain details or subjective opinions are generally insufficient to meet the "false statement" element of the tort.[6]

Sign in Tokyo subway on a blue background with white text in Japanese and English stating "Please refrain from talking" with an illustration of a person putting a finger to their mouth.

Published to a third person

The British Columbia Supreme Court in Bentley Aviation Ltd. v. Homelife Benchmark Realty Corp. addressed the issue of whether the false statement must be directly published to an intended purchaser in the context of the sale of land.[7] In this case, the defendants misrepresented, via contract, the identity of the owner of property that the plaintiff was attempting to sell, which led to the intended purchaser refusing to complete the sale.[7] The third party the misrepresentation was made to was not the intended purchaser. The Court clarified that a direct link between the defendant and the intended purchaser is not required under an action for injurious falsehood.[8] Instead, a plaintiff must prove that the defendant's false statement was the "but-for" cause of the plaintiff's loss, whether published directly to the intended purchaser or to a different third party.[9]

Maliciously and without just cause

The New Brunswick Queen's Bench in Windsor Energy Inc. v. Northrup stated that, unlike the tort of defamation for which malice is presumed from the defamatory statements, malice is an essential element to the tort of injurious falsehood and must be pleaded accordingly.[10] Recklessness as to the truth of the statement combined with reasonable foreseeability of damage resulting from publication has been considered sufficient to constitute malice in the context of an injurious falsehood claim.[4] Importantly, the requirement of malice will affect the limitation date governing a claim for injurious falsehood insofar as the limitation date will not start until the plaintiff has substantive evidence of malice.[11]

Resulting in special damages

In an action for injurious falsehood, a plaintiff must particularize the actual damage suffered as a result of the published false statements.[2] The Ontario Court of Appeal in Lysko v. Braley, citing Haines v. Australian Broadcasting Corp. clarified that:[12]

The importance of actual damage as an element of the tort of injurious falsehood is that, because the tort is not concerned with injury to either reputation or feelings, damages for injurious falsehood would appear to be restricted to the recovery of that actual damage.

In the context of property sales, the British Columbia Supreme Court in Bentley Aviation Ltd. v. Homelife Benchmark Realty Corp. clarified that it is insufficient for a plaintiff to allege special damages by way of the value of their property depreciating or losing the opportunity to sell said property.[13] However, the Court clarified that the loss of a particular sale is sufficient to constitute a pecuniary loss required to make out a claim for injurious falsehood.[13]

Joint and several liability in the context of injurious falsehood

The Ontario Court of Appeal in Lysko v. Braley stated that, similar to an action in defamation, the defendant must plead the identity of the defendant.[14] This requirement poses an issue to plaintiffs suffering losses due to false statements made by an unidentified source, as was the case in Lysko v. Braley, where the statements could not be clearly traced back to any of the four individual defendants.[14] Importantly, the Court clarified that joint and several liability rules do not allow the plaintiff in an injurious falsehood action to circumvent the need to plead the individual identities of each defendant.[15]

Statutory modifications to the special damages requirement

The Ontario Libel and Slander Act modifies the evidentiary requirement for alleging special damages in a claim for injurious falsehood.[16] The Act alleviates the plaintiff's evidentiary burden to prove special damages when the defendant has published the false statement in writing or another permanent form.[16] Other provinces such as British Columbia have not modified the requirement to plead special damages in an action for injurious falsehood through legislation.[17]

Legislation
Libel and Slander Act, RSO 1990, c L.12, s 17[16]
17. Slander of title, etc.In an action for slander of title, slander of goods or other malicious falsehood, it is not necessary to allege or prove special damage,

(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or

(b) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by the plaintiff at the time of the publication,

and the plaintiff may recover damages without averment or proof of special damage.

Distinguishing injurious falsehood from defamation

In the news
McLibel: Longest Case in English History
McDonald's tray with a fried chicken sandwich in an orange and white box, fries in a red branded carton, a coffee clear container, and various napkins and straws with Mandarin text on them.
From 1990 to 2004, the corporate giant, McDonald's, waged a legal battle against English environmental activists who accused McDonald's of contributing to environmental harm. The defendants were found liable to McDonald's for the defamatory publications against the corporation but refused to pay. McDonald's legal fees were estimated at £10M.[18]

A documentary on “The Story of Two People Who Wouldn't Say McSorry” explores the saga.[19]

Differences in the interests protected

The tort of defamation is concerned with protecting one's interest in their personal reputation, whereas the injurious falsehood tort protects one's interest in the profitability of their property or business.[4][20]

Difference between defamatory statements and injurious statements

The New Brunswick Court of Appeal in Hein v. Canadian Fairbanks Morse Co. & Burrows clarified the difference between the tort of defamation and the injurious falsehood tort.[21] The Court clarified that, while both defamatory and injurious statements are falsehoods told about another, injurious statements do not necessarily affect the reputation of the plaintiff. The Court used the example of a newpaper publishing a false statement that a tradesperson has ceased carrying out business, thereby causing them loss of business, to illustrate this point.[21]

To demarcate the difference between the two torts, the Court stated that an example of an injurious statement would be claiming that a vendor sells inferior quality goods, whereas an example of a defamatory statement would be claiming that a vendor fraudulently sells inferior goods as those of superior quality. The Court explained that the latter example is not only an attack upon the plaintiff's business, but also their reputation.[21]

Presumption of falsity

Once the requisite elements of defamation are proven, a court will presume the falsity of such statements, leaving it open to the defendant to mount a defence.[22] However, in an injurious falsehood claim, the evidentiary burden is on the plaintiff to prove the falsity of the impugned statements.[4][5]

Presumption of malice

Malice is not required in the context of defamatory statements; the plaintiff needn't show that the defendant intended to cause, or was careless to the possibility of causing, harm to the plaintiff.[23] However, malice must be proven by the plaintiff in an action for injurious falsehood.[4][10]

Proof of actual damage

Unlike an action in defamation, for which damage is presumed to follow from the defamatory statements, pecuniary damage must be pleaded as an essential element of the injurious falsehood tort.[4][5][23] Since the injurious falsehood tort protects the plaintiff's interest in property or business, damage to such will not be presumed to logically follow from the false statements and must be demonstrated by the plaintiff.[5] This difference reflects the distinct interests which each tort is aimed to protect: defamation protects reputation and feelings, whereas injurious falsehood restricts recovery to the actual damage suffered to property or business as a result of the false statements.[12]

Discussion questions

  • What interest does the injurious falsehood tort protect?
  • What types of damage are sufficient to constitute "special damages" in the context of an injurious falsehood claim?
  • How does the tort of injurious falsehood differ from the tort of defamation? How is it similar?
  • Having regard to the interest McDonald's was trying to protect, would the McLibel case[18] have been more appropriately pursued as an injurious falsehood claim rather than a defamation claim? Why or why not?


  1. ↑ 1.0 1.1 Lysko v. Braley, 2006 CanLII 11846 (ONCA) at para 133.
  2. ↑ 2.0 2.1 Lysko v. Braley, 2006 CanLII 11846 (ONCA) at paras 134–135.
  3. ↑ Bentley Aviation Ltd. v. Homelife Benchmark Realty Corp., 2017 BCSC 1332 at para 37, citing 311165 BC Ltd. v. Canada (AG), 2016 BCSC 2068 at paras 35–36 and 75–76.
  4. ↑ 4.0 4.1 4.2 4.3 4.4 4.5 Young, Hillary (2013). "Rethinking Canadian Defamation Law as Applied to Corporate Plaintiffs". UBC L Rev. 46 (2): 572.
  5. ↑ 5.0 5.1 5.2 5.3 Lysko v. Braley, 2006 CanLII 11846 (ONCA) at para 134.
  6. ↑ Hategan v. Farber, 2021 ONSC 874 (§10.7.1) at paras 78–80.
  7. ↑ 7.0 7.1 Bentley Aviation Ltd. v. Homelife Benchmark Realty Corp., 2017 BCSC 1332 at para 43.
  8. ↑ Bentley Aviation Ltd. v. Homelife Benchmark Realty Corp., 2017 BCSC 1332 at paras 43–44.
  9. ↑ Bentley Aviation Ltd. v. Homelife Benchmark Realty Corp., 2017 BCSC 1332 at paras 44–45.
  10. ↑ 10.0 10.1 Windsor Energy Inc v Northrup, 2015 NBQB 199 at para 62.
  11. ↑ Windsor Energy Inc v Northrup, 2015 NBQB 199 at para 64.
  12. ↑ 12.0 12.1 Lysko v. Braley, 2006 CanLII 11846 (ONCA) at para 135, citing Haines v. Australian Broadcasting Corp. (1995), 43 NSWLR 404 (CL Div) at 408.
  13. ↑ 13.0 13.1 Bentley Aviation Ltd. v. Homelife Benchmark Realty Corp., 2017 BCSC 1332 at para 41.
  14. ↑ 14.0 14.1 Lysko v. Braley, 2006 CanLII 11846 (ONCA) at para 137.
  15. ↑ Lysko v. Braley, 2006 CanLII 11846 (ONCA) at paras 142–143.
  16. ↑ 16.0 16.1 16.2 Libel and Slander Act, RSO 1990, c L.12, s 17.
  17. ↑ Libel and Slander Act, RSBC 1996, c 263.
  18. ↑ 18.0 18.1 "McLibel: Longest case in English history". BBC News. 15 Feb 2005.
  19. ↑ “McLibel: The Story of Two People Who Wouldn't Say McSorry” (Spanner Films, 2005)
  20. ↑ Windsor Energy Inc v Northrup, 2015 NBQB 199 at para 71.
  21. ↑ 21.0 21.1 21.2 Hein v. Canadian Fairbanks Morse Co. & Burrows, 1938 CanLII 263 (NBCA) at 64.
  22. ↑ Grant v. Torstar Corp., 2009 SCC 61 at paras 28–29.
  23. ↑ 23.0 23.1 Grant v. Torstar Corp., 2009 SCC 61 at para 28.
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