The Plaintiff sued his brother, the Defendant, for defamation, alleging the Defendant made false statements about him to other family members. The Defendant shared excerpts of his diary alleging that the Plaintiff committed rape, was a pedophile, used drugs to incapacitate women to sexually assault them, and had sexually assaulted a cousin.

The Court found the statements defamatory as they would lower the Plaintiff’s reputation in the eyes of a reasonable person, they clearly referred to the Plaintiff, and they were communicated to third parties.

The Defendant pleaded justification (truth) as his primary defence, which failed because the Defendant’s evidence was found to be not credible. During Trial, the Defendant also attempted to raise other defences including responsible communication on a matter of public interest, consent, qualified privilege, and fair comment, none of which were included in his Statement of Defence. Rule 13.6(2) requires a Defendant to plead any matter that defeats or raises a defence to a claim. The Rule is based on the fundamental principle of natural justice that each party to an Action must have notice of the opposing party’s case to be met and an opportunity to respond.

Justice Armstrong held that, giving the Statement of Defence a generous reading, there was enough pleaded to permit the Defendant to argue qualified privilege. However, that defence ultimately failed because the Defendant published the defamatory material to more individuals than necessary to protect his family, thereby exceeding the bounds of qualified privilege. In any event, Armstrong J. stated that the qualified privilege defence would be defeated by the presence of malice from the Defendant.

Justice Armstrong refused to allow the Defendant’s unpleaded defences of responsible communication on a matter of public interest, consent, and fair comment. Nonetheless, for completeness, the Court considered them in the alternative and concluded that each would fail on the merits even if properly pleaded. 

In the end, the Court held that the Defendant defamed the Plaintiff and had no valid defence. The Court awarded the Plaintiff $65,000 in damages, plus Costs.