Slander of Title or Property Malicious Statements or Improper Encumbrances

In an action for slander of title the following elements must be proved:

(1) that the defendant published words in disparagement of the plaintiffs' property;

(2) that such words were false;

(3) that such words were published with actual malice;

(4) that the plaintiffs sustained special damages as a result.

A review of the English authorities cited and others convinces me that certainly under the common law action of slander of title mala fides was a necessary element. The matter was put concisely by Baggallay L.J. in Halsey v. Brotherhood^[8]:

It appears to me that an action for slander of title will not lie unless the statements made by the defendant were not only untrue, but were made without what is ordinarily expressed as reasonable and probable cause, and this rule applies not only to actions for slander of title strictly and properly so-called with reference to real estate, but also to cases relating to personality, or personal rights or privileges.

Baggallay L.J. continued at p. 390:

Therefore, what we have to consider is whether there is any thing to shew that what the Defendant has stated was stated without reasonable and probable cause, even assuming it to be untrue, a question upon which at the present moment we have no means of forming an opinion.

It must be remembered that in Halsey v. Brotherhood the Court of Appeal was considering an appeal from the judgment of Jessel M.R., reported in (1880), 15 Ch. D. 514, by which at the commencement of the trial and before any evidence was heard the action was dismissed. The pleadings alone were considered and indeed the dismissal was without prejudice to the bringing of a fresh action.

Bowen L.J. in Skinner v. Perry^[9], speaking of the common law and equity rights apart from subsequent statutory provisions, said:

At common law there is a cause of action whenever one person did damage to another wilfully and intentionally, and without just cause or excuse. Under that class of action came the action of slander of title, whether the subject of the slander was real or personal property. If a man falsely and maliciously—because the malice would show there was no just cause—made a statement about the property of another which was calculated to do, and which did do, damage to the other in the management of that property, an action would lie at Common Law, and the damages would be recoverable; and at Chancery, I suppose, that even if you could not prove actual damage had occurred, the Court might, if actual damage was likely to occur, prevent the wrongful act by injunction.

This view was held by the courts in England despite the recognition of the difficulty in proving malice on the part of the defendant.

Lord Coleridge L.C.J. said in Halsey v. Brotherhood, supra, at p. 389:

I feel strongly that there is great force in what Mr. Ince has said about the difficulty in which a plaintiff may be placed by the conduct of a person in the position of the Defendant. I do not pretend to be able to answer his observations on that head, but unless there is mala fides, it is one of those instances in which the law, in the interests of society, permits an injury to be done without any remedy commensurate with it.

132 A person who registers a caution without reasonable cause is liable to make to any person who may sustain damage by its registration such compensation as is just, and the compensation shall be deemed to be a debt due from the person who has registered the caution to the person who has sustained damage.

[172]  The burden of proof is on the moving party, in this case the defendants, to demonstrate that the caution and CPLs were registered “without reasonable cause” or “without a reasonable claim to an interest in the land.” In Mormick Investments Inc. v. Khoury, 1985 CarswellOnt 3830, [1985] O.J. No. 1072 (H.C.J.) (“Mormick”), Henry J. commented on these two provisions as follows, at para. 17:

It is implicit in these two provisions that the Legislature has, by creating the right to compensation or damages, intended to provide a remedy to the injured party for what is essentially an abuse of the legal process of registration (which the Court of Appeal in Tersigni v. Fagan described as a process of the court). Whether the registration of the cautions in this case amounts to an abuse of process requires consideration of the surrounding circumstances, and the state of mind of the registering party, through its principal Mr. Kaiser, at the time when the cautions were registered.

[173]  Subsequently, in Moon v. Metropolitan Toronto Assn. for Community Living, 1989 CarswellOnt 597, [1989] O.J. No. 1050 (H.C.J.), Carruthers J. summarized the test as follows at para. 21:

I was referred to two decisions which considered the wording of the predecessor to that section, then found in the Judicature Act, R.S.O. 1980, c. 223 and essentially the same. They are: Micro Carpets Ltd. v. De Souza Developments Ltd. (1980), 1980 CanLII 1865 (ON SC), 29 O.R. (2d) 77, 19 C.P.C. 118, 112 D.L.R. (3d) 178 and Ribic v. Weinstein (1982), 1982 CanLII 3170 (ON SC), 26 R.P.R. 247, 140 D.L.R. (3d) 258. The first is a decision of Robins J.A. and the second that of Grange J.A., and both were made when each of them were members of this Court. On the basis of their observations I cannot conclude that the counterclaims should succeed. For my present purposes I refer to that portion of the judgment of Grange J.A., as he then was, found at 267 [D.L.R.] of Ribic. It reads:

Nor can I find that Ribic violated the more stringent test of 'without a reasonable claim to title to or interest in the land' as found in s. 38(4) of the Judicature Act. At the time of obtaining the lis pendens, Lepage was withholding the $10,000 deposit and that alone would justify the action. Moreover, I do not believe the legislature intended that every untenable claim would result in liability to the claimant. I think what the legislature had in mind was 'reasonable' as opposed to 'frivolous' or 'vexatious', or as Robins J. put it in Micro Carpets Ltd. et al. v. DeSouza Developments Ltd. et al. (1980), 1980 CanLII 1865 (ON SC), 29 O.R. (2d) 77 at p. 78, 112 D.L.R. (3d) 178 at p. 180, 'spurious'.