The Marcus Hyman Act: A Link to Our Past – And Our Future?

June 24, 2021

By Kenneth Grad

A civil action for group defamation is generally prohibited under Canadian law. Thus, if the target of harmful speech is a group and not any specific member, an individual cannot establish defamation absent personal injury. To illustrate by way of an example, the phrase “all Winnipeg Jets fans are fairweather” would not give rise to a defamation claim; but accusing me personally of being a fairweather Jets fan would undoubtedly lead to a defamation suit!

Manitoba is the sole exception in Canada to this general prohibition. In April 1934, the Manitoba legislature passed a statute permitting lawsuits for group defamation. Introduced by Marcus Hyman – an Oxford-educated, Jewish MLA from Winnipeg – and known colloquially as the “Marcus Hyman Act”, the law authorized civil actions against publishers of any statement likely to expose a member of any race or religion to hatred, contempt, or ridicule, and that tended “to raise unrest or disorder among the people”.

Hyman introduced his legislation with the intent of targeting the Canadian Nationalist Party, a fascist group created in Winnipeg in 1933 by William Whittaker. Whittaker’s organization held rallies in which they denounced Jews. They also published a newspaper called The Canadian Nationalist, containing virulently antisemitic material.

In October 1934, William Tobias, a prominent member of Winnipeg’s Jewish community, sued Whittaker for defamation pursuant to the Hyman Act. Tobias succeeded, obtaining an injunction perpetually restraining Whittaker from defaming Jews. Although Whittaker subsequently resumed publication of his newspaper, the Canadian Nationalist went out of circulation for a full year after Tobias’ suit; when it returned, it was published in mimeographed format, suggesting Whittaker could not find or afford another printer for his hate-sheet. He died a broken man in 1938.

The Marcus Hyman Act is today treated more as a matter of historical interest than contemporary relevance. Although it remains in force (as section 19 of Manitoba’s Defamation Act), the statute is rarely used. Aside from the Tobias case, a review of the jurisprudence reveals only two reported decisions. Interestingly, in the 1960s, Jewish leadership in Ontario considered lobbying for similar legislation to the Hyman Act, but were discouraged by Manitoban Jewish leaders, who deemed it preferable to pursue an amendment to the federal Criminal Code outlawing the promotion of hatred.

It is worth asking whether the Hyman Act might offer a useful tool for combatting antisemitism today. In my view, the Act is underappreciated, an argument I am currently exploring in a larger research article on the past and potential future of this legislation. Civil remedies have several advantages over criminal proceedings and are far more easily obtained. We live in a time of rising hate-speech, much of it directed at the Jewish community. Legal remedies seem elusive, but, at least in Manitoba, a potential solution is hiding in plain sight. For this we have Marcus Hyman to thank.