Defending Defamation Litigation Involves Careful Selection of Strategies That Legally Excuse Defamatory ConductPage last modified: December 02 2021
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How Can a Defamation Case Be Defended?
Successfully Defending a Defamation Lawsuit May Occur When the Defendant Shows That the Defamatory Statements Were True or Subject to Fair Comment or Protected By Privilege.
Understanding Defamation Liability Principles Including the Various Defence Strategies Available to a Defendant
As was explained within the previous introduction page, defamation of character by either libel or slander occurs when a person utters or publishes false statements about another person and does so in a manner that is heard or seen by at least one person other than the person about whom the statement was made and where the words stated would lessen the reputation of the person that is spoken or written about. With this said, it is necessary to recognize that although a statement may be defamatory in that the words may tend to lower the reputation of another person, there are circumstances where defamatory words are legally permitted without risk of liability; and accordingly, there are defence strategies available to a lawsuit alleging an improper defamation of character.
Justification Involving Truthful Statements
Truth of defamatory words provides a justified reason for uttering or publishing words that are defamatory. Essentially, while the words may defame in the sense that the words, "lower the plaintiff in the estimation of right-thinking members of society", where the words are true, such lowering occurs due to the genuine conduct of the Plaintiff rather than the telling of the conduct by the Defendant. On this basis, the spreading of truthful rumours may be lawful from the defamation point of view; however, do see breach of privacy concerns, among other things. Also, it is necessary using a justification defence, meaning alleging that what was said is true, the Defence pleading must be properly stated. Furthermore, it is the "sting of words" beyond just the actual words that must be proven true as per Garrett v. Mikalachki, 2000 CarswellOnt 1298 where it was said:
130 The defendants did not plead justification which is a prerequisite to relying on a defence that the words were true: Manitoba Free Press Co. v. Martin (1892), 21 S.C.R. 518 (S.C.C.).
131 In any event, such a defence would fail here because the burden is on the defendants to prove that the sting of the words is true and they have not done so.
Fairness of Comment
To make out a defence as fairness of comment, per Wan v. Lau, 2016 ONSC 127, a Defendant must show that the offending statement was expressedly merely as an opinion rather that as a fact and, per the case of Grochowski v. Young, 2019 ONSC 326, among others, will need to prove five elements, including proving that the comment was made as a matter of public interest. These requirements were very well outlined and explained within the Supreme Court case of WIC Radio Ltd. v. Simpson,  2 S.C.R. 420:
 This appeal requires the Court to reexamine the defence of fair comment which helps hold the balance in the law of defamation between two fundamental values, namely the respect for individuals and protection of their reputation from unjustified harm on the one hand, and on the other hand, the freedom of expression and debate that is said to be the “very life blood of our freedom and free institutions”: Price v. Chicoutimi Pulp Co. (1915), 1915 CanLII 66 (SCC), 51 S.C.R. 179, at p. 194. Under the present law, if a plaintiff shows the defendant published something harmful to his or her reputation, then both falsity and damage are presumed, and the onus shifts to the defendants to establish an applicable defence, including the defence of fair comment. In Cherneskey v. Armadale Publishers Ltd., 1978 CanLII 20 (SCC),  1 S.C.R. 1067, Dickson J., in dissent, identified the elements of the “fair comment” defence as follows:
(a) the comment must be on a matter of public interest;
(b) the comment must be based on fact;
(c) the comment, though it can include inferences of fact, must be recognisable as comment;
(d) the comment must satisfy the following objective test: could any man honestly express that opinion on the proved facts?
(e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. [Emphasis in original deleted; pp. 1099-1100.]
(citing Duncan and Neill on Defamation (1978), at p. 62)
Although on that occasion a majority of the Court insisted on framing the honest belief requirement in subjective terms (the comment must express an opinion honestly held by the speaker), I believe experience has shown that Dickson J.’s “objective” formulation of the “honest belief” test better conforms to the requirements of free expression endorsed as a fundamental value of our society by s. 2(b) of the Canadian Charter of Rights and Freedoms. Of course, even if the elements of the “fair comment” defence are established, the plaintiff can still succeed by proving that the defendant was actuated by malice, i.e. for an indirect or improper motive not connected with the purpose for which the defence exists (Sun Life Assurance Co. of Canada v. Dalrymple, 1965 CanLII 9 (SCC),  S.C.R. 302, at p. 309).
 The defendant has the burden to establish these five elements for the defence of fair comment to apply:
(1) a comment, not a statement of fact;
(2) made on accurate facts;
(3) on a matter of public interest;
(4) fairly made; and
(5) made without malice.
 The Ontario Court of Appeal recently decided a series of cases that has confirmed that the recent SLAPP legislation does not alter the law as it relates to public interest claims nor are there new public-interest defences. The law of defamation remains largely unchanged.
 A defence can be made on this basis if the defendant proves that:
(1) the publication was on a matter of public interest;
(2) the publication was responsible or that he was diligent in trying to verify allegations having regard to all of the relevant circumstances including;
a. the seriousness of the allegation;
b. the public importance of the matter;
c. the urgency of the matter;
d. the status and reliability of the source;
e. whether the plaintiff’s side of the story was sought and accurately reported;
f. whether the inclusion of the defamatory statement was justifiable;
g. whether the defamatory statement’s public interest lay in the fact that it was made rather than in its truth; and
h. any other relevant circumstances.
 Comment is a statement of opinion. Assertions of fact are not protected by the defence of fair comment. And to be protected as fair comment, matters of opinion must be clearly stated as such, and not mixed with statements of fact so that the reader cannot distinguish between expressions of opinion and statements of fact. Here, the plain meaning of the impugned words is as described above: that Mr Wan participated in obtaining and using a forged proxy to subvert an election. Those are not statements of opinion but rather assertions of fact. The defence of fair comment fails.
In certain circumstances, there may exist an occasion where a person bears a duty or right to issue a document or utter a statement that is defamatory of another person. Such occasions may involve a council meeting, court action, election campaign, among other things. In such circumstances, a qualified privilege exists whereby documents or statements may be defamatory without risk of liability by virtue of the balancing of the right to freedom of speech and opinion versus the right of protection from defamation. The elements required to establish the defence of qualified privilege as well as the limitations to such a qualified privilege if defamatory statements go out of bounds of the qualified privilege limits, were well explained within the case of O'Malley v. O'Callaghan, 1992 CanLII 6090. The limits of the qualified privilege were also well stated by the Supreme Court in Botiuk v. Toronto Free Press Publications Ltd.,  3 S.C.R. 3 which included confirmation that for defamatory statements to receive protection under a qualified privilege, such statements must be bona fides, meaning made in good faith:
 The defence of qualified privilege allows a person to make defamatory and untrue statements about another without incurring liability under the law of defamation, provided that the statements are made in good faith and in the absence of malice. Gatley, at p. 185, states:
There are occasions upon which, on grounds of public policy and convenience, a person may, without incurring legal liability, make statements about another which are defamatory and in fact untrue. On such occasions a man, stating what he believes to be the truth about another, is protected in so doing, provided he makes the statement honestly and without any indirect or improper motive. These occasions are called occasions of qualified privilege, for the protection which the law, on grounds of public policy, affords is not absolute but depends on the honesty of purpose with which the defamatory statement is made.
The occasions giving rise to a qualified privilege are numerous and are generally the result of a legal, social or moral duty on the publisher of the communications. It is clear that it is the occasion and not the statement that gives rise to the privilege (Brown, p. 472). Moreover, in determining whether a communication is so privileged, the alleged libel will be analyzed, having regard to the parties involved and the circumstances in which it was published. Other considerations have been found to be (per Lamont J.A. in Sapiro v. Leader Publishing Co., 1926 CanLII 130 (SK CA),  2 W.W.R. 268, 20 Sask. L.R. 449 (C.A.), at p. 453 [Sask. L.R.]):
… the nature of the duty which the defendant claims to discharge, or the interest which he claims to safeguard, the urgency of the occasion, and whether or not he officiously volunteered the information, and … whether or not what has been published was germane and reasonably appropriate to the occasion.
78 Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. It was explained in this way by Lord Atkinson in Adam v. Ward,  A.C. 309 (H.L.), at p. 334:
. . . a privileged occasion is . . . an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.
79 Where an occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute. It may be defeated in two ways. The first arises if the dominant motive for publishing is actual or express malice. Malice is commonly understood as ill will toward someone, but it also relates to any indirect motive which conflicts with the sense of duty created by the occasion. Malice may be established by showing that the defendant either knew that he was not telling the truth, or was reckless in that regard.
80 Second, qualified privilege may be defeated if the limits of the duty or interest have been exceeded. In other words, if the information communicated was not reasonably appropriate to the legitimate purposes of the occasion, the qualified privilege will be defeated. This was discussed at some length in Hill, supra, and there is no need to repeat it in these reasons.
Qualified Privilege Exception, mala fide
Accordingly, where the Defendant speaks or writes mala fide, the qualfied privilege fails and liability may apply. It is notable that the burden of proof that words were mala fide is placed upon the Plaintiff. This results in a shifting back and forth of various burdens. Initially, the Plaintiff must simply prove that words were spoken that, "... lower the plaintiff in the estimation of right-thinking members of society ...", per the Grochowski case as above. The Defendant would then bear the burden of proving that such words were true and therefore permissible; however, if such words were untrue yet arising within a qualified privilege occasion, the Defendant receives a free pass unless the mala fide utterance is proven by the Plaintiff. This exception to the qualified privilege principle was stated in Hill v. Church of Scientology of Toronto,  2 S.C.R. 1130. Furthermore, within a qualified privilege occasion, it takes much more that just proving that words were untrue and spoken or written with hostility to prove that the words were mala fide whereas, per Netupsky v. Craig,  SCR 55, if the Defendant believed the words were true and necessary for a vindication of the Defendant, such words do remain protected. These points, per Hill and Netupsky, were explained by the Supreme Court were it was respectively said:
144 The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice. See Horrocks v. Lowe,  A.C. 135 (H.L.), at p. 149.
145 Malice is commonly understood, in the popular sense, as spite or ill‑will. However, it also includes, as Dickson J. (as he then was) pointed out in dissent in Cherneskey, supra, at p. 1099, "any indirect motive or ulterior purpose" that conflicts with the sense of duty or the mutual interest which the occasion created. See, also, Taylor v. Despard, 1956 CanLII 124 (ON CA),  O.R. 963 (C.A.). Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. See McLoughlin, supra, at pp. 323‑24, and Netupsky v. Craig, 1972 CanLII 19 (SCC),  S.C.R. 55, at pp. 61‑62.
146 Qualified privilege may also be defeated when the limits of the duty or interest have been exceeded. See The Law of Defamation in Canada, supra, at pp. 13‑193 and 13‑194; Salmond and Heuston on the Law of Torts (20th ed. 1992), at pp. 166‑67. As Loreburn E. stated at pp. 320‑21 in Adam v. Ward, supra:
. . . the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected.
147 In other words, the information communicated must be reasonably appropriate in the context of the circumstances existing on the occasion when that information was given. For example, in Douglas v. Tucker, 1951 CanLII 54 (SCC),  1 S.C.R. 275, the defendant, during an election campaign, stated that the plaintiff, who was the officer of an investment company, had charged a farmer and his wife an exorbitant rate of interest causing them to lose their property. The plaintiff maintained that the allegation was without foundation. In response, the defendant asserted that the plaintiff was facing a charge of fraud which had been adjourned until after the election. This Court held that the defendant had an interest in responding to the plaintiff's denial, thereby giving rise to an occasion of qualified privilege. However, it ruled that the occasion was exceeded because the defendant's comments went beyond what was "germane and reasonably appropriate" (p. 286).
The determination of this appeal in my opinion, turns on the question of whether there was any extrinsic or intrinsic evidence that the respondents were motivated by malice in writing the letter which is complained of. There can be little doubt that if there is evidence proving that the statements complained of are false to the knowledge of the person who makes them, they are taken to have been made maliciously, but this statement must be read in the light of the language used by Lord Atkinson in Adam v. Ward, at p. 339, where he said:
...a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.
Definition of Occasions
It is important to note that the qualified privilege attaches to the occasion within which a statement is made rather than to the statement itself. What constitutes as a qualified privilege occasion was explained within the matter of David Robinson and Marilyn Robinson v. Ontario Society for the Prevention of Cruelty to Animals, 2012 ONSC 3647 as:
 The law concerning the defence of qualified privilege against a claim of libel can be summarized as follows: certain defamatory statements receive a limited and conditional immunity if they serve “the common convenience and welfare of society.”1 The defence of qualified privilege is thus premised upon the need of the intended audience to receive frank and uninhibited communication concerning a particular subject.² The circumstances in which the defence arises are referred to as occasions of qualified privilege. The privilege attaches to the occasion and is limited in the response to that occasion. The determination of whether an occasion of qualified privilege exists depends upon whether the person publishing the statement has an interest or duty, legal, social, moral or personal, to publish the information and further, whether the person or persons to whom it is addressed have a corresponding duty or interest in receiving the information.³
1 Grant v. Torstar Corp. 2009 SCC 61 (CanLII),  S.C.J. No. 61 at page 30
2 Reynolds v. Times Newspaper Ltd.  3 W.L.R. 1010 at 1017 [H.L.]
3 Hill v. Church of Scientology of Toronto 1995 CanLII 59 (SCC),  S.C.J. No. 64 at para. 163
 The categories of qualified privilege are not exhaustive. Each claim must be assessed on an objective standard and in the context of the particular circumstances. A pre-existing relationship between the parties, though not essential, is most common. Qualified privilege will more readily be recognized in circumstances involving established relationships given that the defence is premised on a reciprocal duty to inform and to be informed.4 Once invoked, qualified privilege creates a presumption against malice on the part of the defendant. The existence of malice, as a dominant and improper motive, defeats the defence. In this context, malice is defined as a desire to injure the plaintiff, intentional dishonesty, reckless disregard for the truth, or any ulterior motive that conflicts with the interest or duty created by the occasion.5
4 Kearns v. Bar Council  All E.R. 534 at p. 547 (C.A.)
5 Cusson v. Quan 2007 ONCA 771 (CanLII),  OJ No. 4348 (Ont.C.A.) revd on other grounds 2009 SCC 62 (CanLII),  SCJ No. 62 (S.C.C.)
Proof of Malice
The Plaintiff may seek to prove malice in a number of ways including express malice where the words are plainly and obviously of a malicious intent. Malice can also be proven by showing that the Defendant holds a personal vendetta against the Plaintiff and that a reckless disregard for truth may be sufficient in establishing malice; Todd v. Everett, 2014 ONSC 1322. Additionally, it is important to take heed that proof of malice requires demonstrating that a belief of truth was ingenuine or reckless. Malice requires more than mere carelessness whereas belief of truth about a fact may be honestly held despite carelessness in coming to the belief per Botiuk. Furthermore, minor embellishment or exaggeration from fact is insufficient to establish malice; however, per McGraw v. Southgate (Township), 2021 ONSC 7000, if the embellishment or exaggeration is significantly beyond factual, such may rise to the level of recklessness required to establish malice.
 Certainly if there was evidence from which a trier of fact could draw the inference that the Defendant acted with reckless disregard for the truth or the Defendant’s actions were motivated by a personal vendetta against the Plaintiff that would be a basis for a finding of malice. The issue raised on this appeal is whether there was any evidence to this effect or any other evidence that would justify a finding of malice.
Disregard for the Truth
 On this point the Deputy Judge found as follows:
[The Defendant] had a total disregard for the truth and indeed had a total disregard for the consequences … He had every opportunity to verify the truth and chose not to … It would have been a simple task to verify the truth by speaking to the plaintiff or Mr. Currie but he chose not to … All these incidents occurred without a tittle of evidence to support the allegations.
96 A distinction in law exists between "carelessness" with regard to the truth, which does not amount to actual malice, and "recklessness", which does. In The Law of Defamation in Canada, supra, R. E. Brown refers to the distinction in this way (at pp. 16‑29 to 16‑30):
. . . a defendant is not malicious merely because he relies solely on gossip and suspicion, or because he is irrational, impulsive, stupid, hasty, rash, improvident or credulous, foolish, unfair, pig‑headed or obstinate, or because he was labouring under some misapprehension or imperfect recollection, although the presence of these factors may be some evidence of malice.
97 The author then puts forward the reasons of Lord Diplock in Horrocks v. Lowe,  A.C. 135 (H.L.), as representative (though not definitively) of the Canadian position. In that case Lord Diplock wrote at p. 150:
. . . what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, "honest belief". If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. . . But despite the imperfection of the mental process by which the belief is arrived at it may still be "honest", that is, a positive belief that the conclusions they have reached are true. The law demands no more. [Emphasis added.]
98 This proposition does indeed seem to be generally representative of the Canadian position on the matter. However, when the defendants are lawyers who must be presumed to be reasonably familiar with both the law of libel and the legal consequences flowing from the signing of a document, their actions will be more closely scrutinized than would those of a lay person. That is to say, actions which might be characterized as careless behaviour in a lay person could well become reckless behaviour in a lawyer with all the resulting legal consequences of reckless behaviour. That is the very situation presented in this case.
99 The appellant lawyers signed a Lawyers' Declaration which stated that they had "familiarized" themselves with the Report and that it "correctly and accurately" reflected the state of affairs during and after the Kosygin demonstration. Yet, several of them had not even read it. Most of them did not know anything about the preparation of Botiuk's account. Some neither talked to Botiuk before signing the Lawyers' Declaration nor discussed it with the others. As lawyers, they should have known how significant the impact of the Lawyers' Declaration would be on Botiuk. They were duty-bound to take reasonable steps to investigate and ensure that the document was correct.
100 In the Maksymec Reply, Maksymec referred to the Lawyers' Declaration as the basis for the statement that the various lawyers, including the appellants, gave generously of their time and assistance before and during the Vannini inquiry and that they had agreed not to charge for their work. Although the appellants knew that in reality they had contributed very little and that there could not have been any such agreement, they did nothing to correct the inaccurate impression left by the Maksymec Reply and raised no objection to Maksymec's subsequent use of the Lawyers' Declaration.
101 Although it is not determinative, the conduct of the appellant lawyers prior to and during the trial can properly be taken into consideration as an indication of their general attitude toward Botiuk. None of them apologized to him or retracted what was written in the Lawyers' Declaration. Rather, as the trial progressed and the true situation was revealed, each continued to maintain that the plaintiff was wrong. As the trial judge found, the appellants Zarowsky and Bardyn manifested hostility towards the plaintiff during their testimony, particularly in relation to the extent of Botiuk's participation at the inquiry. Despite the overwhelming evidence on this point, most of the lawyers were reluctant to acknowledge how little each of them had done and, conversely, how much Botiuk had given of his time and energy.
102 The appellants must have, or at the very least should have, realized that the endorsement of eight prominent lawyers would have a devastating effect on Botiuk's reputation. The evidence indicates that after the publication of the Lawyers' Declaration, public opinion in the community swung decisively against Botiuk. Witnesses testified that they became convinced that the rumours might actually be true after they had read the document.
 Adefendant is acting maliciously if he or she makes a defamatory statement knowing it is false, or having no reason to believe it is true, or with reckless disregard of whether it is true or false: Brown, at s. 16.2(1). At the same time:
“[T]he court will not look too narrowly on the language used”…. A “defendant is not confined to saying what is strictly necessary to the occasion”. The fact that the words are insulting does not necessarily make them malicious. Minor embellishments and “mere immoderation in the language”, or words reflecting bad taste and want of sound judgement, will not defeat a privilege which is otherwise honestly pursued. …
Isolated expressions should not be examined hypercritically. A court should not too readily draw an inference of malice from mere exaggeration or extravagance in the use of language. … The language must be extreme before an inference of malice will be drawn. [Brown, at 16.4(3)(a). Footnotes omitted.]
As shown in the Botiuk case, where lawyers signed a Declaration containing false statements about Botiuk without even having reviewed the document for facts within for accuracy, whether the carelessness of a defamer rises to the level of recklessness requires a reasonable expectation review of the conduct involved including the sophistication of the defamer and whether the defamer ought to diligently review a document or make adequate inquiries so to ensure truth prior to issuing or signing a document. As the lawyers in the Botiuk case found out the hard way, this reasonable expectation for determining accuracy applies especially so to legal professionals when signing Declarations or Affidavit documents containing potentially defaming information.
The topic of defamation of reputation is a very deep legal subject with many subtopics that can only be lightly touched upon within a webpage article. Legal practitioners and scholars could spend hours discussing the various twists and turns that apply to the principles and concepts mentioned here.