The Defence of “Fair Comment”

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is a litigation lawyer practicing at Perley-Robertson, Hill & McDougall LLP in Ottawa, Ontario. He may be reached at 613.566.2823 or obourns@perlaw.ca.

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The threshold in Canada for a finding of defamation is not particularly stringent.  In order to prove defamation (libel or slander) against a particular defendant, a plaintiff must show on the balance of probabilities that: the statements were made to a third party, the words lowered the plaintiff’s reputation, and the words must be reasonably understood by others in a defamatory sense.

Here is where things get interesting.  A defendant has a number of defences, any of which, if proven, shall defeat the plaintiff’s claim.  The defences including:  (a) truth, (b) absolute privilege, (c) qualified privilege, (d) fair comment, and (e) responsible communication (by a journalist) on matters of public importance.  This article focuses on the defence of fair comment.

Assuming the plaintiff has satisfied the above criteria and the defendant cannot prove that the comment made was true then the defendant will often attempt to make their case based on fair comment thinking that it provides a get out of jail free card excusing broad strokes of potentially offensive speech.  However, fair comment is a technical defence that requires a defendant to satisfy specific requirements that can be difficult to prove.

In WIC Radio Ltd. v. Simpson,[1] the Supreme Court of Canada set out the requirements for the fair comment defence:

(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 a comment;

(d) the comment must satisfy the following objective test: could any [person] 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 [subjectively] actuated by express malice.

1. Public Interest

Fair comment is available to anyone who publishes material of public interest in any medium.  As to what is a matter of “public interest”, in Grant v. Torstar the Supreme Court provided the following guiding principles:[2]

  • the defamatory statement must be read in context of the publication as a whole;
  • “public interest” is not synonymous with what interests the public;
  • an individual’s reasonable expectation of privacy must be respected in this determination;
  • it is enough that some segment of the community would have a genuine interest in receiving information on the subject;
  • the subject matter “must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached;
  • the case law on fair comment “is replete with successful fair comment defences on matters ranging from politics to restaurant and book reviews”;
  • mere curiosity or prurient interest is not enough, some segment of the public must have a genuine stake in knowing about the matter published; and
  • “the public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion and morality. The democratic interest in such wide-ranging public debate must be reflected in the jurisprudence.”

A public interest was found to exist regarding comments about the environmental impact of a proposed subdivision in 1704604 Ontario Ltd.[3], a political candidacy in Able Translations[4], the practices of personal injury assessment companies in Platnick[5], and ratings on the Better Business Bureau website in Walsh Energy Inc.[6]

2.  Based on Fact

For a defendant to rely on the Defence of fair comment it must also show that the comment was based on facts which are either known or are potentially available.  The onus is on the defendant to prove the substantial truth of the statements.  The comment must be based on facts which are either stated by the commentator or indicated with sufficient clarity to enable the reader to ascertain the matter on which the comment is being made. Where the defendant fails to “get his facts right” the defence will be defeated.[7]

Further, for the defence of fair comment to be available, the facts upon which the comment are based must be sufficiently set out.  As stated in Baglow v.  Smith:[8]

With respect to the existence of a factual foundation, Justice Binnie stated that what is important is that the facts be sufficiently stated or otherwise be known to the listeners (here readers) so that they are able to make up their own minds on the merits of the comment.  If the factual comment is unstated or unknown, or turns out to be false, the fair comment defence is not available.  He stated that a properly disclosed or sufficiently indicated (or so notorious as to be already understood by the evidence) factual foundation is an important objective limit to the fair comment defence.

3.  Recognizable as Comment

Assertions of fact are not protected by the defence of fair comment.  The comment must be based on facts that are either known or potentially available. The comment must be reasonably recognizable as an opinion as opposed to a fact allegation. A defamation defendant must get his or her facts right in order to win the protection of the defence. When considering this factor, it is not important that a defendant reasonably believed his or her words to be true.[9]

4.  Objectively Honest Comment

The fourth factor, often referred to as “honest belief”, requires the existence of a nexus or relationship between the comment and the underlying facts so that it could be said that “any man [could] honestly express that opinion on the proved facts”.  In WIC Radio, Binnie J. referenced, with approval, Dickson J.’s inclusion of various characterizations of “any man” in Cherneskey to show the intended broadness of the test, i.e. “however prejudiced he may be, however exaggerated or obstinate his views”.  In Cherneskey, Dickson J. also agreed with the comment in an earlier case that the operative concept was “honest” rather than “‘fair’ lest some suggestion of reasonableness instead of honesty should be read in” (p. 1104).[10]

5.  Express Malice

If the above requirements are all found and the defence of fair comment applies it may still defeated if it is proven that the defendant acted with express malice.

Proof of malice may be intrinsic or extrinsic: that is, it may be drawn from the language of the assertion itself or from the circumstances surrounding the publication of the comment.  It may involve inferences and evidentiary presumptions.[11]  Malice must be the dominant motive for the publication.

In the Supreme Court decision in Cherneskey, Dickson J. described malice as follows:[12]

Malice is not limited to spite or ill will, although these are its most obvious instances. Malice includes any indirect motive or ulterior purpose, and will be established if the plaintiff can prove that the defendant was not acting honestly when he published the comment. This will depend on all the circumstances of the case. Where the defendant is the writer or commentator himself, proof that the comment is not the honest expression of his real opinion would be evidence of malice. If the defendant is not the writer or commentator himself, but a subsequent publisher, obviously this is an inappropriate test of malice. Other criteria will be relevant to determine whether he published the comment from spite or ill will, or from any other indirect and dishonest motive.

Too often counsel and defendants toss at the fair comment defence with a far too broad understanding of what comments it will protect.  It is important that both sides, plaintiff and defendant, understand the nuances in the fair comment defence before digging in their heels.

[1] WIC Radio Ltd. v. Simpson, (2008) SCC 40 (CanLII) at para. 28 <http://canlii.ca/t/1z46d>

[2] Grant v. Torstar Corp., [2009] 3 SCR 640, 2009 SCC 61 (CanLII) at paras 101-106 <http://canlii.ca/t/27430>

[3] 1704604 Ontario Ltd. v Pointes Protection Association et al., (2016) ONSC 2884 (CanLII), <http://canlii.ca/t/gr74q>

[4] Able Translations Ltd. v Express International Translations Inc., (2016) ONSC 6785 (CanLII), <http://canlii.ca/t/gvjt1>

[5] Platnick v. Bent, (2016) ONSC 7340 (CanLII) <http://canlii.ca/t/gvx6g>

[6] Walsh Energy Inc. v Better Business Bureau of Ottawa-Hull Inc., (2016) ONSC 1606 (CanLII), <http://canlii.ca/t/gpcnb>

[7] Hodgson v. Canadian Newspapers Co., (1998) CanLII 14820 (ON SC), <http://canlii.ca/t/1w9kg>

[8] Baglow v. Smith, (2015) ONSC 1175 (CanLII), <http://canlii.ca/t/ggf1t> at para 162 citing WIC Radio Ltd. v. Simpson, [2008] 2 SCR 420, 2008 SCC 40 (CanLII), <http://canlii.ca/t/1z46d>

[9] Brent v Nishikawa, (2016) ONSC 4297 (CanLII), <http://canlii.ca/t/gsbkq> at para 24

[10] WIC Radio Ltd. v. Simpson, [2008] 2 SCR 420, 2008 SCC 40 (CanLII), <http://canlii.ca/t/1z46d> [“WIC Radio”] at para 40 and Cherneskey v. Armadale Publishers Ltd., [1979] 1 SCR 1067 (SCC), <http://canlii.ca/t/1mkts> at p.1099 [“Cherneskey”]

[11] WIC Radio at

[12] Cherneskey at p.1099

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