[115]
A showing of malice defeats a valid fair comment defence. This can be
reckless indifference as to its truth, to injure the plaintiff out of spite or animosity, or
for some other improper purpose (WIC Radio, at paras. 100-101 and 104; see also Bent,
at para. 136; Smith v. Cross, 2009 BCCA 529, 314 D.L.R. (4th) 457, at para. 34). 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” (WIC Radio, at para. 100). A finding of a subjective honest belief negates
the possibility of finding malice (para. 53).
[116]
Mr. Neufeld argued that Mr. Hansman acted with malice in making the
challenged statements — an allegation that the chambers judge found was
unsubstantiated. The Court of Appeal held the chambers judge erred in his malice
assessment in two material ways: (1) by finding as a fact that Mr. Hansman’s affidavit
“stated” an honest belief in the views he expressed, when it contained no such assertion;
and (2) by holding that, once a defendant asserts a subjective belief in their comments,
malice can be proved only by a full admission by the defendant on cross-examination
(paras. 43-44). I disagree on both counts.
[117]
In WIC Radio, this Court cautioned against analyzing the fair comment
defence at a “troubling level of technicality” (para. 35). A finding of subjective honest
belief can be based on the thrust of the defendant’s evidence, read as a whole.
Ultimately, the chambers judge found that Mr. Hansman’s affidavit “ma[de] it clear”
2023 SCC 14 (CanLII)
done by demonstrating the defendant made the statement knowing it was false, with
اختر الفقرة المستهدفة3
الاتصال بفقرة
Connect to an entity
Disable highlights
أضف إلى جدول المحتويات