Page: 15
[93] The defence of justification simply means that the impugned statement or statements are
substantially true: Grant, at para. 33. The burden is on the defendant prove truth, and if proved it
provides a complete defence.
Fair comment
[94] The fair comment defence has a number of requirements that must be met by the
defendant, set out by the Supreme Court of Canada in WIC Radio, at para. 1 , as follows:
[95]
(1)
the comment must be on a matter of public interest;
(2)
the comment must be based on fact;
(3)
the comment, though it can include inferences of fact, must be recognizable as
comment; and,
(4)
the comment must satisfy the following objective test: could any person honestly
express that opinion on the proved facts?
The plaintiff concedes that the blog posts at issue are matters of public interest.
[96] The law of fair comment has been developed in a manner consistent with the values
underlying freedom of expression. The worth and dignity of each individual, including his or her
reputation, is an important value underlying the Canadian Charter of Rights and Freedoms and
is to be weighed in the balance with freedom of expression, including freedom of the press: WIC
Radio, at para. 2.
[97] As put by Justice Binnie in WIC Radio, at para. 2: “An individual’s reputation is not to be
treated as regrettable but unavoidable road kill on the highway of public controversy, but nor
should an overly solicitous regard for personal reputation be permitted to ‘chill’ freewheeling
debate on matters of public interest.”
[98] Comment includes a deduction, inference, conclusion, criticism, judgment, remark or
observation that is generally incapable of proof: WIC Radio, at para. 26. Words that may appear
to be statements of fact may, in pith and substance, be properly construed as comment. This is
particularly so in an editorial context where loose, figurative or hyperbolic language is used in
the context of political debate, commentary, media campaigns and public discourse: WIC Radio,
at para. 26, citing Brown, The Law of Defamation in Canada, 2nd ed., loose-leaf (Toronto:
Carswell 1994).
[99] The comment must explicitly or implicitly indicate, at least in general terms, what are the
facts upon which the comment is being made. The facts must be sufficiently stated or otherwise
known to the readers so that the readers are able to make up their own minds on the merits of the
2014 ONSC 6890 (CanLII)
Justification
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