Davies & Davies Ltd. v. Kott, (1979) 27 N.R. 181 (SCC)

• Judge: Laskin, C.J.C., Ritchie, Pigeon, Dickson and McIntyre, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 22, 1979
• Jurisdiction: Canada (Federal)
• Citations: (1979), 27 N.R. 181 (SCC);1979 CanLII 42 (SCC);98 DLR (3d) 591;27 NR 181;9 CCLT 249;[1979] 2 SCR 686

Davies & Davies Ltd. v. Kott (1979), 27 N.R. 181 (SCC)

MLB headnote and full text

Davies & Davies Limited v. Kott

Indexed As: Davies & Davies Ltd. v. Kott

Supreme Court of Canada

Laskin, C.J.C., Ritchie, Pigeon, Dickson and McIntyre, JJ.

May 22, 1979.

Summary:

This case arose out of a company's claim against the defendant for damages for libel. The defendant was involved in a legal dispute with the plaintiff and alleged in 2 letters that the plaintiff was behaving in a fraudulent manner. In a jury trial in the Ontario High Court the trial judge found that the letters were capable of conveying a defamatory meaning and that they were written on occasions of qualified privilege. The trial judge left the question of malice with the jury and the jury found that the defendant was malicious and awarded the plaintiff damages. The defendant appealed. The Ontario Court of Appeal allowed the appeal and held that the trial judge erred in leaving the question of malice with the jury. The plaintiff appealed. The Supreme Court of Canada dismissed the appeal. The Supreme Court of Canada held that, where there was qualified privilege, the question of malice should not have been put to the jury unless the trial judge considered that there was evidence raising a probability of malice and not merely that there was evidence of malice. The Supreme Court of Canada held that there was not sufficient evidence to go to the jury on the issue of malice.

Libel and Slander - Topic 2988

Defences - Qualified privilege - Loss of qualified privilege - Lack of honest belief or existence of malice - The Supreme Court of Canada held that an honest belief in the truth of alleged libelous words was necessary to establish the defence of qualified privilege - See paragraphs 22 to 24.

Libel and Slander - Topic 4066

Malice - As bar to qualified privilege - Requirement of proof of probable malice - The Supreme Court of Canada held that, where there is qualified privilege, the question of malice should not be put to the jury unless the trial judge considers that there is evidence raising a probability of malice - See paragraphs 14 to 24.

Cases Noticed:

Spill v. Maule (1869), L.R. 4 Ex. 232, appld. [para. 18].

Somerville v. Hawkins (1851), 10 C.B. 583, appld. [para. 18].

Sun Life Assurance Company of Canada et al. v. Dalrymple, [1965] S.C.R. 302, appld. [para. 19].

Horrocks v. Lowe, [1975] A.C. 135, appld. [para. 23].

Authors and Works Noticed:

Gatley on Libel and Slander (7th Ed.), p. 342, para. 791 [para. 19].

Counsel:

R.N. Starr, Q.C., for the appellant;

Warren H.O. Mueller, for the respondent.

This case was heard on February 14, 1979, at Ottawa, Ontario, before LASKIN, C.J.C., RITCHIE, PIGEON, DICKSON and McINTYRE, JJ., of the Supreme Court of Canada.

On May 22, 1979, McINTYRE, J., delivered the following judgment for the Supreme Court of Canada: