Express Malice
| Author | Roger McConchie; David Potts |
| Profession | Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario |
| Pages | 299-333 |
CHAPTER
SIXTEEN:
Express
Malice
A.
INTRODUCTION
A
defendant
is
actuated
by
express malice
if he or she
publishes defamato-
ry
expression:
i)
knowing
it is
false;
or
ii)
with reckless
indifference
whether
it is
true
or
false;
or
iii) for the dominant purpose of injuring the plaintiff because of spite or
animosity;
or
iv)
for
some other dominant purpose which
is
improper
or
indirect,
or
also,
if the
occasion
is
privileged,
for a
dominant purpose
not
related
to
the
occasion.
More
than
one of
these closely-related findings
of
express malice
may be
made
by the
court
in a
given case.
Hiltz
and
Seamone
Co. v.
Nova
Scotia
(Attorney
General)
(1997),
164
N.S.R.
(2d) 161,
N.S.J.
No. 530 per
Stewart
J. at
paras.
92
[improper dominant pur-
pose],
103
[reckless
falsities],
108
[indirect
or
improper purpose
and
reck-
lessness] (S.C.),
aff'd
(1999),
172
D.L.R.
(4th)
488 at
paras.
88, 91, 98
(N.S.C.A.).
Kelly
v.
Magnolo,
[1983]
B.CJ.
No. 376 per
Callaghan
J. at
para.
36
(S.C.)
[no
positive
belief
in
truth
and
dominant purpose
a
desire
to
injure].
Express malice
is
also
referred
to as
actual malice
and as
malice
in
fact.
Express malice
is to be
distinguished
from
the
"malice
in
law" which
is
pre-
sumed upon proof
of
publication
of
defamatory expression.
Davies
&
Davies
Ltd.
v.
Kott,
686,
per
Mclntyre
J. at
694:
299
300
CANADIAN
LIBEL
AND
SLANDER ACTIONS
...
the
word "malice"
is
used
to
connote malice
in
fact,
actual malice,
or
express malice which goes beyond
the
malice ordinarily presumed
upon
the
mere publication
of
libelous words.
Malice
in law
merely
means
that
the
defamatory
expression
was
"pub-
lished
without
lawful
excuse."
Farrdl
v. St.
John's
Publishing
Co.
Ltd. (1986),
58
Nfld.
&
PE.I.R.
66, per
Mor-
gan
J.A.
for the
court
at 76,
para.45
(Nfld.
C.A.).
Proof
that
a
defendant
was
actuated
by
express
malice
at the
time
of
pub-
lication
of the
defamatory
expression
defeats
the
defences
of
qualified
priv-
ilege
and
fair
comment.
Cherneskey
v.
Armadale
Publishing
1067,
per
Ritchie
J.
(Laskin
CJ.
and
Pigeon
and
Pratte
JJ.
concurring)
at
para.
21:
In
cases where
the
essential ingredients
of
either
the
plea
of
"qualified
privilege"
or
that
of
"fair
comment" have been established
by the
defence,
then
if it can be
proved that
the
statements complained
of
were
made
or
written maliciously
the
plea must
fail;
...
Taylor-Wright
v.
CHBC-TV,
a
Division
ofWIC
Television
Ltd. (2000),
194
D.L.R.
(4th) 621,
per
Esson J.A.
at
644, para.
57
(B.C.C.A.).
Leenen
v.
Canadian
Broadcasting
Corporation
(2000),
48
O.R. (3d) 656,
per
Cunningham
J. at 706
(S.C.J.),
aff'd
(2001),
54
O.R. (3d)
612
(C.A.),
leave
to
appeal
to
S.C.C. denied [2001]
S.C.C.A.
No.
432.
Re
International
Assn.
of
Bridge,
Structural
and
Ornamental
and
Reinforcing
Inronworkers
(Local
97) and
Campbell
(1997),
40
B.C.L.R.
(3d)
1, per
Mac-
donald
J. at
paras.
37-38
(S.C.).
It
has
been
held
that
the
authorities
on
malice
regarding
the two
defences
of
fair
comment
and
qualified
privilege
are
essentially
interchangeable.
Hodgson
v.
Canadian
Newspapers
Co.
(1998),
39
O.R. (3d)
335 per
Lane
J. at
393
(Gen.
Div),
approving
the
statement
to
this
effect
in
Patrick
Milmo
&
WVH.
Rogers,
Galley
on
Libel
and
Slander,
9th ed.
(London: Sweet
&
Maxwell,
1998)
at
para. 16.2, varied
on
other grounds (2000),
49
O.R. (3d)
161
(C.A.),
leave
to
appeal
to
S.C.C. denied, [2000]
S.C.C.A.
465.
Proof
of
express
malice
also
supports
a
claim
for
aggravated
damages
and
punitive
damages.
Hill
v.
Church
of
Scientology
of
Toronto,
per
CoryJ.
at
para.
190, citing
Walker
v.
CFTO
Ltd.
(1987),
37
D.L.R.
(4th)
224
(Ont.
C.A.),
Chapter
Sixteen:
Express Malice
301
Vogd
v.
Canadian
Broadcasting
Corporation,
[1982]
3
WWR.
97 at
197-99
(B.C.S.C.),
Kerrv.
Conlogue,
[1992]
4
WWR.
258 at
281-82
(B.C.S.C.),
and
Broome
v.
Cassell
&
Co.,
825-26
(H.L.).
[See
also Chapter
30,
"Damages," "Aggravated Damages"
and
"Punitive
Damages."]
B.
STATE
OF
MIND
AT THE
TIME
OF
PUBLICATION
Determining whether
or not the
defendant
was
actuated
by
express malice
at
the
time
of
publication
of the
defamatory
expression requires
an
inquiry
into
the
state
of
mind
of the
defendant.
Jerome
v.
Anderson, [1964]
S.C.R.
291 per
Cartwright
J.
(Maitland, Ritchie,
and
Hall
JJ.
concurring)
at p.
299:
The
difficulty
of
proving
the
state
of a
man's
mind
at a
particular time
was
commented
on by
Bowen L.J.
in his
famous dictum
in
Edgington
v.
Fitzmaurice
[(1885),
29
Ch.D. 459,
55
L.J.
Ch.
650]
at p. 483
["...
the
state
of a
man's mind
is as
much
as
fact
as the
state
of his
digestion];
but as was
said
by
Lord Wright
in
Clayton
v.
Ramsden
320,
112
L.J.
Ch.
22.]
at p.
331:
"States
of
mind
are
capable
of
proof like
other matters
of
fact."
C.
EXTRINSIC
AND
INTRINSIC EVIDENCE
OF
EXPRESS MALICE
Evidence
of
express malice
may be
extrinsic
or
intrinsic. Intrinsic evidence
may
found
in the
defamatory
expression
itself.
Davies
&>
Davies
Ltd.
v.
Kott,
Mclntyre
J. at
696.
Foran
v.
Richman
(1975),
64
D.L.R.
(3d) 230,
per
Arnup
J.A.
at 233
(Ont.
C.A.).
Lawson
v.
Thompson
(1968),
1
D.L.R.
(3d) 270,
per
Seaton
J. at 275
(B.C.S.C.),
aff'd
(1969),
5
D.L.R.
(3d)
550
(B.C.C.A.).
Taylor
v.
Despard,
[1956]
O.R. 963,
per
Roach
J.A.
at
168-69
(C.A.).
Spill
v.
Maule
(1869),
L.R.
Ex.
232, L.J.
Exch.
138,
17 WR. 805
(Ex. Ct.).
Where
intrinsic evidence only
is
relied upon
to
show express malice
(that
is
evidence provided
by the
defamatory
expression
itself)
the
plaintiff
must show that
(1)
either
the
defendant
did not
believe that
his or her
state-
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