Malice

• Author: David A. Potts; Erin Stoik
• Pages: 216-223

216

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Malice

This chapter consists of an explanation of express malice in response to the

defences of fair comment, qualif‌ied privilege, and responsible communication.

MALICE FOUND

Authoritative statements of the law of malice have been made by the Supreme

Court of Canada and the Courts of Appeal in British Columbia and Ontario.

Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130 per Cory J at paras 144–47:

[144] The legal ef‌fect of the defence of qualif‌ied privilege is to rebut the infer-

ence, which normally arises from the publication of defamatory words, that

they were spoken with malice. Where the occasion is shown to be privileged,

the bona f‌ides of the defendant is presumed and the defendant is free to

publish, with impunity, remarks which may be defamatory and untrue about

the plaintif‌f. However, the privilege is not absolute and can be defeated if the

dominant motive for publishing the statement is actual or express malice. See

Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 149.

[145] Malice is commonly understood, in the popular sense, as spite or

illwill. However, it also includes, as Dickson J. (as he then was) pointed out in

dissent in Cherneskey, supra, at p. 1099, “any indirect motive or ulterior purpose”

that conf‌licts with the sense of duty or the mutual interest which the occasion

created. See, also, Taylor v. Despard, 1956 CanLII 124 (ON CA), [1956] O.R. 963

(C.A.). Malice may also be established by showing that the defendant spoke

dishonestly, or in knowing or reckless disregard for the truth. See McLoughlin,

supra, at pp. 32324, and Netupsky v. Craig, 1972 CanLII 19 (SCC), [1973] S.C.R.

55, at pp. 6162.

[146] Qualif‌ied privilege may also be defeated when the limits of the duty

or interest have been exceeded. See The Law of Defamation in Canada, supra,