The Defence of Fair Comment

• Author: David A. Potts; Erin Stoik
• Pages: 170-176

170

 19

The Defence of Fair Comment

BACKGROUND CASELAW

Two very authoritative statements of the law of fair comment from the

Supreme Court of Canada provide important context for this topic.

WIC Radio Ltd v Simpson, [2008] 2 SCR 420 Binnie J at para 28:

The Test for Fair Comment

[28] For ease of reference, I repeat and endorse the formulation of the test

for the fair comment defence set out by Dickson J., dissenting, in Cherneskey

as follows:

(a) the comment must be on a matter of public interest;

(b) the comment must be based on fact;

(c) the comment, though it can include inferences of fact, must be recognis-

able as comment;

(d) the comment must satisfy the following objective test: could any [person]

honestly express that opinion on the proved facts?

(e) even though the comment satisf‌ies the objective test the defence can be

defeated if the plaintif‌f proves that the defendant was [subjectively] actu-

ated by express malice. [Emphasis added; emphasis in original deleted; pp.

1099–1100.]

Grant v Torstar Corp, [2009] 3 SCR 640 per the Chief Justice at para 31:

[31] In addition to privilege, statements of opinion, a category which includes

any “deduction, inference, conclusion, criticism, judgment, remark or obser-

vation which is generally incapable of proof” (Ross v. New Brunswick Teachers’

Assn., 2001 NBCA 62, 201 D.L.R. (4th) 75, at para. 56, cited in WIC Radio, at para.

26), may attract the defence of fair comment. As reformulated in WIC Radio,

at para. 28, a defendant claiming fair comment must satisfy the following