The Defence of Qualified Privilege

• Author: David A. Potts
• Profession: Barrister, Bar of Ontario
• Pages: 288-297



 : e Defence of Qualied

Privilege

A. ELEMENTS OF THE DEFENCE AT COMMON LAW

See Roger D. McConchie a nd David A. Potts, Canadian Libel and Slander

Actions (Toronto: Irwin Law, ) at –:

B. QUALIFIED PRIVIL EGE AT COMMON LAW

) e Elements of the Defence: Duty and Interest

is defence applies to an occasion where the defendant has (i) an interest

or (ii) a duty — legal, social, or moral — to communicate the defamatory ex-

pression and its recipients have a corresponding duty or interest to receive

that communication.

Pressler v. Lethbri dge (),  B.C.L.R. ( d) , per Southin J.A. at  (C. A.).

Haight-Smith v. Neden (),  D.L.R. (th) , per Levine J. A. for the court

at  (B.C.C.A.), citing Lord Atk inson in Adam v. Ward, [] A.C.  at

 (H.L.) and Mcloughlin v. Kutasy, []  S.C.R.  at .

Stopforth v. Goyer (),  D.L.R. (d) , per Jessop J.A. at  (Ont. C.A .),

adopting the desc ription of the defence contained in Hal sbury’s Laws of

England, d ed., vol.  (L ondon: Butterworths, –) at –.

Reciprocity of duty and interest between t he communicator and the re-

cipient is essential to this defence.

Sapiro v. Leader Publis hing Co., []  D.L.R. , per Lamont J.A . for the court

at – (Sask. C.A .), citing Adam v. Ward, [] A.C.  (H.L.).

e burden is on the defendant to prove each of the elements of the defence.

Although a commun ication occurred on an occasion of qual ied privil-

ege, the protection of this defence is lost i f: