The Defence of Qualified Privilege

AuthorDavid A. Potts; Erin Stoik
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The Defence of Qualif‌ied Privilege
The defence of qualif‌ied privilege is frequently raised by defendants in def-
amation actions. See Raymond Brown, Brown on Defamation: Canada, United
Kingdom, Australia, New Zealand, United States, 2nd ed (Toronto: Carswell,
2011) at chapter 13, which covers 900 pages and thousands of cases. While
this defence covers a wide range of occasions and several dif‌ferent forms, an
outline of the governing principles is sketched below.
See Roger D McConchie & David A Potts, Canadian Libel and Slander Actions
(Toronto: Irwin Law, 2004), cited in David A Potts, Cyberlibel: Information
Warfare in the 21st Century? (Toronto: Irwin Law, 2011) chapter 19 at 288–89:
Qualif‌ied Privilege at Common Law
1) The Elements of the Defence: Duty and Interest
This defence applies to an occasion where the defendant has (i) an interest or
(ii) a duty—legal, social, or moral—to communicate the defamatory expres-
sion and its recipients have a corresponding duty or interest to receive that
Pressler v. Lethbridge (2000), 86 B.C.L.R. (3d) 257, per Southin J.A. at 295 (C.A.).
Haight-Smith v. Neden (2002), 211 D.L.R. (4th) 370, per Levine J.A. for the court at 383
(B.C.C.A.), citing Lord Atkinson in Adam v. Ward, [1917] A.C. 309 at 334 (H.L.) and
Mcloughlin v. Kutasy, [1979] 2 S.C.R. 311 at 321.
Stopforth v. Goyer (1979), 97 D.L.R. (3d) 369, per Jessop J.A. at 372 (Ont. C.A.), adopting
the description of the defence contained in Halsbury’s Laws of England, 3d ed.,
vol. 24 (London: Butterworths, 1952–64) at 56–57.
Reciprocity of duty and interest between the communicator and the
recipient is essential to this defence.
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Sapiro v. Leader Publishing Co., [1926] 3 D.L.R. 68, per Lamont J.A. for the court at 68–69
(Sask. C.A.), citing Adam v. Ward, [1917] A.C. 309 (H.L.).
The burden is on the defendant to prove each of the elements of the defence.
Although a communication occurred on an occasion of qualif‌ied privilege,
the protection of this defence is lost if:
i) the plaintif‌f proves that the dominant motive for publishing the defama-
tory expression is actual or express malice; or
ii) the limits of the duty or interest have been exceeded. This occurs when:
a. the speaker includes anything which is not relevant or pertinent, or in
other words, not reasonably appropriate in the circumstances existing
on the occasion when the information is given;
b. the manner and extent of communication is excessive.
Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, per Cory J. at 1189–90.
Botiuk v. Toronto Free Press, [1995] 3 S.C.R. 3 at 29–30, per Cory J. (La Forest,
L’Heureux-Dubé, Gonthier, McLachlin and Iacobucci JJ. concurring).
Wade and Wells Co. v. Laing (1957), 11 D.L.R. (2d) 276 at 279, 282–83 (B.C.C.A.), Per
Sheppard J.A. (Sidney Smith J.A. concurring), citing Clark v. Molyneux (1877), 3
Q.B.D. 237 at 247.
Kelsie v. Canada (Attorney General), [2003] N.J. No. 232, 2003 NLSCTD 139 per Barry J.
at para. 33.
The burden of proving actual or express malice rests on the plaintif‌f.
Netupsky v. Craig, [1973] S.C.R. 55 per Ritchie J. for the court at 61–63.
McLoughlin v. Kutasy, [1979] 2 S.C.R. 311 at 324–25.
2) Foundation in Public Policy
The defence of qualif‌ied privilege is intended to serve “the general interests
of society” and “the common convenience and welfare of society” rather than
the interests of individuals or a class.
Halls v. Mitchell, [1928] S.C.R. 125 at 147, per Duf‌f J. (Anglin C.J.C., Mignault, and
Lamont JJ. concurring).
Sapiro v. Leader Publishing Co. Ltd., above, at 70.
Macintosh v. Dun, [1908] A.C. 390 (P.C.) per Lord Macnaghten at 398 and
399, citing Toogood v. Spyring (1834), 1 C.M. & R. 181 at 193 where Parke B. stated:
If fairly warranted by any reasonable occasion or exigency, and
honestly made, such communications [injurious to the character of
another] are protected for the common convenience and welfare of
society, and the law has not restricted the right to make them within
any narrow limits.

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