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Torts - Defamation - Qualified Privilege

Foulidis v. Baker (Ont CA, 2014)

In this Court of Appeal case the court expounded as follows on the defamation doctrine of 'qualified privilege' which, when operative, may exempt a defendant from liability even though communications are technically defamatory:
[39] The controversy here is governed by the application of some basic principles applicable to the defence of qualified privilege and the circumstances that may render that defence unavailable in answer to a defamation claim.

[40] First, qualified privilege attaches to the occasion on which a communication was made, not to the communication itself: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 143; RTC Engineering Consultants Ltd. v. Ontario (Ministry of the Solicitor General & Correctional Services-Office of Fire Marshall) 2002 CanLII 14179 (ON CA), (2002), 58 O.R. (3d) 726 (C.A.), at para. 14; and Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3, at para. 78.

[41] Second, on an occasion of qualified privilege, one person may defame another without attracting liability for defamation. The law presumes that the defamatory statement was made honestly and in good faith: RTC Engineering, at para. 14. Said somewhat differently, the legal effect of the defence of qualified privilege is to rebut the inference, one that naturally emerges from the publication of defamatory words, that they were spoken with malice: Hill, at para. 144.

[42] Third, as the term “qualified privilege” would itself suggest, the privilege is not absolute: RTC Engineering, at para. 18.

[43] Fourth, qualified privilege may be defeated when the information communicated in the statement is not reasonably appropriate in the context of the circumstances existing on the occasion when the information was given: Hill, at paras. 146-147; RTC Engineering, at para. 18; Botiuk, at para. 80; and Douglas v. Tucker, 1951 CanLII 54 (SCC), [1952] 1 S.C.R. 275, at p. 286.


[53] Several principles furnish the guidance necessary to a just determination of this ground of appeal.

[54] First, qualified privilege may be lost if the dominant motive for the statement was malice: Hill, at para. 144; RTC Engineering, at para. 18; and Botiuk, at para. 79.
s malice: Hill, at para. 144; Botiuk, at para. 79; and Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 149.

[55] Second, to defeat a defence of qualified privilege, the dominant motive for publishing the statement must be actual or express malice: Hill, at para. 144; Botiuk, at para. 79; and Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 149.

[56] Third, malice means spite or ill-will, but also includes any indirect motive or ulterior purpose that conflicts with the sense of duty or mutual interest that the occasion giving rise to qualified privilege created: Hill, at para. 145; and Botiuk, at para. 79.

[57] Fourth, malice can also be established by showing a defendant spoke or wrote dishonestly or in knowing or reckless disregard for the truth: Hill, at para. 145; Botiuk, at para. 79; and RTC Engineering, at para. 18.

[58] Further, the onus rests on the plaintiff to prove malice by inference, extrinsic evidence, or both. This follows from the effect of qualified privilege, which is to rebut the inference of malice that arises from the fact of publishing defamatory words: Hill, at para. 144; Raymond E. Brown, Brown on Defamation, loose leaf, 2nd ed. (Toronto: Carswell, 2011), at p. 16-2.

[59] Finally, whether a plaintiff has established malice to rebut a defence of qualified privilege is a question of mixed fact and law, heavily dependent on the facts disclosed by the evidence adduced at trial and subject to the palpable and overriding standard of review on appeal: Chohan v. Cadsky, 2009 ABCA 334 (CanLII), 2009 ABCA 334, 464 A.R. 334, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 496, at para. 87; and Cimolai v. Hall, 2007 BCCA 225 (CanLII), 2007 BCCA 225, 44 C.P.C. (6th) 389, at para. 30.

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