DefamationThe substantive law of defamation fills volumes and volumes, but some of it - and important procedural law (especially re notices) - is set out in the Libel and Slander Act.
. Frank v Legate
In Frank v. Legate, 2015 ONCA 631 (CanLII) (Ont CA, 2015) the Court of Appeal stated as follows on the basic elements of defamation:
 In Grant v. Torstar Corp., 2009 SCC 61 (CanLII),  3 S.C.R. 640, at para. 28, the Supreme Court of Canada held that a plaintiff must prove the following three elements in a defamation action: 1) the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; 2) the words in fact referred to the plaintiff; and 3) the words were communicated to at least one person other than the plaintiff.. Foulidis v Ford
 Allegedly defamatory comments must be read in context: Guergis at para. 65; Mantini v. Smith Lyons LLP (2003), 2003 CanLII 22736 (ON CA), 64 O.R. (3d) 516 (C.A.), at para. 14, leave to appeal to S.C.C. refused,  S.C.C.A. No. 344. Context is important in determining the meaning of words and whether they are capable of being defamatory. Reading impugned comments in isolation is unfair and is of no assistance to the court in its analysis. This problem is exacerbated where, as here, the appellant has combined portions of different comments into one statement.
In Foulidis v. Ford (Ont CA, 2014) the Court of Appeal took the oppourtunity to expound on basic principles of defamation as follows:
 I begin with some basic propositions.. Foulidis v. Baker
 First, words are defamatory if their publication tends to lower a person in the estimation of right-thinking members of society, or exposes a person to hatred, contempt or ridicule: see Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC),  3 S.C.R. 3, at para. 62.
 Second, whether words are defamatory will be assessed on the basis of their ordinary meaning, taking into account the surrounding circumstances, including the occasion of speaking and the relationship between the parties: see Raymond E. Brown, Brown on Defamation, 2d. ed., looseleaf (Toronto: Carswell, 2010), at para. 5.3(1)(a).
 Third, the decision of the fact finder as to whether impugned words have a defamatory meaning is entitled to substantial deference on appellate review: see Simao v. Hankook Ilbo et al., 2012 ONCA 175 (CanLII), 2012 ONCA 175, 348 D.L.R. (4th) 472, at para. 22.
In Foulidis v. Baker (Ont CA, 2014) the Court of Appeal expounded as follows on the defamation defence of 'qualified privilege':
 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.. St Lewis v Rancourt
 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),  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),  3 S.C.R. 3, at para. 78.
 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.
 Third, as the term “qualified privilege” would itself suggest, the privilege is not absolute: RTC Engineering, at para. 18.
 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),  1 S.C.R. 275, at p. 286.
 Several principles furnish the guidance necessary to a just determination of this ground of appeal.
 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; and Horrocks v. Lowe,  A.C. 135 (H.L.), at p. 149.
 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,  A.C. 135 (H.L.), at p. 149.
 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.
 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.
 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.
 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,  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.
In St Lewis v Rancourt (Ont CA, 2015) the Court of Appeal set out the elements of the defence of fair comment in defamation cases:
 The defence of fair comment requires that the defendant establish that the impugned statement was (1) a comment and not a statement of fact; (2) based upon true facts; (3) on a matter of public interest; (4) able to satisfy an objective test of fairness; and (5) made without malice: Simpson v. Mair, 2008 SCC 40 (CanLII),  2 S.C.R. 420, at para. 1.It further considered when an injunction was an appropriate remedy in a defamation case:
 The trial judge correctly noted the situations in which permanent injunctions have been consistently ordered after defamation proceedings, as identified in Astley v. Verdun, 2011 ONSC 3651 (CanLII), 106 O.R. (3d) 792. Chapnik J. wrote in Astley, at para. 21:. Gaur v. Datta
Permanent injunctions have consistently been ordered after findings of defamation where either: (1) there is a likelihood that the defendant will continue to publish defamatory statements despite the finding that he is liable to the plaintiff for defamation; or (2) there is a real possibility that the plaintiff will not receive any compensation, given that enforcement against the defendant of any damage award may not be possible... [Citations omitted.] The trial judge concluded that, on either branch of Astley, the respondent had demonstrated the need for a permanent injunction. With respect to the first branch, the trial judge found that the appellant had demonstrated a total disregard for the judicial process and that his conduct, before and during the trial, made it more probable than not that he will continue to defame the respondent. With respect to the second branch, the trial judge found that there was no reasonable prospect that the appellant would be able to pay the damage and cost awards.
 The injunction ordered by the trial judge –preventing any defamatory statement - was broad. In his reasons, he said this:
The draft order submitted by the [respondent] is reasonable. It only forbids the [appellant] from publishing defamatory statements, not about stopping to blog whatsoever. It is not, as claimed by the [appellant], a silencing of him. He can easily avoid breaching the injunction by simply refraining from publishing defamatory statements. A broad ongoing injunction is an extraordinary remedy which should be used sparingly. However, where there has been a campaign of defamation and a likelihood that it will continue, there is authority for such an order. See: Barrick Gold Corp. v. Lopehandia (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416 (C.A.), at para. 78; Astley, at para. 35; Ottawa-Carleton District School Board v. Scharf,  O.J. No. 3030 (S.C.), at para. 30(b), aff’d 2008 ONCA 154 (CanLII), leave to appeal refused,  S.C.C.A. No. 285. Under these circumstances, we would not interfere with the terms of the trial judge’s order.
In Gaur v. Datta (Ont CA, 2015) the Court of Appeal made the following useful comments on the tort of defamation:
 The tort of defamation requires the plaintiff to prove three elements: (1) the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) the words in fact refer to the plaintiff; and (3) the words were communicated to at least one person other than the plaintiff: Guergis v. Novak, 2013 ONCA 449 (CanLII), 116 O.R. (3d) 280, at para. 39; Grant v. Torstar Corp., 2009 SCC 61 (CanLII),  3 S.C.R. 640, at para. 28; see also Lysko, at para. 91.. Awan v Levant
 In Lysko, at para. 90, this court noted that “publication by the defendant is an essential element of a defamation action and any person who participates in the publication of the defamatory expression in furtherance of a common design will be liable to the plaintiff”. As Raymond E. Brown stated in The Law of Defamation in Canada, loose-leaf (2012-Rel. 3), 2nd ed. (Scarborough: Carswell, 1999), at pp. 7-30 – 7-31:
The defamatory material may be published indirectly through the action of some intermediary for whose publication a defendant may be held to share responsibility. This may be because the defendant authorized, incited or encouraged another to publish it…A defendant may be responsible for the acts of others by encouraging, instructing or authorizing them to publish defamatory information, or providing them with information intending or knowing that it will be published. Pleadings in defamation cases are more important than in any other class of action, and require a concise statement of the material facts: Lysko, at para. 91.
Awan v Levant (Ont CA, 2016) was an internet defamation case where the court made the following useful comments on the defence of 'fair comment' and on the awarding of aggravated damages in defamation cases [the latter at paras.102-108], as follows:
 In WIC Radio Ltd. v. Simpson, 2008 SCC 40 (CanLII),  2 S.C.R. 420, at para. 28, the Supreme Court of Canada set out the requirements for the fair comment defence:. Whitfield v. Whitfield
(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 recognisable 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] actuated by express malice. [Parenthetical notes in original; emphasis removed.]
 In WIC, under the heading, “Distinguishing Fact from Comment”, Binnie J. outlined the test to be applied and explained his conclusion, at paras. 26 and 27:
In Ross v. New Brunswick Teachers’ Assn. (2001), 201 D.L.R. (4th) 75, 2001 NBCA 62 (CanLII), at para. 56, the New Brunswick Court of Appeal correctly took the view that “comment” includes a “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof”. Brown’s The Law of Defamation in Canada (2nd ed. (loose-leaf)) cites ample authority for the proposition that words that may appear to be statements of fact may, in pith and substance, be properly construed as comment. This is particularly so in an editorial context where loose, figurative or hyperbolic language is used in the context of political debate, commentary, media campaigns and public discourse. In the leading libel decision of Keays v. Guardian Newspapers Ltd.,  EWHC 1565 (Q.B.D.), Eady J. explained that as motives are generally incapable of proof, a statement on a matter of public interest that suggests a motive will likely be a comment rather than a fact, at paras. 49 and 50:
Anyone who chooses to enter the public arena invites comment and often this will include scrutiny of and comment about motives. Such persons cannot expect as of right to be taken at face value. It is sufficient protection in such circumstances for personal reputation that any adverse comments should be made in good faith, and that the words should be subjected, at the appropriate stage, to the objective test of whether the inferences or deductions could be drawn by an honest person with knowledge of the facts. [Emphasis in original.] In my view, based on these principles, calling someone a liar when discussing a matter of public interest or discourse would more likely be found to be a comment rather than a fact. However, in this case it was open to the trial judge to conclude that the appellant’s characterization of the respondent as a liar was stated as a matter of fact, not comment. She properly instructed herself that the distinction between what is fact and what is comment must be determined from the perspective of a “reasonable reader” (WIC, at para. 27). She was also mindful that context is important to the analysis. She concluded that the appellant’s description of the respondent as a liar was stated as a fact in the context of a report of a hearing, and that it was not recognizable as comment. Nor did the appellant add words such as “in my view” to suggest that the words were intended as comment. I see no basis for this court to interfere with the trial judge’s conclusion.
 In any event, even if the appellant’s characterization of the respondent as a liar was comment, not fact, the defence of fair comment would fail. As the trial judge found, the appellant failed to prove the truth of many of the underlying statements contained in the blog post, such as the reference to “taqiyya” (deception), and the statement that the students said at the meeting that the author of the proposed response was to be of the CIC’s own choice. Also, any potential defence of fair comment was defeated by the finding of malice. The trial judge found that the appellant was motivated by malice. As I will explain, there is no basis for this court to interfere with that finding.
 In Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC),  2 S.C.R. 1130, the Supreme Court described malice in the context of a claim for libel as follows, at para. 145:
Malice is commonly understood, in the popular sense, as spite or ill‑will. However, it also includes, as Dickson J. (as he then was) pointed out, “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created. Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. [Citations omitted.] The trial judge also referred to WIC, where Binnie J. noted that proof of objective honest belief will not negate a finding of malice if the trial judge finds that subjective malice was the dominant motive of a particular comment (para. 53).
In Whitfield v. Whitfield (Ont CA, 2016) the Court of Appeal commented as follows on the defamation defence of qualified privilege:
 The defence of qualified privilege flows from the rationale that the interest sought to be protected by the statement is considered important enough to justify allowing a person to defame another without attracting liability: R.T.C. Engineering Consultants Ltd. v. Ontario (2002), 2002 CanLII 14179 (ON CA), 58 O.R. (3d) 726 (C.A.), at para. 15.. J.K. v. The Korea Times & Hankookilbo Ltd. (The Korea Times Daily)
 Qualified privilege attaches to the occasion when a defamatory statement is made, not to the statement itself: R.T.C. Engineering, at para. 14. A privileged occasion is “an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it”: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC),  2 S.C.R. 1130, at para. 143. Two broad categories of privileged occasions relevant to this appeal include communications intended to protect or further the legitimate interests of the publisher; and communications intended to protect or further the legitimate interests of another: Raymond E. Brown, Defamation Law: A Primer, 2nd ed. (Toronto: Thomson Canada Limited, 2013) at p. 211.
 In assessing whether such an interest or duty exists, the test is whether persons of ordinary intelligence and moral principle, or the great majority of right-minded persons, would have considered it a duty to communicate the information to those to whom it was published: Halls v. Mitchell, 1928 CanLII 1 (SCC),  S.C.R. 125, at pp. 132-33; Raymond E. Brown, The Law of Defamation in Canada, loose-leaf (2014-Rel. 3), 2nd ed. (Toronto: Thomson Reuters Canada Limited, 1999) at pp. 13-5, 13-103.
 In determining whether the defence of qualified privilege is applicable, context matters. Relevant factors include the nature of the statement, the circumstances under which it was made, and by whom and to whom it was made. Reciprocity of interest is essential, and at the very heart of the defence of qualified privilege – the defendant must have some interest in making the statement and those to whom the statement is made must have some interest in receiving it: R.T.C. Engineering, at para. 16.
 The privileged occasion must be created by the exigency of the circumstances and not by the state of mind of the person who communicates the information. That the person communicating the information believes in its truth is irrelevant to whether the occasion is privileged, although the lack of such a belief may constitute malice, causing the privilege to be lost: R.T.C. Engineering, at para. 18; Ahmad v. Ontario Hydro, 1997 CarswellOnt 2783 (C.A.), at para. 5.
 Further, the privilege is to be narrowly applied and does not extend to comments that go beyond the exigency of the occasion or which are communicated to those who have no interest in receiving them: Hill, at paras. 146-147; R.T.C. Engineering, at paras. 15, 18. Simply put, “to maintain privilege a defendant must communicate appropriate information to appropriate people”: R.T.C. Engineering, at para. 18.
In J.K. v. The Korea Times & Hankookilbo Ltd. (The Korea Times Daily) (Ont CA, 2016) the Court of Appeal pronounced usefully on principles applicable to the giving of statutory notice under s.5(1) of the Libel and Slander Act:
 Subsection 5(1) of the Libel and Slander Act, provides:. D'Mello v The Law Society of Upper Canada
Notice of action If s. 5(1) is applicable, compliance is a condition precedent to bringing an action in libel such that failure to provide adequate notice will bar the action: Grossman v. CFTO-T.V. Ltd. et al. (1982), 1982 CanLII 1768 (ON CA), 39 O.R. (2d) 498 (C.A.), at p. 501, leave to appeal refused (1983), 39 O.R. (2d) 498 (note) (S.C.C.); Misir v. Toronto Star Newspapers Ltd. (1997), 1997 CanLII 717 (ON CA), 105 O.A.C. 270 (Ont. C.A.), at p. 273.
No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant.
 A review of the authorities considering s. 5(1) of the Libel and Slander Act reveals the following principles:
i. There is no prescribed form of notice. The notice must identify the “matter” complained of and need not describe the “statement” complained of or specify the exact words: Grossman, at pp. 501-502. In summary, in considering the adequacy of a notice, the court must have regard to the purpose of s. 5(1) and the circumstances of the particular case to determine whether it fairly alerts the publisher to the matter complained of, so that the publisher may take appropriate action.
ii. Notices need not contain the same level of particularity as a statement of claim: Canadian Union of Postal Workers v. Quebecor Media Inc., 2016 ONCA 206 (CanLII), at para. 5; World Sikh Organization of Canada v. CBC/Radio Canada, 2007 CarswellOnt 7649 (S.C.), at para.12.
iii. The adequacy of the notice must be assessed in the light of its purpose: Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405 (CanLII), 366 D.L.R. (4th) 82, at para. 57.
iv. The purpose of the notice is to call the publisher’s attention to the alleged libellous matter, so that the publisher may investigate and, if it deems it appropriate, publish a retraction, correction, or apology. This will permit the publisher to reduce or eliminate any damages: Grossman, at p. 501; see also Janssen-Ortho Inc. v. Amgen Canada Inc. (2005), 2005 CanLII 19660 (ON CA), 256 D.L.R. (4th) 407 (Ont. C.A.), at para. 38; Siddiqui v. Canadian Broadcasting Corp. (2000), 2000 CanLII 16920 (ON CA), 50 O.R. (3d) 607 (C.A.), at para. 16, leave to appeal refused (2001), 271 N.R. 196 (note) (S.C.C.); and Canadian Union of Postal Workers, at para. 6.
v. The appropriate test for the sufficiency of the notice is whether the notice fairly brings home to the publisher the matter complained of to permit the publisher to review the matter and decide how to respond: Grossman, at pp. 504-505; see also Siddiqui, at para. 18; Canadian Union of Postal Workers, at para. 6; Gutowski v. Clayton, 2014 ONCA 921 (CanLII), 124 O.R. (3d) 185, at para. 36; and Shtaif at para. 58.
vi. Courts can assess the adequacy of the notice in the light of all of the surrounding circumstances: Grossman, at p. 505; see e.g. Pringle v. Channel 11 Limited Partnership, 2015 ONSC 2699, at paras. 20-22; Boyer v. Toronto Life Publishing Co. (2000), 2000 CanLII 22369 (ON SC), 48 O.R. (3d) 383 (S.C.), at paras. 17-19.
vii. A plaintiff may also benefit from the notice, because a timely correction, retraction, or apology may constitute a better remedy than damages: Grossman, at p. 501.
viii. There is a preference in the case law to have matters determined on the merits, rather than terminating them on technical grounds: see Grossman, at p. 505; Telegram Printing Co. v. Knott,  55 S.C.R. 631, 3 W.W.R. 335, at p. 342; Sentinel-Review Company Limited v. John R. Robinson, 1928 CanLII 9 (SCC),  S.C.R. 258, at pp. 262-63; Pringle, at paras. 33-34; Boyer, at para. 19.
 In conducting this analysis, the court must be careful to ensure that the notice provision is not abused to shield publishers from legitimate defamation claims. Subsection 5(1) of the Libel and Slander Act was not enacted to reward publishers who are deliberately obtuse. Rather, it is designed to ensure that publishers have sufficient information to permit them to take appropriate steps to mitigate or to eliminate potential damages, if they choose to do so.
In D'Mello v The Law Society of Upper Canada (Ont CA, 2014) the issue was whether a statutory (Law Society Act) tort immunity provision protecting a public body for 'good faith' actions ousted by implication the common law defamation protection of absolute privilege. The Court of Appeal commented as follows on the interaction between statutes and the common law:
 ..... The construction of statutes presumes that legislatures do not intend to interfere with the common law except insofar as the statute clearly and unambiguously does so. The effect of the presumption is to enhance the stability of the law by favouring certainty and fair notice over vague and inadvertent change that could otherwise result. See Sullivan on the Construction of Statutes, 6th ed., (Markham, Ont.: LexisNexis, 2014), at pp. 504, 538-39; and Evans v. Gonder, 2010 ONCA 172 (CanLII), 54 E.T.R. (3d) 193, at para. 40.
 Inasmuch as there is no express indication from the legislature that s. 9 of the Act is meant to be an exhaustive code, or meant to preclude resort to the common law in actions for defamation, the legislation should be read as supplementing the common law in two respects. First, with respect to any action or proceeding for damages, including an action for negligence or abuse of process, s. 9 extends the common law immunity from prosecution for those performing quasi-judicial functions to officials of the Law Society conducting an investigation while acting in good faith. Thus, s. 9 is a rights-granting measure and not, as the appellant contends here, a rights-limiting measure. Insofar as defamation actions are concerned, it does not detract from the common law defence of absolute privilege in respect of an action for defamation in any way.
 Second, s. 9 also supplements the common law in actions where defamation is alleged. The common law defence of absolute privilege applies only if the alleged defamatory statement is related to the investigation. If Mr. McClyment had made a defamatory statement that was unrelated to the investigation, that statement would not be protected by absolute privilege at common law. But it could still potentially be protected by s. 9 if it was done in good faith.