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Torts - Defamation - Fair Comment (2). Canadian Union of Postal Workers v. Quebecor Media Inc.
In Canadian Union of Postal Workers v. Quebecor Media Inc. (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against the dismissal of an "action against the respondents for defamation stemming from a broadcast aired on July 23, 2014, and a column that appeared in print and online on July 28, 2014", these regarding suggestions "that CUPW supported terrorism, and was associated with Hamas".
The court sets out the defamation defence of 'fair comment', and then walks through the evidence and issues with respect to each of them:[32] The respondents bear the onus of establishing the defences available to them including the fair comment defence. To succeed, they must establish that the comments are:i. on a matter of public interest;
ii. words a reasonable person would recognize as comments or opinion based on facts;
iii. the underlying facts must be disclosed or otherwise known; and
iv. be opinions a reasonable person could honestly hold on the proven facts. WIC Radio, at para. 28.
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ii. A reasonable person would recognize the words as comments or opinion based on facts, not statements of fact
[34] The parties also agree that the trial judge correctly articulated the legal test for distinguishing comment from fact: namely, whether a reasonable person would recognize the words used as comment or opinion based on facts, rather than statements of fact: WIC Radio, at paras. 27-28.
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a. The trial judge was not required to analyze each remark separately
[36] The trial judge did not analyze each remark separately and was not required to do so.
[37] He followed the process set out in the Supreme Court’s decision in WIC Radio, at para. 26, that is, rather than review each remark separately, he sought “to examine whether the words used may, in pith and substance, be properly construed as comment” (emphasis added).
[38] A comment includes “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof”: WIC Radio, at para. 26, referring to Ross v. Beutel, 2001 NBCA 62, 201 D.L.R. (4th) 75, at para. 56.
[39] In WIC, the defendant’s overarching allegation was that the plaintiff “would condone violence toward gay people”. This was found to be comment not fact. The court emphasized that the defendant’s statements “would have been understood” as opinions by listeners, given the defendant’s role as a radio personality known for expressing his views on a wide range of subjects: WIC Radio, at paras. 27, 31. Similarly, in Hansman, at para. 117, the court held that the defence of fair comment should not be analyzed “at a troubling level of technicality” and consideration should be given to the context in which the remarks were made.
[40] “[T]he notion of ‘comment’ is generously interpreted”, the analysis is “highly contextual” and there is a “low threshold” for what constitutes comment: Solmar Inc. v. Hall, 2026 ONCA 367, quoting Hansman v. Neufeld, 2023 SCC 14, [2023] 1 S.C.R. 519, at para. 109. This approach recognizes that “[p]ublic controversy can be a rough trade, and the law needs to accommodate its requirements”: WIC Radio, at paras. 15, 30.
[41] In this case, after outlining each of the remarks in issue, the trial judge concluded that in essence, the remarks were that “CUPW and its members were terrorist sympathizers, and that CUPW supports Hamas.”
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[43] The trial judge concluded that Messrs. Agar and Benlolo expressed their “statement of opinion about the facts”: Ross, at para. 58; WIC Radio, at para. 27. Their statements of opinion about the facts, were that CUPW supported Hamas.
[44] I see no error in the trial judge’s decision to assess whether the remarks were comments not statements of fact by assessing the pith and substance of the remarks and reviewing the underlying evidentiary context.
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b. The trial judge did not focus only on Messrs. Agar and Benlolo’s evidence
[45] Nor do I see any error in the trial judge’s decision to consider subjective evidence from Messrs. Agar and Benlolo and their editor.
[46] The trial judge’s analysis was not based solely on “subjective evidence” from Messrs. Agar and Benlolo and their editor. He also relied on the evidence of CUPW’s own witness, Mr. Denley who, when asked about the controversy at the 2008 convention, replied that whether CUPW supported terrorism was a matter of “democratically expressed opinion” that a union member could hold. Further, as noted above, the trial judge considered CUPW’s refusal to answer questions regarding its alleged support for Hamas and how this refusal may have “left the door open” for the objective observer to draw the inferences drawn by Messrs. Agar and Benlolo.
[47] The trial judge considered what it meant to “support terrorism”, reviewed the evidence, and concluded that the respondents formed an opinion that CUPW supported terrorism based upon the above facts. This, along with other evidence set out above, led him to conclude that a reasonable person would recognize the words used as comment or opinion based on facts, rather than statements of fact.
[48] The trial judge’s finding that the impugned statements constitute expressions of opinion, not statements of fact, is entitled to deference. I would dismiss this ground of appeal.
iii. The underlying facts must be disclosed or otherwise known
[49] The facts underlying an opinion must either be set out, or commonly known, to enable the audience to evaluate the opinion and determine whether it is fair: Neufeld v. Bondar, 2025 BCCA 51, at paras. 63-67; WIC Radio, at para. 34; Hansman, at para. 99.
[50] However, while “[t]he expression must relate to the facts on which it is based … the comment need not be a reasonable or proportionate response”: Hansman, at para. 100. What is important is that the facts be sufficiently stated or otherwise known that listeners or readers can make up their own minds on the merits of what is said: WIC Radio, at para. 31; Hansman, at para. 102; Mainstream Canada v. Staniford, 2013 BCCA 341, 364 D.L.R. (4th) 252, at paras. 36-38, leave to appeal refused, [2013] S.C.C.A. No. 372.
[51] CUPW submits that the trial judge erred by failing to apply the requirement that the facts underlying the comment or opinion be disclosed or otherwise known to the audience. CUPW claims that if he had, it would have been apparent that the remarks lack sufficient factual foundation to qualify as comment.
[52] I do not agree with this submission. The trial judge recognized that, “So long as facts are sufficiently stated or otherwise known, the defence of fair comment will avail.” Thereafter, contrary to CUPW’s submission, the trial judge excerpted sections of Mr. Agar’s column which included facts forming the basis of his opinion, including the fact that the CUPW statement provided by Ms. Ahmad did not condemn Hamas, CUPW’s policy on Palestine, and the debates at the April 2008 CUPW convention.
[53] The trial judge also noted that other relevant facts would have been known to the audience given “CUPW’s longstanding and very public history of activism in relation to Gaza”. In particular, “press releases, verbatim transcript of proceedings, attendance at the Montreal conference on boycott, divestment and sanctions, and attendance at the World Social Forum in Brazil.”
[54] The trial judge concluded that there was a sufficient “factual substratum for the opinions expressed by the defendants” that CUPW supported Hamas while noting that the “[c]omment did not have to be reasonable”.
[55] The trial judge correctly recognized that the fair comment defence extends even to opinions that are “farfetched or extreme”, provided they are grounded in stated or otherwise known facts. He articulated those underlying facts and concluded that, “to use the terminology adopted in WIC Radio, the necessary factual substratum for the opinions expressed by the defendants has been adequately demonstrated.”
[56] I would therefore dismiss this ground of appeal.
iv. Seen objectively, a person could honestly express the opinion on the proven facts
[57] CUPW argues that the trial judge erred by focusing on whether the respondents subjectively believed the opinions they expressed, rather than whether those opinions were capable of being honestly held by an objective person.
[58] A defendant needs only demonstrate that a person could honestly hold that opinion on the proven facts: WIC Radio, at para. 40; Canadian Union of Postal Workers v. B’nai Birth, 2021 ONCA 529, 460 D.L.R. (4th) 245, at paras. 5-9.
[59] Evidence that the respondents genuinely and honestly believed the opinion they expressed is relevant as it may support the conclusion that the objective person could believe the opinion expressed: WIC Radio, at paras. 60-62.
[60] The trial judge found as a fact that Messrs. Agar and Benlolo “have a history of being critical of CUPW’s activism, including aspects of its policies and its activities in support of Palestine. They contrast CUPW’s clear and oft-repeated criticisms of Israel with its lack of direct criticism of Hamas.”
[61] He noted Mr. Benlolo’s unchallenged evidence that the statements he made during the broadcast were his honestly held opinions (Mr. Benlolo was not cross-examined on this point). He also noted that CUPW’s own witness, when asked about the controversy at the 2008 CUPW convention, replied that whether CUPW supported terrorism was a matter of “democratically expressed opinion”.
[62] Finally, he noted that as long as a person could honestly express the opinion on the proven facts, the comments need not be objectively fair as, “[w]e live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones”: WIC Radio, at paras. 4, 49-51.
[63] I see no error in the trial judge’s reasoning or his conclusion that a person could honestly believe that CUPW supported terrorism based on the information available to Messrs. Agar and Benlolo, including CUPW’s decision not to respond to the question of whether it supported Hamas. . Browne v. Picart
In Browne v. Picart (Ont Div Ct, 2026) the Ontario Divisional Court considered the fair comment defence to defamation:[26] The test for the fair comment defence was set out in WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 28, 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 recognisable as comment;
d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and;
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. . Solmar Inc. v. Hall [malice exception]
In Solmar Inc. v. Hall (Ont CA, 2026) the Ontario Court of Appeal considered (and partially-allowed) a defendant's SLAPP-defamation appeal, here brought against a motion order that "dismissed the anti-SLAPP motion and allowed the defamation action to proceed".
Here the court considers the 'malice' exception to the defamation 'fair comment' defence:(b) Malice
[80] Mr. Hall also challenges the motion judge’s finding of malice, arguing that it is tainted by factual errors. According to Mr. Hall, there is no evidence in the record to support a finding that Mr. Hall acted with malice, which requires “wrongful intent, ill-will, malevolence, evil purpose”: United Soils v. Mohammed, 2017 ONSC 4450, 11 C.E.L.R. (4th) 216, at paras. 51-52, aff’d 2019 ONCA 128, 23 C.E.L.R. (4th) 11, leave to appeal refused, [2019] S.C.C.A. No. 121.
[81] Since the motion judge’s findings on malice seep into his balancing analysis and decision on costs, I will address the malice issue even though I have already concluded that there are grounds to believe there is no valid defence.
[82] Malice in law is a dominant and improper motive on the part of the defendant. As explained in Hansman, at para. 115, it can take a number of different forms:[115] A showing of malice defeats a valid fair comment defence. This can be done by demonstrating the defendant made the statement knowing it was false, with reckless indifference as to its truth, to injure the plaintiff out of spite or animosity, or for some other improper purpose. [Citations omitted.] [83] Evidence of malice may be extrinsic (evidence other than the statements themselves) or intrinsic (found within the defamatory expressions themselves): Hansman, at para. 115.
[84] Here, the motion judge correctly stated the law. He provided several bases for concluding that there were grounds to believe that the fair comment defence would be defeated by malice: (1) a reckless disregard for the truth, (2) intentional dishonesty, and (3) an “ulterior motive” and desire to injure Mr. Marotta and Solmar.
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Ulterior Motive and Desire to Harm
[100] Malice may be established by showing that the defendant was primarily motivated by an indirect motive or ulterior purpose not connected with the purpose for which the defence exists: WIC, at para. 101. The very essence of malice is that, in making the statement, the defendant’s dominant motive was to injure the plaintiff: Halsbury’s Laws of Canada, “Defamation”, (Toronto: LexisNexis Canada, 2023 Reissue), at p. 297.
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