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Torts - Defamation - Fair Comment (2). 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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