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Torts - Defamation - 'Responsible Communication on a Matter of Public Interest'. 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".
Here the court considered the defamation defence of 'responsible communications', and the related role of 'malice' (as an exception to the defence):d. The Corporate Defendants Satisfied the Defence of Responsible Communication
[68] CUPW submits that the trial judge failed to assess all relevant factors before deciding that the fair communication defence applied. The essential elements of the defence of fair communication are that:i. the publication is on a matter of public interest; and
ii. the publication was responsible, as in the respondents were diligent in trying to address the allegations and sought to verify them.
Torstar, at p. 683; B’nai Birth, at para. 27. [69] Additionally, a finding of malice defeats this defence, as someone “who has acted with malice in publishing defamatory allegations has by definition not acted responsibly”: Torstar, at p. 694.
[70] The responsible communication defence only applies to statements of fact published in the public interest and not to matters of opinion: Torstar, at pp. 659-60; Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, 143 O.R. (3d) 54, at para. 41. In Armstrong, this court emphasized that a publisher's obligation to verify information relates to the underlying facts being reported, not to an individual's opinion or characterization of those facts.
[71] As the trial judge explained, the respondents reached out to CUPW for a comment on “what had been observed at the [d]emonstration”. He concluded that “CUPW had the opportunity to challenge that premise and any factual basis for it, but did not take it.”
[72] CUPW claims the respondents did nothing more than vaguely reference some fact checking before publication. It submits that their investigation fell short of the diligence required to establish the defence of responsible communication: Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, at para. 57, leave to appeal refused, [2021] S.C.C.A. No. 87.
[73] In my view, the corporate respondents made out the defence of responsible communication. They fact-checked that the demonstration had taken place, the CUPW banner was indeed displayed at the demonstration, and the Hamas flag was flown near the CUPW banner and CUPW demonstrators. Moreover, the respondents gave CUPW the opportunity to provide a written statement denying that they supported terrorism or to appear on the program to present CUPW’s side of the story, which CUPW elected not to do.
[74] The trial judge recognized that some of CUPW’s criticisms of the facts presented by the respondents were valid, that both Messrs. Agar and Benlolo “had an angle”, and that Mr. Benlolo “acted with a degree of relish” in covering the demonstration. However, his earlier finding that Messrs. Agar and Benlolo had an honest belief in their comments was sufficient to negate the allegation of malice.
[75] I therefore see no basis to challenge the trial judge’s conclusion. . Hamer v. Jane Doe
In Hamer v. Jane Doe (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a successful SLAPP CJA s.137.1 motion.
Here the court considers the defamation defence of 'responsible communication':[86] To succeed on this defence at trial, the respondents must demonstrate that the subject matter of the impugned statements was of public interest and that the publication of the statements was responsible in the sense that reasonable steps were taken to ensure the overall fairness of the publication and the accuracy of any factual assertions: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R 640, at para. 98; Bondfield, at para. 18; Corus, at para. 28; Canadian Union of Postal Workers, at para. 27. The defence of responsible communication can be defeated by a finding of malice because: “[a] defendant who has acted with malice in publishing defamatory allegations has by definition not acted responsibly”: Torstar, at para. 125. . 2110120 Ontario Inc. v. Buttar
In 2110120 Ontario Inc. v. Buttar (Ont CA, 2023) the Court of Appeal considers the element of 'malice', which can defeat the defamation defences of both 'fair comment' and 'responsible communication on a matter of public interest':(2) The defences of fair comment and responsible communication on a matter of public interest
[72] The other two defences raised by the appellant, for the purpose of this appeal, can be addressed briefly. Again, the question at this stage is only whether there is reason to believe that the defences will not succeed. Although the elements of the defences are distinct, both are defeated by malice: Blair v. Ford, 2021 ONCA 841, at para. 45, Torstar, at para. 125. Malice has both subjective and objective aspects: WIC Radio, at para. 28. It may be established by reckless disregard for, or indifference to, the truth, spite or ill-will, or any indirect or ulterior motive: CUPW, at para. 31, citing Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at p. 1189; Bent, at para. 136. In CUPW, it was sufficient that the evidence might support a finding of malice, based on the presence of an ulterior motive or recklessness about the truth of underlying facts, or based on an inference from the appellants’ conduct: at para. 32.
[73] The appellants submit that there is no evidence of malice in this case. I disagree. While it is premature to determine the question conclusively, even at this preliminary stage, there is evidence to support such a finding based on the presence of an ulterior motive: to intimidate the respondents into paying their claims. There is also evidence of recklessness about the truth of the underlying facts, namely that the orders were under appeal and subject to an ongoing legal process. A key piece of evidence is NSN’s letter of September 25, 2021, that preceded and threatened the October 2 rally, which was addressed to Randeep Sandhu and stated, in part:You have not paid any of these drivers a cent of what they are owed. Your behaviour is outrageous and shameful. No worker should have to spend extra time and money filing legal claims just to receive their hard-earned pay. We demand that you pay these drivers the above amounts by October 1, 2021. If you refuse, members of the NSN will organize public protests to demand all these drivers be paid. We will expose you and Cargo County Group to other truck drivers, to the Panjabi community in Peel and to the broader public across Ontario. We will also speak publicly about you and your company at our October 2 rally and share details of the drivers’ stories with all local media in attendance. [Emphasis in original.] [74] Further, NSN’s representative confirmed that NSN knew that the appellants were involved in a legal process with Cargo County but made no inquiries to determine whether any monies were in fact owed at the time of the impugned conduct. The thrust of her evidence was that, irrespective of the status of the legal process and the true facts, NSN intended to bring pressure to bear on Cargo County using the tactics they had employed in other cases, which included calling its principal a “wage thief”.
[75] Without going into the evidence in depth, there is sufficient evidence that could support a finding of malice based on the inflammatory tone and invocation of criminality present in the impugned remarks, the evidence of an ulterior motive to embarrass, shame and intimidate the respondents into paying the appellants’ claims, and a recklessness or indifference to the truth of what was stated.
[76] Accordingly, there is reason to believe that the defences of fair comment and responsible communication on a matter of public interest will not succeed.
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