Barrister and Solicitor
Legal Writing and Research
Torts - Defamation - Fair Comment
Torts - Defamation - Aggravated Damages
Awan v Levant (Ont CA, 2016)
In this internet defamation case 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:
(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).