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Malice - Defamation
COMMENT
I have located the treatment of 'malice' as a legal concept in conjunction with that of 'bad faith'. This is not for any generally-recognized relation between the two, but more as a matter of my legal instinct. At present, my sense is that the term 'malice' - certainly as used in the defamation context - entails the element of actively 'intending harm', 'animosity' or even 'hatred'. 'Bad faith' on the other hand is a more general term, meaning not so much animosity for it's own sake, but indifference as to whether harm is incurred - as long as one's own interests are served. That is, 'malice' entails pursuing harm for it's own sake, and 'bad faith' entails indifference as to harm resulting, ie. no intention to harm unless and until it serves one's interests.
CASE DICTA
. Konstan v. Berkovits
In Konstan v. Berkovits (Ont CA, 2024) the Ontario Court of Appeal comments on 'malice' as it can bear on aggravated and punitive damages, here in the defamation context:[115] Aggravated and punitive damages may be awarded for defamation if the defendant’s conduct has been high-handed and oppressive: Hill, at paras. 190, 196. Aggravated damages are compensatory: Plester v. Wawanesa Mutual Insurance Co. (2006), 2006 CanLII 17918 (ON CA), 269 D.L.R. (4th) 624, 213 O.A.C. 241 (C.A.), at para. 62, leave to appeal refused, [2006] S.C.C.A. No. 315; McIntyre v. Grigg (2006), 2006 CanLII 37326 (ON CA), 83 O.R. (3d) 161, at para. 50. By contrast, punitive damages are designed to signal the court’s disassociation with the defendant’s conduct: Whiten v. Pilot Insurance, 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 94. For a court to award aggravated damages, a plaintiff must prove that the defendant had “actual malice” in making the defamatory remarks: Hill, at para. 190.
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[118] Citing Rogacki v. Belz, (2004) 2004 CanLII 21439 (ON CA), 243 D.L.R. (4th) 585, at para. 44, Jack argues that malice means “acting out of spite or ill will”. He therefore argues that the trial judge’s finding that Harold acted out of ill will necessarily means that actual malice was proved.
[119] Rogacki does not stand for the proposition that every act of ill will attracts an exceptional award of aggravated or punitive damages. The trial judge’s reasons show that he understood the principles underlying the award of aggravated or punitive damages. He found that actual malice had not been proved because Harold did not know and could not have known that Oziel fabricated the text messages. Although Harold took pleasure in bringing the fake messages to the attention of the local media, the trial judge effectively found that his act did not rise to the level of high handed and outrageous conduct necessary to attract aggravated damages. This finding was also sufficient to dispose of the claim for punitive damages. . 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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