Torts - Defamation - Fair Comment. 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. Mondal v. Kirkconnell
 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),  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.
 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.] 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”.
 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.
 Accordingly, there is reason to believe that the defences of fair comment and responsible communication on a matter of public interest will not succeed.
In Mondal v. Kirkconnell (Ont CA, 2023) the Court of Appeal considered appeals from two SLAPP motions, both of which resulted in the dismissal of the actions. In this quote the court summarizes the 'fair comment' defamation defence:
(ii) The nature of fair comment. Mondal v. Kirkconnell
 “Fair comment” is a defence to a defamation claim that is available if the words complained of are expressions of opinion rather than fact. The test for fair comment was articulated by the Supreme Court in WIC Radio Ltd. v. Simpson, 2008 SCC 40,  2 S.C.R. 420, at para. 28. The four-part test is as follows:
1. The comment must be on a matter of public interest; However, even if these four criteria are satisfied, the fair comment defence is defeated if the plaintiff proves that the defendant was subjectively actuated by express malice. Thus, malice is often listed as the fifth part of the fair comment test: WIC Radio, at para. 28; Blair v. Ford, 2021 ONCA 841, 159 O.R. (3d) 415, at para. 45, leave to appeal refused,  S.C.C.A. No. 15.
2. The comment must be based on fact;
3. The comment can include inferences of fact, but must be recognizable as comment; and
4. The comment must satisfy the objective test: could any person honestly express the opinion on the proved facts?
 It is well established that comment includes a “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof”: WIC Radio, at para. 26, quoting Ross v. New Brunswick Teachers’ Assn., 2001 NBCA 62, 201 D.L.R. (4th) 75, at para. 56. The defence of fair comment depends on whether any person could honestly make the comment on the proved facts, and the relevant facts in this matter do not appear to be in dispute. .... All that matters is whether the respondents actually held the view they expressed in their comment. There is no requirement that a comment be considered “fair” in some objective sense: see WIC Radio, at para. 28.
In Mondal v. Kirkconnell (Ont CA, 2023) the Court of Appeal considered appeals from two SLAPP motions, both of which resulted in the dismissal of the actions. In these quotes the court considers the 'malice' exception to the fair comment defamation defence:
 The appellant argues that the motion judge failed to consider whether Evans-Bitten’s expression was motivated by malice, and as a result failed to determine whether there were grounds to believe that she had no valid fair comment defence. Evans-Bitten argues that the motion judge addressed and rejected malice in his reasons.
 Malice includes spite or ill-will but may also be established by showing that a comment was made with an indirect motive or ulterior purpose, dishonestly, or in knowing or reckless disregard for the truth: Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Incorporated, 2018 ONCA 383, 424 D.L.R. (4th) 514, at para. 33; Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC),  2 S.C.R. 1130, at para. 145.
 ... But a fair comment defence can be defeated by malice if a defendant acts “out of revenge in order to obtain satisfaction for some personal resentment or grudge”: Zoutman v. Graham, 2019 ONSC 2834, at para. 101, aff’d 2020 ONCA 767. ...
 The appellant does not allege spite or ill-will, indirect motive, ulterior purpose, or dishonesty. He argues that malice arises from the respondents’ reckless actions in sending the impugned email. The argument for recklessness must be understood having regard to the context in which the comments were made: WIC Radio, at para. 56. It may be that in some contexts, a failure to inquire into the truth of a matter may give rise to a finding of recklessness, and hence malice, but it does not in this case. The respondents were not required to know the truth of the facts – i.e., that the tweets appended to their email were sent by the appellant – when their email message was sent. It is enough that they had an honest belief in the factual foundation for the email. So long as the impugned opinion was based on evidence that existed at the time, the facts supporting a belief may be proven at trial: Peter A. Downard, The Law of Libel in Canada, 5th ed. (Toronto: LexisNexis, 2022), at 11.02.