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Torts - Defamation - Malice. Teneycke v. McVety
In Teneycke v. McVety (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, this from a dismissed defendents' anti-SLAPP CJA s.137.1(3,4) motion.
Here the court considers the motion judge's analysis of 'malice', which - if proven - can counter the defamation defences of 'fair comment' and 'responsible communication on a matter of public interest':Issue 3: Did the motion judge err in making a finding of malice?
[60] The appellants submit that the motion judge erred in finding that malice may defeat their defences of fair comment or responsible communication. Specifically, they argue that the motion judge failed to consider whether malice was the “dominant” purpose for their statements. I do not see this as an error.
[61] As a starting point, it is important to emphasize that, absent a legal error, this court owes deference to the motion judge’s finding that there are grounds to believe that the statements may have been actuated by malice such as to defeat the defences of fair comment or responsible communication: 40 Days, at para. 51.
[62] Citing the Supreme Court’s decision in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 145 and this court’s decision in B’nai Brith, at para. 31, the motion judge correctly stated that “malice may be established by ‘reckless disregard for, or indifference to, the truth, spite or ill-will, or any indirect or ulterior motive’”. Applying this test, the motion judge found that Mr. McVety’s repeated statements regarding Mr. Teneycke’s alleged conflict of interest in relation to pharmaceutical companies and vaccine passports in combination with his reference to Mr. Teneycke playing a role in the College not being accredited as a university and being anti-Christian supported a possible finding of malice. In other words, it was the odd and repeated combination of these unrelated issues that supported a finding that Mr. McVety had an ulterior motive in persistently accusing Mr. Teneycke of being in a conflict of interest and acting for his own financial benefit. The motion judge was satisfied the evidence could reasonably support finding that Mr. McVety perceived Mr. Teneycke as having been involved in the decision not to accredit the College as a university, and because of this, Mr. McVety set out to damage Mr. Teneycke’s reputation. I see no palpable and overriding error in the motion judge’s reasoning on this issue.
[63] The appellants submit that the motion judge failed to find that Mr. McVety’s dominant purpose in making the statements was to harm the appellants. They submit that this is a requirement when considering whether the defence of fair comment can be defeated by a finding of malice.
[64] I disagree with the appellants’ reading of the motion judge’s reasons on this point, and with their position on the applicable principle. As the motion judge correctly recognized, there are different paths to proving malice on the part of defendants in a claim for defamation, including showing that they acted with reckless disregard for, or indifference to, the truth, by spite or ill-will, or for any indirect or ulterior motive. A finding that malice was the dominant purpose for making the impugned statements is only required to defeat the defence of fair comment if the defendant puts in play their subjective honest belief in the truth of the statements to establish the defence. Where the defendant relies on objective honest belief to make out fair comment, this leaves open the possibility that the defendant made the impugned statement knowing it was false, or with reckless indifference whether it was true or false. Either of these would be sufficient to establish malice without having to show this was the defendant’s dominant purpose: see Smith v. Cross, 2009 BCCA 529, 314 D.L.R. (4th) 457, at paras. 34, 40; Rooney v. Galloway, 2024 BCCA 8, at para. 354, leave to appeal refused, [2024] S.C.C.A. No. 83 (A.B.), and [2024] S.C.C.A. No. 84 (Rooney).
[65] That being said, in this case, while the motion judge may not have expressly stated that Mr. McVety’s dominant purpose was to harm the respondents, it is certainly implicit in his reasoning on the issue of malice that this was his conclusion based on the record. In particular, while he appeared to acknowledge that Mr. McVety’s statements about Mr. Teneycke being in a conflict of interest on their own would not ground a finding of malice, the motion judge inferred malice from the combination of topics and the repeated statements made by Mr. McVety. His reasoning on this issue, which is worth repeating in part, certainly suggests that he concluded there was reason to believe that Mr. McVety’s dominant purpose in raising the issue of Mr. Teneycke’s alleged conflict of interest was ill will toward Mr. Teneycke because of the College’s failed accreditation:McVety’s vehemence on the conflict point makes a perverse form of “sense” once there is a suggestion in the record that Teneycke is identified as the supposed “real reason” for the College’s failed application. That is, malice would provide the motivational explanation. [66] In sum, I see no error in the motion judge’s analysis on the issue of malice. . Teneycke v. McVety
In Teneycke v. McVety (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, this from a dismissed defendents' anti-SLAPP CJA s.137.1(3,4) motion.
Here the court considers evidence of malice in defamation, which can extend beyond the alleged defamatory statements to pre- and post-defamation conduct as well:[52] Finally, while these additional occasions were not explicitly pleaded, the motion judge was entitled to rely on them as indicia of malice. Proof of malice is not limited to the impugned statements; conduct pre- and post-dating the publication of defamatory statements can serve as evidence that the defendant was motivated by malice at the time of publication: Hill v. Church of Scientology of Toronto (1994), 1994 CanLII 10572 (ON CA), 18 O.R. (3d) 385 (C.A.), at para. 179, aff’d 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130; Rogacki v. Belz (2004), 2004 CanLII 21439 (ON CA), 190 O.A.C. 94 (C.A.), at para 48.
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