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Torts - Malice
COMMENT
'Malice' rears it's head in an odd range of legal topics, mostly tort-related (crown and municipal liability, labour [duty of fair representation], defamation [fair comment] and more). In my opinion - as it's used - it is conceptually bankrupt since it's far, far too easy to find malice when the adjudicator wants, and not when they don't.
. Mondal v. Kirkconnell
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:[53] 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.[5] Evans-Bitten argues that the motion judge addressed and rejected malice in his reasons.
[54] 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), [1995] 2 S.C.R. 1130, at para. 145.
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[57] ... 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. ...
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[63] 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.
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