On December 21st, the Ontario Superior Court of Justice ordered a retrial of a successful defamation action in a case that nicely illustrates the heavy burden on a party seeking to sue another for a defamatory publication that is made on an occasion of qualified privilege.
The defendant was a municipal councillor who responded to an e-mail sent by a community activist to council members about a matter of public interest. The defendant’s response stated that the plaintiff was “a destructive mean spirited liar that does not deserve the time of day.”
The appeal court held that the trial judge erred by applying the wrong legal test for qualified privilege. In essence, it explained, the trial judge relied upon the malice inherent in uttering defamatory words to conclude that qualified privilege did not arise instead of recognizing the occasion of privilege and properly assessing whether the plaintiff had proven “express malice.” To illustrate, the appeal court noted that:
- the trial judge held that the defendant made his publication negligently, but did not find that he spoke “dishonestly” or “with knowing disregard for the truth” as required by to rebut the presumption of honest belief; and
- the trial judge held that the defendant made his publication “to re-enforce his own political goals and to discredit his opponents, and in particular, their spokesman [the plaintiff],” which signalled an intent too valid to warrant a finding of malice.
Although the appeal court acknowledged these findings, it held that it could not render a final judgment because the factual findings at trial did not address the proper tests. It ordered a new trial on the question of malice alone.