Every day, Canadians publish opinions about businesses, professionals, politicians, institutions, and each other. Google reviews of contractors. Facebook posts about a local council decision. Tweets about a company’s conduct. Blog posts criticizing a public figure. Comments on a news article. Reviews of a restaurant, a doctor, a landlord, or a course.
Most of these opinions are harshly worded, and many of them are unflattering enough to be defamatory in the technical legal sense: they lower the subject’s reputation in the eyes of reasonable people. Yet the vast majority of them are perfectly lawful, because Canadian law contains a powerful defence designed to protect exactly this kind of speech. It is called fair comment, and it exists because a democracy cannot function if people are afraid to say what they think about matters that concern the public.
The defence is powerful, but it is not automatic. It protects opinions, not assertions of fact. It requires that the underlying facts be accurate and be disclosed to the reader. It applies only to matters of public interest. And it can be defeated entirely if the person making the comment was motivated by spite rather than genuine belief. The difference between a protected comment and an actionable libel is often a matter of how the statement was framed, not what the writer meant.
This article explains how the fair comment defence works in Canada and, more practically, how to write and speak publicly in a way that stays within its protection. It sets out the four elements of the defence, the conduct that destroys it, and a checklist for anyone who is about to publish criticism of a person or business.
It is written for anyone who comments publicly, including reviewers, bloggers, journalists, community advocates, and business people who criticize competitors or suppliers, as well as those who have been on the receiving end of harsh commentary and want to understand their options. Our defamation practice regularly handles claims and defences involving fair comment in Ontario.
Why the Defence Exists
The rationale for fair comment is democratic. In Cherneskey v. Armadale Publishers Ltd., Dickson J. explained that free and general discussion of public matters is fundamental to a democratic society, and that citizens cannot be expected to exercise wise and informed judgment unless they are exposed to the widest variety of ideas from diverse and antagonistic sources. Lord Denning put it more bluntly in Slim v. Daily Telegraph Ltd., describing the right of fair comment as one of the essential elements of freedom of speech that must be maintained intact.
How Generously Courts Apply It
The practical importance of this rationale is that Canadian courts do not interpret the defence grudgingly. The Supreme Court of Canada has confirmed that the elements of the defence are consistent with the values underlying the Canadian Charter of Rights and Freedoms, and the scope of protected comment is deliberately wide. Opinions do not have to be reasonable, moderate, proportionate, or correct in order to be protected. In a free country, people have as much right to express outrageous and ridiculous opinions as moderate ones. An opinion can be exaggerated, obstinate, or prejudiced and still be fully protected.
But the defence is not a licence to say anything. As the Supreme Court noted in WIC Radio Ltd. v. Simpson, the test is intended to provide some boundary to the extent to which private reputations can be trashed in public discourse. Understanding where that boundary sits is the difference between confident commentary and a statement of claim.
The Four Elements of Fair Comment
A defendant who wants to rely on fair comment must establish four elements. The statement must be (1) on a matter of public interest, (2) based on fact, (3) recognizable as comment rather than a statement of fact, and (4) a comment that any person could honestly express on the proven facts. If all four are established, the defence still fails if the plaintiff proves that the defendant was motivated by malice. The Ontario Court of Appeal restated this framework in St. Lewis v. Rancourt.
It is worth emphasizing at the outset that the defence is not made out simply because the words relate to a matter of public interest or to the plaintiff’s conduct in a public capacity. As the Ontario Court of Appeal held in Littleton v. Hamilton, it has never been the law that public interest alone provides a defence to defamation. All four elements must be satisfied.
Each element is a separate hurdle, and each has practical implications for how you should write.
Element One: A Matter of Public Interest
Fair comment protects only comment on matters of public interest. The good news for commentators is that the courts have been clear that public interest is not to be confined within narrow limits. As Lord Denning explained in London Artists Ltd. v. Littler, whenever a matter is such as to affect people at large, so that they may legitimately be interested in or concerned at what is going on, it is a matter of public interest on which everyone is entitled to make fair comment.
The Supreme Court of Canada developed the concept further in Grant v. Torstar Corp., holding that the subject matter must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached.
In practice, this covers a very wide field: the conduct of governments and public officials, the operation of public institutions, the quality of goods and services offered to the public, the conduct of businesses in the marketplace, matters of public health and safety, artistic and literary works released to the public, the conduct of people who put themselves forward for public office or seek public attention, and controversies of general community concern.
The limit is genuinely private matters. Comment about a person’s purely private life is not protected merely because the person happens to be publicly known. The British Columbia Court of Appeal in Vander Zalm v. Times Publishers Ltd. held that fair comment cannot be raised to defend an intrusion upon the private life of a public figure, no matter how interesting that intrusion may be to the public.
Two further cases mark the boundary. In Russell v. Pawley, the defence failed where a provincial Premier attacked the conduct in the private life of a citizen who had engaged in public political debate. In McLoughlin v. Kutasy, the defence could not be raised to protect defamatory statements in a doctor’s report to a government office about a person’s suitability for employment, because that was not a matter of public interest at all.
That said, someone who seeks public notoriety or invites public attention makes at least certain aspects of their life open to public criticism. A person who runs for public office may put their integrity into the forum of public debate, because it is relevant to their fitness for office.
There is also a practical dimension for the most common modern context, which is reviews of businesses. Commentary on the quality of goods or services offered to the public is generally a matter of public interest. An artist who publishes a work submits it to the judgment of the public, and anyone may comment upon it. The same logic applies to a restaurant that serves customers, a contractor who offers services, or a professional in public practice. But comment on that same person’s marriage, health, or family life is not protected.
Element Two: Based on Fact
This is where most fair comment defences fail, and where the most practical guidance lies. The element has two distinct requirements: the facts underlying the comment must be true (or privileged), and they must be sufficiently disclosed to the audience.
The Facts Must Be Accurate
Fair comment protects opinion built on a foundation of truth. If the foundation is false, the defence collapses. A commentator cannot invent facts, adopt as true the untrue statements of others, rely on rumours, or build a comment on misleading half-truths.
A person who wishes to rely on fair comment is obliged to take reasonable care to ensure the facts on which the comment is based are not misrepresented. In Spiller v. Joseph, the United Kingdom Supreme Court held that a defendant cannot base a comment on a quote from a document where there is a significant difference between the quote and the document’s actual content.
Two Canadian examples illustrate the point. In Lawson v. Chabot, a provincial Minister said a union president had stated that union members would not obey an order of a provincial commission, then questioned whether he was fit to be a senator. The fair comment defence failed because the plaintiff had never made the statement attributed to him.
In Russell v. Pawley, a politician’s comment rested on the assertion that a citizen was involved with a political group while “drawing the taxpayers’ money on sick leave.” The defence failed because the citizen was in fact receiving a disability pension from a private insurer, not the government.
Importantly, what must be proven true are the essential facts that go to the pith and substance of the matter, not every peripheral detail. If the essential facts are true, it is not necessary to prove the truth of every fact relied on. But omitting facts that are important or material to the factual basis for the comment can defeat the defence, and where many of the facts relied on turn out to be false, a court may take that into account in deciding whether the comment was honestly made.
In Ontario, this burden is modified by statute. Section 23 of the Libel and Slander Act provides that the defence will prevail if expressions of opinion are fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved, even if the truth of every alleged fact is not established. Nova Scotia’s Defamation Act has a similar provision.
This is a meaningful protection, but it should not be relied on as a substitute for accuracy. The facts still have to be alleged or referred to in the words complained of, and the essential factual foundation still needs to hold up.
The Facts Must Be Sufficiently Disclosed
The second requirement is that the comment must indicate the facts it is based on. If the factual basis for a comment is not indicated, the defence is unavailable. The reason is that the purpose of the defence is to promote productive public debate, and readers can only evaluate an opinion if they know what it rests on.
The law does allow latitude for the realities of public discourse. It is not necessary to state every fact expressly. It is sufficient if the words explicitly or implicitly indicate, at least in general terms, the facts being commented on, or if the facts are already before the public or well known to the audience.
A reference to a published book or musical work is enough, because the public has the opportunity to examine the subject matter for themselves. In Kemsley v. Foot, a statement that certain publications were “lower than Kemsley” was held to contain an adequate factual reference, because the audience would have understood that “Kemsley” referred to newspapers published by Kemsley and would either have been aware of, or readily capable of discovering, the general quality of those newspapers.
In WIC Radio Ltd. v. Simpson, the Supreme Court of Canada held that a properly disclosed or sufficiently indicated factual foundation, or one so notorious as to be already understood by the audience, is an important objective limit on the defence.
The failure mode is illustrated by Mainstream Canada v. Staniford, where the British Columbia Court of Appeal found the factual basis too obscure. The defendant’s comments about farmed salmon reflected a zealous and highly contested reading of particular portions of particular scientific studies, and his publications either made no reference to where those studies could be found or buried the references among hundreds of footnotes linked from his website. The court accepted that a clear reference to the studies would have been sufficient, but held that he had not met that standard.
Element Three: Comment, Not Fact
The defence protects comment. It does not protect statements of fact. If a court concludes that a statement is one of fact rather than comment, the fair comment defence is simply unavailable (though the defence of truth may still be).
The essential distinction is that a comment contains an element of subjectivity incapable of proof, while a statement of fact is capable of being determined to be accurate or inaccurate. A comment is a matter of opinion and so incapable of definite proof. A statement of fact is capable of objective proof and has a meaning sufficiently definite to convey a fact.
Crucially, the test is not what the writer intended. If words are to be accepted as comment, they must be recognizable as comment by the ordinary, reasonable reader. Courts consider the immediate impression the publication would make on a reasonable reader, rather than performing the kind of close interpretive analysis used for statutes or contracts.
It has also been held that whether words are comment or fact is determined within the four corners of the publication itself. In Telnikoff v. Matusevitch, the House of Lords held that a newspaper article to which the defendant had written a defamatory reply could not be considered in determining whether a statement in the reply was fact or comment.
Comment most obviously includes an opinion drawn from facts. A statement that a public official is “disgraceful” or “dishonourable,” made on the basis of facts that the official accepted money in return for favours, is a statement of opinion. A statement that a school trustee has “poorly represented” his constituents, on the basis of facts that he attended less than half the meetings, is comment.
Deductions, inferences, conclusions, criticisms, remarks, and observations drawn from stated facts can all be comment, provided it is apparent to the reasonable reader that they are inferences from facts otherwise stated or referred to and they retain a subjective character incapable of definite proof. An inference that a person was biased, being a debatable assertion about a state of mind, may be comment. So may an unverifiable inference about someone’s motivation.
The Dishonesty Trap
The most dangerous category for commentators is dishonesty. A statement that a person has acted dishonestly may well be treated as a statement of fact, not comment. In Wasserman v. Freilich, Eady J. observed that an allegation of dishonesty, fraud, or attempted fraud will usually fall fairly and squarely on the side of fact rather than opinion.
This means that writing “this contractor is a fraud” or “this company stole from me” is far riskier than writing “based on what happened to me, I would not trust this contractor with a deposit.” The first reads as a factual allegation that must be proven true. The second reads as opinion grounded in disclosed experience.
Why Context Matters
Context matters a great deal. A statement may be construed as comment if it appears in an editorial context where loose, figurative, or hyperbolic language is common, in political debate, in a media campaign, or in general public discourse. A statement that looks factual in isolation may be understood as comment in a publication obviously devoted to satire, or in a cartoon expected to be tongue in cheek. And where a statement is nothing more than an insult in its context, it is neither fact nor comment but mere vulgar abuse, which is not actionable at all.
Context also shapes how apparently factual-sounding claims are read in contested fields. In British Chiropractic Association v. Singh, the English Court of Appeal held that, in a heavily and legitimately contested field of study, a statement that there was “not a jot of evidence” to support a position was a value judgment about the quality of the available evidence rather than a verifiable assertion of fact. For anyone writing about scientific, medical, or professional controversies, this is an important point: characterizing the state of the evidence in a contested field is more likely to be treated as opinion than as a factual claim requiring proof.
Element Four: A Comment Any Person Could Honestly Make
The fourth element is that the comment must be “fair,” which is a legal term of art rather than a requirement of reasonableness. In WIC Radio Ltd. v. Simpson, the Supreme Court of Canada confirmed that fairness is judged by an objective honesty standard: could any person honestly express that opinion on the proven facts?
This standard is generous to commentators. The comment need not be correct or approximately correct. It need not be reasonable or proportional. It may be exaggerated, obstinate, or prejudiced.
The classic articulation comes from Diplock J.’s jury charge in Silkin v. Beaverbrook Newspapers Ltd., which has been cited in Canadian courts ever since for the proposition that the question is not whether the opinion is one the judge or jury agrees with, but whether it is one an honest person could hold. A personal attack, or an imputation of bad faith or dishonourable motives, can be fair comment if a person, however extreme their views, might honestly make that comment on the accurate facts.
In the field of arts criticism, the question is not whether the criticism shows a correct appreciation of the work. Extravagant or prejudiced criticism is protected so long as it is the honest opinion of the writer and is not a cloak for malicious or irrelevant allegations, or allegations with no basis in fact. The standard is so focused on honesty rather than accuracy that the United Kingdom Supreme Court has held the defence should be renamed “honest comment.”
The limit is that the objective honesty test does more work than simply asking whether the comment relates to the facts. The majority in WIC Radio held that the test requires an assessment, on an objective basis, of whether the statement was made with integrity, and that the defamatory statement must not be a cloak for mere invective. This is a real, if modest, boundary. A comment that no honest person could draw from the stated facts, and that functions only as abuse dressed up as opinion, falls outside the defence.
Malice: The Defence Killer
Even where all four elements are established, the plaintiff can defeat the defence by proving malice. The onus is on the plaintiff, and the standard is demanding, but the consequences are absolute: a finding of malice destroys the defence entirely.
What Counts as Malice
Malice in this context is the same concept that defeats qualified privilege. It can be established by showing that the comment was made out of personal spite or an intention to injure the plaintiff, that it was made dishonestly or with reckless disregard for the truth, or that it was made in pursuit of an indirect motive or ulterior purpose. Where the defendant is the maker of the comment, proof that the comment was not the honest expression of the writer’s real opinion may itself be evidence of malice.
Malice Must Be the Dominant Motive
The plaintiff must show that the malicious purpose was the dominant motive for the comment. If malice was not dominant, the defence remains available even if the defendant knew the comment would injure the plaintiff’s feelings or assist the plaintiff’s adversaries. But if malice was the dominant motive, the defence fails even if someone acting without malice might have made an equally defamatory comment, and even if the defendant honestly believed the comment to be true.
The practical implication is significant. A commentator engaged in a personal feud with the subject of the comment, who publishes criticism as part of a campaign of harassment, or who is pursuing a collateral objective such as extracting a settlement or damaging a competitor, faces a serious risk that a court will find malice and strip away the protection that would otherwise apply. Documented history matters: prior threats, hostile communications, evidence of an ongoing vendetta, and inconsistencies between what the commentator said publicly and what they said privately are all fertile ground for a malice finding.
A Practical Checklist for Writing Protected Comment
Bringing the elements together, here is how to write publicly in a way that maximizes the protection of the fair comment defence.
Verify Your Facts Before You Publish
This is the single most important step. Fair comment protects opinion built on truth. Check what you are asserting. Keep the documents, emails, invoices, photos, receipts, and records that substantiate the facts you rely on. If you cannot prove a fact, do not assert it, and do not build your opinion on it.
State the Facts, Then State Your Opinion
The clearest and safest structure is to set out what happened, and then say what you think about it. “I paid a $5,000 deposit on March 3, the work was scheduled to start April 1, and as of June 15 no work had begun and my calls were not returned. In my opinion, this company is not reliable and I would not recommend them.” The facts are disclosed, the reader can evaluate them, and the opinion is plainly presented as opinion. Compare that to a bare “this company is a scam,” which discloses no facts and reads as a factual assertion.
Use Language That Signals Opinion
Phrases such as “in my view,” “I think,” “my experience was,” “it seems to me,” and “I would not recommend” help mark a statement as comment rather than fact. These phrases are not magic words and will not convert a factual allegation into an opinion, but they contribute to the impression a reasonable reader forms about the nature of the statement.
Avoid Allegations of Crime, Fraud, and Dishonesty
Calling someone a thief, a fraudster, a liar, or a criminal is likely to be treated as a statement of fact, which means you will have to prove it is true. If your genuine view is that a person acted dishonestly, the safer approach is to state the underlying facts precisely and let the reader draw the conclusion, or to frame the concern as an opinion clearly grounded in those disclosed facts.
Link to Your Sources
In an online context, this is the modern equivalent of disclosing the factual basis. If your opinion rests on a report, a study, a court decision, a news article, or a public statement, link directly to it. The Mainstream Canada v. Staniford case shows the risk of burying the factual basis where the audience cannot readily find it. A clear, prominent link is both good practice and legally protective.
Stay on Matters of Public Interest
Comment on the person’s conduct in the public sphere: their business, their professional services, their public role, their published work, their public statements. Do not stray into their marriage, their health, their family, or other purely private matters, however tempting.
Do Not Comment While You Are Angry
This is practical advice with legal consequences. Comments written in the heat of a personal dispute are more likely to contain factual errors, more likely to include gratuitous personal attacks that read as invective rather than opinion, and more likely to generate the evidentiary record from which a court infers malice. Waiting a day before posting is genuinely protective.
Be Careful About Repeating What Others Have Said
Repeating a defamatory statement made by someone else is itself a publication, and you cannot ground a fair comment defence on facts you adopted from others that turn out to be untrue. Rumour is not a foundation for comment. If you cannot verify it, do not repeat it.
Do Not Use Commentary as Leverage
Publishing criticism to extract a refund, a settlement, or a business concession creates a serious risk of a malice finding. Take up commercial disputes through commercial and legal channels; keep public commentary separate and genuinely expressive.
Correct Errors Promptly
If you discover that a fact you relied on was wrong, correct it publicly and promptly. Doing so mitigates damages, undermines any inference of reckless disregard for the truth, and reduces the risk of a malice finding.
If You Are the Subject of the Comment
The same framework works in reverse for anyone who has been criticized publicly and is considering a claim. The questions to ask are these.
Is this genuinely a matter of public interest, or has the commentator strayed into my private life? Are the underlying facts actually true, or has the commentator asserted, invented, or exaggerated facts that are false? Has the commentator disclosed the factual basis, or has the comment been made in a factual vacuum? Is the statement realistically going to be read as opinion, or is it a factual assertion, particularly an allegation of dishonesty or crime, that the commentator will have to prove? And is there evidence of spite, an ulterior motive, or a campaign that would support a finding of malice?
Assessing Whether a Claim Is Worth Bringing
The answers determine whether a claim has real prospects. A carefully written review that discloses accurate facts and clearly expresses an opinion is very difficult to attack, however damaging it may be. A post that asserts false facts, alleges criminal or dishonest conduct without a factual foundation, intrudes into private life, or forms part of a campaign of harassment is a very different matter.
Anti-SLAPP Legislation
It is also worth noting that Ontario, like several other provinces, has anti-SLAPP legislation. Section 137.1 of the Courts of Justice Act allows a defendant to bring an early motion to dismiss a proceeding that arises from expression on a matter of public interest. This makes it especially important to assess the strength of a defamation claim, including the likely availability of a fair comment defence, before commencing proceedings.
Grigoras Law: Defamation Lawyers in TorontoThe line between protected commentary and actionable defamation is often a matter of framing, factual foundation, and motive rather than of how harsh the words were. Whether you are considering publishing criticism and want to understand your exposure, you have received a demand letter or been sued over something you wrote, or you have been defamed and want to understand whether a fair comment defence stands in your way, careful legal advice makes a substantial difference. Our defamation practice regularly handles claims and defences involving fair comment in Ontario. Contact Grigoras Law to discuss your situation.
Conclusion
Canadian law gives commentators a great deal of room. Opinions can be harsh, exaggerated, prejudiced, and wrong, and still be fully protected. The Supreme Court of Canada has confirmed that the defence is consistent with Charter values and that the standard is honest comment rather than reasonable comment. Nobody who criticizes a business, a public official, or a public figure needs to be timid about expressing a genuinely held view.
What the law does require is discipline about the difference between fact and opinion, accuracy in the facts you rely on, transparency about what those facts are, restraint about straying into private life, and honesty about your own motives. Comment that is grounded in verified, disclosed facts, framed clearly as opinion, confined to matters of public interest, and expressed because you actually believe it will almost always be protected. Comment that asserts unverified facts, alleges dishonesty without proof, hides its foundations, or exists to punish someone will not be. The framework is not complicated, and applying it before you hit publish is far cheaper than litigating it afterward.
Fair Comment: How to Write Opinions, Reviews, and Criticism That Are Protected from Defamation Claims
Every day, Canadians publish opinions about businesses, professionals, politicians, institutions, and each other. Google reviews of contractors. Facebook posts about a local council decision. Tweets about a company’s conduct. Blog posts criticizing a public figure. Comments on a news article. Reviews of a restaurant, a doctor, a landlord, or a course.
Most of these opinions are harshly worded, and many of them are unflattering enough to be defamatory in the technical legal sense: they lower the subject’s reputation in the eyes of reasonable people. Yet the vast majority of them are perfectly lawful, because Canadian law contains a powerful defence designed to protect exactly this kind of speech. It is called fair comment, and it exists because a democracy cannot function if people are afraid to say what they think about matters that concern the public.
The defence is powerful, but it is not automatic. It protects opinions, not assertions of fact. It requires that the underlying facts be accurate and be disclosed to the reader. It applies only to matters of public interest. And it can be defeated entirely if the person making the comment was motivated by spite rather than genuine belief. The difference between a protected comment and an actionable libel is often a matter of how the statement was framed, not what the writer meant.
This article explains how the fair comment defence works in Canada and, more practically, how to write and speak publicly in a way that stays within its protection. It sets out the four elements of the defence, the conduct that destroys it, and a checklist for anyone who is about to publish criticism of a person or business.
It is written for anyone who comments publicly, including reviewers, bloggers, journalists, community advocates, and business people who criticize competitors or suppliers, as well as those who have been on the receiving end of harsh commentary and want to understand their options. Our defamation practice regularly handles claims and defences involving fair comment in Ontario.
Why the Defence Exists
The rationale for fair comment is democratic. In Cherneskey v. Armadale Publishers Ltd., Dickson J. explained that free and general discussion of public matters is fundamental to a democratic society, and that citizens cannot be expected to exercise wise and informed judgment unless they are exposed to the widest variety of ideas from diverse and antagonistic sources. Lord Denning put it more bluntly in Slim v. Daily Telegraph Ltd., describing the right of fair comment as one of the essential elements of freedom of speech that must be maintained intact.
How Generously Courts Apply It
The practical importance of this rationale is that Canadian courts do not interpret the defence grudgingly. The Supreme Court of Canada has confirmed that the elements of the defence are consistent with the values underlying the Canadian Charter of Rights and Freedoms, and the scope of protected comment is deliberately wide. Opinions do not have to be reasonable, moderate, proportionate, or correct in order to be protected. In a free country, people have as much right to express outrageous and ridiculous opinions as moderate ones. An opinion can be exaggerated, obstinate, or prejudiced and still be fully protected.
But the defence is not a licence to say anything. As the Supreme Court noted in WIC Radio Ltd. v. Simpson, the test is intended to provide some boundary to the extent to which private reputations can be trashed in public discourse. Understanding where that boundary sits is the difference between confident commentary and a statement of claim.
The Four Elements of Fair Comment
A defendant who wants to rely on fair comment must establish four elements. The statement must be (1) on a matter of public interest, (2) based on fact, (3) recognizable as comment rather than a statement of fact, and (4) a comment that any person could honestly express on the proven facts. If all four are established, the defence still fails if the plaintiff proves that the defendant was motivated by malice. The Ontario Court of Appeal restated this framework in St. Lewis v. Rancourt.
It is worth emphasizing at the outset that the defence is not made out simply because the words relate to a matter of public interest or to the plaintiff’s conduct in a public capacity. As the Ontario Court of Appeal held in Littleton v. Hamilton, it has never been the law that public interest alone provides a defence to defamation. All four elements must be satisfied.
Each element is a separate hurdle, and each has practical implications for how you should write.
Element One: A Matter of Public Interest
Fair comment protects only comment on matters of public interest. The good news for commentators is that the courts have been clear that public interest is not to be confined within narrow limits. As Lord Denning explained in London Artists Ltd. v. Littler, whenever a matter is such as to affect people at large, so that they may legitimately be interested in or concerned at what is going on, it is a matter of public interest on which everyone is entitled to make fair comment.
The Supreme Court of Canada developed the concept further in Grant v. Torstar Corp., holding that the subject matter must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached.
In practice, this covers a very wide field: the conduct of governments and public officials, the operation of public institutions, the quality of goods and services offered to the public, the conduct of businesses in the marketplace, matters of public health and safety, artistic and literary works released to the public, the conduct of people who put themselves forward for public office or seek public attention, and controversies of general community concern.
The limit is genuinely private matters. Comment about a person’s purely private life is not protected merely because the person happens to be publicly known. The British Columbia Court of Appeal in Vander Zalm v. Times Publishers Ltd. held that fair comment cannot be raised to defend an intrusion upon the private life of a public figure, no matter how interesting that intrusion may be to the public.
Two further cases mark the boundary. In Russell v. Pawley, the defence failed where a provincial Premier attacked the conduct in the private life of a citizen who had engaged in public political debate. In McLoughlin v. Kutasy, the defence could not be raised to protect defamatory statements in a doctor’s report to a government office about a person’s suitability for employment, because that was not a matter of public interest at all.
That said, someone who seeks public notoriety or invites public attention makes at least certain aspects of their life open to public criticism. A person who runs for public office may put their integrity into the forum of public debate, because it is relevant to their fitness for office.
There is also a practical dimension for the most common modern context, which is reviews of businesses. Commentary on the quality of goods or services offered to the public is generally a matter of public interest. An artist who publishes a work submits it to the judgment of the public, and anyone may comment upon it. The same logic applies to a restaurant that serves customers, a contractor who offers services, or a professional in public practice. But comment on that same person’s marriage, health, or family life is not protected.
Element Two: Based on Fact
This is where most fair comment defences fail, and where the most practical guidance lies. The element has two distinct requirements: the facts underlying the comment must be true (or privileged), and they must be sufficiently disclosed to the audience.
The Facts Must Be Accurate
Fair comment protects opinion built on a foundation of truth. If the foundation is false, the defence collapses. A commentator cannot invent facts, adopt as true the untrue statements of others, rely on rumours, or build a comment on misleading half-truths.
A person who wishes to rely on fair comment is obliged to take reasonable care to ensure the facts on which the comment is based are not misrepresented. In Spiller v. Joseph, the United Kingdom Supreme Court held that a defendant cannot base a comment on a quote from a document where there is a significant difference between the quote and the document’s actual content.
Two Canadian examples illustrate the point. In Lawson v. Chabot, a provincial Minister said a union president had stated that union members would not obey an order of a provincial commission, then questioned whether he was fit to be a senator. The fair comment defence failed because the plaintiff had never made the statement attributed to him.
In Russell v. Pawley, a politician’s comment rested on the assertion that a citizen was involved with a political group while “drawing the taxpayers’ money on sick leave.” The defence failed because the citizen was in fact receiving a disability pension from a private insurer, not the government.
Importantly, what must be proven true are the essential facts that go to the pith and substance of the matter, not every peripheral detail. If the essential facts are true, it is not necessary to prove the truth of every fact relied on. But omitting facts that are important or material to the factual basis for the comment can defeat the defence, and where many of the facts relied on turn out to be false, a court may take that into account in deciding whether the comment was honestly made.
In Ontario, this burden is modified by statute. Section 23 of the Libel and Slander Act provides that the defence will prevail if expressions of opinion are fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved, even if the truth of every alleged fact is not established. Nova Scotia’s Defamation Act has a similar provision.
This is a meaningful protection, but it should not be relied on as a substitute for accuracy. The facts still have to be alleged or referred to in the words complained of, and the essential factual foundation still needs to hold up.
The Facts Must Be Sufficiently Disclosed
The second requirement is that the comment must indicate the facts it is based on. If the factual basis for a comment is not indicated, the defence is unavailable. The reason is that the purpose of the defence is to promote productive public debate, and readers can only evaluate an opinion if they know what it rests on.
The law does allow latitude for the realities of public discourse. It is not necessary to state every fact expressly. It is sufficient if the words explicitly or implicitly indicate, at least in general terms, the facts being commented on, or if the facts are already before the public or well known to the audience.
A reference to a published book or musical work is enough, because the public has the opportunity to examine the subject matter for themselves. In Kemsley v. Foot, a statement that certain publications were “lower than Kemsley” was held to contain an adequate factual reference, because the audience would have understood that “Kemsley” referred to newspapers published by Kemsley and would either have been aware of, or readily capable of discovering, the general quality of those newspapers.
In WIC Radio Ltd. v. Simpson, the Supreme Court of Canada held that a properly disclosed or sufficiently indicated factual foundation, or one so notorious as to be already understood by the audience, is an important objective limit on the defence.
The failure mode is illustrated by Mainstream Canada v. Staniford, where the British Columbia Court of Appeal found the factual basis too obscure. The defendant’s comments about farmed salmon reflected a zealous and highly contested reading of particular portions of particular scientific studies, and his publications either made no reference to where those studies could be found or buried the references among hundreds of footnotes linked from his website. The court accepted that a clear reference to the studies would have been sufficient, but held that he had not met that standard.
Element Three: Comment, Not Fact
The defence protects comment. It does not protect statements of fact. If a court concludes that a statement is one of fact rather than comment, the fair comment defence is simply unavailable (though the defence of truth may still be).
The essential distinction is that a comment contains an element of subjectivity incapable of proof, while a statement of fact is capable of being determined to be accurate or inaccurate. A comment is a matter of opinion and so incapable of definite proof. A statement of fact is capable of objective proof and has a meaning sufficiently definite to convey a fact.
Crucially, the test is not what the writer intended. If words are to be accepted as comment, they must be recognizable as comment by the ordinary, reasonable reader. Courts consider the immediate impression the publication would make on a reasonable reader, rather than performing the kind of close interpretive analysis used for statutes or contracts.
It has also been held that whether words are comment or fact is determined within the four corners of the publication itself. In Telnikoff v. Matusevitch, the House of Lords held that a newspaper article to which the defendant had written a defamatory reply could not be considered in determining whether a statement in the reply was fact or comment.
Comment most obviously includes an opinion drawn from facts. A statement that a public official is “disgraceful” or “dishonourable,” made on the basis of facts that the official accepted money in return for favours, is a statement of opinion. A statement that a school trustee has “poorly represented” his constituents, on the basis of facts that he attended less than half the meetings, is comment.
Deductions, inferences, conclusions, criticisms, remarks, and observations drawn from stated facts can all be comment, provided it is apparent to the reasonable reader that they are inferences from facts otherwise stated or referred to and they retain a subjective character incapable of definite proof. An inference that a person was biased, being a debatable assertion about a state of mind, may be comment. So may an unverifiable inference about someone’s motivation.
The Dishonesty Trap
The most dangerous category for commentators is dishonesty. A statement that a person has acted dishonestly may well be treated as a statement of fact, not comment. In Wasserman v. Freilich, Eady J. observed that an allegation of dishonesty, fraud, or attempted fraud will usually fall fairly and squarely on the side of fact rather than opinion.
This means that writing “this contractor is a fraud” or “this company stole from me” is far riskier than writing “based on what happened to me, I would not trust this contractor with a deposit.” The first reads as a factual allegation that must be proven true. The second reads as opinion grounded in disclosed experience.
Why Context Matters
Context matters a great deal. A statement may be construed as comment if it appears in an editorial context where loose, figurative, or hyperbolic language is common, in political debate, in a media campaign, or in general public discourse. A statement that looks factual in isolation may be understood as comment in a publication obviously devoted to satire, or in a cartoon expected to be tongue in cheek. And where a statement is nothing more than an insult in its context, it is neither fact nor comment but mere vulgar abuse, which is not actionable at all.
Context also shapes how apparently factual-sounding claims are read in contested fields. In British Chiropractic Association v. Singh, the English Court of Appeal held that, in a heavily and legitimately contested field of study, a statement that there was “not a jot of evidence” to support a position was a value judgment about the quality of the available evidence rather than a verifiable assertion of fact. For anyone writing about scientific, medical, or professional controversies, this is an important point: characterizing the state of the evidence in a contested field is more likely to be treated as opinion than as a factual claim requiring proof.
Element Four: A Comment Any Person Could Honestly Make
The fourth element is that the comment must be “fair,” which is a legal term of art rather than a requirement of reasonableness. In WIC Radio Ltd. v. Simpson, the Supreme Court of Canada confirmed that fairness is judged by an objective honesty standard: could any person honestly express that opinion on the proven facts?
This standard is generous to commentators. The comment need not be correct or approximately correct. It need not be reasonable or proportional. It may be exaggerated, obstinate, or prejudiced.
The classic articulation comes from Diplock J.’s jury charge in Silkin v. Beaverbrook Newspapers Ltd., which has been cited in Canadian courts ever since for the proposition that the question is not whether the opinion is one the judge or jury agrees with, but whether it is one an honest person could hold. A personal attack, or an imputation of bad faith or dishonourable motives, can be fair comment if a person, however extreme their views, might honestly make that comment on the accurate facts.
In the field of arts criticism, the question is not whether the criticism shows a correct appreciation of the work. Extravagant or prejudiced criticism is protected so long as it is the honest opinion of the writer and is not a cloak for malicious or irrelevant allegations, or allegations with no basis in fact. The standard is so focused on honesty rather than accuracy that the United Kingdom Supreme Court has held the defence should be renamed “honest comment.”
The limit is that the objective honesty test does more work than simply asking whether the comment relates to the facts. The majority in WIC Radio held that the test requires an assessment, on an objective basis, of whether the statement was made with integrity, and that the defamatory statement must not be a cloak for mere invective. This is a real, if modest, boundary. A comment that no honest person could draw from the stated facts, and that functions only as abuse dressed up as opinion, falls outside the defence.
Malice: The Defence Killer
Even where all four elements are established, the plaintiff can defeat the defence by proving malice. The onus is on the plaintiff, and the standard is demanding, but the consequences are absolute: a finding of malice destroys the defence entirely.
What Counts as Malice
Malice in this context is the same concept that defeats qualified privilege. It can be established by showing that the comment was made out of personal spite or an intention to injure the plaintiff, that it was made dishonestly or with reckless disregard for the truth, or that it was made in pursuit of an indirect motive or ulterior purpose. Where the defendant is the maker of the comment, proof that the comment was not the honest expression of the writer’s real opinion may itself be evidence of malice.
Malice Must Be the Dominant Motive
The plaintiff must show that the malicious purpose was the dominant motive for the comment. If malice was not dominant, the defence remains available even if the defendant knew the comment would injure the plaintiff’s feelings or assist the plaintiff’s adversaries. But if malice was the dominant motive, the defence fails even if someone acting without malice might have made an equally defamatory comment, and even if the defendant honestly believed the comment to be true.
The practical implication is significant. A commentator engaged in a personal feud with the subject of the comment, who publishes criticism as part of a campaign of harassment, or who is pursuing a collateral objective such as extracting a settlement or damaging a competitor, faces a serious risk that a court will find malice and strip away the protection that would otherwise apply. Documented history matters: prior threats, hostile communications, evidence of an ongoing vendetta, and inconsistencies between what the commentator said publicly and what they said privately are all fertile ground for a malice finding.
A Practical Checklist for Writing Protected Comment
Bringing the elements together, here is how to write publicly in a way that maximizes the protection of the fair comment defence.
Verify Your Facts Before You Publish
This is the single most important step. Fair comment protects opinion built on truth. Check what you are asserting. Keep the documents, emails, invoices, photos, receipts, and records that substantiate the facts you rely on. If you cannot prove a fact, do not assert it, and do not build your opinion on it.
State the Facts, Then State Your Opinion
The clearest and safest structure is to set out what happened, and then say what you think about it. “I paid a $5,000 deposit on March 3, the work was scheduled to start April 1, and as of June 15 no work had begun and my calls were not returned. In my opinion, this company is not reliable and I would not recommend them.” The facts are disclosed, the reader can evaluate them, and the opinion is plainly presented as opinion. Compare that to a bare “this company is a scam,” which discloses no facts and reads as a factual assertion.
Use Language That Signals Opinion
Phrases such as “in my view,” “I think,” “my experience was,” “it seems to me,” and “I would not recommend” help mark a statement as comment rather than fact. These phrases are not magic words and will not convert a factual allegation into an opinion, but they contribute to the impression a reasonable reader forms about the nature of the statement.
Avoid Allegations of Crime, Fraud, and Dishonesty
Calling someone a thief, a fraudster, a liar, or a criminal is likely to be treated as a statement of fact, which means you will have to prove it is true. If your genuine view is that a person acted dishonestly, the safer approach is to state the underlying facts precisely and let the reader draw the conclusion, or to frame the concern as an opinion clearly grounded in those disclosed facts.
Link to Your Sources
In an online context, this is the modern equivalent of disclosing the factual basis. If your opinion rests on a report, a study, a court decision, a news article, or a public statement, link directly to it. The Mainstream Canada v. Staniford case shows the risk of burying the factual basis where the audience cannot readily find it. A clear, prominent link is both good practice and legally protective.
Stay on Matters of Public Interest
Comment on the person’s conduct in the public sphere: their business, their professional services, their public role, their published work, their public statements. Do not stray into their marriage, their health, their family, or other purely private matters, however tempting.
Do Not Comment While You Are Angry
This is practical advice with legal consequences. Comments written in the heat of a personal dispute are more likely to contain factual errors, more likely to include gratuitous personal attacks that read as invective rather than opinion, and more likely to generate the evidentiary record from which a court infers malice. Waiting a day before posting is genuinely protective.
Be Careful About Repeating What Others Have Said
Repeating a defamatory statement made by someone else is itself a publication, and you cannot ground a fair comment defence on facts you adopted from others that turn out to be untrue. Rumour is not a foundation for comment. If you cannot verify it, do not repeat it.
Do Not Use Commentary as Leverage
Publishing criticism to extract a refund, a settlement, or a business concession creates a serious risk of a malice finding. Take up commercial disputes through commercial and legal channels; keep public commentary separate and genuinely expressive.
Correct Errors Promptly
If you discover that a fact you relied on was wrong, correct it publicly and promptly. Doing so mitigates damages, undermines any inference of reckless disregard for the truth, and reduces the risk of a malice finding.
If You Are the Subject of the Comment
The same framework works in reverse for anyone who has been criticized publicly and is considering a claim. The questions to ask are these.
Is this genuinely a matter of public interest, or has the commentator strayed into my private life? Are the underlying facts actually true, or has the commentator asserted, invented, or exaggerated facts that are false? Has the commentator disclosed the factual basis, or has the comment been made in a factual vacuum? Is the statement realistically going to be read as opinion, or is it a factual assertion, particularly an allegation of dishonesty or crime, that the commentator will have to prove? And is there evidence of spite, an ulterior motive, or a campaign that would support a finding of malice?
Assessing Whether a Claim Is Worth Bringing
The answers determine whether a claim has real prospects. A carefully written review that discloses accurate facts and clearly expresses an opinion is very difficult to attack, however damaging it may be. A post that asserts false facts, alleges criminal or dishonest conduct without a factual foundation, intrudes into private life, or forms part of a campaign of harassment is a very different matter.
Anti-SLAPP Legislation
It is also worth noting that Ontario, like several other provinces, has anti-SLAPP legislation. Section 137.1 of the Courts of Justice Act allows a defendant to bring an early motion to dismiss a proceeding that arises from expression on a matter of public interest. This makes it especially important to assess the strength of a defamation claim, including the likely availability of a fair comment defence, before commencing proceedings.
The line between protected commentary and actionable defamation is often a matter of framing, factual foundation, and motive rather than of how harsh the words were. Whether you are considering publishing criticism and want to understand your exposure, you have received a demand letter or been sued over something you wrote, or you have been defamed and want to understand whether a fair comment defence stands in your way, careful legal advice makes a substantial difference. Our defamation practice regularly handles claims and defences involving fair comment in Ontario. Contact Grigoras Law to discuss your situation.
Conclusion
Canadian law gives commentators a great deal of room. Opinions can be harsh, exaggerated, prejudiced, and wrong, and still be fully protected. The Supreme Court of Canada has confirmed that the defence is consistent with Charter values and that the standard is honest comment rather than reasonable comment. Nobody who criticizes a business, a public official, or a public figure needs to be timid about expressing a genuinely held view.
What the law does require is discipline about the difference between fact and opinion, accuracy in the facts you rely on, transparency about what those facts are, restraint about straying into private life, and honesty about your own motives. Comment that is grounded in verified, disclosed facts, framed clearly as opinion, confined to matters of public interest, and expressed because you actually believe it will almost always be protected. Comment that asserts unverified facts, alleges dishonesty without proof, hides its foundations, or exists to punish someone will not be. The framework is not complicated, and applying it before you hit publish is far cheaper than litigating it afterward.
What you read here is general. Your situation is not.
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