This is what a SLAPP looks like in practice. SLAPPs, Strategic Lawsuits Against Public Participation, are one of the more troubling patterns in modern civil litigation. They weaponize the cost and stress of legal proceedings to silence criticism and public debate. Ontario has specific legislation designed to stop them. This post explains what SLAPPs are, how Ontario’s anti-SLAPP law works, what the courts have said about it, and what someone facing this kind of lawsuit can do about it.

What Is a SLAPP?

A SLAPP is a lawsuit brought not to vindicate a genuine legal claim, but to punish someone for speaking out on a matter of public interest and to discourage others from doing the same. The Supreme Court of Canada described this problem directly in its 2020 decision in 1704604 Ontario Ltd. v. Pointes Protection Association: litigation can be a potent weapon in the hands of the rich and powerful. A well-funded plaintiff, determined to maximize the costs of defending a lawsuit, can deter even the most committed critic from continuing to speak.

SLAPPs exploit a structural imbalance in the civil justice system. Suing someone is relatively easy and cheap. Defending a lawsuit is expensive, time-consuming, and stressful. A corporate plaintiff with significant resources can launch a defamation claim against a private citizen, an environmental activist, a community group, or a journalist, and even if the claim has very little chance of winning, the process itself becomes the punishment. The defendant has to hire lawyers, respond to demands for documents, appear at court proceedings, and live under the shadow of litigation for months or years. Most people, facing that prospect, will find it easier to simply stop saying whatever they were saying.

The hallmarks of a SLAPP are recognizable. The plaintiff is typically larger, wealthier, and more powerful than the defendant. The damages claimed are often exaggerated relative to any real harm suffered. The expression being sued over relates to something the public has a legitimate interest in knowing about, such as a proposed development, a company’s environmental practices, a politician’s conduct, or the quality of a product or service. And the plaintiff has sometimes used litigation, or the threat of it, against other critics before.

SLAPPs are not always defamation claims, but defamation law is particularly well-suited to them. Defamation actions are expensive to defend, they can be commenced quickly, and the procedural rules traditionally favour plaintiffs in the early stages of the litigation.

Ontario’s Response: The Protection of Public Participation Act

Ontario enacted the Protection of Public Participation Act, 2015, which amended the Courts of Justice Act by adding sections 137.1 through 137.5. These provisions, which came into force and apply to proceedings commenced on or after December 1, 2014, create a mechanism that allows a defendant to bring a motion to have the proceeding dismissed at an early stage, before the expense of a full trial has accumulated.

The stated purposes of the legislation are direct. The law aims to encourage individuals to express themselves on matters of public interest, promote broad participation in debates on such matters, discourage the use of litigation to unduly limit expression on matters of public interest, and reduce the risk that public participation in debate will be chilled by fear of legal action.

Ontario was not alone in recognizing this problem. British Columbia enacted virtually identical legislation in 2019. Quebec has a provision in its Code of Civil Procedure that can address abusive proceedings, though the threshold is higher and the remedy less robust than Ontario’s approach.

How the Anti-SLAPP Motion Works: The Three-Stage Test

The anti-SLAPP motion is brought by the defendant in a proceeding. Once filed, it freezes the entire litigation: no further steps can be taken by either side until the motion, including any appeal, is finally resolved. The plaintiff cannot amend their pleadings to avoid the motion or to restart the proceeding after a dismissal.

The motion must be heard within 60 days of filing, though in practice courts have not always been able to meet this timeline due to scheduling pressures. It is heard by a judge of the Ontario Superior Court of Justice, not by an associate judge or other officer of the court.

The governing test has three stages, and the burden of proof shifts between the parties as the analysis moves through each one.

Stage One: The Defendant’s Threshold

The moving defendant goes first. To get the motion off the ground, the defendant must satisfy the judge on a balance of probabilities that two things are true: they made an expression, and that expression relates to a matter of public interest.

“Expression” is defined broadly in the legislation as any communication, whether verbal or non-verbal, public or private, and whether or not it was directed at a specific person or entity. This covers social media posts, letters, petitions, speeches, reviews, news articles, and essentially any form of communication.

“Matter of public interest” is also interpreted broadly. The courts have confirmed that it is not limited to government or political topics. It covers any subject in which some segment of the community has a genuine interest beyond mere curiosity, including matters that affect the welfare of citizens, questions of public controversy, and subjects about which people have a right to comment. Online reviews of businesses have been held to relate to matters of public interest. Criticism of a corporation’s practices, commentary on a public official’s decisions, and reports on scientific testing have all qualified. The expression does not need to be in the public interest or to serve some social good. The question is only whether the topic is one the public cares about.

Importantly, the judge does not assess at this stage whether the expression was accurate, fair, or appropriate. The quality and content of the expression are not relevant until later. The only question is whether the subject matter qualifies as a matter of public interest.

Stage Two: The Plaintiff’s Merits Burden

Once the defendant clears the threshold, the burden shifts entirely to the plaintiff. To prevent dismissal, the plaintiff must satisfy the judge of two things on a balance of probabilities.

First, the plaintiff must show there are reasonable grounds to believe the claim has substantial merit. This does not mean winning the case on the motion, but it is more than showing the claim is theoretically possible. The Supreme Court of Canada confirmed in Pointes Protection that substantial merit means the claim has a real prospect of success: the evidence must tend to weigh in the plaintiff’s favour. A claim that has only technical legal validity, or that rests on unsubstantiated allegations, will not meet this standard.

Second, and at the same time, the plaintiff must show there are reasonable grounds to believe the defendant has no valid defence. This is where the motion interacts directly with defamation law. In a defamation context, the defendant would typically put forward defences such as truth, fair comment, responsible communication, or privilege. The plaintiff must show a reasonable basis for believing a court could reject all of those defences. If even one of the defences could go either way, the plaintiff has not met its burden on this part of the test.

To make this work, the defendant has a prior, evidentiary obligation: they must put their defences “into play” by either filing a statement of defence or identifying the defences in their motion materials. The plaintiff cannot be required to disprove defences the defendant has not yet articulated.

If the plaintiff fails to satisfy either of these two requirements, the motion succeeds and the proceeding is dismissed. The plaintiff does not get another chance through a pleadings amendment.

Stage Three: Weighing the Public Interest

Even if the plaintiff meets the merits burden, the motion can still succeed if the plaintiff cannot satisfy the judge on a third and final question: whether the harm to the plaintiff from the defendant’s expression is sufficiently serious that the public interest in allowing the proceeding to continue outweighs the public interest in protecting the defendant’s expression.

The Supreme Court called this the crux of the legislation. It is a qualitative and somewhat subjective balancing exercise. The judge weighs the plaintiff’s harm on one side against the value of protecting the defendant’s expression on the other.

On the harm side, the plaintiff must do more than assert damages in their pleading. They need to provide material that gives the judge a basis to assess what harm has actually been suffered or is likely to be suffered, and to link that harm causally to the defendant’s expression. Serious defamatory statements that obviously damage a reputation may justify an inference of harm without detailed financial evidence, but vague claims that the expression was damaging will not suffice.

On the expression side, factors that increase the public interest weight include the quality of the expression, the motivation of the speaker, and the broader chilling effect that allowing the proceeding to continue would have on others who might otherwise speak on the same or similar topics. A private citizen speaking out at a community meeting about a local development carries different public interest weight than an anonymous online attack motivated by personal grievance.

The classic indicia of a SLAPP are also relevant at this stage: a history of the plaintiff using litigation to silence critics, a significant financial or power imbalance favouring the plaintiff, a punitive or retributory purpose behind the claim, and minimal or nominal actual damages. These factors can tip the balance toward dismissal even where the merits burden is technically met.

The judge is not required to work through both Stage Two and Stage Three in sequence. Where the harm is clearly minimal and the proceedings obviously designed to punish rather than compensate, a judge may move directly to the balancing exercise and dismiss on that basis alone, without engaging in the full merits analysis.

What Happens If the Motion Succeeds

If the judge dismisses the proceeding on an anti-SLAPP motion, the defendant is entitled to costs on a full indemnity basis for both the motion and the proceeding as a whole. Full indemnity is significantly higher than the partial indemnity costs that typically apply in ordinary civil litigation. It is a deliberate legislative choice designed to make defendants whole and to discourage plaintiffs from launching SLAPPs in the first place.

Full indemnity costs do not necessarily equal the defendant’s actual out-of-pocket expenses in every case. The Ontario Court of Appeal has noted that even full indemnity costs awards should be fair and reasonable, and the judge retains discretion. The Ontario Court of Appeal has also provided guidance that costs on anti-SLAPP motions should rarely exceed $50,000 on a full indemnity basis, in recognition that the anti-SLAPP procedure was intended to be quick and relatively inexpensive, not a vehicle for protracted preliminary litigation on its own.

In addition to costs, if the judge finds the plaintiff brought the proceeding in bad faith or for an improper purpose, the judge may award the defendant compensatory damages. These damages are not punitive in nature but compensate the defendant for harm suffered as a result of the abusive litigation. Courts have awarded damages in cases where defendants experienced health consequences, financial hardship, and public humiliation as a result of a proceeding brought to stifle legitimate public comment.

What Happens If the Motion Fails

If the motion is dismissed and the proceeding is allowed to continue, the cost rules flip in an unusual way. Unlike most contested motions where the winner receives some portion of their costs from the loser, a plaintiff who successfully defeats an anti-SLAPP motion is generally not entitled to any costs from the defendant. The default position is that each party bears its own costs of the motion.

This asymmetry is intentional. If unsuccessful defendants faced automatic costs liability, the threat of that outcome would discourage defendants from bringing anti-SLAPP motions in the first place, which would undercut the entire purpose of the legislation. A defendant who genuinely believes they are being SLAPPED should be able to bring the motion without risking a large costs award if it does not succeed.

The no-costs presumption can be displaced in exceptional circumstances where the defendant’s motion was itself frivolous or brought in bad faith. But courts have set a high bar for overcoming it.

The Supreme Court Settles the Law: Pointes Protection and Bent v. Platnick

Before 2020, Ontario courts had developed a substantial body of jurisprudence on the anti-SLAPP provisions, but there were areas of inconsistency and disagreement, particularly about the standard of proof and how the merits burden should be applied. The Ontario Court of Appeal clarified the test in a series of decisions released in 2018, led by the Pointes Protection case.

In 2020, the Supreme Court of Canada issued its first decisions on Ontario’s anti-SLAPP provisions in the companion cases 1704604 Ontario Ltd. v. Pointes Protection Association and Bent v. Platnick. These decisions confirmed the Ontario Court of Appeal’s approach and provided authoritative guidance on several contested questions.

The Supreme Court confirmed that the balance of probabilities standard governs all stages of the test. The “compelling and credible” standard that some courts had previously applied was definitively rejected. The Court clarified that substantial merit requires a real prospect of success, not merely a technically viable legal argument. It confirmed that the public interest in the expression, at the balancing stage, engages Charter values including the search for truth, participation in political decision-making, and diversity in forms of self-fulfillment and human flourishing. And it confirmed that the classic SLAPP indicia are relevant to the balancing exercise but are not themselves requirements for the motion to succeed.

The Pointes Protection case itself arose from a dispute in northern Ontario where a landowner company sued a community association that had spoken out against a proposed subdivision at a tribunal hearing. The Supreme Court upheld the dismissal of the lawsuit as a SLAPP, finding that the public interest in protecting community participation in planning processes outweighed any harm to the developer from the association’s expression.

How the Law Has Been Applied: Real Examples

The range of situations in which anti-SLAPP motions have been brought illustrates the breadth of the legislation’s intended reach.

In the United Soils decisions, an excavation and remediation company sued private citizen defendants who had complained about the company’s operations. The Ontario Court of Appeal upheld the dismissal as a SLAPP, finding the proceedings were classic examples of a powerful plaintiff trying to silence individual critics with limited means. Damages were awarded against the company in one of the cases based on findings of bad faith.

In the New Dermamed case, an individual had posted negative online reviews of a cosmetic treatment clinic. The clinic sued. The motion to dismiss was ultimately granted, with the Court finding that reviews of services offered to the public are matters of public interest and that the clinic could not meet its merits burden.

In contrast, in Bondfield Construction and Lascaris v. B’nai Brith Canada, the Court of Appeal allowed the proceedings to continue. In those cases, the defendants were large institutional entities, the Globe and Mail and a major charitable organization, rather than individuals, and the cases lacked the hallmarks of a classic SLAPP such as a power imbalance favoring the plaintiff and minimal genuine harm.

In the Subway v. CBC case, the Ontario Court of Appeal extended the anti-SLAPP provisions to a negligence claim, not just defamation. Subway had sued Trent University in negligence over laboratory tests used in a CBC documentary about chicken content in Subway’s sandwiches. The Court found that the negligence claim arose from an expression on a matter of public interest, that the expression was at the heart of Subway’s claim, and that Subway could not demonstrate substantial merit because it could not establish a duty of care between itself and the university. The motion to dismiss succeeded. This decision confirmed that the anti-SLAPP provisions are not limited to defamation claims.

Practical Considerations for Defendants Facing a Potential SLAPP

If you have been sued, or threatened with a lawsuit, over something you said or wrote on a matter that the public has a genuine interest in, the first question to consider is whether the anti-SLAPP provisions might apply. They apply to proceedings commenced on or after December 1, 2014, to virtually any type of expression, and to any civil proceeding, not just defamation claims.

Timing matters significantly. The anti-SLAPP motion is intended to be brought early, often before a statement of defence has been delivered. Once the notice of motion is filed, the entire proceeding is frozen. The motion must be heard within 60 days, though this deadline has not always been observed in practice. The defendant should not wait too long before deciding whether to bring the motion, as delay can complicate the analysis and give the impression the claim is not truly abusive.

The evidentiary preparation for the motion is critical. The defendant needs affidavit evidence addressing why the expression relates to a matter of public interest, what defences are available, and the specific public interest served by the expression in the particular circumstances. The plaintiff will respond with evidence on the merits of their claim, the harm they have suffered, and the causal connection between the expression and that harm. Both sides are limited to seven hours of cross-examination on affidavits in total across all parties on their respective side.

Costs protection runs in both directions. If the motion succeeds, the defendant will recover full indemnity costs. If it fails, the defendant will generally not owe costs to the plaintiff. This asymmetry makes the motion relatively attractive to defendants who genuinely believe they are facing abusive litigation, even if the outcome is uncertain.

A Note on the Limits of Anti-SLAPP Law

Anti-SLAPP provisions are a powerful tool, but they are not a complete solution to the problem of abusive litigation. The Supreme Court of Canada and the Ontario Court of Appeal have both noted that, in practice, anti-SLAPP motions themselves have become expensive and time-consuming, which to some extent defeats the purpose of having a quick and inexpensive screening mechanism. Both courts have attempted to reinforce the principle that these motions should be proportionate and focused, and the costs guideline of $50,000 is intended to discourage over-litigation of the motion itself.

The provisions also do not apply to every lawsuit over public expression. Not every defamation claim is a SLAPP. Where the plaintiff is a private individual who has suffered genuine harm from false and damaging statements, and where the merits of the claim are solid and the defences weak, the proceeding should and will continue. The anti-SLAPP provisions are specifically calibrated to target abuse of process, not to give defendants an automatic exit from legitimate defamation claims.

The post What Is a SLAPP Lawsuit? How Ontario’s Anti-SLAPP Law Protects the Right to Speak Out appeared first on Defamation & Business Litigation Lawyers Toronto | Grigoras Law.

Fair comment is a defence available to anyone, not just journalists or broadcasters. It protects criticism of politicians, reviews of public performances, commentary on corporate conduct, and opinion expressed across all forms of media. Judges in Canada and England have spoken in strong terms about its importance. In Cherneskey v. Armadale Publishers Ltd., Justice Dickson wrote that citizens as decision-makers cannot exercise wise and informed judgment unless exposed to the widest variety of ideas, from diverse and antagonistic sources. Lord Denning put it more simply in Slim v. Daily Telegraph, Ltd.: the right of fair comment is one of the essential elements of freedom of speech, and it must be maintained intact.

But the defence has specific requirements, and understanding them matters whether you are considering expressing a strong opinion or whether someone else’s opinion about you has crossed a line. This article explains how the defence works, what each of its elements requires, and where it fails.

The Defence and Its Structure

Fair comment is available to any defendant in a defamation action who can establish four elements. These were confirmed by the Supreme Court of Canada in WIC Radio Ltd. v. Simpson, the leading modern authority on the defence:

1. The comment must be on a matter of public interest;
2. The comment must be based on fact;
3. The comment must be recognizable as comment, although comment may include inferences of fact; and
4. The comment must satisfy the objective test of whether any person could honestly express that opinion on the proved facts.

If the defendant establishes all four elements, the defence can still be defeated if the plaintiff proves that the defendant was actuated by express malice in making the statement.

The defendant carries the burden of establishing the first four elements. The burden then shifts: if those elements are met, it falls to the plaintiff to establish malice. Where more than one defamatory publication is at issue, every element must be assessed separately for each.

Element One: A Matter of Public Interest

The defence is only available for comment on a matter of public interest. Courts have consistently held that this concept is not to be confined within narrow limits. In the words of Lord Denning in London Artists, Ltd. v. Littler: whenever a matter is such as to affect people at large, so that they may be legitimately interested in or concerned at what is going on, or what may happen to them or to others, it is a matter of public interest on which everyone is entitled to make fair comment.

The Supreme Court of Canada confirmed in Grant v. Torstar Corp. 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. Public interest, importantly, is not the same thing as what interests the public. The appetite of an audience for information about a subject does not make that subject a matter of public interest. There must be a genuine public stake in knowing about the matter.

What Qualifies

The category is broad and includes political conduct, government decisions, the performance of public institutions, the behaviour of corporations with public impact, and work submitted to public judgment. An artist who publishes a work submits it to the criticism of the public. A politician who seeks office opens their fitness for that office to comment. A company whose conduct affects the community cannot claim that comment on that conduct is a private matter.

Persons who seek public notoriety or invite publicity make at least certain aspects of their lives open to public criticism. That is a matter of degree, and the courts have developed some useful markers for where the line falls.

What Does Not Qualify

A comment regarding purely private matters cannot be defended as fair comment, regardless of how interesting it might be to the public. In McLoughlin v. Kutasy, the Supreme Court of Canada held that the defence could not be raised to protect statements in a doctor’s report to a government office about a person’s suitability for employment. That was a private matter, not a public one.

The Manitoba Court of Appeal reached a similar conclusion in Russell v. Pawley, where a provincial Premier used a public forum to attack the private conduct of a citizen who had engaged in political debate. The citizen’s political activity was a public matter; their private life was not. Similarly, the British Columbia Court of Appeal in Vander Zalm v. Times Publishers Ltd. held that fair comment cannot be raised to defend an intrusion into the private life of a public figure, no matter how much public interest such an intrusion might generate.

The line is less certain where a public figure stands for office and their private conduct arguably reflects on their fitness for it. Courts have left that question open, recognizing that a candidate for public trust invites a different level of scrutiny than a private citizen.

Element Two: Based on Fact

Fair comment must be grounded in fact. A comment floated in a factual vacuum, or built on facts that are false, is not protected. As the Supreme Court stated in WIC Radio v. Simpson: if the factual foundation is unstated or unknown, or turns out to be false, the fair comment defence is not available.

The Underlying Facts Must Be True

The facts that support the comment must be proven to have been true at the time the comment was made. A defence of fair comment cannot be based on rumour, unless the rumour is independently proven true. The commentator cannot suggest or invent facts, adopt as true the untrue statements of others, or rely on misleading half-truths and treat them as though they were accurate.

There is a reasonable care standard that follows from this. A person who wishes to rely on fair comment must take reasonable care not to misrepresent the facts upon which the comment is based. If the comment is not grounded in accurate or privileged facts, it is irrelevant whether it was expressed in good faith. Good faith does not cure a false factual foundation.

The Ontario Statutory Modification

Section 23 of Ontario’s Libel and Slander Act modifies this requirement in a meaningful way. It provides that in an action for libel or slander involving words consisting partly of allegations of fact and partly of expression of opinion, the fair comment defence will not fail only because the truth of every allegation of fact is not proved, as long as the expression of opinion is fair comment having regard to such of the facts alleged or referred to as are proved.

This means that in Ontario a defendant need not prove every underlying fact true, provided that the comment is fair having regard to those facts that are proved. However, courts retain the ability to find that where only some facts are established, the comment was not honestly based on those facts alone.

Facts Need Not Be Stated Explicitly

The facts upon which a comment is based do not need to be stated expressly in the same publication. It is sufficient if the publication implicitly indicates, at least in general terms, the facts upon which the comment is being made, or if the facts are already before the public. Where facts are well known to the audience, a general reference is sufficient. The key question is whether readers or listeners are in a position to evaluate the comment for themselves.

A comment based on a book, a film, or a public record will satisfy this requirement by reference to those sources. The commentator does not need to reproduce the entire factual record within the comment itself, provided the audience can locate and assess it.

Facts Must Have Existed at the Time of Comment

The factual foundation must have existed at the time the comment was published. A defendant cannot rely on facts that came to light after publication to justify a comment made before those facts were known. Facts may, however, be proved by evidence discovered after publication, as long as those facts themselves existed at the time.

Element Three: Recognizable as Comment

The defence only applies to statements of comment, not statements of fact. This distinction is critical, and it is one that plaintiffs regularly challenge and defendants must be prepared to establish.

Comment versus Fact

The essence of a comment is that it contains an element of subjectivity incapable of proof. A comment is a deduction, inference, conclusion, criticism, judgment, remark, or observation. It is, in the words of the Supreme Court, “a mere matter of opinion, and so incapable of definite proof.” A statement of fact, by contrast, is capable of objective verification and has a meaning sufficiently definite to convey a verifiable claim about the world.

The distinction matters because fair comment only protects the former. Calling a politician’s decision “unwise” or “ill-conceived” expresses a judgment, and is recognizable as such. Stating that a politician committed a specific illegal act is a claim of fact. Whether or not that act occurred can in principle be determined, and the fair comment defence does not apply to it.

The Supreme Court gave a useful illustration: a claim that a teacher committed sexual assault is a statement of fact, capable of proof, and the defence of fair comment is not available for it. A claim that consent to sexual activity should be vitiated by the power imbalance between a teacher and their student is a statement of opinion that falls within fair comment.

How the Court Decides

Whether words constitute comment or fact is a question for the trier of fact, informed by a question of law about whether the words are capable of being comment. A judge in a jury trial may rule at the outset that the words are not reasonably capable of being regarded as comment, in which case the defence will not go to the jury at all. If the judge finds the words are capable of comment, the jury determines whether they actually are.

The publication is assessed as a whole, from the perspective of an ordinary, reasonable reader. Context matters significantly. Words that might be read as factual assertions when standing alone may be understood as comment when they appear in an editorial, a political cartoon, a satirical piece, or other context where loose, figurative, or hyperbolic language is the norm. A publication obviously devoted to satire signals to its readers that statements within it are not to be taken as factual claims.

Obligations on the Commentator

The courts place an onus on authors and publishers to make reasonably clear that words are intended as comment rather than fact. If the words are presented in a manner that does not indicate with reasonable clarity that they are comment, they risk being treated as statements of fact. Words of potential comment that are inextricably mixed up with facts, so that a reader cannot readily distinguish one from the other, may lose the protection of the defence. Merely prefacing a statement with language like “I believe” or “in my opinion” is not sufficient if the underlying claim is so factually laden that the disclaimer reads as a colourable attempt to escape responsibility.

The commentator must also state inferences and deductions as inferences and deductions, and not assert them as new independent facts. The reasonable reader must be able to understand what the commentator is doing.

Element Four: The Objective Honesty Test

Even where the first three elements are established, the comment must pass an objective test: could any person honestly express that opinion on the proved facts? This is not a subjective question about whether the defendant in fact held the view sincerely. It is an objective question about whether the comment falls within the range of views that a person might honestly hold.

What “Fair” Actually Means

The word “fair” in fair comment is a term of legal art, and it does not mean correct, moderate, or reasonable. The Supreme Court in WIC Radio v. Simpson confirmed that a comment may be exaggerated, obstinate, or prejudiced and still qualify as fair comment, provided it represents an honest opinion that a person could hold on the facts. In a free country, people have as much right to express outrageous and ridiculous opinions as moderate ones.

The objective honesty test is nevertheless intended to provide some boundary. The comment must have been spoken with integrity. A defamatory statement that is simply a cloak for invective, or that bears no genuine relationship to the underlying facts, fails the test. The comment must reflect an opinion that a real person could sincerely hold on the basis of what the facts show, not a pretext for personal attack disconnected from those facts.

Personal Attacks and Imputations of Bad Motive

A personal attack, or an imputation of bad faith or dishonourable motive, can satisfy the objective honesty test if the trier of fact concludes that a person might honestly, without malice and on accurate facts, make such a comment. This is more easily established where the alleged motive is inherently incapable of independent proof.

Criticism of the Arts

In arts criticism, the standard is specifically that the criticism need not demonstrate a correct appreciation of the work, or express a position the court or jury agrees with. Extravagant or prejudiced criticism meets the test as long as it represents the honest opinion of the writer and is not a cloak for malicious or irrelevant defamatory allegations or claims without any factual basis.

The Objective Test and Third-Party Publications

The objective formulation of the fourth element has an important practical consequence. Where a media organization publishes an opinion expressed by a third party, such as a letter to the editor, the organization does not need to establish that the third party in fact held the view sincerely. It needs to establish that any person could honestly hold the opinion expressed on the proved facts. This position was settled by the Supreme Court of Canada in WIC Radio v. Simpson, overruling an earlier position established in Cherneskey v. Armadale Publishers Ltd. that had made it impossible for publishers to rely on fair comment for third-party opinions when the author was unavailable to testify.

Several provincial statutes, including section 24 of Ontario’s Libel and Slander Act, expressly reinforce this position, providing that the defence is available even though the publisher has no reason to believe the person expressing the opinion actually held it.

Malice: The Plaintiff’s Route to Defeat the Defence

If a defendant has established all four elements of fair comment, the plaintiff can still defeat the defence by proving that the defendant was actuated by malice. The onus of proving malice sits with the plaintiff.

What Malice Means

Malice in this context means an improper or ulterior motive, not simply that the defendant disliked the plaintiff, held strong views, or pursued a political agenda. It may be established by showing that the comment was made out of personal spite or an intention to injure the plaintiff independent of any legitimate purpose, was made dishonestly, or was made in pursuit of an ulterior motive unconnected with the purpose for which the fair comment defence exists.

Where the defendant is the author of the comment rather than a republisher, proof that the comment was not the honest expression of the author’s real opinion is evidence of malice.

The Dominant Motive Requirement

The plaintiff must show that malice was the dominant motive behind the comment, not merely a contributing factor. A defendant who was partly motivated by dislike of the plaintiff but whose dominant purpose was legitimate commentary retains the defence. Conversely, if malice was the dominant motive, the defence fails even if the comment was objectively one that a person could honestly make on the proved facts.

The Timing of Assessment

Both the fairness of the comment and the presence of malice are assessed as at the time of publication. Evidence about subsequent events, such as evidence that the plaintiff’s reputation was undiminished at trial, is not relevant to the defendant’s state of mind when the comment was made.

Fair Comment and the Charter

In WIC Radio v. Simpson, the Supreme Court of Canada held that the elements of the fair comment defence, as developed at common law, are consistent with the values underlying the Canadian Charter of Rights and Freedoms. The Court rejected submissions that the Charter required modifying the common law to place the burden on the plaintiff to prove that a statement was factual rather than comment, or that the common law should abolish the requirement that a comment could be honestly made on the proved facts.

The existing framework, in the Court’s view, already balances free expression on matters of public interest against the appropriate protection of reputation, and that balance does not require Charter adjustment.

Practical Implications

For Those Expressing Opinion

If you are writing or publishing opinion on a matter of public interest, the fair comment defence is a meaningful protection, but it requires care. The underlying facts you rely upon must be accurate. Your comment must be recognizable as comment and not presented in a manner that could be mistaken for a factual claim. You should be prepared to demonstrate a genuine connection between the facts and the opinion expressed. And you should not allow strong negative feelings about the person you are criticizing to become the dominant purpose behind what you publish, because that is precisely the condition that malice addresses.

The more hyperbolic, extreme, or personally targeted the language, the greater the risk that a court finds the comment is either not recognizably comment, not linked to the underlying facts, or motivated by malice rather than legitimate opinion.

For Those Who Have Been the Subject of Opinion

If you believe a statement about you is defamatory, the fact that it is framed as opinion does not automatically put it beyond your reach. Statements of opinion that rest on false facts are not protected. Opinions that are so factually laden that they effectively make factual claims may not qualify as comment. And opinions driven by personal malice rather than genuine engagement with the subject matter can be defeated even where all the other elements of fair comment are met.

The question of whether a statement is fact or comment is not always obvious, and courts approach it with considerable care. If you are facing a statement that has damaged your reputation, the analysis of whether it was truly protected opinion is worth undertaking before concluding that nothing can be done.

Conclusion

The fair comment defence reflects a considered judgment that freedom of expression on matters of public interest is worth protecting, even when that expression is critical, sharp, or uncomfortable. It does not give anyone a licence to defame. The facts underlying the comment must be true. The statement must actually be recognizable as opinion and not as a factual assertion dressed up in evaluative language. The opinion must be one that a person could honestly hold. And the dominant purpose behind it must be genuine engagement with the subject, not personal malice.

Within those limits, the defence is genuinely protective. Public figures, artists, corporations, and institutions that enter public life accept that they will be scrutinized and that not all of that scrutiny will be measured or fair-minded. The law asks only that the criticism be grounded in truth and connected to an opinion someone could sincerely hold. That is a workable standard, and it is one Canadian courts have applied with considerable sophistication.

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