Defamation law protects reputation, but it does not silence criticism. One of its most important built-in limits is the defence of fair comment, which recognizes that participation in public life invites scrutiny, that opinions on matters of public interest have a legitimate place in civic discourse, and that the law ought not to be used to suppress views simply because they are uncomfortable or unflattering.
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:
- The comment must be on a matter of public interest;
- The comment must be based on fact;
- The comment must be recognizable as comment, although comment may include inferences of fact; and
- 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.
The Governing Principle
Fair comment cannot rest on a false factual foundation. The underlying facts must be true, must have existed at the time of publication, and must be either stated in the publication or sufficiently known to the audience that they can evaluate the comment for themselves. A commentator cannot invent facts, rely on rumours that prove false, or omit facts that are material to the basis for the comment.
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.
Dealing with a Defamation Issue?
Whether you are facing a defamation claim and considering whether the fair comment defence applies, or you have been the subject of damaging statements you believe crossed the line, our defamation practice advises on all aspects of civil defamation in Ontario. Contact Grigoras Law to discuss your situation.
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.
Opinion, Criticism, and the Law: A Guide to the Fair Comment Defence
Defamation law protects reputation, but it does not silence criticism. One of its most important built-in limits is the defence of fair comment, which recognizes that participation in public life invites scrutiny, that opinions on matters of public interest have a legitimate place in civic discourse, and that the law ought not to be used to suppress views simply because they are uncomfortable or unflattering.
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:
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.
Fair comment cannot rest on a false factual foundation. The underlying facts must be true, must have existed at the time of publication, and must be either stated in the publication or sufficiently known to the audience that they can evaluate the comment for themselves. A commentator cannot invent facts, rely on rumours that prove false, or omit facts that are material to the basis for the comment.
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.
Whether you are facing a defamation claim and considering whether the fair comment defence applies, or you have been the subject of damaging statements you believe crossed the line, our defamation practice advises on all aspects of civil defamation in Ontario. Contact Grigoras Law to discuss your situation.
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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Speak With a Lawyer
What you read here is general. Your situation is not.
Ontario civil litigation turns on specific facts, evidence, and procedural history. The law discussed in this article may apply differently to your circumstances. Grigoras Law offers direct consultations to assess your matter and advise on the right path forward.
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