A “Statement of Fact” Defence Can Fail If the Court Finds Malice in Libellous Comments
In a 2016 decision, the ONCA overturned the trial judge’s decision in Awan v. Levant ONCA 2016 970. Khurrum Awan brought a defamation suit against Ezra Levant relating to nine blog posts that accused the plaintiff of being a “liar” and “anti-Semite,” among other libelous statements.
At trial, the defendant’s main defence was “fair comment on a matter of public interest.” The trial judge applied the test set out in WIC Radio Ltd. v. Simpson, 2008 SCC 40 which required that:
- The comment must be on a matter of public interest
- The comment must be based on fact
- The comment, though it can include inferences of fact, must be recognizable as comment;
- The comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts?
- Even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice.
The trial judge found that the defamatory statements were statements of fact as opposed to comment. Moreover, if they were comments, the idea that Awan deliberately lied cannot be reasonably inferred from the facts available to the public. Finally, the trial judge held that the statements were driven by malice which defeated Levant’s defence.
Levant appealed the decision arguing that the trial judge erred in finding his blog posts were statements of fact as opposed to fair comment. Ultimately, Levant argued that his right to free speech required a less deferential standard of review. The ONCA found that these arguments had no basis in fact or law and upheld the trial judge’s decision.