Defamation Defences in Canada: Justification, Fair Comment, Privilege

Canadian defamation law recognizes justification, fair comment, responsible communication on matters of public interest, statutory and common law privilege, and innocent dissemination as defences, each with its own test set out by the Supreme Court of Canada or, in Ontario, by statute.

Jurisdiction scope: This article addresses defamation defences under the common law as it applies in Canada's nine common law provinces: Ontario, British Columbia, Alberta, Saskatchewan, Manitoba, Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland and Labrador. Quebec's civil law regime does not recognize justification, fair comment or responsible communication as such. It does not predict how a court would apply any defence to a specific set of facts.

How the Defences Fit Into a Defamation Claim

Once a plaintiff establishes that the defendant spoke or published the offensive words, malice is presumed in the common law provinces, shifting the burden to the defendant to raise a recognized defence. The Supreme Court of Canada made this comparison directly while explaining how Quebec's civil law regime works differently: "In the common law, malice is presumed once the plaintiff establishes that the defendant spoke the offensive words" (Prud'homme v. Prud'homme, 2002 SCC 85 at para. 57). In practical terms, a defendant facing a defamation claim in any common law province does not need to disprove the plaintiff's case element by element. The defendant's task is to establish one of the defences below on the facts, and each defence has its own proof requirements and its own way of being defeated.

Justification (Truth)

Justification, the defence of truth, remains a live, distinct defence in every common law province. The Supreme Court of Canada confirmed this directly in Grant v. Torstar Corp., listing the three defences available on the facts before it as "justification; fair comment; and responsible communication on a matter of public interest" (Grant v. (a doctrine stated here from general legal understanding rather than a verified citation) Torstar Corp., 2009 SCC 61 at para. 136). The traditional formulation, that a defendant need only prove the substance or 'sting' of the defamatory imputation is true rather than every literal word, is well established in Canadian defamation law. This article does not attempt to restate that doctrine's finer points, such as how courts apportion a defence where only part of a statement is proven true, since that requires a case dealing with justification directly rather than one that simply confirms it exists.

Fair Comment: The WIC Radio Test

Fair comment protects genuinely held opinion, not a false statement of fact, on a matter of public interest. In WIC Radio Ltd. v. Simpson, a radio host had compared an activist to Hitler, the Ku Klux Klan and skinheads during an editorial broadcast. The trial judge upheld the defence; the British Columbia Court of Appeal reversed; the Supreme Court of Canada restored the trial judgment. At paragraph 28, the Court set out the test:

(a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts? (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.

WIC Radio Ltd. v. Simpson, 2008 SCC 40 at para. 28

Element (d) is objective. The defendant does not need to have personally, honestly believed the opinion; the question is whether some person could honestly hold it on the proven facts. The Court also declined to add a "fair minded" qualifier some commentators had proposed for element (d), reasoning that "fair mindedness often lies in the eye of the beholder." Element (e) means that even a comment that clears every other hurdle fails if the plaintiff proves the defendant was subjectively driven by express malice, the same principle that defeats responsible communication and qualified privilege below.

Responsible Communication on Matters of Public Interest

Grant v. Torstar Corp. created a defence available to any publisher, not only traditional media, where a Toronto newspaper and reporter were sued over an article on a proposed golf course development. The Supreme Court ordered a new trial because the jury had never been instructed on this newly recognized defence. At paragraph 98, the Court set out two essential elements: "First, the publication must be on a matter of public interest. Second, the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances" (Grant v. Torstar Corp., 2009 SCC 61 at para. 98).

Paragraph 126 sets out the canonical, non exhaustive list of factors relevant to the diligence element:

A. The publication is on a matter of public interest, and B. The publisher was diligent in trying to verify the allegation, having regard to: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff's side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement's public interest lay in the fact that it was made rather than its truth ("reportage"); and (h) any other relevant circumstances.

Grant v. Torstar Corp., 2009 SCC 61 at para. 126

Whether the matter is one of public interest is decided by the judge, a gatekeeper function comparable to the "occasion" question in privilege. Whether the publisher was diligent goes to the jury, once the judge decides the evidence is capable of supporting the defence. Factor (g), reportage, is itself a named exception to the ordinary rule that repeating someone else's libel carries the same liability as originating it; the Court set out its own four part sub-test for reportage at paragraph 120, requiring attribution to an identified person, an indication the truth is unverified, a fair presentation of both sides, and context. As with fair comment, a finding of malice defeats responsible communication.

Privilege: Absolute, Qualified, and Ontario's Statutory Report Privilege

The common law recognizes two broad categories of privilege. Absolute privilege attaches to a narrow, closed set of occasions, such as statements made in Parliament or in judicial proceedings, and cannot be defeated even by proof of malice. Qualified privilege is generally understood to attach to a wider set of occasions where the defendant has a legal, moral or social duty to communicate to a recipient with a corresponding interest in receiving the information, a formulation this article did not independently verify against a controlling judgment, and, like fair comment and responsible communication, is defeated by proof of malice.

Ontario's Libel and Slander Act sets out several statutory privilege provisions that operate alongside these common law categories:

• Section 3(1): qualified privilege for a fair and accurate report, in a newspaper or broadcast, of proceedings of a Commonwealth legislative body, a Canadian public authority, a Commonwealth commission of inquiry, or an organization whose members represent a Canadian public authority, "unless it is proved that the publication thereof was made maliciously."
• Section 3(2): the same qualified privilege for a fair and accurate report of a lawfully held public meeting on a matter of public concern.
• Section 3(5) to (7): carve outs. There is no privilege for blasphemous, seditious or indecent matter, and the privilege under sections 3(1) to (4) is lost entirely if the defendant refuses to publish the plaintiff's reasonable statement of explanation or contradiction.
• Section 4(1): the Act's own text calls a fair and accurate report of court proceedings, published without comment and contemporaneously with the proceedings, "absolutely privileged."

That last label is worth pausing on. Section 4(1) carries the same refuse to publish a correction condition that section 3 carries, which means it is not truly malice and condition free the way the classic absolute privilege categories are. A reader should not treat Ontario's "absolutely privileged" court report provision as identical to textbook absolute privilege, such as a statement made on the floor of a legislature, without checking the condition in the section itself.

Separately from privilege, section 9(1) and (2) of the Act let a newspaper or broadcast defendant plead, in mitigation of damages rather than as a full defence, that the libel ran without actual malice or gross negligence and that a full apology was published or offered before or promptly after the suit began. Section 20 extends a similar apology in mitigation option to any libel or slander action, not only newspaper or broadcast cases.

Apology and Retraction as Mitigation, Not a Defence

None of the apology provisions described above are defences to liability. All of them operate on damages. British Columbia's Apology Act, in force since May 18, 2006, goes further than Ontario's mitigation-only sections and addresses the legal effect of an apology directly. Under section 1, an "apology" is defined broadly as an expression of sympathy or regret, a statement one is sorry, or any other words or actions indicating contrition, "whether or not the words or actions admit or imply an admission of fault." Section 2(1) provides that an apology does not constitute an admission of fault or liability, does not restart or extend a limitation period, and does not void insurance coverage despite contrary policy wording, and section 2(2) makes an apology inadmissible as evidence of fault or liability in any court.

Ontario has its own, separate Apology Act, 2009, built on the same core structure: an apology defined broadly, no admission of fault, no effect on insurance coverage. The difference worth flagging is section 2(4): "if a person makes an apology while testifying at a civil proceeding, this section does not apply to the apology for the purposes of that proceeding." British Columbia's Act has no equivalent carve out. In practical terms, an apology offered outside a courtroom is protected in both provinces; an apology made from the witness stand loses that protection in Ontario but not, on the text of BC's Act, in British Columbia.

Alberta, Saskatchewan, Manitoba and Nova Scotia are also reported to have their own Apology Acts with broadly similar effect. Their specific text was not independently verified for this article, so a reader in one of those provinces should confirm the details against that province's own legislation rather than assuming it mirrors British Columbia's or Ontario's version exactly.

Innocent Dissemination

A defendant who merely passed along someone else's defamatory statement, such as a platform, an internet service provider or a distributor, may be able to rely on innocent dissemination: showing no actual knowledge of the alleged libel, no awareness of circumstances that should have put them on notice, and no negligence in failing to discover it. Canada has no legislative equivalent to the United States' Communications Decency Act, section 230; this common law defence, and a related "passive instrumental role" concept for platforms that did not knowingly participate in publication, is how Canadian law handles intermediary liability instead. The full sourced treatment of this defence, including the Supreme Court's discussion in Crookes v. Newton, is on online defamation in Canada.

Watch out: Ontario's court report privilege in section 4(1), though the Act itself calls it "absolutely privileged," is lost if the publisher refuses to print the plaintiff's reasonable statement of explanation or contradiction, a condition that true absolute privilege, such as a statement made in Parliament, does not carry (Libel and Slander Act, RSO 1990, c. L.12, s. 4(1)).

This article provides general legal information about defamation defences recognized under the common law in Canada's nine common law provinces, current as of August 14, 2026. It does not address Quebec's civil law regime and does not assess whether any defence would succeed on a particular set of facts. For advice about a specific situation, consult a lawyer licensed in the relevant province.

Related reading: the Canada defamation law hub, online defamation in Canada for innocent dissemination and platform liability, anti-SLAPP laws in Canada for how public interest expression is protected from lawsuits, and what to do if you've been defamed or accused.