Defences to Defamation in Ontario: Truth, Fair Comment, and Privilege

Proving that a statement was published and caused reputational harm is only half the battle in a defamation case. Once a plaintiff establishes those elements, the burden shifts to the defendant to raise a complete defence. Understanding these defences is essential whether you are bringing a claim (so you can anticipate what the other side will argue) or defending one (so you know your options).

Ontario defamation law recognizes four main defences to a defamation claim: truth, fair comment, qualified privilege, and responsible communication on matters of public interest.

1. Truth (Justification)

The defence: A statement cannot be defamatory if it is substantially true. The law does not penalize people for accurately stating true facts, no matter how damaging those facts are to the plaintiff's reputation.

How it works:

• The defendant must prove the statement was substantially true — not perfect in every word, but true in its essential sting.
• The standard is the balance of probabilities: more likely true than not.
• If a defendant succeeds in proving truth, the plaintiff receives nothing — the claim is dismissed entirely, even if the plaintiff suffered significant reputational harm.

Key practical point: Truth is a complete defence, but it puts the defendant in the position of proving the truth of what they said. This is why defendants who made carelessly false claims cannot simply assert truth and walk away — they need evidence.

What this means for plaintiffs: If there is any truth to the allegation, a defamation claim becomes risky. A defendant's discovery of supporting evidence during litigation could vindicate the statement and expose you to cost consequences.

2. Fair Comment

The defence: The fair comment defence protects genuine expressions of opinion on matters of public interest, even harsh or unfair ones, provided the opinion is based on provably true facts.

The elements:

1. The statement was a comment (opinion or inference), not a statement of fact.
2. The comment was on a matter of public interest — broadly construed to include businesses, public figures, artistic works, community matters, and more.
3. The comment was based on facts that either were stated in the publication or were known to the audience.
4. Any person, however prejudiced or extreme in their views, could honestly hold the opinion — not necessarily the view a reasonable person would hold, just a view an honest person could hold.
5. The defendant was not acting out of malice (a dominant improper purpose). Malice can defeat the fair comment defence.

Examples where fair comment typically applies:

• A restaurant critic calling a meal "terrible" and the service "abysmal" based on their actual visit.
• A consumer saying a contractor's work was "shoddy" after describing specific defects.
• A columnist calling a public official's decision "corrupt-looking" after accurately describing what the official did.

Examples where fair comment typically fails:

• The "opinion" implies specific false facts that were not actually true.
• The defendant was acting out of personal spite rather than genuine expression.
• The "facts" underlying the opinion were themselves false.

3. Qualified Privilege

The defence: Certain communications are made in circumstances where the law recognizes a duty or interest in making them freely — such as an employment reference, a complaint to a regulatory body, a report to police, or an internal workplace communication. These are protected by qualified privilege even if the statement turns out to be false, as long as the defendant acted without malice.

Classic examples:

• A former employer giving an honest job reference to a prospective employer.
• A professional filing a complaint about a colleague with their regulatory body.
• A witness providing information to police.
• A board member reporting concerns about a fellow director to the full board.

The malice limit: Qualified privilege is defeated by malice — if the defendant's dominant purpose was to injure the plaintiff rather than to discharge the duty or protect the interest that gave rise to the privilege, the protection is lost. Excessive publication (sharing the statement with people who had no need to know) can also defeat the privilege.

4. Responsible Communication on Matters of Public Interest

The defence: Recognized by Canadian courts, this defence protects publications about matters of genuine public interest where the defendant acted responsibly in verifying the information — even if some factual statements turn out to be false.

Key considerations:

• The subject matter must be genuinely in the public interest.
• The defendant must have been diligent in verifying the facts before publishing.
• Courts look at the seriousness of the allegation, the reliability of the sources, whether the plaintiff was given a chance to respond, and the urgency of publication.

This defence is particularly relevant to journalists, bloggers, and advocacy organizations, but it can potentially apply to private individuals communicating on matters that genuinely affect the public.

Absolute Privilege: A Special Category

It is worth noting that some communications carry absolute privilege — complete immunity regardless of malice or falsity. In Ontario, these include:

• Statements made in the course of Parliamentary or legislative proceedings.
• Statements made during judicial proceedings (in court, by lawyers, witnesses, and parties).
• Statements made in certain official communications between government officers.

If someone says something about you during a court proceeding that you know to be false, you cannot sue them for what was said in that context.

Frequently asked questions