2012 December 21

Whitehead v Sarachman, 2012 ONSC 6641

The Ontario Divisional Court allowed an appeal by the defendant from a trial judge’s finding that the defendant had been guilty of actual malice which vitiated a defence of qualified privilege. The action concerned an exchange of emails between the plaintiff and the defendant, who were both members of Hamilton City Council. The email exchange had been copied to all other City Councillors and to the Mayor of Hamilton.

The Divisional Court held that although it was open to a trial judge to find intrinsic evidence of malice in the defamatory emails themselves, the “wording must be so violent, outrageous and disproportionate to the facts that it furnishes strong evidence of malice.” The Divisional Court warned that “[i]solated expressions should not be examined hypercritically. A court should not too readily draw an inference of malice from mere exaggeration or extravagance in the use of language. Any warmth or force of expression may properly be attributed by the jury to an honest endeavour on the part of the defendant to honestly achieve his or her purpose. The language must be extreme before an inference of malice will be drawn.” [Quoting Brown on Defamation, at p.16-115 to 116]

The Divisional Court held that the plaintiff’s honest belief in the truth of what he published on an occasion of qualified privilege is a “strong presumption” [citing Brown on Defamation, at pages 16-134.] To prove actual malice, it is not sufficient to prove that the defendant was moved by spite to say the things he said. The plaintiff must show that the defendant’s dominant motive was improper. In the circumstances, the Divisional Court sent the action back to the trial court for a new trial before a different judge.