Background
The Canadian Union of Postal Workers sued Quebecor Media Inc., Sun Media Corporation, TVA Group Inc., broadcaster and columnist Jerry Agar, and Avi Benlolo over a July 2014 television broadcast and Toronto Sun column. The publications followed CUPW representatives’ attendance at an Ottawa demonstration supporting Palestinians, where a CUPW flag was photographed near a flag associated with Hamas, a designated terrorist organization.
The trial judge found that the publications conveyed that CUPW supported terrorism and was associated with Hamas. Those meanings were defamatory and substantially untrue, so justification failed. Nevertheless, the trial judge dismissed the action because fair comment applied; he also held that some communications were protected by responsible communication and statutory privilege. CUPW appealed those conclusions and alleged that hindsight bias affected the judgment.
The Court’s Holding
The Court of Appeal dismissed the appeal. Applying the deferential standard for mixed questions of fact and law, it upheld the finding that the statements, viewed in their full context and in their pith and substance, were opinions rather than assertions of fact. The opinions concerned a matter of public interest, rested on facts sufficiently disclosed or otherwise known, and were opinions that a person could honestly hold on the proven facts, even though they were defamatory, substantially untrue, and potentially extreme.
The court also upheld the rejection of malice, relying on the respondents’ honestly held beliefs and the absence of evidence establishing spite, ill will, or dishonesty. It further found no reversible error in the conclusions that the corporate respondents responsibly verified the relevant underlying facts and gave CUPW an opportunity to respond, and that statutory privilege protected fair and accurate reporting of the demonstration’s basic facts. The hindsight-bias allegation had no merit. Each of the two respondent groups received $50,000 in partial-indemnity costs, payable within 90 days.
Key Takeaways
- Defamatory and substantially untrue words may still be protected as fair comment when their overall substance is recognizable as opinion grounded in disclosed or commonly known facts.
- The honest-belief inquiry asks whether a person could honestly hold the opinion on the proven facts; the opinion need not be reasonable, moderate, or proportionate.
- Verification of the underlying facts and a meaningful opportunity for the subject to respond supported responsible communication, while fair and accurate reporting of the demonstration’s basic facts attracted statutory privilege.
Why It Matters
The decision reinforces the broad protection Canadian defamation law gives to opinion in contentious public debate. Courts assess alleged comments contextually and without excessive technicality, while distinguishing protected opinion from the factual foundation that publishers remain responsible for verifying.
For media organizations and advocacy groups, the ruling also illustrates the value of checking observable facts, disclosing the basis for strong characterizations, and inviting the subject to respond before publication.