What is the test for a defence of responsible communication?

Ontario, Canada


The following excerpt is from Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26 (CanLII):

As Cavanagh J. so aptly put it: “Where a trier could reasonably conclude that the defendants did not conduct a sufficiently diligent investigation… a trier could reasonably conclude that the defence of responsible communication would not succeed”: Hamlin v. Kavanagh, 2019 ONSC 5552, at para. 45.

The defence of responsible communication will apply where the publication is on a matter of public interest, and the publisher diligently tried to verify the allegation taking into account: (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, [2009] 3 S.C.R. 640, at para. 126.

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