What is the test for making out a defamation defence?

Alberta, Canada


The following excerpt is from Sykes v. Southam Inc., 1991 CanLII 5811 (AB QB):

The effect of the above ruling is that a prima facie case of defamation has been made out and the onus, therefore, is placed upon the defendants to make out their defence. It has often been said that defamation actions are overly complicated, and for good reason. Much of the confusion is caused by the complexity of rules regarding the onus of proof and their interaction with the various presumptions which may be applicable at different points in the proceedings. The onus of proving the case on a balance of probabilities is, of course, on the plaintiff, but having established that the words complained of refer to the plaintiff, were published, and were defamatory in meaning, the onus then switches to the defendants to establish their defence. The onus on the defendant pleading justification is to prove the truth of the statement. There is no onus on the plaintiff to prove that the words are false. Rather, this is presumed in his or her favour. The onus on the defendant pleading fair comment is to prove that the comment is made on a matter of public interest, the comment is based upon fact, the comment is recognizable as comment, and that the comment would be an honestly held opinion in the objective sense: Chernesky v. Armadale Publishers. However, if the defendants are successful in establishing this defence, the onus once again reverts to the plaintiff to establish that the publication was actuated with express malice.

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