What is the test for losing privilege over an incident report?
British Columbia, Canada
The following excerpt is from Taylor-Wright v. CHBC-TV, 1999 CanLII 3634 (BC SC):
Once the defendant has proved that the occasion is privileged and that the report was fair and accurate, "the bona fides of the defendant is presumed": Hill v. Church of Scientology of Toronto, supra at 171 (D.L.R.). It should be noted that the privilege does not attach until the defendant proves the above requirements. Therefore, a defendant who is unable to prove that the report was fair and accurate -- or who is shown by the plaintiff to have not been fair and accurate --does not lose the privilege; rather, the report was never privileged in the first place. (4) Malice
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