April 2, 2020
Senft v Vigneau 2020 YKCA 8

The respondents brought an action against the appellants for allegedly defamatory comments. The appellants pleaded the defence of fair comment and the respondents replied by pleading the appellants had acted with express malice in publishing the comments.

The judge put the question of malice to the jury without first determining if the evidence established a probability of malice. The jury was directed to first make a finding on the question of malice before considering if the defence of fair comment was established.

The jury found the comments were defamatory and that the appellants had acted with malice. They awarded the respondents general, special, aggravated and punitive damages. No finding was made with respect to the defence of fair comment.

Held: Appeal allowed, awards set aside and a new trial ordered. The judge erred in failing to determine whether the evidence adduced at trial raised a probability of malice before putting the question of malice to the jury. The judge also erred in failing to instruct the jury that (i) express malice could not be considered unless they first determined the appellants had established the defence of fair comment on a balance of probabilities and (ii) if established, in order to defeat the defence, that malice was the appellants’ dominant motive in publishing the defamatory comments.