Malice

Spite or ill-will.

Spite, ill-will, bad faith or indirect motive.

In Wilkinson, Justice McMahon of the Alberta Court of Queen's Bench adopted these words:

"Malicious: characterized by, or involving, malice; having, or done with, wicked, evil or mischievous intentions or motives ; wrongful and done intentionally without just cause or excuse or as a result of ill will."

In a 1978 defamation case, Cherneskey, Justice Dickson of Canada's Supreme Court wrote, albeit in dissent:

"Malice is not limited to spite or ill will, although these are its most obvious instances. Malice includes any indirect motive or ulterior purpose, and will be established if the plaintiff can prove that the defendant was not acting honestly when he published the comment. This will depend on all the circumstances of the case."

But in 1995, in Hill v Church of Scientology, the same court added:

"Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes ... any indirect motive or ulterior purpose that conflicts with the sense of duty or the mutual interest which the occasion created.... Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth."

In the context of defamation on the defence of qualified privilege, the Court will look for an indirect motive or ulterior purpose that conflicts with the sense of duty or the mutual interest which the occasion created, or dishonesty or reckless disregard for the truth.

In ATU v ICTU, Justice Lutz of the Alberta Court of Queens Bench used these words:

"Malice may be shown either from the nature, character and relevance of the words used or from evidence as to the behaviour, motive and knowledge of the defendant when publishing them, or in defending the action, or in failing to take appropriate steps in correcting, retracting or apologizing for the defamatory remarks.

"I note that while the burden of proving malice is normally on the plaintiff, in certain circumstances, the affirmative evidence of malice may be sufficiently cogent to require the Defendant to answer it or stand condemned.

"There are a number of factors that can indicate the presence of malice. For example, malice can be found where the published statements are false, and are known to be false by the Defendant. In addition, the conduct of the parties, or the manner of use of the words can indicate the presence of malice. In addition, malice may be shown by the constant repetition of the same or similar remarks.... The evidence is admissible even though the subsequent words may be independently actionable."

In libel and slander, malice is distinguished from irrationality, stupidity or obstinacy.

References:

• ATU v ICTU 195 Alberta Reports 161
• Cherneskey v. Armadale Publishers Ltd., 1979 1 SCR 1067
• Hill v Church of Scientology (1995) 2 SCR 1130
• Netupsky v. Craig 1973 SCR 55
• Taylor v. Despard, 1956 OR 963 (CA)
• Turner v. Metro Goldwyn Mayer Pictures Ltd.1950 1 All ER 449
• Wilkinson v Security National Insurance 1999 ABQB 675