Can a plaintiff plead justification in a libel case?

Counsel for the plaintiff contended that this was open to him because the plaintiff had pleaded that the alleged libel was “false and malicious” and that this allegation had been denied in the defence. Pleadings in libel cases have been before the courts so often there is now no question as to what must be pleaded and how it should be pleaded. The defendant did not plead justification. Counsel for the plaintiff relies on Fountain v. Boodle (1842) 3 QB 5, 114 ER 408, as authority for the admission of this evidence. This case was decided in 1842 at a time when the defendant was permitted to plead “not guilty” which plea covered every defence possible. The plaintiff, therefore, had to meet in advance the plea of qualified privilege. The defendant gave no evidence and the judge told the jury that the occasion was privileged and that the onus was on the plaintiff to prove malice. I cannot find the case referred to in any later judgment nor is it referred to on the admissibility of evidence in any textbook.

In McKergow v. Comstock (1906) 11 OLR 637, at 642, it was laid down by Anglin, J. (later C.J.C.) as follows: “The general proposition that, where justification is not pleaded, evidence to prove the truth or falsity of the alleged libel is inadmissible has been too long and too firmly established to admit of controversy.”