What is the test for the defence of qualified privilege?

Ontario, Canada


The following excerpt is from Cummings v Burlington Radio Control Modelers, 2018 CanLII 123232 (ON SCSM):

33. The defence of qualified privilege is not absolute and may be defeated if a plaintiff can show that a defendant made the publication maliciously. However, the word “malice” is not limited to its ordinary meaning of animosity or hatred. Instead, publication is deemed malicious and unprotected by qualified privilege (or for that matter, the defence of fair comment) if it is published not to accomplish the societal good underlying the defence of privileged communication, but rather to advance “any indirect motive or ulterior purpose.” See Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129, at paragraphs 144-145. The onus of alleging and proving malice lies with the plaintiff.

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