OFFICIAL COMMUNICATIONS GENERALLY (a). The detection of irregularities in the Post Office often leads to communications that require to have the veil of privilege cast over them (b). PRIVILEGE: FUNCTIONS OF JUDGE AND JURY (c). It is the function of the judge to determine whether the Ontario. occasion was privileged, and if privileged, in the absence of evidence of malice, there is nothing to be left to the jury as to bona fides or otherwise (d). MALICE (e). It having been decided that the occasion is privileged, the older Ontario. cases hold that actual malice (of a rather formal type) must be proved extrinsically to the communication (f). But from a more recent case it appears dangerous for a judge to attempt to define malice, and safer to leave it to the jury to say whether the defendant acted through a wrong feeling in his mind against the plaintiff some unjustifiable intention to do him wilful injury (g). Generally the defendant's knowledge of the falsity of a statement is evidence of malice (h); but not so his pleading justification. and not attempting to prove it (i). QUALIFIED PRIVILEGE DESTROYED BY EXAGGERATED LANGUAGE (k). The case of Fryer v. Kinnersley (1), which the authors of the Ontario. text consider no longer law, has been followed in the Upper Canada case of Graham v. Crozier (m). CONFIDENTIAL RELATIONSHIP (n): TRADE A communication by the secretary of a trade association to the Ontario. Ontario. British Manitoba. New members that plaintiff was unworthy of credit was held privileged on the ground of interest, and the privilege held to include the publication to the copyist of the circular (a). PRIVILEGE OF PETITION (b). An action for libel contained in communications to the Government with a view of obtaining redress cannot be sustained unless the party making them acted maliciously and without probable cause (c). A petition to license commissioners against a license has been held not absolutely privileged, but that the onus lay on the plaintiff to prove malice and wrong motive (d). FAIR COMMENT (e). It is clear, upon the authorities, that a man may not invent his facts and then comment on them and succeed upon the ground that, the facts being assumed to be true, the comment is fair (f). The rule about comment has no application to private communications, but only to statements made about public acts or matters of public interest (g). A writer may not charge a public man with misconduct or impute dishonest motives to him, and then, under a plea of fair comment, bring extrinsic evidence to show that the charge or imputation is true. But if the writer were commenting on the public man's public acts or conduct he may prove the facts on which he based his comment, and if the proof of these facts satisfied the jury that the inferences the defendant has drawn are not unfair or malicious, then they are entitled to say that they are fair comment and not libellous (h). To bring a case within the privilege of being bonâ fide comment Brunswick. on a matter of public interest the comment "must be comment on admitted facts or facts proved to be true, or comments on facts involved in a report of proceedings the publication of which would be privileged. This (referring to the matter in dispute) is an allegation, not a comment" (i). (a) Harper V. Hamilton Retail (c) Rodgers v. Spalding, 1 U. C. R. 258. (d) Willcocks v. Howell, 5 O. R. 360. (e) P. 604, supra. (f) Crow's Nest Pass Coal Co. v. Bell, 4 0. L. R. 660. (g) Williams v. Morris, 4 West. L. R. 99, per Hunter, C.J. (h) Martin v. Free Press, 8 M. L. R., 50; 21 S. C. R. 518. (i) McDonald v. Sydney Post Publishing Co., 1 East. L. R. 61 (1906), per Graham, E.J. PUBLIC INTEREST IN SUBJECT-MATTER (a). The conduct of a solicitor for a municipal corporation is a Ontario. matter of public interest (b). LOCAL ADMINISTRATION (c). It has not been held that the administration of a prison is not Ontario. a matter of public and general interest. But in one case the publication in question-being letters grossly reflecting on the warden-was held not a fair comment upon a matter in which the public had an interest (d). PRIVILEGE DESTROYED BY MALICE (e). If a party on a privilege doccasion speak or write what is Nova untrue to his knowledge, this is evidence of malice sufficient to Scotia. destroy the privilege of the occasion (ƒ). SPECIAL DAMAGES (g). When special damages (in the way of loss of business) are Manitoba. claimed, the names of the customers whose business has been lost must be set out (h). The customers should be called as witnesses to testify that New they had refused to deal with the plaintiff in consequence of the Brunswick. defendant's charge (i), DAMAGES: MITIGATION OF DAMAGE (k). The Courts do not favour giving heavy damages in a "mere Nova petty squabble" (l). Scotia. In a case of slander, Wetmore, J., gave the low amount of $100 Alberta and and costs "because evidently plaintiff's reputation was not Saskatcheinjured to the slightest degree, and the slander was largely the wan. result of temper in an excitable woman who seemed to have been unable to control her tongue properly" (m). Ontario. New PROVOCATION (a). Previous editorial articles attacking the defendant are admissible in evidence in mitigation of damages as furnishing provocation for the alleged libels (b). BAD REPUTATION OF PLAINTIFF (c). In an action of slander for charging the plaintiff with stealing, Brunswick. evidence of the general bad character of the plaintiff is not admissible as evidence in mitigation of damages (d). Nova It is safer to plead that the words were part of an altercation and of mere general abuse than to attempt (and fail) to prove that the plaintiff has a bad reputation (e). (a) P. 624, supra. (b) Stirton v. Gummer, 31 O. R. 227 ; Percy v. Glasco, 22 U. C. C. P. 521. (c) P. 626, supra. (d) Williston v. Smith, 3 Kerr, 443. Cf. the Ontario case, Moore v. Mitchell, 11 O. R. 21, disapproving Wilson v. Woods, 9 O. R. 687; see also Myers v. (e) Croft v. Jodrey, 28 N. S. R. 78, costs given as a penalty for attempting to prove bad character. actionable as causing WORDS cannot of themselves amount to a direct infringement Words of any right except that of reputation, and cannot therefore, apart from consequences, give a cause of action except when they are damage. defamatory of the person complaining. They may, however, be the cause of damage to a man in the conduct of his affairs, and such damage may amount to a legal wrong. If property of any Slander of kind is for sale, and any one, without lawful motive, comes forward and falsely alleges that any incumbrances, charges, or liabilities exist with respect to it, or otherwise impeaches or cuts down the right or capacity of the vendor to make a good conveyance, and in consequence the bargain goes off, an action lies, which is commonly known under the name of "slander of title." This "is not properly an action for words spoken or for libel written or published, but an action on the case for special damage sustained by reason of the speaking or publication of the slander of the plaintiff's title" (a). The precise language used is still, however, a material part of the cause of action, in all cases actual malice being a necessary ingredient in an action for slander of title (b); and where malice is proved, but not otherwise, an injunction may be granted to restrain a slander of title before any actual damage has been sustained (c). In Gutsole v. Mathers (d), where the plaintiff simply set out in his declaration the substance of certain misrepresentations as to his title to goods, judgment (a) Per Cur., Malachy, v. Soper, (1836) 3 Bing. N. C. pp. 384-5. (b) Hargrave v. Le Breton, (1769) 4 Burr. 2423. (c) Dunlop Pneumatic Tyre Co. v. Maison Talbot, (1903) 20 T. L. R. 88; (d) (1836) 1 M. & W. 495. title. |