Korach v. Moore and Board of Education for the

City of Windsor *

Indexed as: Korach v. Moore

(C.A.)

1 O.R. (3d) 275

[1991] O.J. No. 1

Action No. 79/89

ONTARIO

Court of Appeal for Ontario

Houlden, Grange and Carthy JJ.A.

January 2, 1991

* Application for leave to appeal to the Supreme Court of Canada dismissed with costs June 13, 1991 (L'Heureux-DubÈ, Gonthier and Iacobucci JJ.). S.C.C. File No. 22286. S.C.C. Buleltin, 1991, 1489.

Torts -- Libel and slander -- Defences -- Qualified privilege -- High school vice-principal's letter evaluating supply teacher's performance written on occasion of qualified privilege -- Whether plaintiff proved malice in law -- Whether defendant had reasonable grounds to believe truth of defamatory statements irrelevant in establishing malice -- Malice established where defendant did not honestly believe that defamatory statements made were true -- New trial ordered to determine whether defendant had honest belief in defamatory statements.

The respondent provided teaching services to the appellant at the secondary school level on an occasional or supply basis. In his capacity as vice-principal, the appellant wrote a letter to the area superintendent of the school board concerning the respondent's performance as a teacher. This letter reported an increased tendency on her part to send students to the office, and alluded to discrepancies between her accounts and those of the students. It concluded with a suggestion that she be re-assigned from a vocational setting to a regular secondary school. The respondent brought an action in libel against the appellant vice-principal and school board. The trial judge found malice in law because the appellant did not honestly and on reasonable grounds believe that what he wrote was true.

Held, the appeal should be allowed and a new trial ordered.

Per Grange J.A. (Carthy J.A. concurring): The appellant had a duty to evaluate supply teachers and this letter was therefore written on an occasion of qualified privilege. In such circumstances the onus is on the plaintiff to prove malice. The judgment cannot stand because the trial judge used the wrong test. The question is not whether the appellant's belief was reasonable but whether it was honestly held. There was no direct evidence of vindictiveness, dislike, revenge or improper motive. However, if the appellant had no basis for believing the contents of his letter, it can be inferred his belief in those allegations was not honestly held. A new trial is necessary to determine that issue.

Horrocks v. Lowe, [1975] A.C. 135, [1974] 1 All E.R. 662, [1974] 1 W.L.R. 282 (H.L.), folld

Adam v. Ward, [1917] A.C. 309, [1916-17] All E.R. Rep. 157, 86 L.J.K.B. 849 (H.L.); Laughton v. Sodor and Man (Bishop) (1872), L.R. 4 P.C. 495, 21 W.R. 204, 17 E.R. 534 (P.C.); Netupsky v. Craig, [1973] S.C.R. 55, 28 D.L.R. (3d) 742, discd

Per Houlden J.A. (dissenting): The facts in this case reveal no evidence of malice. There is a complete absence of any evidence that the appellant published his defamatory statements for an improper purpose. Evidence of malice may be extrinsic or intrinsic. The wording of this document provides no intrinsic evidence of malice. Although the extrinsic evidence suggests appellant was careless or negligent in forming his views, this does not constitute malice, and the plaintiff has not met her onus. The appeal should be allowed and the action dismissed. There should be no order for costs.

Cases referred to

Adam v. Ward, [1917] A.C. 309, [1916-17] All E.R. Rep. 157, 86 L.J.K.B. 849 (H.L.); Davies & Davies Ltd. v. Kott, [1979] 2 S.C.R. 686, 9 C.C.L.T. 249, 98 D.L.R. (3d) 591, 27 N.R. 181; Horrocks v. Lowe, [1975] A.C. 135, [1974] 1 All E.R. 662, [1974] 1 W.L.R. 282 (H.L.); McLoughlin v. Kutasy, [1979] 2 S.C.R. 311, 8 C.C.L.T. 105, 97 D.L.R. (3d) 620, 26 N.R. 242; Netupsky v. Craig, [1973] S.C.R. 55, 28 D.L.R. (3d) 742; Spill v. Maule (1869), L.R. 4 Exch. 232, 38 L.J. Ex. 138, 17 W.R. 805 (Ex. Ch.)

Authorities referred to

Brown, Raymond, The Law of Defamation in Canada (Toronto: Carswell, 1987), vol. 1, pp. 743, 744 footnote 98, 746-47

Winfield and Jolowicz on Tort, 11th ed. by W.V.H. Rogers (London: Sweet & Maxwell, 1979), p. 329

APPEAL from a judgment rejecting the appellants' defence of qualified privilege in an action for defamation.

Raymond G. Colautti, for the Board of Education of the City of Windsor, appellant.

Aubrey E. Golden, Q.C., and Sherry S. Liang, for Charles Moore, appellant.

Frederick W. Dickens, for respondent.

GRANGE J.A. (CARTHY J.A. concurring):-- This is a libel action arising out of a letter written by the defendant Moore, the vice-principal of a high school in Windsor, concerning the plaintiff, an occasional teacher at that school. The letter was conceded to be defamatory. The original defences were justification and qualified privilege but before us only the latter was relied upon. The trial judge rejected both defences finding the qualified privilege defeated by malice. He awarded the plaintiff damages of $26,000. Both parties initially appealed the quantum awarded but abandoned that issue prior to the hearing of the appeal.

The letter, the subject-matter of the action, was addressed to the area superintendent of the appellant board, one Clifford Hyland, and is reproduced in full as follows:

Dear Mr. Hyland:

Re: Our telephone conversation of Sept. 30/83

I regret having to express my concerns regarding the services of Katherine Korach of the secondary supply pool.

Miss Korach has, in the past, been a requested replacement by many of the staff at Monarch Secondary School and has been employed by us in long term situations. Staff have found that she has made a sincere attempt to cover the material left by them, has left detailed accounts of what was accomplished and rooms and equipment have been found in good order.

However, since April, 1983 I have noticed a trend in the increasing number of students she has sent to the office and the negative tone of the reports that have accompanied these students. On several occasions she has accused students of addressing her in foul and abusive terms. A number of these students have strongly disagreed with these accusations and have been honestly upset that they should be so accused.

I am concerned regarding the two possible explanations for these incidents. The first would indicate that there has been a change in Miss Korach's approach in dealing with vocational students that now can create an environment that gives rise to hostile reactions.

If this is not the case the second explanation would indicate that a very substantial discrepancy between what has been reported and what has actually occurred has been reported in several cases.

Regardless of the explanation, Miss Korach has indicated to me that she has requested not to be assigned to Shawnee Secondary School due to earlier problems. Perhaps it would be best that the same arrangement be made regarding Monarch Secondary School.

Her services would be more appropriate in a regular secondary school where there would be less opportunity for this type of confrontation to develop.

The trial judge found that Hyland had a duty to evaluate occasional or supply teachers and that he had instructed Moore to report any difficulties with them. There can be no doubt that the letter was written on an occasion of qualified privilege and the trial judge so found.

As the letter indicated, the main complaint against the plaintiff was the increased number of students she had sent to the office with negative reports. The letter suggested that she would be better suited to a regular secondary school rather than a vocational school where complaints of lack of discipline were more likely to arise. The letter also suggested that the complaints were disputed by "a number of the students" and that either the plaintiff had done something to create the hostile environment or had exaggerated or possibly misstated the incidents.

The trial judge examined some ten reports emanating from the plaintiff over the relevant period. He reached the conclusion that in many cases the facts in the reports were or might have been true and that Moore had done inadequate research. Moore had apparently supported the plaintiff by disciplining or warning the child in question in most of the instances. The trial judge preferred the evidence of the plaintiff to that of Moore on matters in dispute between them and in particular accepted her evidence that there had been only one meeting between them to discuss discipline and not four as claimed by Moore. Generally, in reviewing Moore's conduct, he said:

The only logical conclusion is that he made the libellous statement recklessly. It was a careless statement made without regard to its accuracy or at worse (sic) knowing it to be untrue.

What he did not find, however, is in my view more important. He could find "no direct evidence of vindictiveness, dislike, revenge or improper motive". I cannot interpret the concluding phrase "or at worse (sic) knowing it to be untrue" as a finding of dishonest belief. It is more an expression indicating that the trial judge did not feel he need go that far. In his view, carelessness or recklessness was sufficient without knowledge of the falsity or the lack of concern for the falsity that recklessness in law connotes.

The trial judge then went on to say:

I draw the inference from these facts that there was malice in law. In any event, having regard to all the circumstances of the case, it cannot be said in the words quoted earlier that the defendant Moore "might have honestly and on reasonable grounds" believed that what he wrote was true.

(Emphasis original)

In my opinion, the trial judge used the wrong test and his judgment cannot stand. It is apparent to me that he considered that not only must the defendant's belief be honestly held but that it must be reached on what, objectively viewed, are reasonable grounds.

The true test, I believe, is found in the dicta of Lord Diplock in Horrocks v. Lowe, [1975] A.C. 135, [1974] 1 All E.R. 662, [1974] 1 W.L.R. 282 (H.L.), at p. 150 A.C.:

... what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, "honest belief." If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be "honest," that is, a positive belief that the conclusions they have reached are true. The law demands no more.

The trial judge did, in my view, equate recklessness with carelessness, impulsiveness or irrationality. This is clear from his approach to the facts and his consideration of the truth or falsity of the statements in the letter. That he did take that approach is indicated by his emphasis on the phrase "on reasonable grounds". The trial judge's failure to appreciate the true test is demonstrated by his refusal to permit counsel for the defendants to tender evidence of what had been said by others to Moore concerning the matter. That evidence was not tendered for its truth but to show Moore's state of mind. It was not hearsay; it was evidence going to the issue in the action -- the honesty of Moore's belief in what he had written. The question is not whether his belief was reasonable but whether it was honestly held. Of course, if there was no ground for the belief it might be that a court would conclude that the statement was made recklessly and that conclusion would have been more readily reached if the statement were made out of an improper motive but there is no such motive here as the trial judge properly found.

As Professor Raymond Brown has written in his The Law of Defamation in Canada (Toronto: Carswell, 1987), vol. 1, p. 743: "(T)here is a division of opinion as to whether the belief must be reasonable as well as honest". In the course of reviewing the cases and just before he cites the dicta of Lord Diplock, supra, Brown concludes on pp. 746-47:

... a defendant is not malicious merely because he relies solely on gossip and suspicion, or because he is irrational, stupid, hasty, rash, improvident or credulous, foolish, pig-headed or obstinate, or because he was labouring under some missapprehension or imperfect recollection, though the presence of these factors may be some evidence of it. Thus the issue "is, not whether an ordinary reasonable man would have believed the charge under the circumstances, but whether the defendant did in fact believe it, regardless of his degree of intelligence, or credulity.'' While not clearly representative of the Canadian position, these latter views appear to be the preferred holdings and certainly represent the position of the English courts.

The trial judge relied for authority upon the words of Lord Atkinson in Adam v. Ward, [1917] A.C. 309, [1916-17] All E.R. Rep. 157, 86 L.J.K.B. 849 (H.L.), at p. 339 A.C.:

... a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.

(Emphasis added)

which was quoted with apparent approval by Ritchie J. in

Netupsky v. Craig, [1973] S.C.R. 55, 28 D.L.R. (3d) 742, at pp.

61-62 S.C.R.

I do not consider either case to be authority for an objective view of the reasonableness of the defendant's belief. In Adam v. Ward, Lord Atkinson, immediately before the passage quoted [p. 339 A.C.], referred to a judgment of Lord Halsbury in Laughton v. Sodor and Man (Bishop) (1872), L.R. 4 P.C. 495, 21 W.R. 204, 17 E.R. 534 (P.C.), at p. 508 L.R. 4 P.C., as follows:

But suppose it was not true, suppose it was not accurate in the sense in which people would have understood it, ... suppose the persons who wrote that document intended to tell the truth and believed in the truth of what they were writing, even though in the mind of some other person it should be inaccurate in form, it seems to me that it would be impossible to contend that that would be evidence of malice.

In Netupsky, the majority of the Court of Appeal and the Supreme Court of Canada found the statements complained of truly represented the facts. Gale C.J.O. in dissent in the Court of Appeal had held that there was some evidence that some of the statements were untrue to the knowledge of the defendants. The issue of what would be the result if an untrue statement was made in an honest belief of its truthfulness did not arise.

The trial judge's approach in weighing the evidence relevant to the truth or falsity of the defendant's statement is more appropriate to an action for wrongful dismissal. A court of appeal cannot, of course, interfere with a trial judge's finding of fact based upon the evidence but the facts found must relate to a proper issue in the action.

On an occasion of qualified privilege the onus is upon the plaintiff to prove malice. This is perhaps particularly important in a case such as the one at bar where nothing should be done to deter a principal from making an honest report upon a teacher. If the former were required to prove the accuracy of his statements, even on a balance of probabilities, upon pain of a judgment for libel, there would be very few reports made.

If I am correct that the trial judge used the wrong test in reaching his conclusion on malice, the judgment cannot stand. The only question is whether there is any evidence upon which the defendant can be found to have acted maliciously in which event there must be a new trial or if there was no such evidence in which case the action must be dismissed.

The trial judge inferred malice from the finding of inaccuracy relating to the reports received. He equated the reference to a "very substantial discrepancy between what has been reported and what has actually occurred" in para. 5 of the letter, to an allegation of lying. He found that Moore had not observed the plaintiff's teaching nor had he had her assessed and that he had not treated her fairly. None of these findings in my view have anything to do with malice except perhaps the first. If it can be said that Moore had no basis for believing that what the plaintiff had set out in the reports was false or exaggerated, then it can be inferred that his belief in the truth of his allegations of "discrepancy between what had been reported and what had actually occurred" was not honestly held.

Moore, in his evidence, said he believed the allegations and he gave evidence of at least two students who strongly disputed the facts in the plaintiff's reports. He also conceded that in many instances disciplinary action against the student concerned was imposed. The issue that was or should have been before the trial judge was whether Moore had no honest belief in (or was reckless as to the truth or falsity of) his statements about the plaintiff in his letter. One could draw the inference that the message of the letter was only that the writer was concerned about the teacher's inability to maintain discipline in a vocational school setting. From the many reports -- there was evidence that the plaintiff made many more adverse reports on students than did most other teachers -- this was a legitimate concern. Upon all the evidence, however, I think it is possible also to draw the inference that (a) the defendant was stating that the plaintiff in her reports was not telling the truth and (b) because of his taking some formal disciplinary action in most of the instances, he had no honest belief in his allegation. Because of that possibility I think there must be a new trial wherein it will be determined what Moore was alleging against the plaintiff and whether he had an honest belief in the truth of his allegation. The "honest belief" will not be determined on an objective basis. The only relevance of the truth or falsity of the allegations will be to determine whether the defendant had an honest belief in the allegations made.

I would allow the appeal, set aside the judgment below and direct a new trial. The defendants will be entitled to their costs of this appeal. The costs of both trials will be determined by the judge presiding at the new trial.

HOULDEN J.A. (dissenting):-- I have had the benefit of reading the reasons of Grange J.A., but, regrettably, I am unable to agree with him that a new trial should be ordered in this case. In my opinion, there is no evidence of malice. I would, therefore, allow the appeal and dismiss the action.

The trial judge found that the letter of October 3, 1983 was written on an occasion of qualified privilege. That finding, as Grange J.A. has pointed out, is not challenged in this appeal. Qualified privilege creates a presumption against malice: Davies & Davies Ltd. v. Kott, [1979] 2 S.C.R. 686, 9 C.C.L.T. 249, 98 D.L.R. (3d) 591, 27 N.R. 181, at p. 694 S.C.R. Accordingly, the bona fides of the defendant Moore and his honesty of belief in the truth of the statements contained in the letter are presumed in his favour: Netupsky v. Craig, [1973] S.C.R. 55, 28 D.L.R. (3d) 742, at p. 61 S.C.R. To rebut the presumption, the plaintiff must prove actual malice, or as it is more commonly called, "express malice".

Malice, in this branch of the law of defamation, means either (a) lack of honest belief in the truth of the libellous statements; or (b) use of the privileged occasion for an improper purpose: Winfield and Jolowicz on Tort, 11th ed. by W.V.H. Rogers (London: Sweet & Maxwell, 1979), at p. 329. In either event, the defendant has abused the privilege and is, therefore, not entitled to claim the benefit of it.

The trial judge found that there was "no direct evidence of vindictiveness, dislike, revenge or improper motive". Indeed, there is no evidence that Moore had any animus or ill-will toward the plaintiff when he wrote the letter. There is a complete absence of any evidence that Moore published his defamatory statements for an improper purpose. The case turns, therefore, on whether Moore lacked an honest belief in the truth of what he wrote.

Evidence of malice may be extrinsic or intrinsic. Extrinsic evidence is evidence of surrounding circumstances. Intrinsic evidence is the wording of the document itself. The wording may be so violent, outrageous or disproportionate to the facts that it furnishes strong evidence of malice: Spill v. Maule (1869), L.R. 4 Ex. 232, 38 L.J. Exch. 138, 17 W.R. 805 (Ex. Ch.). Here the letter of October 3 was not violent, outrageous or disproportionate. In the circumstances, I do not believe that there is any intrinsic evidence of malice. If there is malice in this case, it must be found in extrinsic evidence.

Extrinsic evidence that the defendant made the defamatory statements knowing them to be untrue will ordinarily be conclusive evidence that the defendant lacked an honest belief in the truth of what he wrote. But the evidence need not go that far. If the defendant was reckless in making the statements, that will be sufficient. "Recklessness" in this branch of the law means indifference to the truth or falsity of what was said: Horrocks v. Lowe, [1975] A.C. 135, [1974] 1 All E.R. 662, [1974] 1 W.L.R. 282 (H.L.), at p. 153 A.C.

The trial judge's findings on knowledge are, with respect, somewhat ambiguous. In his reasons, he said:

It was a careless statement made without regard to its accuracy or at worse (sic) knowing it to be untrue.

If "or at worse" means "or what is worse", there is no evidence that Moore knew that the statements contained in the letter were untrue, and counsel for the respondent was unable to point to any evidence that would support such a finding.

Although the trial judge's findings on knowledge are ambiguous, he made a clear finding that Moore was reckless in writing the letter of October 3. In making this finding, the trial judge relied on the following matters:

1. Moore had not reviewed the troublesome student reports;

2. He had never observed the plaintiff as a teacher or had her assessed;

3. He did not consult with other teachers or with the students concerning the plaintiff's performance as a teacher;

4. He never told the plaintiff he would write the letter;

5. He refused to meet with the plaintiff to discuss the letter;

6. He would not return her telephone calls;

7. He never gave her a chance to defend herself;

8. He never evaluated the plaintiff's ability to teach, to supervise her classes and to maintain discipline as was alleged in the statement of defence of the appellants;

9. He never apologized for his letter or retracted what he had said in the letter;

10. The following year he had the plaintiff blackballed from teaching at Kennedy Secondary School, a regular secondary school.

In his factum, counsel for the respondent set out the evidence which he submitted supported the trial judge's finding of recklessness. These are substantially the items listed above together with the following additional items:

1. Moore claimed that D.C. Hyland, the person to whom the letter was written, had requested it and that he and Hyland had discussed Moore's perception of the plaintiff's problem. Hyland denied this;

2. T.R. Michie, the principal of Monarch Secondary School in 1983, testified that he was aware that Moore thought that there was a problem with the plaintiff. Apart from this, Michie was unaware of any problem with the plaintiff and had no personal knowledge whether one existed or not;

3. Moore admitted that he had not investigated his perception of the problem with the plaintiff to ensure its accuracy;

4. Apart from one brief meeting, Moore obtained no input from the plaintiff on any of the issues that Moore addressed in his letter of October 3.

In my judgment, the matters relied on by counsel for the respondent to support the trial judge's findings of recklessness are not sufficient to support such a finding. While they indicate that Moore should have exercised more care before he wrote the letter of October 3, they do not, in my judgment, show that he was indifferent to the truth or falsity of what he wrote.

Although Moore had not reviewed the troublesome student reports before he wrote the letter of October 3, he had in the period from November 5, 1982, to September 29, 1983, received ten such reports from the plaintiff. During this period, the plaintiff had only taught for 35 days at Monarch Secondary School.

The disturbing aspect of Moore's failure to review the troublesome student reports is that, if he had done so, he would have discovered that the reports had been accurate and that, in all cases but one, he had taken disciplinary action with respect to the student named in the report. If he had reviewed the reports, he might not have written the letter of October 3 or, at the very least, he might not have made the allegation that there was a substantial discrepancy between what the plaintiff had reported and what had actually occurred.

It is true that Moore had never observed the plaintiff as a teacher or had her assessed, but there was evidence that it is not customary to evaluate occasional supply teachers.

Moore did not consult with other teachers about the plaintiff's performance as a teacher, but it was unlikely that other teachers would have been of any assistance. All witnesses, including Moore, were agreed that the plaintiff was a good teacher. The problem that Moore perceived with the plaintiff was the manner in which she enforced discipline. Other teachers would have had no knowledge on this matter except, perhaps, hearsay evidence from students.

As to consulting with students, Moore had consulted with the students affected by the troublesome student reports. Troublesome student reports are used when a teacher believes that he or she can no longer deal with the discipline problem in the class room and that the student must be sent out of the room. At Monarch Secondary School, a student who fell in this category was sent to Moore, and it was Moore's task to determine what, if anything, should be done with the student. Moore would review the report with the student, and sometimes he requested the parents of the student to come to his office to discuss the matter. Ordinarily, Moore testified, he did not discuss the report with the teacher, although it was his practice, he said, to inform the teacher what his disposition had been of the matter. On two occasions, Moore did discuss troublesome student reports with the plaintiff.

Moore did not tell the plaintiff that he was going to write the letter of October 3. At the meeting on June 3, when Moore discussed the disciplinary problem with the plaintiff, as he perceived it, he found her intransigent, and he believed that there was no point in discussing the matter with her any further.

Moore claimed that he was requested by D.C. Hyland, the superintendent of schools for the City of Windsor, to write the letter of October 3. Hyland denied this. However, Moore did discuss the letter with T.R. Michie, the principal of Monarch Secondary School, and Michie saw the letter before it was sent and agreed that it should be sent. Hugh Allan, technical director at Monarch Secondary School in 1983, testified that Moore had discussed the contents of the letter with him before it was sent. Allan had comforted the plaintiff after Moore had spoken to her in June 1983, so he had some knowledge of what Moore had said to the plaintiff at that time about easing up on discipline.

A copy of the letter of October 3 was sent to the plaintiff and she received it on October 7. The showing of the letter to Michie, the discussing of the situation with Michie and Allan, and the sending of a copy of the letter to the plaintiff are, in my opinion, inconsistent with a lack of honest belief on the part of Moore in the contents of the letter.

Although the conduct of the defendant after the publishing of a defamatory statement may be relevant in some cases on the issue of malice, I do not believe that the matters referred to by the trial judge about what occurred after the writing of the letter of October 3 are indicative of malice in this case. Rather, they are quite consistent with Moore honestly believing that what he had written about the plaintiff was true and that it would be futile to discuss the matter with her any further, since he had been unable to make any progress when he discussed the matter with her in June.

I see nothing improper in Moore's refusal to permit the plaintiff to teach at Kennedy Secondary School. Moore was vice-principal of that school and in charge of discipline. The plaintiff was suing Moore for libel and it would have been an intolerable situation for the plaintiff to teach at Kennedy Secondary School while the litigation was in progress. I deplore, of course, the manner in which Moore informed the plaintiff that she could not teach at Kennedy Secondary School. He should have taken her aside and explained his reasons (which were quite valid) for not wanting her to teach at the school. His hectoring conduct on that occasion is inexcusable, and, as will be seen, has strongly influenced me in my award of costs.

In concluding his findings on malice, the trial judge said:

In any event, having regard to all the circumstances of the case, it cannot be said in the words quoted earlier that the defendant Moore "might have honestly and on reasonable grounds" believed that what he wrote was true.

(Emphasis original)

"[T]he words quoted earlier" was a reference to a quotation

from the speech of Lord Atkinson in Adam v. Ward, [1917] A.C. 309

, [1916-17] All E.R. Rep. 157, 86 L.J.K.B. 849 (H.L.), which

were quoted with approval by Ritchie J. in Netupsky v. Craig,

supra, at p. 62 S.C.R. In Adam v. Ward, in dealing with

intrinsic evidence of malice, Lord Atkinson said (at p. 339

A.C.):

These authorities, in my view, clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.

(Emphasis added)

On three occasions the Supreme Court of Canada has referred to this passage with approval. The first was in Netupsky v. Craig, supra; the second in McLoughlin v. Kutasy, [1979] 2 S.C.R. 311, 8 C.C.L.T. 105, 97 D.L.R. (3d) 620, 26 N.R. 242; and the third in Davies & Davies Ltd. v. Kott, supra.

In Netupsky v. Craig, the Supreme Court of Canada was concerned with a dissent of Gale C.J.O. in the Ontario Court of Appeal that there was intrinsic evidence of malice in the letter which contained the defamatory statements in that the jury could have concluded from two sentences in the letter that, when they were written, they were false to the knowledge of the defendant. Ritchie J., who delivered the unanimous judgment of the court, said at p. 64 S.C.R.:

In using the words contained in the cited paragraph of the letter, Kohler was not making any statement without having reasonable grounds for believing that what he said was true ...

In McLoughlin v. Kutasy, the judgment of the majority was again delivered by Ritchie J. He referred with approval on two occasions (at pp. 323 and 325 S.C.R.) to the quotation that he had made in Netupsky v. Craig from the speech of Lord Atkinson in Adam v. Ward. The headnote sums up [p. 312 S.C.R.] the result of the judgment on qualified privilege and malice in the following sentence:

Where there is qualified privilege the person employing the language complained of will be protected even if his language is somewhat excessive if in the circumstances he might honestly and on reasonable grounds have believed that what he wrote or said was true.

In Davies & Davies Ltd. v. Kott, the judgment of the court was delivered by McIntyre J. In referring to the language of the letters complained of respecting, i.e., intrinsic evidence of malice, McIntyre J. (at p. 697 S.C.R.) again quoted with approval the passage from the speech of Lord Atkinson in Adam v. Ward.

In none of the three Supreme Court of Canada decisions did the court, in fact, hold that carelessness or negligence in forming an honest belief was sufficient to constitute malice, although it should be noted that Netupsky v. Craig, supra, is cited by Professor Raymond Brown in The Law of Defamation in Canada (Toronto: Carswell, 1987), vol. 1, p. 744 footnote 98, as authority for the proposition that a defendant must have reasonable grounds for believing his statements to be true. In Horrocks v. Lowe, supra, Lord Diplock, in the passage which Grange J.A. has quoted, dealt squarely with the issue [p. 150 A.C.] and held that carelessness or negligence was not sufficient.

In my opinion, the speech of Lord Diplock correctly states the applicable law. I agree with Grange J.A. that carelessness or negligence in forming an honest belief is not sufficient to constitute malice. Here Moore was undoubtedly careless in writing the letter of October 3. He arrived at his conclusions on inadequate evidence. If he had reviewed the troublesome student reports, he likely would not have made the allegations that he made in the letter of October 3, but his carelessness or negligence is not sufficient for a finding of malice. The trial judge erred in basing his finding of malice on Moore not having "reasonable grounds" for believing that what he wrote was true.

Since I believe the plaintiff has not met the onus of proving express malice, I would allow the appeal, set aside the judgment below and in its place make an order dismissing the action. As to costs, having regard to Moore's carelessness in writing the letter of October 3, and his conduct at Kennedy Secondary School when he informed the plaintiff that she could not teach at that school, I would make no order for costs here or below.

Appeal allowed; new trial ordered.