Elected officials must be able to speak candidly about local government business. However, as affirmed in the recent BC Supreme Court decision in Hamer-Jackson v. Neustaeter, 2026 BCSC 155 (“Hamer-Jackson”), holding public office does not give a mayor or councillor blanket immunity from a defamation claim.

The case arose from four statements made by a Kamloops councillor about the City’s mayor, causing the mayor to sue for defamation. The defendant councillor applied to dismiss the action under the Protection of Public Participation Act (the “PPPA“), which provides an early mechanism for dismissing claims arising from expression on matters of public interest. The councillor’s primary defense was that the statements were protected by qualified privilege. The Court found that the potentially defamatory statements were nonetheless related to issues of public interest, and so the qualified privilege protected the statements and the claim was dismissed. The Court’s analysis demonstrates, however, the types of situations where defamation may still be found against a public official.

The Test for Qualified Privilege

The governing test for qualified privilege focuses on reciprocity. As summarized in Bent v. Platnick, 2020 SCC 23 (“Bent”), the defaming person must have an interest or duty—legal, social, moral or personal—to communicate the information, and the recipient must have a corresponding interest or duty to receive it. The privilege attaches to the occasion, not to the speaker or to the words in the abstract (Bent at para. 121).

In Prud’homme v. Prud’homme, 2002 SCC 85 (“Prud’homme”), the Supreme Court of Canada explained that things done by municipal councillors in the course of their official duties fall within occasions for which important public-interest considerations call for partial protection. The Court observed that words spoken by a municipal councillor at a council meeting are generally protected (Prud’homme at para. 53). Although Prud’homme was decided under Quebec civil law, its discussion of the common-law privilege remains an important statement of the rationale for protecting local democratic speech.

The central questions with respect to whether qualified privilege applies remain:

• whether the official was communicating in the performance of an office-related duty or interest;

• whether the recipient had a corresponding interest in the information; and

• whether the manner and content of the communication stayed within the occasion’s legitimate purpose.

Qualified privilege is “qualified” because it can be defeated in two situations: where the statement is made with malice, or where the scope of the privileged occasion is exceeded (Bent at para. 121).

Malice

In Hamer-Jackson, the Court explained that malice includes spite or ill will, as well as an indirect motive or ulterior purpose that conflicts with the duty or mutual interest giving rise to the privilege. Malice may be established by showing that the defendant:

• knew the statement was false;

• was recklessly indifferent to the statements truth,

• intended to injure the plaintiff out of spite or animosity; or

• acted for another improper purpose

(Hamer-Jackson at para. 115).

Ordinarily, an improper motive must be the dominant reason for the publication. However, there is an important qualification: where the alleged malice is reckless indifference, the relevant recklessness is indifference to the truth or falsity of the statement, and it is unnecessary to prove that malice was the dominant motive (Hamer-Jackson at para. 116). A mistake, inadequate investigation, or a difficult relationship is not automatically malice; the evidence must support knowing falsity, reckless indifference or an improper dominant purpose.

In Hamer-Jackson, the Court also affirmed that a statement can also lose protection when its content, manner or distribution goes beyond what is reasonably appropriate to the duty or interest that created the privilege (at para. 90). Irrelevant allegations, unnecessary personal detail, inflammatory language disconnected from the legitimate purpose, or publication to people with no corresponding interest, can all put the defence at risk. The audience matters as much as the subject matter.

Outcome of Hamer-Jackson

For the purposes of the application, the councillor accepted that the words were capable of satisfying the basic elements of defamation. The dispute therefore turned on the defence of qualified privilege and the PPPA‘s public-interest analysis. The Court concluded that the impugned expression related to matters of public interest and that the subject communications were protected by qualified privilege.

For the statements communicated within the local government, the Court determined that the other councillors and officials had a legitimate interest in receiving information about conduct alleged to affect council’s working and governance relationships. For the public statement, the Court determined that the councillors had an interest in communicating their concerns about governance to their constituents, and the public had a corresponding interest in hearing that response.

The Hamer-Jackson claim was ultimately dismissed. Importantly, that result does not mean that qualified privilege proves every protected statement to be true. Rather, the privilege protects a particular communicative occasion. In addition, a PPPA application is a summary process rather than a trial on the ultimate merits of the subject communication. The practical point is that even words capable of being defamatory may be protected when they are communicated on an appropriate occasion for a proper purpose, and to an audience with a reciprocal interest in receiving them.

SMS Law is always happy to work directly with local governments and officials with respect to any issues they may face relating to communications with the public and privileged occasions. If you have any questions about the contents of this case summary, or any questions relating to any other local government matter, please do not hesitate to reach out.