One of the most dramatic developments in this year's civic election occurred when Vision Vancouver mayor Gregor Robertson and Vision Vancouver councillor Geoff Meggs filed a defamation suit against NPA mayoral candidate Kirk LaPointe.
It came after LaPointe had repeatedly highlighted a visit by Meggs and three other Vision Vancouver candidates to a CUPE Local 1004 meeting.
Meggs told the CUPE audience that the mayor had "again recommitted not to expand contracting out". The union local later donated $34,000 to Vision Vancouver.
LaPointe alleged that Meggs had acted against the city's best interest, even raising the word "corruption" in connection with his visit to CUPE 1004.
Then when LaPointe was sued, the NPA mayoral candidate claimed that his opponents were practising "intimidation".
His party issued a statement citing lawyer Geoffrey Cowper's view that LaPointe's comments were "fair comment" and therefore were legal under Canadian common law.
All of this has probably confused Vancouver voters who aren't familiar with the intricacies of media law.
The test for fair comment was outlined by the Supreme Court of Canada in a lawsuit filed by right-wing activist Kari Simpson against former broadcaster Rafe Mair and WIC Radio, which owned CKNW Radio.
Writing for the majority in the Mair-Simpson case, then justice Ian Binnie concluded that fair comment must consist of the following:
* The comment must be on a matter of public interest.
* The comment must be based on fact.
* The comment, though it can include inferences of fact, must be recognizable as comment.
* The comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?
"Even though the comment satisfies the objective test of honest belief, the defence can be defeated if the plaintiff proves that the defendant was subjectively actuated by express malice," Binnie wrote. "The defendant must prove the four elements of the defence before the onus switches back to the plaintiff to establish malice."
The court ruled that there was no malice on the part of Mair, so he emerged victorious.
So what is express malice? Black's law dictionary defines to mean "the wilful and premeditated determination to bring about harm to another".
If this case involving LaPointe and the two Vision Vancouver politicians ever goes to trial, you can be sure that the lawyers will be splitting hairs over whether or not the NPA candidate had a wilful and premeditated determination to bring about harm to Robertson and Meggs.
In Canadian Libel and Slander Actions, lawyers Roger McConchie and David Potts wrote that express malice is actuated when the defendant makes a comment "for the dominant purpose of injuring the plaintiff because of spite or animosity".
Key to the concept of malice can be a direct and personal interest.
Ultimately, a judge would have to determine the purpose of LaPointe's comment.
But in the court of public opinion, it's conceivable that LaPointe may have already won round one by characterizing the lawsuit as an act of bullying, which plays into the overall narrative of the NPA's campaign against Vision Vancouver.