Defamation (Damages)

Wesley v Jakubec, 2017 CanLII 55420 (ON SCSM)

Background Facts Relating to Quantum of Damages

The Plaintiff

The Plaintiff, Jeffrey Wesley, resides in the Community of Wallaceburg, in the Municipality of Chatham-Kent, in the Province of Ontario and is an elected member of the Chatham-Kent Municipal Council. The Plaintiff was first elected to the Town of Wallaceburg Council in 1984. He retired in 2000 and was re-elected to the Chatham-Kent Council in 2010. He has been successfully elected in seven municipal elections and always led the polls. He ran unsuccessfully in federal elections in 2006 and 2008.

The Plaintiff has a bachelor of laws degree and was called to the Bar in 2007. He has been employed by Union Gas Limited for 32 years.

The Law

The Plaintiff’s Claim is framed in the law of defamation. Subsection 5(1) of the Libel and Slander Act, R.S.O. 1990, ch. L.12, was complied with by the Counsel for the Plaintiff serving on the Defendant personally on March 7, 2017 a Notice of Intended Civil Action – Defamation – Jeffrey Wesley.

In Brent v. Nishikawa, 2016 ONSC 4297 (CanLII), 2016, O.N.S.C. 4297 (Ontario Superior Court) (MacKinnon J.) the Plaintiff was a municipal councillor and the Defendant was a former municipal councillor. In ascertaining damages, MacKinnon J. stated as follows:

“The publication of defamatory words against people in public life undermines and weakens the fabric of our democratic process. By imputing improper motives, lack of good faith, or acting for pecuniary interest, such libels discourage Canadians from entering public service. Damages serve as a deterrent to this practice and offer a measure of protection to those serving their communities.”

The Court found that a prompt or abject apology will generally reduce damages but that no apology was offered by this Defendant. Damages of $30,000.00 were awarded against the Defendant with the Court stating that general damages were more than might be expected in an award against a private person whose words would likely attract lesser weight. However, here the Plaintiff was in the public eye and attempting to conduct proper public business.

Conclusion

The Plaintiff claims an injunction requiring the Defendant to retract his false and defamatory statements in their entirety. This Court has no jurisdiction to provide this equitable remedy.

The Plaintiff also requests general damages in the amount of $25,000.00 and aggravated, exemplary and punitive damages in the amount of $5,000.00. In paragraph 1(d) of the Claim the Plaintiff waives his entitlement to any amount in excess of the jurisdiction of the Small Claims Court. I assess compensatory damages for defamation in the amount of $25,000.00. While I do not in any way condone the Defendant’s conduct, I do not think that aggravated, exemplary or punitive damages are in order.

Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 (ON CA)

The plaintiff brought an action for damages for defamation and a permanent injunction restraining the defendant from disseminating, posting on the Internet or publishing further defamatory statements concerning the plaintiff or its officers, directors or employees. The defendant continued his campaign, even more defiantly, after the libel notice was served. He did not defend the action, and was noted in default. On a motion for default judgment, the trial judge found that the impugned statements were defamatory. She awarded general damages for injury to the plaintiff's reputation in the amount of $15,000. She dismissed the claim for punitive damages. She also dismissed the claim for injunctive relief on the basis that the court did not have jurisdiction to make the order requested [page418] because (a) service was not properly made with respect to the claim for injunctive relief pursuant to rule 17.02(i) of the Ontario Rules of Civil Procedure; (b) there was no evidence the defendant had any assets or pre sence in Ontario; and (c) the claim for injunctive relief, being a claim in personam, should have been pursued against the defendant in British Columbia, where the courts had the ability to supervise any injunctive relief granted. The plaintiff appealed the award of damages and the dismissal of the claim for an injunction.

Held, the appeal should be allowed.

Per Blair J.A. (Laskin J.A. concurring): Defamation on the Internet has features which distinguish it, for purposes of damages, from defamation in other media. Communication via the Internet is instantaneous, seamless, interactive, blunt, borderless and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed. The Internet has greater potential to damage the reputation of individuals and corporations as a result of these features than does its less pervasive cousins.

An appellate court has more flexibility in reviewing an award of damages for defamation made by a judge alone than in the case of one made by a jury. However, the court will not readily interfere with the award unless it is satisfied that the trial judge arrived at the figure either by applying a wrong principle of law or through a misapprehension of the facts or that the amount awarded was so extremely high or so low as to make it an entirely erroneous estimate of the damages.

BLAIR J.A. (LASKIN J.A. concurring): --

The Internet represents a communications revolution. It makes instantaneous global communication available cheaply to anyone with a computer and an Internet connection. It enables individuals, institutions, and companies to communicate with a potentially vast global audience. It is a medium which does not respect geographical boundaries. Concomitant with the utopian possibility of creating virtual communities, enabling aspects of identity to be explored, and heralding a new and global age of free speech and democracy, the Internet is also potentially a medium of virtually limitless international defamation

[1] The issues on this appeal concern the damages that may be awarded in Internet defamation cases, and whether the remedy of injunctive relief should be granted in such circumstances.

[5] Barrick appeals the quantum of general damages awarded and the refusal to award any punitive damages or grant injunctive relief. I would allow the appeal for the reasons that follow.

[25] I accept the following statement from the decision of the Newfoundland Court of Appeal in Farrell, at [p. 79 Nfld. & P.E.I.R.], as an accurate outline of the law:

In assessing damages in a libel action a judge, sitting without a jury, has a great deal of latitude and the Court of Appeal will not readily interfere with his award unless it is satisfied that he arrived at his figure either by applying a wrong principle of law or through a misapprehension of the facts or that the amount awarded was so extremely high or so low as to make it an entirely erroneous estimate of the damages. (See Flint v. Lovell, [1935] 1 K.B. 354 at 360; Associated Newspapers v. Dingle, [1964] A.C. 371 at 393 applying Davies v. Powell Duffryn Associated Collieries Ltd. [1942] A.C. 601 and Nance v. British Electric Railway Co. Ltd., 1951 CanLII 374 (UK JCPC), (1951) A.C. 601).

[31] Thus, of the criteria mentioned above, the mode and extent of publication is particularly relevant in the Internet context, and must be considered carefully. Communication via the Internet is instantaneous, seamless, interactive, blunt, borderless and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed: see Vaquero Energy Ltd. v. Weir, [2004] A.J. No. 84, 2004 ABQB 68, at para. 17.

[32] These characteristics create challenges in the libel context. Traditional approaches attuned to "the real world" may not respond adequately to the realities of the Internet world. How does the law protect reputation without unduly overriding such free wheeling public discourse? Lyrissa Barnett Lidsky discusses this conundrum in her article,
"Silencing John Doe:

Defamation and Discourse in Cyberspace" (2000), 49 Duke L.J. 855, at pp. 862-65:

Internet communications lack this formal distance. Because communication can occur almost instantaneously, participants in online discussions place a premium on speed. Indeed, in many fora, speed takes precedence over all other values, including not just accuracy but even grammar, spelling, and punctuation. Hyperbole and exaggeration are common, and "venting" is at least as common as careful and considered argumentation. The fact that many Internet speakers employ online pseudonyms tends to heighten this sense that "anything goes," and some commentators have likened cyberspace to a frontier society free from the conventions and constraints that limit discourse in the real world. While this view is undoubtedly overstated, certainly the immediacy and informality of Internet communications may be central to its widespread appeal.

Although Internet communications may have the ephemeral qualities of gossip with regard to accuracy, they are communicated through a medium more pervasive than print, and for this reason they have tremendous power to harm reputation. Once a message enters cyberspace, millions of people worldwide can gain access to it. Even if the message is posted in a discussion forum frequented by only a handful of people, any one of them can republish the message by printing it or, as is more likely, by forwarding it instantly to a different discussion forum. And if the message is sufficiently provocative, it may be republished again and again. The extraordinary capacity of the Internet to replicate almost endlessly any defamatory message lends credence to the notion that "the truth rarely catches up with a lie". The problem for libel law, then, is how to protect reputation without squelching the potential of the Internet as a medium of public discourse.

(Emphasis added) [page433]

[33] These characteristics differentiate the publication of defamatory material on the Internet from publication in the more traditional forms of media, in my opinion.

[34] It is true that in the modern era defamatory material may be communicated broadly and rapidly via other media as well. The international distribution of newspapers, syndicated wire services, facsimile transmissions, radio and satellite television broadcasting are but some examples. Nevertheless, Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility. The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.

Kenaidan Contracting Ltd. v. Lancaster Group Inc. et al., 2019 ONSC 4482 (CanLII)

[2] Anti-SLAPP legislation responds to the potentially chilling effect on public discourse where lawsuits are used to silence or financially punish one’s critics. Defamation lawsuits in particular have been used in this way: 1704604 Ontario Ltd v. Pointes Protection Association, 2018 ONCA 685, at paras 2-3, leave to appeal granted, [2018] S.C.C.A. No. 467. Section 137.1 is a legislative mechanism to dismiss lawsuits that are brought to “silence, intimidate and punish” those who speak out on matters of public interest, thus protecting free speech in a democratic society: Pointes, supra at para 2. This legislation is intended to balance the harm from defamatory speech with a broad, but not unlimited, interest in protecting public interest expression, even where that speech may be defamatory in law.

Cable Assembly Systems Ltd. et al. v. Ben Barnes et al., 2019 ONSC 97 (CanLII)

[68] In Nassri v. Homsi, 2017 ONSC 4554 (CanLII), Lederer J. directed his mind to the assessment of damages if a finding of defamation was proven on the balance of probabilities. Commencing at para. 18 he stated:

The presence of damage is established by the finding that there was defamation. General damages are presumed once the tort has been made out. They arise by inference of law and do not require proof of actual injury. As reported in Grant v. Torstar Corp., supra still at para. 28, the only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se: R. E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), vol. 3, at pp. 25-2 and 25-3. In defamation, damages reflect what the law presumes to be the natural or probable consequences of the defendant’s conduct and the harm which normally results from the tort. General damages include injury to the plaintiff for loss of esteem and injury to the plaintiff’s feelings (Myers v. Canadian Broadcasting Inc., 1999 CarswellOnt 3735 at paras. 156-157, rev’d in part on other grounds and aff’d 2001 CarswellOnt 2037 (C.A.), leave to appeal to the S.C.C. refused [2001] S.C.C.A. No. 433).

Despite the general nature of the appraisal this recognition of damage invites, there must be some instruction or guidelines that direct the inquiry and inform the conclusion. In Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 (ON CA), 2004 CarswellOnt 2258 (ONCA) (in turn drawing on Hill v. Church of Scientology(1995), 1995 CanLII 59 (SCC), (1995) 2 S.C.R. 1130, 25 C.C.L.T. (2d) 89, 126 D.L.R. (4th) 129, 24 O.R. (3d) 865 (note) the Court of Appeal of Ontario provided factors that can be used to assess damages in an action for defamation:

The standard factors to consider in determining damages for defamation are summarized in Hill v. Church of Scientology. They include:

(1) the plaintiff's position and standing;

(2) the nature and seriousness of the defamatory statements;

(3) the mode and extent of publication;

(4) the absence or refusal of any retraction or apology;

(5) the whole conduct and motive of the defendant from publication through judgment; and

(6) any evidence of aggravating or mitigating circumstances.

[69] I find that CAS Ltd. had a good reputation in the cable installation business, not only in Brantford, but throughout Ontario. This is confirmed by the representation of Telus who use CAS Ltd.’s services and are also competitors of CAS Ltd. This reputation was placed in serious jeopardy by the statements made by Barnes.

[70] I find that Barnes made similar false representations relative to poor workmanship by CAS Ltd. to his superiors within the City of Brantford in addition to Earl, the Belden representative.

[71] Barnes never acknowledged that his statements relative to the workmanship of CAS Ltd. were false or defamatory. He continued throughout the trial to represent that CAS Ltd. work was poor, sloppy and lacked timeliness.

[72] It is an aggravating circumstance that Barnes was well aware of the fact that CAS Ltd. used Belden as a sole source for its cable product. He knew or ought to have known that his false statements of poor workmanship on the part of CAS Ltd. (something that he falsely alleged to have been acknowledged by Brantford Hydro) could have a serious negative impact on CAS Ltd.’s business.

General and Non-Pecuniary Damages

[73] Any monetary award of damages for defamation is to demonstrate to the community the vindication of the reputation of the Plaintiffs. The damages are awarded because of the injury to the Plaintiffs’ reputation and not as compensation for the damaged reputation.

[74] Once damaged, a reputation is difficult to restore and the law recognizes that a person whose reputation is damaged suffers injury occasioned by that defamation. I agree with the Plaintiff’s submission that Barnes acted maliciously and that he abused his position of public authority.

[75] Under the circumstances of this case, an award of general damages in the amount of $75,000.00 is appropriate: see McNarin v. Murphy, 2017 ONSC 1678 (CanLII).

[76] Given my finding that the actions of Barnes were malicious, and an abuse of his position, the Plaintiffs are entitled to punitive damages in the amount of $75,000.00.

Canadian Broadcasting Corporation v Farrell, 1987 CanLII 3929 (NL CA)

[14] The law of libel, as well as libel awards in other Canadian jurisdictions, was next discussed by the trial judge. He then dealt once more with what he termed were the "devastating results" of the C.B.C. publications on Dr. Farrell and finding that:

"… C.B.C. acted with malice and acted carelessly and recklessly with knowledge of the harm it would do to the plaintiff and his family and if not it should have and ought to have known the harm the defamatory broadcasts would cause the plaintiff."

and repeating once again much of what he had already said as to his views of the actions of C.B.C. and the damage caused, he awarded the sum of $80,000.00 to Dr. Farrell which sum included exemplary as well as compensatory damages. As seen, he also awarded costs to Dr. Farrell on a solicitor and "his own" client basis as well as party and party costs.

[31] Finally, in the matter of quantum, it is necessary to consider other awards. It is these which demonstrate that, despite the nature of C.B.C.'s actions in this matter, and in the absence of proved pecuniary loss, the trial judge's award is clearly excessive.

[32] There are five relatively recent cases which, in my opinion, put this matter in its right perspective. These are: (1) Baxter v. Canadian Broadcasting Corporation and Mailing (1980), 30 N.B.R.(2d) 102; 70 A.P.R. 102; (2) Snyder v. Montreal Gazette (1983), 1983 CanLII 2859 (QC CA), 5 D.L.R.(4th) 206; (3) Vogel v. Canadian Broadcasting Corporation et al., 1982 CanLII 801 (BC SC), (1982) 3 W.W.R. 97; (4) Munro v. Toronto Sun Publishing Corporation (1982), 1982 CanLII 1758 (ON SC), 39 O.R. (2d) 100; and (5) Farrell v. St. John's Publishing Co., supra.

[33] The Baxter case bears some minor resemblance to the case at bar. The plaintiff sued in libel for having been defamed on the C.B.C. program "The Fifth Estate" which stated that when he was New Brunswick Minister of Justice, he stopped an investigation by the R.C.M.P. into alleged "kickbacks" to a Conservative Party fund. On appeal, an award of $1,000.00 given at trial was increased to $10,000.00. There was no imputation of criminal conduct and there was only one broadcast item. In Snyder, a trial jury had awarded the plaintiff $135,000.00 because of an article in the Gazette which published an article concerning the plaintiff, a prominent public figure, which article was headed "Former City Official called member of 'Jewish Mafia'". On appeal, by a 2-1 majority, the award was reduced, rather spectacularly, to $13,-500.00 which, the majority felt, represented the Gazette's share of the total damage to Mr. Snyder, severe pecuniary damages not having been proved. (This case is under appeal to the Supreme Court of Canada.)

[34] In Vogel and Munro (both of which are dealt with extensively in the judgment of Morgan, J.A., of this court in the Farrell v. Evening Telegram case (see (1986), 1986 CanLII 2436 (NL CA), 58 Nfld. & P.E.I.R. 66; 174 A.P.R. 66)), a provincial Deputy Attorney General and a federal cabinet minister were seriously libelled. In the former case, it was reported that Mr. Vogel had interfered with the course of justice in three criminal trials to protect friends and, in the latter, an article was published stating that Mr. Munro had used information given to him in cabinet meetings to make profits for himself and for another person by the timely purchase of Petrofina shares. The awards were $125,000.00 and $75,000.00 respectively. However, as already pointed out by Mr. Justice Morgan, these cases involved exemplary or punitive damages, which I feel are not called for here, in addition to compensatory damages and were much more serious than the present case because, as stated by him (at page 82):

"These cases differ from the case at bar in that, in both, the defendants were the originators of the libellous publications. In Vogel, the defendants were found to be motivated by a desire for sensationalism and broadcast the defamatory story in reckless disregard for any injury that would be occasioned the plaintiff. In Munro the libellous article was published out of personal spite. In both, the need for an award of punitive damages was apparent."