Defamation (Damages)

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

Defamation (Damages)

[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.