Types of Damages in Defamation Actions

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is a litigation lawyer practicing at Perley-Robertson, Hill & McDougall LLP in Ottawa, Ontario. He may be reached at 613.566.2823 or obourns@perlaw.ca.

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In an action for defamation a plaintiff may be entitled to an award for the following types of damages: (a) general, (b) special, (c) aggravated, and (d) punitive.

General Damages

General damages in defamation cases flow from the defamatory publication and are to compensate the plaintiff for any harm to his or her reputation or emotional well-being. This is often referred to as compensation for the “sting” of the defamation.[1]

In an action for defamation, damages are presumed.  Harm to reputation is presumed from the mere publication of the defamatory words.[2]  The approach to quantifying general damages is conveniently summarised by Matheson J. in Awan v Levant where the following factors were confirmed to be relevant:[3]

  • the plaintiff’s position and standing;
  • the nature and seriousness of the defamatory statements;
  • the mode and extent of publication;
  • the absence or refusal of any retraction or apology;
  • the whole conduct and motive of the defendant from publication through judgment; and
  • any evidence of aggravating or mitigating circumstances.

The Court further confirmed that with respect to defamation on the internet, “these factors must be examined in light of the ubiquity, universality and utility of that medium”.[4]

Despite the factors above, the Supreme Court has said that “each libel case is unique and little can be gained from a detailed comparison of awards made in other cases” and that the assessment of damages flows from a confluence of the following elements:[5]

[…] the nature and circumstances of the publication of the libel, the nature and position of the victim of the libel, the possible effects of the libel statement upon the life of the plaintiff, and the action and motivations of the defendants.

Special Damages

Special damages are material and temporal losses suffered by a plaintiff as the natural and proximate result of the defamation that are capable of monetary measurement. They have a specific economic or pecuniary value and are part of the compensatory award. Unlike general compensatory damages, they are not assumed to be necessary or inevitable, and therefore, must be proved at trial.[6]  Special damages are exceptional in defamation cases because it is usually difficult to ascertain the extent of the damage to one’s reputation.[7]

The test to be met by a plaintiff for such losses is:[8]

  1. that there must be the “natural and proximate result” of the defamatory publication, and capable of monetary measurement; or
  2. such losses must also be established with “reasonable certainty” and must be more than mere “speculation and surmise.”

Aggravated Damages

Aggravated damages may be awarded in circumstances where the defendant’s conduct has been particularly high-handed or oppressive, increasing the plaintiff’s humiliation and anxiety arising from the libel.[9]  Note that corporate plaintiffs cannot receive aggravated damages because aggravated damages are intended to compensate for mental distress and hurt feelings.[10]

Further:

Like general or special damages, these damages are compensatory in nature. Their assessment requires consideration of the entire conduct of the defendant prior to the publication of the libel and continuing through to the conclusion of the trial. They represent the expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant.

Aggravated damages will arise where the defendant has acted with malice that increased the injury to the plaintiff.  The malice may be established by intrinsic evidence derived from the libellous statement itself and the circumstances of its publication, or by extrinsic evidence pertaining to the surrounding circumstances which demonstrate that the defendant was motivated by an unjustifiable intention to injure the plaintiff.[11]

There are a number of relevant factors in assessing aggravated damages:[12]

  • was there a withdrawal of the libellous statement made by the defendants and an apology tendered;
  • repetition of the word lying or liar in the text, headline and in hyperlinks;
  • conduct that was calculated to deter the plaintiff from proceeding with the libel action;
  • the impact on a plaintiff’s google search results;
  • the relationship between the defamatory statements and plaintiff’s trade;
  • a prolonged and hostile cross‑examination of the plaintiff or a plea of justification which the defendant knew was bound to fail;
  • conduct of the defendant at the time of publication (was it clearly aimed at obtaining the widest possible publicity in circumstances that were the most adverse possible to the plaintiff?); and
  • the defendant’s failure to take reasonable steps.

Punitive Damages

Punitive damages may be awarded in situations where the defendant’s misconduct is so malicious, oppressive and high-handed that it offends the court’s sense of decency.  The purpose of punitive damages are not to compensate the plaintiff, but to punish the defendant and to act as a deterrent against others acting in this manner.

Further, punitive damages are only to be awarded where the combined award of general and aggravated damages would be insufficient to achieve the goal of “punishment and deterrence”.[13]  They are to mark the community’s collective condemnation and denunciation of what has happened.[14]

The bottom line is that punitive damages are to be awarded not in cases where the Defendant was careless or negligent, but rather where the Defendant acted with malice and set out with an intention to injure the Plaintiff and where the combination of any other damages award are deemed insufficient.

[1] Bernstein v. Poon, 2015 ONSC 155 (CanLII) [“Poon”] at para. 157 <http://canlii.ca/t/gfzrr>

[2] MacRae v. Santa, 2006 CanLII 32920 (ON SC), <http://canlii.ca/t/1pkw6> at para 34

[3] Awan v. Levant, 2014 ONSC 6890 (CanLII) [“Levant”] at para. 192, <http://canlii.ca/t/gfg0x>

[4] Levant at para 193

[5] Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130, 1995 CanLII 59 (SCC) [“Hill”] at para 187, <http://canlii.ca/t/1frgn>

[6] Focus Graphite Inc. v. Douglas, 2015 ONSC 1104 (CanLII), <http://canlii.ca/t/ggfk3> at para 57 (“Focus Graphite”)

[7] WeGo Kayaking Ltd. et al v. Sewid, et al, 2007 BCSC 49 (CanLII), <http://canlii.ca/t/1q86c> at para 94 (“WeGo Kayaking”)

[8] Focus Graphite at para 62

[9] Levant at para 204

[10] Focus Graphite at para 59

[11] Hill at para 190

[12] Hill para 191; Levant paras 192-198

[13] Levant at para 213

[14] Whiten v. Pilot Insurance Co., [2002] 1 SCR 595, 2002 SCC 18 (CanLII) at para 94 <http://www.canlii.org/en/ca/scc/doc/2002/2002scc18/2002scc18.html>

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