Apologies and Retractions
| Author | Roger McConchie; David Potts |
| Profession | Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario |
| Pages | 161-206 |
€ H A P T E R N I N E :
Apologies
and
Retractions
A.
INTRODUCTION
Many
plaintiffs
simply want
a
retraction
and
apology. There
is
often
an
"undoubted advantage
to a
plaintiff
in the
greater persuasive
effect
of
hav-
ing his or her
reputation vindicated
out of the
defendant's mouth, rather
than
his or her
own."
Murray
Alters
Talent
Associates
Ltd.
v.
Toronto
Star
Newspapers
Ltd.
(1995),
124
D.L.R.
(4th) 105,
per
Borins
J.A.
at 118
(Ont. Div.
Ct),
citing Fleming,
"Retraction
and
Reply: Alternative Remedies
for
Defamation"
(1978),
12
U.B.C.L.
Rev.
15 at 25.
A
timely retraction
and
apology
may
minimize
the
injury
to the
plaintiff.
It
may
often
be a
better remedy than damages.
Grossman
v.
CFTO-TVLtd.
(1982),
39
O.R.
(2d) 498,
per
CoryJA
at 501
(C.A.).
This expeditious remedy
may be
particularly attractive
to a
plaintiff
where
the
initial publication
has
been
to a
limited group
of
people. Filing
libel litigation
often
attracts media coverage. That
may
result
in the
publi-
cation
of the
defamatory expression more widely than
the
original publica-
tion
by the
defendant.
Tatum
v.
Limbrick,
[1994]
B.C.J.
No.
1471
per
Edwards
J. at
para.
57
(S.C.).
A
full
and
fair
retraction coupled with
a
sincere
and
unequivocal apolo-
gy
often
prevents litigation
or
brings
a
defamation lawsuit
to an end at an
early
stage.
If
litigation nevertheless proceeds
to
trial,
a
retraction
and
apol-
ogy may
reduce
the
damages that would otherwise
be
awarded
to the
plain-
tiff.
In the
case
of a
newspaper
or
broadcast defendant,
a
proper retraction
161
162
CANADIAN
ACTIONS
and
apology
may
extinguish
the
possibility
of the
plaintiff
recovering
any
damages other than actual pecuniary loss
(if
any).
If
a
defendant neglects
or
refuses
to
apologize,
the
result
may be
pro-
longed, inconvenient,
and
expensive litigation.
Leenen
v.
Canadian
Broadcasting
Corporation,
[2000] O.J.
No.
3435,
O.T.C.
672
(S.C.J.),
aff'd
(2001),
54
O.R. (3d)
612
(C.A.),
leave
to
appeal
to
S.C.C.denied,
[2001] S.C.C.A.
No.
432, where
Cunningham
J.,
in the
course
of
explaining
his
decision
to
award
the
plaintiff
trial costs
of
$836,178
[in
addition
to the
damages award
of
$950,000] stated
at
para.
4:
Litigation such
as
this
is a
high
risk enterprise.
...
The
plaintiff's
offer
to
settle
for an
apology
and a
modest
sum
towards legal
fees
was
very
early
on
rejected
by the
defendants who, without
any
doubt, defended
the
action
to the
hilt.
...
That
is
their right
as it is the
right
of any
defendant
who
feels
unjustifiably
attacked.
...
Just
as the
plaintiff
in
this action took
an
enormous risk
in
prosecuting this claim,
the
defen-
dants took
an
equal risk
in
adopting their scorched earth policy
to the
defence
of the
action.
The
defendant's neglect
or
refusal
to
retract
and
apologize
may in
certain
circumstances increase
the
damages.
The
court
may
draw
an
inference that
the
defendant published with actual malice, thereby aggravating
the
gener-
al
damages
or
leading
the
court
to
make
an
award
of
punitive damages.
The
adequacy
and
effect
of
apologies
and
retractions
is
addressed
by the
common
law and by
provincial defamation statutes.
In
some jurisdictions,
the
defamation statutes also contain provisions concerning related
relief,
such
as the
publication
by the
defendant
of a
rebuttal statement
by the
defamed
person,
or an
"offer
of
amends"
by the
defendant.
The
statutes
and
jurisprudence
differ
somewhat
from
province
to
province, requiring liti-
gants
to
treat court decisions
from
other jurisdictions with caution.
B.
COMMON
LAW
CRITERIA
FOR AN
ADEQUATE
APOLOGY
AND
RETRACTION
One of the
best discussions
of the
criteria
for an
adequate apology
for
defamatory
expression
is
found
in the
decision
of
Begbie
CJ.
in
Hoste
v.
Vic-
toria
Times
Publishing
Co.
(1889),
1
B.C.R.
365 at
366:
That
[the apology]
is
surely
not
sufficient.
It is not the
offer
nor
even
the
publication
of an
apology
at
all,
but an
offer
to
offer
an
apology.
Chapter Nine: Apologies
and
Retractions
163
And
even
in
terms,
it
seems
to
reserve
to the
defendant
a
right
of
judg-
ing
whether
the
plaintiff
is
reasonable
in
demanding
any
particular
form
e.g.,
it
offers
to
make such
an
apology
as the
defendant thinks fit.
Such
an
apology
as
merely
'beg
your
pardon',
or
'sorry
for
it',
is not
suf-
ficient
in a
case
of
libel.
The
defendant should admit that
the
charge
was
unfounded, that
it was
made without proper information, under
an
entire misapprehension
of the
real
facts,
etc.,
and
that
he
regrets that
it
was
published
in his
paper. Merely
to say you are
sorry,
may
mean
that
you are
sorry because
you
have laid yourself open
to an
action,
not
that
you
repent having inflicted
an
unmerited wrong.
A
libel
is an
injury
as
well
as an
insult.
The
most proper apology cannot undo
the
irretrievable publication
and
dissemination
of the
slander,
nor be
regarded
as a
complete restitution,
though
it may
properly
be
consid-
ered
in
damages.
And
that
is
what Lord Campbell's
Act (a
British libel
statute) permits.
You
should
not
offer
to
make,
but
actually make
and
publish
at
once,
and
unconditionally,
such
an
apology,
expressing
sor-
row,
withdrawing
the
imputation, rehabilitating
the
plaintiff's character
as
well
as you
can;
not
stipulating
that
the
plaintiff
is to
accept
it; not
making
any
terms
but
publishing
it in the
interests
of
truth,
and
because
you are
anxious
to
undo whatever harm which
may
have
accrued
from
a
wrong which
you
find
you
have been
the
unconscious
instrument
of
inflicting. Then
in
your statement
of
defence
you can
state
what
you
have done.
But a
defendant
in a
libel case
has no
right
to
plead
or
refer
to an
apology,
or
bring
it
before
the
jury
at all
except
under Lord Campbell's Act, which says that
if the
defendant,
at the
ear-
liest opportunity publish
an
apology
he may
plead that
in
mitigation
of
damages. That
is the
only authority
I
know
for
making
any
reference
to an
apology
in the
pleadings.
It
will
be for the
jury
to say
whether
it
was a
reasonable
and
proper apology,
and
whether
it is
sufficient
to
absolve
the
defendant
from
any or how
much
of the
damage
the
plain-
tiff
has
suffered.
Obviously some libels
may
inflict
an
injury
and
loss
that
no
apology
or
retraction
by, or
even remorse
of, the
wretched, mis-
erable, libeller
can
wholly
efface.
This
decision
has
been cited with approval
in a
number
of
cases, including:
Amalgamated
Transit
Union
v.
Independent
Canadian
Transit
Union, [1997]
5
WWR.
662 at 765
(Alta.
Q.B.).
Brannigan
v.
Seafarers
International
Union
(1963),
42
D.L.R.
(2d)
249 at 257
(B.C.S.C.).
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