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

LIBEL

AND

SLANDER

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.).