Botiuk v. Bardyn et al., (1995) 186 N.R. 1 (SCC)

• Judge: Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 08, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1995), 186 N.R. 1 (SCC);126 DLR (4th) 609;57 ACWS (3d) 592;1995 CanLII 60 (SCC);JE 95-1800;85 OAC 81;[1995] SCJ No 69 (QL);186 NR 1;[1995] 3 SCR 3;[1995] CarswellOnt 1049;[1995] ACS no 69;26 CCLT (2d) 109

Botiuk v. Bardyn (1995), 186 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Ihor Bardyn, Bohdan Onyschuk, Bohdan Zarowsky, Q.C., and W. Yurij Danyliw, Q.C. (appellants) v. Y.R. Botiuk (respondent)

B.I. Maksymec and Maksymec & Associates Ltd. (appellants) v. Y.R. Botiuk (respondent)

(No's. 23517 and 23519)

Indexed As: Botiuk v. Bardyn et al.

Supreme Court of Canada

La Forest, L'Heureux-Dubé, Gonthier,

Cory, McLachlin, Iacobucci and Major, JJ.

September 21, 1995.

Summary:

The Province of Ontario convened a public inquiry respecting a public demonstration by the Ukrainian community in the City of Toronto which resulted in a police confron­tation. The Ukrainian-Canadian Committee (UCC) was granted standing. Botiuk, a Ukrainian immigrant and a lawyer who was involved in the affairs of the Ukrainian community did extensive work along with another lawyer on behalf of the UCC re­garding the public inquiry. Following the inquiry which in effect vindicated the Ukrainian community, Metro Toronto agreed to provide funding for the UCC legal repre­sentatives. Botiuk retained $10,256.79. Botiuk thereafter sued other members of the Ukrainian community, the defendants, for damages for allegedly making libellous statements in three documents about the propriety of Botiuk keeping the $10,256.79. The defendents were Maksymec & As­sociates Ltd., Maksymec, who was a pro­fessional engineer and principal shareholder and officer of Maksymec & Associates Ltd. and four lawyers, Bardyn, Onyschuk, Zarowsky and Danyliw.

The Ontario Court (General Division) allowed the action and assessed damages against the defendants jointly and severally. The court awarded compensatory damages of $140,000, including general damages, aggra­vated damages and the present value of future pecuniary loss, plus special damages of $325,000 for loss of income. The defen­dants appealed.

The Ontario Court of Appeal in a decision not reported in this series of reports, allowed the appeal in part, holding, inter alia, that because special damages were not specifi­cally pleaded they could only form part of the general damage award. The court held that $200,000 in compensatory damages was appropriate. The defendants appealed and Botiuk cross-appealed.

The Supreme Court of Canada dismissed the appeals and allowed the cross-appeals. The court set aside the order of the Court of Appeal and restored the judgment of the trial judge.

Damage Awards - Topic 632

Torts - Injury to the person - Libel and slander - Botiuk, a lawyer, did extensive work on behalf of the Ukrainian-Canadian Committee (UCC) relating to a public inquiry - The munucipality involved pro­vided funding for the UCC legal represen­tatives - Botiuk retained $10,256.79 - Botiuk thereafter sued the defendants (an engineer, his company and four lawyers) for damages for making libellous state­ments in three documents about the pro­priety of retaining the $10,256.79 - The Supreme Court of Canada affirmed that the three documents were libellous and restored the trial judge's award of $140,000 for compensatory damages, including aggravated damages, general damages and the present value of future pecuniary loss, plus a $325,000 award of special damages for loss of income.

Damages - Topic 907

Aggravation - Aggravated damages - Libel and slander - [See second Libel and Slander - Topic 4007 ].

Damages - Topic 1401

Special damages - Pleading and proof - [See Libel and Slander - Topic 4405 ].

Interest - Topic 5008

Interest as damages (prejudgment interest) - Prejudgment interest - Entitlement - The plaintiff, a lawyer, sued the defendants for damages for defamation - The trial judge allowed the action and awarded compensatory damages, plus special dam­ages for loss of income - In awarding prejudgment interest, the trial judge excluded that portion of the compensatory damage award attributed to the present value of future pecuniary loss and held that the period of entitlement to prejudg­ment interest was 12½ years (Courts of Justice Act, s. 138(2)) - The defendants argued that in fixing the plaintiff's general damages the trial judge took into account the effects of inflation and addition of prejudgment interest amounted to double recovery - The Supreme Court of Canada rejected the defendants' argument and affirmed the trial judge's award of pre­judgment interest - See paragraphs 113 to 119.

Interest - Topic 5011

Interest as damages (prejudgment interest) - Interest on nonpecuniary general dam­ages - [See Interest - Topic 5008 ].

Libel and Slander - Topic 66

Persons liable - Joint liability - Botiuk sued the defendants (an engineer, his com­pany and four lawyers) for damages for libel arising from the publication of three documents - The trial judge held that the three publications were to be considered a single libel and the defendants were jointly liable for damages - The lawyers argued that since they were only involved with one document their liability should be limited to damages flowing from that publication only - The Supreme Court of Canada rejected the lawyers' argument - See paragraphs 73 to 77 - The court stated that the "so-called 'single publication rule' does not apply to concurrent tortfeasors, who can be defined as persons whose torts concur, or run together, to produce the same damage" - See paragraph 73 - The court reiterated that "if one person writes a libel, another repeats it, and a third approves what is written, they all have made the defamatory libel" - See para­graph 76.

Libel and Slander - Topic 67

Persons liable - Corporations - Botiuk sued the defendants (Maksymec & As­sociates Ltd., Maksymec who was princi­pal shareholder and officer of Maksymec & Associates Ltd. and four lawyers) for damages for libel arising from the publi­cation of three documents - The company argued that it was not liable because Maksymec was not acting within the cor­poration's authority in circulating the libel­lous documents in envelopes stamped with the company's name and return address - The Supreme Court of Canada affirmed that the company was liable - The court agreed that "by his action and in his ca­pacity as the principal shareholder and officer of the company and its directing mind, Maksymec clearly associated the company with the defamatory statements" - See paragraphs 89, 90.

Libel and Slander - Topic 642

The statement - What constitutes defama­tory statements - Examples of defamatory words - A public inquiry was held re­specting a public demonstration by the Ukrainian community - The Ukrainian-Canadian Committee (UCC) was granted standing - Botiuk, a lawyer, did extensive work on behalf of the UCC relating to the public inquiry - The municipality involved provided funding for the UCC legal repre­sentatives - Botiuk retained $10,256.79 - Botiuk thereafter sued the defendants (an engineer, his company and four lawyers) for damages for making libellous state­ments in three documents about the pro­priety of retaining the $10,256.79 - The Supreme Court of Canada affirmed that the three documents were libellous - "The documents cast doubt upon his integrity, the most important attribute of any lawyer" - See paragraphs 61 to 72.

Libel and Slander - Topic 644

The statement - What constitutes defama­tory statements - Disparagement of repu­tation - The Supreme Court of Canada noted its discussion in Hill v. Church of Scientology and Manning respecting the importance of reputation to an individual - The court stated that "it was observed in Hill that this is particularly true of lawyers. A reputation for integrity and trustworthi­ness is the cornerstone of their professional life. Injury done to reputation can only with the greatest difficulty be repaired. As Cardozo, J., put it ... 'reputation in such a calling is a plant of tender growth and its blossom, once lost, is not easily restored'. It should be recognized that these observa­tions will be equally applicable to other professions and callings ..." - See para­graphs 91, 92.

Libel and Slander - Topic 644

The statement - What constitutes defama­tory statements - Disparagement of repu­tation - [See Libel and Slander - Topic 642 ].

Libel and Slander - Topic 684

The statement - What constitutes defama­tory statements - Libel - [See Libel and Slander - Topic 642 ].

Libel and Slander - Topic 2988

Defences - Qualified privilege - Loss of - Existence of malice - [See first Libel and Slander - Topic 2988.1 ].

Libel and Slander - Topic 2988.1

Defences - Qualified privilege - Loss of - Where limits of privilege exceeded - The Supreme Court of Canada stated that "where an occasion is shown to be privi­leged, the bona fides of the defendant is presumed and the defendant is free to publish remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute. It may be defeated in two ways" - These two ways are: (1) if the dominant motive for pub­lishing is actual or express malice which may be established by showing that the defendant either knew that he was not telling the truth, or was reckless in that regard, and (2) if the limits of the duty or interest have been exceeded - See para­graphs 78 to 81.

Libel and Slander - Topic 2988.1

Defences - Qualified privilege - Loss of - Where limits of privilege exceeded - Botiuk, a lawyer, did extensive work on behalf of the Ukrainian-Canadian Com­mittee (UCC) relating to a public inquiry - The municipality involved provided fund­ing for the UCC legal representatives - Botiuk retained $10,256.79 - Botiuk thereafter sued the defendants (an engineer, his company and four lawyers) for dam­ages arising from libellous statements in three documents about the propriety of retaining the $10,256.79 - The engineer claimed the statements made by him in a report to the general meeting of the UCC were subject to qualified privilege because he had a duty to report due to his UCC involvement - The Supreme Court of Canada held that the libellous references to Botiuk contained in the report exceeded the qualified privilege that attached to the occasion - See paragraphs 82 to 85.

Libel and Slander - Topic 2988.1

Defences - Qualified privilege - Loss of - Where limits of privilege exceeded - Botiuk, a lawyer and member of the Ukrainian community, sued the defendants (an engineer, his company and four law­yers) for damages for libel arising from the publication of three documents - The defendants, also members of the Ukrainian community, claimed qualified privilege because in two of the documents they were responding to what they perceived to be an attack on their honesty and integrity in a declaration published in a Ukrainian com­munity newspaper - The Supreme Court of Canada held that the defendants were en­titled to respond to protect their interest, and therefore, the defence of qualified privi­lege was available - How­ever, they went well beyond what was reasonably ap­propriate to the occasion and thus lost the protections afforded by the defence - See paragraphs 86 to 88.

Libel and Slander - Topic 4007

Malice - What constitutes - The Supreme Court of Canada discussed what constitutes malice in the context of a defamation action - The court stated however that "when the defendants are lawyers who must be presumed to be reasonably fa­miliar with both the law of libel and the legal consequences flowing from the sign­ing of a document, their actions will be more closely scrutinized than would those of a lay person. That is to say, actions which might be characterized as careless behaviour in a lay person could well become reckless behaviour in a lawyer with all the resulting legal consequences of reckless behaviour" - See paragraph 98.

Libel and Slander - Topic 4007

Malice - What constitutes - Maksymec prepared a report for the Ukrainian-Cana­dian Committee (UCC) claiming that a lawyer, Botiuk, who assisted the UCC during a public inquiry improperly retained a fee - Following a response by UCC, several lawyers published a declaration stating that they had familiarized them­selves with Maksymec's report and that it was accurate, although some of them had not read the report nor talked to Botiuk - Thereafter Maksymec published another document using the lawyers' declaration with no objection from the lawyers - The Supreme Court of Canada affirmed that Maksymec was motivated by express malice - Further, the lawyers' conduct was reckless and their actions were thus malicious - Since all defendants were motivated by malice, they were therefore jointly and severally liable for damages, including aggravated damages - See para­graphs 94 to 103.

Libel and Slander - Topic 4405

Damages - Special damages - The plain­tiff, a lawyer, sued the defendants for damages for defamation - The trial judge allowed the action and awarded compen­satory damages of $140,000 and special damages for loss of income of $325,000 - On appeal, the court held that since special damages were not specifically pleaded, they could only form a part of the general damages award and, in the court's view, a fair sum for compensatory damages was $200,000 - The Supreme Court of Canada restored the trial judge's award - The court agreed that special damages must be spe­cifically pleaded and proved in court, but here the loss of business was sufficiently pleaded and there was ample evidence presented upon which the trial judge could properly base his decision to award special damages - See paragraphs 108 to 112.

Libel and Slander - Topic 4421

Damages - General damages - Measure of - General principles - [See Damage Awards - Topic 632 ].

Libel and Slander - Topic 4428

Damages - General damages - Measure of - Aggravated damages - [See Damage Awards - Topic 632 and second Libel and Slander - Topic 4007 ].

Libel and Slander - Topic 4501

Damages - Libel - General - [See Dam­age Awards - Topic 632 ].

Cases Noticed:

Hill v. Church of Scientology of Toronto and Manning (1995), 184 N.R. 1; 84 O.A.C. 1 (S.C.C.), appld. [para. 61 et seq.].

Cherneskey v. Armadale Publishers Ltd. and King, [1979] 1 S.C.R. 1067; 24 N.R. 271, refd to. [para. 62].

Basse v. Toronto Star Newspapers Ltd. (1983), 44 O.R.(2d) 164 (H.C.), refd to. [para. 77].

Adam v. Ward, [1917] A.C. 309 (H.L.), refd to. [para. 78].

McLoughlin v. Kutasy, [1979] 2 S.C.R. 311; 26 N.R. 242, refd to. [para. 78].

Tucker v. Douglas, [1952] 1 S.C.R. 275, refd to. [para. 86].

Bolton (H.L.) Engineering Co. v. Graham (T.J.) & Sons Ltd., [1957] 1 Q.B. 159 (C.A.), refd to. [para. 90].

Standard Investments Ltd., Brentwood Realty Ltd., Cohen and Ellen v. Cana­dian Imperial Bank of Commerce (1985), 11 O.A.C. 18; 52 O.R.(2d) 473 (C.A.), refd to. [para. 90].

People (ex rel Karlin) v. Culkin (1928), 162 N.E. 487 (N.Y.), refd to. [para. 92].

Horrocks v. Lowe, [1975] A.C. 135 (H.L.), refd to. [para. 97].

Borland v. Muttersbach (1985), 53 O.R.(2d) 129 (C.A.), apprvd. [para. 115].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 117].

Barber v. Pigden, [1937] 1 K.B. 664, refd to. [para. 123].

Hayward v. Thompson, [1982] 1 Q.B. 47 (C.A.), refd to. [para. 123].

Derrickson et al. v. Tomat et al. (1992), 9 B.C.A.C. 119; 19 W.A.C. 119; 63 B.C.L.R.(2d) 273 (C.A.), refd to. [para. 126].

Westbank Indian Band v. Tomat - see Derrickson et al. v. Tomat et al.

Statutes Noticed:

Courts of Justice Act, S.O. 1984, c. 11, sect. 138(2) [para. 113].

Rules of Civil Procedure (Ont.), rule 49.10 [para. 54].

Authors and Works Noticed:

Brown, Raymond E., The Law of Defama­tion in Canada (2nd Ed. 1994)(Loose­leaf), pp. 1-15 [para. 62]; 16-29, 16-30 [para. 96]; 25-75 [para. 109].

Fleming, John G., The Law of Torts (8th Ed. 1992), p. 255 [para. 74].

Fridman, G.H.L., The Law of Torts in Canada (1990), vol. 2, pp. 347, 348 [para. 124].

Gatley, Libel and Slander (8th Ed. 1981), pp. 94 to 100 [para. 111]; 119, 120 [para. 77]; 218 [para. 86].

Counsel:

J. Edgar Sexton, Q.C., and Mark A. Gelo­witz, for the appellants, Ihor Bardyn et al.;

Bryan Finlay, Q.C., and Christopher J. Tzekas, for the appellants, B.I. Maksy­mec and Maksymec & Associates Ltd.;

Sheila Block and Jenifer E. Aitken, for the respondent.

Solicitors of Record:

Osler, Hoskin & Harcourt, Toronto, Ontario, for the appellants, Ihor Bardyn et al.;

Weir & Foulds, Toronto, Ontario, for the appellants, B.I. Maksymec and Maksy­mec & Associates Ltd.;

Tory Tory Deslauriers & Binnington, Toronto, Ontario, for the respondent.

This appeal was heard on December 8, 1994, before La Forest, L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages on September 21, 1995, including the following opinions:

Cory, J. (La Forest, L'Heureux-Dubé, Gonthier, McLachlin and Iacobucci, JJ., concurring) - see paragraphs 1 to 121;

Major, J., concurring reasons - see para­graphs 122 to 127.