Damages
| Author | Roger McConchie; David Potts |
| Profession | Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario |
| Pages | 845-876 |
CHAPTER
THIRTY:
Damages
A.
GENERAL PRINCIPLES
The
plaintiff
in a
defamation action
may be
awarded damages
in
four
gen-
eral
categories:
i)
compensatory;
ii)
punitive
or
exemplary;
iii)
nominal;
or
iv)
contemptuous.
Within
the
category
of
compensatory damages,
a
plaintiff
may
seek awards
under
the
following heads
of
damage:
a.
general;
b.
aggravated;
c.
specific
pecuniary loss (special damages) including
but not
limited
to
loss
of
income
or
capacity
to
earn income (past, present,
and
future),
loss
of
business opportunities, out-of-pocket expenses,
and
amounts incurred
to
mitigate
damages.
The
distinction between general
and
special damages
is
discussed
in
Harvey
McGregor,
McGregor
on
Damages,
15th
ed.
(London: Sweet
&
Maxwell,
1988)
at
page
1119
where
the
author says:
General
damage consists
in all
items
of
loss which
the
plaintiff
is not
required
to
specify
in his
pleadings
in
order
to
permit proof
and
recovery
in
respect
of
them
at
trial. Special damage consists
in all
items
of
loss which must
be
spec-
ified
by him
before
they
may be
proved
and
recovery granted.
In the
context
of a
defamation claim, Bowen
LJ.
in
Ratcliffe
v.
Evans
(1892),
2
Q.B.
524 at
page
528
(C.A.)
explained special damage
as
follows:
845
846
CANADIAN
ACTIONS
...
[I]t
is
desirable
to
recollect that
the
term "special damage," which
is
found
for
centuries
in the
books,
is not
always used with
reference
to
similar subject-matter,
nor in the
same context.
At
times (both
in the
law of
tort
and of
contract)
it is
employed
to
denote that damage aris-
ing out of the
special circumstances
of the
case which,
if
properly plead-
ed, may be
superadded
to the
general damage which
the law
implies
in
every
breach
of
contract
and
every infringement
of an
absolute right:
see
Ashby
v.
White.
(1) In all
such cases
the law
presumes that some
dam-
age
will
flow
in the
ordinary course
of
things
from
the
mere invasion
of
the
plaintiff's
rights,
and
calls
it
general damage. Special damage
in
such
a
context means
the
particular damage (beyond
the
general damage),
which
results
from
the
particular circumstances
of the
case,
and of the
plaintiff's
claim
to be
compensated,
for
which
he
ought
to
give warning
in his
pleadings
in
order that there
may be no
surprise
at the
trial.
Special damages must
be
pleaded
in
detail.
[See chapter
23,
"Pleadings,"
section
B(ll)(b),
Special
Damages.]
Ratdiffe v. Evans (1892), 2 Q.B. 524 (C.A.).
Ashdown
v. The
Manitoba
Free
Press
Co.
(1891),
20
S.C.R.
43 at 50, 51.
Instead
of
awarding substantial damages,
a
court
may
choose
to
award
nominal
or
contemptuous damages.
Of
course,
no
plaintiff
will seek con-
temptuous damages
—
these
are
typically awarded where
the
court wishes
to
express
its
disapproval
of the
plaintiff
because
the
plaintiffs
reputation
was
worthless
before
the
libel
or
because
the
lawsuit
is
considered
trivial.
It
is
open
to a
plaintiff
to
seek nominal rather than substantial damages where
the
plaintiff
simply wishes
to
make
the
point that
she has
been
defamed.
Daishowa
Inc.
v.
Friends
of
the
Lubicon
(1998),
39
O.R. (3d)
620 at 665
(Gen.
Div),
where McPherson
J.
stated:
Daishowa
is
entitled
to the
$1
damage award
it
seeks.
The
Friends'
defamation
of
Daishowa with respect
to the
March
7,
1988
meeting
and
genocide deserves
to be
sanctioned
by the
nominal amount
Daishowa seeks.
In an
action
for
libel
or for
slander
per se, the
plaintiff
does
not
need
to
prove damage
in
order
to
recover
a
verdict
for
damages. Damage
is
presumed.
Ratdiffe v. Evans (1892), 2 Q.B. 524 at 528, per Bowen LJ. at 529 (C.A.):
Every
libel
is of
itself
a
wrong
in
regard
to
which
the law
implies gener-
al
damage
...
Akin
to
actions
of
libel
are
those actions which
are
brought
Chapter Thirty: Damages
847
for
oral slander, where such slander consists
of
words actionable
in
themselves,
and the
mere
use of
which constitutes
the
infringement
of
the
plaintiff's
right.
The
very speaking
of
such words, apart
from
all
damage,
constitutes
a
wrong
and
gives rise
to a
cause
of
action.
The law
in
such
a
case presumes,
and in
theory allows proof
of,
general damages.
Halls
v.
Mitchell [1926]
59
O.L.R.
590,
per
Riddell J.A.
at
para.
54
(C.A.)
[cit-
ing
Ratdiffe
v.
524]:
As
to the
libels alleged
—
written defamation does
not
require special
damage
to
support
an
action,
for
"the
law
presumes that some damage
will
flow
in the
ordinary course
of
things
from
the
mere invasion
of the
plaintiff's
rights."
On the
other
hand,
in an
action
for
slander
only,
the
plaintiff
must
prove
actual damages (special damages) unless
the
relevant defamation statute
provides that damages
are
presumed
or
that proof
of
special damage
is not
required:
Pootlas
v.
Pootlas
(1999),
63
B.C.L.R.
(3d)
305
(S.C.), citing
Gibson
v.
McDou-
gal
(1919),
17
O.WN.
157
(H.C.).
Merkoffv.
Pawluk,
[1931]
1
WWR.
669
(Alta.
S.C.
(T.D.)).
Brockley
v.
Maxwell, [1949]
1
WW.R.
1039
(B.C.S.C.).
Mengarelli
v.
Forrest, [1972]
2
O.R.
397
(S.C.
(Mast.)).
Johnson
v.Jolliffe
(1981),
26
B.C.L.R.
176
(S.C.).
Robertson
v.
Robertson
(1932),
45
B.C.R.
460
(S.C.).
Ratdiffe
v.
Evans
(1892),
2
Q.B.
524
(C.A.).
Damages
in
defamation cases
are not
always amenable
to
precise deter-
mination.
Often,
as in
other cases,
the
evidence will
not
permit
the
court
to
make
an
exact assessment. However,
it is
clear
on the
authorities that where
a
reasonable estimate
of the
loss
can be
made
from
the
evidence,
the
plain-
tiff
cannot
be
deprived
of
damages because
of
difficulty
in
measuring them.
Wilson
v.
Rowswell,
[1970] S.C.R.
865 at
872.
Tai
Hing
Cotton
Mill
Ltd.
v.
Kansas
Knitting
Factory,
106.
B.
COMPENSATORY DAMAGES
Compensatory damage awards will invariably include general damages,
and
may
also include aggravated
or
special damages.
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