Defamation Damages

• Author: David A. Potts; Erin Stoik
• Pages: 38-55

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Defamation Damages

General damages in libel are designed to compensate plaintif‌fs for the dam-

age to their reputations and to vindicate their good names. They include

damages for the actual monetary consequences of the attitude adopted by

other persons toward the plaintif‌f as a result of the defamatory publication,

as well as damages for distress, hurt, and humiliation caused to the plaintif‌f.

Haaretz.com v Goldhar, [2018] 2 SCR 3, 2018 SCC 28

Nazerali v Mitchell, 2018 BCCA 104

Breeden v Black, [2012] 1 SCR 666, 2012 SCC 19

Grant v Torstar Corp, [2009] 3 SCR 640, 2009 SCC 61

Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130 at 1205

The Supreme Court of Canada in Hill v Church of Scientology of Toronto

stated that each libel case is unique, that there is no formula for determining

damages, and that reliance on previous cases is of limited value.

FACTORS TO BE CONSIDERED IN AWARDING GENERAL DAMAGES

When awarding general damages, Cunningham J enumerated the factors

taken into account in Leenen v Canadian Broadcasting Corp (2000), 48 OR

(3d) 656 at para 205:

[205] . . . a) the seriousness of the defamatory statement;

b) the identity of the accuser;

c) the breadth of distribution of the publication of the libel;

d) republication of the libel;

e) the failure to give the audience both sides of the picture and not pre-

senting a balanced review;

) the desire to increase one’s professional reputation or to increase ratings

of a particular program;

Defamation Damages | 39

g) the conduct of the defendant and defendant’s counsel through to the end

of trial;

h) the absence or refusal of any retraction or apology; and

i) the failure to establish a plea of justif‌ication.

Generally, the courts in Canada in both oine and internet defamation

actions refer to and rely upon the decision of the Supreme Court of Canada

in Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130 at paras 182–83:

[182] The factors which should be taken into account in assessing general

damages are clearly and concisely set out in Gatley on Libel and Slander (8th

ed.), supra, at pp. 59394, in these words:

SECTION : ASSESSMENT OF DAMAGES

1451. Province of the jury. In an action of libel “the assessment of

damages does not depend on any legal rule.” The amount of dam-

ages is “peculiarly the province of the jury,” who in assessing them will

naturally be governed by all the circumstances of the particular case.

They are entitled to take into their consideration the conduct of the

plaintif‌f, his position and standing, the nature of the libel, the mode

and extent of publication, the absence or refusal of any retraction

or apology, and “the whole conduct of the defendant from the time

when the libel was published down to the very moment of their ver-

dict. They may take into consideration the conduct of the defendant

before action, after action, and in court at the trial of the action,” and

also, it is submitted, the conduct of his counsel, who cannot shelter his

client by taking responsibility for the conduct of the case. They should

allow “for the sad truth that no apology, retraction or withdrawal can

ever be guaranteed completely to undo the harm it has done or the

hurt it has caused.” They should also take into account the evidence

led in aggravation or mitigation of the damages.

[183] There will of necessity be some overlapping of the factors to be

considered when aggravated damages are assessed. This can be seen from a

further reference to the Gatley text at pp. 59394 where this appears:

1452. Aggravated damages. The conduct of the defendant, his con-

duct of the case, and his state of mind are thus all matters which the

plaintif‌f may rely on as aggravating the damages. “Moreover, it is very

well established that in cases where the damages are at large the jury

(or the judge if the award is left to him) can take into account the