Defamation Damages

AuthorDavid A. Potts; Erin Stoik
 5
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. 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.
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:
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

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