Walker and Walker Brothers Quarries Ltd. v. CFTO Ltd. et al., (1987) 19 O.A.C. 10 (CA)

• Judge: Robins, Grange and Finlayson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 17, 1987
• Jurisdiction: Ontario
• Citations: (1987), 19 O.A.C. 10 (CA);1987 CanLII 126 (ON CA);1987 CanLII 126 (NS CA);59 OR (2d) 104;37 DLR (4th) 224;39 CCLT 121;[1987] OJ No 236 (QL);19 OAC 10;3 ACWS (3d) 230

Walker v. CFTO Ltd. (1987), 19 O.A.C. 10 (CA)

MLB headnote and full text

Norris Walker and Walker Brothers Quarries Limited v. CFTO Limited, CTV Television Network Ltd., Garry Dwyer-Joyce, William Cunningham, Henry Champ and Mary Mather

Indexed As: Walker and Walker Brothers Quarries Ltd. v. CFTO Ltd. et al.

Ontario Court of Appeal

Robins, Grange and Finlayson, JJ.A.

March 17, 1987.

Summary:

A television program (W-5) investigating Walker and Walker Brothers Quarries Limited falsely portrayed the company as endangering the public health by improperly accepting toxic waste at its waste disposal site. The program based its attack on a prearranged test whereby prohibited containers marked toxic or poison were brought to the site for dumping. The program falsely stated that the containers were conspicuously placed so to be in full view of dumpsite employees. In fact the containers were hidden from view. Walker and the company brought a libel action for damages against the CTV network, its Toronto affiliate and persons associated with the program. A jury found that the program libelled both Walker and the company and awarded damages as follows: $25,000.00 compensatory damages to Walker, $883,000.00 compensatory damages to the company and $50,000.00 exemplary damages to punish the defendants for their malicious conduct. The defendants appealed the damage awards and the finding that Walker was personally libelled.

The Ontario Court of Appeal allowed the appeal in part. The court affirmed that Walker was libelled and refused to set aside the $25,000.00 damage award. The court found the $883,000.00 damage award exorbitant and set it aside. The court held that the jury failed to properly consider whether exemplary damages were necessary in addition to the compensatory damages. The court therefore ordered a new trial before a jury, restricted to a reassessment of compensatory and exemplary damages.

Libel and Slander - Topic 4423

Damages - General damages - Measure of - Elements and considerations - The Ontario Court of Appeal stated that compensatory damages for libel were imposed primarily to compensate for the harm caused to a person's reputation - Damages are at large in the sense that the award is not limited to pecuniary loss that can be specifically proved - Damages are presumed from the libel itself and need not be established by proof of actual loss - Damages may include intangible and subjective elements - Damages cannot be objectively measured and are incapable of precise calculation - A compensatory damage award should represent an estimate of the amount, necessary to vindicate the plaintiff's reputation and compensate him for injured feelings - See paragraphs 14 to 16.

Libel and Slander - Topic 4428

Damages - General damages - Measure of - Aggravated damages - The Ontario Court of Appeal stated that damages for libel may be aggravated by the manner in which the statement was made or persisted in - Where the defendant was guilty of insulting, high handed, spiteful, malicious or oppressive conduct which increased the mental distress, humiliation, indignation, anxiety, grief, fear, etc., the plaintiff may be entitled to aggravated damages - The court stated that aggravated damages were compensatory in nature, to compensate the plaintiff for additional harm caused by the defendant's conduct - The court stated that aggravated damages were not to be confused with punitive or exemplary damages - See paragraph 15.

Libel and Slander - Topic 4429

Damages - General damages - Measure of - Exemplary damages - When available - The Ontario Court of Appeal stated that exemplary damages bore no relation to what the plaintiff ought to receive as compensation - They have been characterized as "fictional, or judicial damages, designed to indicate the displeasure of the court, whether judge or jury, at the heinousness of the defendant's conduct" - Their purpose is to punish and deter - Exemplary damages provide a windfall to the plaintiff and should be awarded only where they serve a rational purpose - The court stated that where exemplary damages were called for, but compensatory damages were sufficient to achieve the objectives of punishment and deterrence, exemplary damages should not be awarded - See paragraphs 37 to 42.

Libel and Slander - Topic 4430

Damages - General damages - Measure of - Where corporation defamed - The Ontario Court of Appeal discussed the awarding of compensatory damages where a corporation, rather than an individual, was defamed - A corporation whose business character or reputation was injuriously affected by a defamatory publication was entitled, without proof of damage, to a compensatory award representing the sum necessary to publicly vindicate the corporation's business reputation - The court stated that damages for a corporation would normally be lower than damages for a defamed individual, because a corporation had no feelings to injure.

Libel and Slander - Topic 4504

Damages - Libel - Proof of damages - The Ontario Court of Appeal stated that a plaintiff who was libelled is entitled, without proof of damages, to a compensatory award - Damages are presumed from the publication of libel itself - See paragraphs 14 to 15.

Practice - Topic 8806

Appeals - Duty of appellate court regarding damage awards by jury - The Ontario Court of Appeal stated that a court will interfere with a jury's damage award only where the award was "so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate" or where the award was "so exorbitant or so grossly out of proportion to the libel as to shock the court's conscience and sense of justice" - The court set aside an $883,000.00 compensatory damage award to a libelled corporation, where the jury used an arbitrary yardstick in measuring damages (883,000 television viewers times $1.00), the jury failed to apply the considerations applicable to damages for a libelled corporation and the damage award bore no reasonable relationship to the circumstances of the case or the injury inflicted on the company (previous highest award was $100,000.00) - See paragraph 12.

Practice - Topic 9276

Appeals - From jury verdict - Damage awards - The Ontario Court of Appeal set aside a jury's damage award in a libel action on the ground that it was exorbitantly high - The defendant wished the court to assess damages, but the libelled plaintiff would not consent - The court held that in the absence of consent, it had to order a new trial restricted to the assessment of damages by a jury - See paragraph 27.

Cases Noticed:

Cassell & Co. Ltd. v. Broome, [1972] 1 All E.R. 801 (H.L.), refd to. [para. 16].

Rookes v. Barnard, [1964] 1 All E.R. 367 (H.L.), refd to. [para. 16].

McCary v. Associated Newspapers Ltd., [1964] 3 All E.R. 947 (C.A.), refd to. [para. 16].

Barltrop v. Canadian Broadcasting Corp. (1978), 25 N.S.R.(2d) 637; 36 A.P.R. 637; 86 D.L.R.(3d) 61 (C.A.), refd to. [para. 16].

Vogel v. Canadian Broadcasting Corp. (1982), 21 C.C.L.T. 105 (B.C.S.C.), refd to. [para. 16].

Journal Printing Company v. Maclean (1896), 23 O.A.R. 324 (C.A.), refd to. [para. 17].

South Hetton Coal Company Limited v. North-Eastern News Association Limited, [1894] 1 Q.B. 133 (C.A.), refd to. [para. 18].

Lewis v. Daily Telegraph Ltd. et al., [1963] 2 All E.R. 156 (H.L.), refd to. [para. 19].

Sikora v. Asbestonos Corp. Ltd. (1974), 45 D.L.R.(3d) 715 (S.C.C.), appld. [para. 27].

Gouzenko v. Lefolii, [1967] 2 O.R. 262 (C.A.), refd to. [para. 34].

McElroy v. Cowper-Smith, [1967] S.C. R. 425, refd to. [para. 34].

Pretu et al. v. Donald Tidey Co. Ltd., [1966] 1 O.R. 191 (H.C.), refd to. [para. 34].

Uren v. John Fairfax and Sons Pty., Ltd. (1966), 117 C.L.R. 118 (Aust. H.C.), refd to. [para. 34].

Denison v. Fawcett, [1958] O.R. 312 (C.A.), refd to. [para. 35].

Authors and Works Noticed:

Carter-Ruck, On Libel and Slander (3rd Ed. 1985), pp. 156-157 [para. 19].

Cherniak and Morse, Aggravated, Punitive and Exemplary Damages in Canada, Law Society of Upper Canada 1985 Special Lectures, p. 151 [para. 16].

Fridman, Punitive Damages in Tort (1970), 48 Can. Bar Rev. 373 [para. 16].

Gatley, On Libel and Slander (8th Ed. 1981), para. 1451 et seq. [para. 16].

Waddams, The Law of Damages (1983), para. 508 et seq. [para. 16].

Counsel:

William P. Somers, Q.C., and David Stockwood, Q.C., for the appellants;

Julian Porter, Q.C., Duncan MacFarlane, Q.C., and David A. Potts, for the respondents.

This appeal was heard on December 2-4, 1986, before Robins, Grange and Finlayson, JJ.A., of the Ontario Court of Appeal. The decision of the Court of Appeal was delivered by Robins, J.A., and released on March 17, 1987: