Rethinking Damages for Defamation?

Rethinking Damages for Defamation?

June 15, 2021

By Brian Babcock

Defamation is the action you might bring if someone tells lies about you that harm your reputation. Libel and slander are both types of defamation.

An action for defamation may lead to “aggravated damages” or “punitive damages” in addition to “general damages” for loss of reputation, mental distress and other intangible losses suffered by the target of the lies.

A recent Alberta Court of Appeal decision looks at how these damages inter-relate, and when the exemplary damages – aggravated or punitive – ought to be awarded on top of general damages. As the Alberta decision considers several Ontario decisions, it may signal how Ontario courts would act as well.

As the court notes, general damages are the primary remedy for defamation. Although actual damages for loss of income and other monetary losses may be awarded, in many cases, these are hard to prove with any accuracy. The general damages often attempt to reflect the entire value of the victim’s loss under the heading ‘loss of reputation’, on a non-mathematical basis. The general damages also serve to acknowledge that a wrong was done; and address the suffering of the victim – stress, emotional anguish, hurt, and humiliation.

A leading case from Ontario that went to the Supreme Court, Hill v Church of Scientology, sets out five factors that courts should include in setting general damages:

  • the victim’s position and standing [in the community]
  • the nature of the defamation
  • the mode and extent of the publication
  • the possible effects of the false statements on the victim’s life and
  • the absence or refusal of an apology.

Because general damages are tailored to the facts of each case, other surrounding circumstances are sometimes considered in addition to these factors.

In the Alberta decision, general damages were set at $150,000.00, an amount that the Court of Appeal describes as “significant” but within the range of damages acceptable for the injuries suffered by that victim.

The real issues on appeal surrounded the additional amounts awarded at trial for aggravated and punitive damages. At trial, the judge added aggravated damages of $100,000.00 and punitive damages of $10,000.00 to the judgment.

Like general damages, aggravated damages are compensatory damages. They are awarded when the victim’s injuries include some component not covered by the general damages such as increased humiliation or anxiety caused by conduct which was high-handed or oppressive.

Although the factors considered in awarding aggravated damages might overlap with the factors affecting general damages, they are not intended to duplicate general damages. If the general damages fully compensate the victim, aggravated damages are not awarded. They should only be given when there is some additional or increased injury. A finding that the conduct of the defendant was malicious, high handed or mean spirited is not enough to awarded aggravated damages without that further injury.

In the Alberta case, the wrongdoer had not apologized or express remorse, arguing up until trial that her lies were true. The trial judge found that she acted maliciously – that is, with an intent to do harm to her victim. There were 10 separate publications of the lie, over a period of more than a year. She maintained her claim that the lies were true for ten years. As part of the law suit, the victim was subjected to prolonged questioning in an effort by the lair to try to support the alleged truth of the lies.

The appeal court however pointed out that the lack of apology, malice, and scope of the publication were already considered in fixing the general damages.

More importantly, there was no evidence that this misconduct increased the victim’s suffering beyond that recognized by the general damages.

The award of aggravated damages was thus disallowed on appeal.

Punitive damages, like aggravated damages, are related to the conduct of the wrongdoer. Unlike aggravated damages or general damages, punitive damages are not based on the losses suffered by the victim. They are intended to provide denunciation of particularly malicious, oppressive or high-handed conduct, and act as a deterrence against future misconduct, whether by that wrongdoer or by sending a message to the community at large.

Hill applied the principle that punitive damages ought only be awarded where the combined total of general and aggravated damages was not enough to send the message of denunciation and deterrence to defamation claims.

The Court of Appeal decided that even though they had set aside the aggravated damages, the general damage award, plus the costs award, was sufficient to be deterrence. The punitive damages were disallowed.

Frankly, I found that result somewhat surprising. Though $150,000.00 is more general damages than most victims received, this case was about a serious set of lies over a long period of time. The general damages were not exceedingly generous. In my view, many courts would have awarded punitive damages. The modest amount awarded would have sent an appropriate message, without being unduly punitive.

However, although I do teach a course in Remedies, including damages, at the Bora Laskin Faculty of Law in Thunder Bay, I am not a judge of a court of appeal. Their opinions have a lot more weight than mine.

Time will tell whether this judgment has impact in Ontario, but it is at least a thorough review of the principles which the courts, including those in Ontario, apply to awarding damages in defamation cases. It should provide a useful guide to the principles of damages.

The case also helps by illustrating the need for specific evidence if you hope to obtain aggravated damages.

You have the right to represent yourself not only in small claims court, where more people are suing for defamation, but also in Superior Court.  This decision is an example of why that might not be the best way to maximize your recovery. In addition to the tricky damages issues discussed in this case, proving the defamation in the first place involves a technical process that you might find difficult to navigate. Just like I would not fix my own brakes, I do not recommend representing yourself in complicated cases. By definition, almost all defamation cases are complicated. Lawyers experienced in defamation cases may be able to increase you chances of recovery, and the amount of recovery. That is usually a good investment, not an expense.