INTRODUCTION

Click here to jump straight to the cases and quantums.

Leaving the development of law in the hands of judges has always been the bane of, the well-known singular, disadvantageous feature of the common law.

For the most part, circa 2011, most important principles of law - all but discretionary findings of fact - have been wrested from the limitations of the single, human mind, and enshrined in statute.

Not so defamation, be it libel or slander.

Libel and slander occupy a disproportionate part of the court files of the land. People with money are often too sensitive to criticism and quick to flex their muscle by throwing the gauntlet at anybody who may question their reputation.

Left to their own avails, unrestricted by statute, allowed to manage, administer and develop the law of defamation, common law judges around the world have made one hell of a mess of it. If there is any area of law where the metaphor of rolling the dice is appropriate, it is in defamation litigation.

defamation maniaIn most areas, there is no definitive answer, just a deep cliff, a black hole.  For example, and there are many, what is or is not a justification for an otherwise defamatory statement is a moving target. Heck: they cannot even get the terminology straight, some cases referring to the just patient as a defense or a privilege, other judges seeking to assert their intellectual pomposity by exacerbating the distinctions in writing, so that other judges may be invited down yet another crooked stare decisis path.

Secondly, the courts are very consistent when it comes to damages for defamation. For the most part, as any lawyer who has actually practiced in the field will tell you, damage awards tend to be low, often nowhere close to their actual legal fees bill. Even the winner of a defamation case is lucky if the damage award and costs, is enough to pay his or her legal fees.

Because defamation is often delivered with malice, one would think that the defendant would be exposed to punitive damages. Again, judicial treatment of punitive damages is extremely consistent and again, there is no common terminology for the basic concept of punitive damages (eg. compare with aggravated damages).

To be fair, damages in defamation actions are said to be “at large”, because actual damages are not readily proven. Who knows, but for a case by case analysis - an imperfect method, what amount that will compensate someone for the insult or pain of a false iteration?

Apparently:

"The purpose of an award for damages for defamation is to console the plaintiff for distress, to repair harm to the plaintiff’s reputation, and to vindicate that reputation. An appropriate award involves consideration of the relevant factors and of cases with some similar factors, although all cases are unique."1

Focusing on the common law jurisdiction of Canada, here is a sampling of defamation damage awards, high and low (there are thousands of reported cases in between).

You be the judge.

Half a English Penny

 

The official law report of Gohoho v Lintas Export, [1964] CLY 2885:

"A, a bankrupt, brought libel actions against R1 and R2. Against R1, he was unsuccessful. Against R2, he was awarded 1/2d.

"On his appeal. held that he (A) should be ordered to give security for costs in the sum of £50.

"A then removed his jacket, trousers and underpants and lay down in court.

"Held: that a bench warrant should be issued committing A to prison for seven days for contempt in the face of the court...."

$1

Leonard v Sun Publishing Co. Ltd. is a 1956 case so allowing for inflation, perhaps this should read "8.56" to represent 2011 dollars.

Anyway, before Justice Lord of the British Columbia Supreme Court was a Vancouver Sun article which called the plaintiff a "drug king", implying that he was head of an illegal drug syndicate operating in Vancouver. The claim was filed and an apology published even though Leonard did not deny that he was a "drug king"!

The segway to the $1 award is made when Justice Lord notes:

"(The plaintiff) knew and associated with underworld characters both in gambling places and in prison... In my estimation the plaintiff has no reputation capable of being injured. I assess damages in the nominal amount of one dollar ($1)."

$100

This was not a small claims case - most jurisdictions exclude defamation from the jurisdiction of their small claims court.

Why? We have no idea.

So this 1999 case, Yeung v Lapico was in the big leagues where legal fees are high as is exposure to costs.Lapico faced a breach of contract claim (which failed) and filed a counter-claim alleging libel. Justice Quinn of the Ontario Court of Justice (General Division) granted a part of the claim but also the counter-claim. In the midst of the construction dispute, the plaintiff put a sign on his garage for three days which "obviously intended to harm the reputation of the defendant".defamation bingo card

Damages? $100.

Similarly, in Fisher v Richardson, Justice Meiklem had a very conservative calculator working on the day of his judgment.

Joy Richardson was a well-known horse lady (no offence intended).

Ms Fisher invented a horse gate which she shared with Ms Richardson.

The two had a falling-out over management of the idea and in the result, the defendant wrote a letter to an interested third-party referring to the plaintiff's "ignorance" and that she had "very little knowledge of horses and their behaviour".

They lucked upon wise lawyers who arranged for an apology letter. But the plaintiff didn't think the apology went far enough and so principled horse lovers will be principled horse lovers, off went the gloves and the polo game started in earnest at the Vancouver Courthouse: both parties had lawyers and the matter resulted in a three-day trial in the British Columbia Supreme Court (and a subsequent five month wait for judgment - see Delay in Reasons for Judgment: Justice Delayed is Justice Denied).

In a mind-boggling exercise of judicial seamstressing, Justice Meiklem dissected the letters and claim and came up with a single reference that apparently crossed the line, and awarded damages of $100.

$500

In Proenca v Squires Home Improvements Ltd., the matter first went to trial and then to the New Brunswick Court of Appeal. The real sting was the words:

"As all parties have had mixed success, I would order that each bear their own costs of this appeal."

The defendant had a solid counter-claim, what with the plaintiff having placed a poster unequivocally damaging to Squires;

"Saint John should put this contractor out of business. Squires destroyed our home. The warranties of squires renovation are worthless! After he has been paid, his response regarding warranty is 'sue me!"

Justice Deschênes wrote the Court of Appeal's decision which, as far as the result mattered, reduced the trial judge's $3,000 award as damages in regards to the libel to $500 adding:

"... the damages awarded by the trial judge are inordinately high(!)"

$5,000

In Trozzo Limited v MVS, the defendant was hired to fix the plaintiff's hotel in Cranbrook, British Columbia (the Mount Baker Hotel). When a dispute erupted, one of the plaintiff's employees put a little note in the hotel lobby:

"Incomplete framing & installation by Mike Stambulic"

Madam Justice Gray found malice but denied the application for punitive damages because: "I do not find that it was so malicious, oppressive and high-handed that it offends the court’s sense of decency."

$150,000

In Dr. Lee v Kuo and others , Justice Vickers of the BCSC had before him a document signed by a number of the defendants in which the plaintiff broadcast their impression that Dr. Lee was a dishonest cheater, which Justice Vickers found to be "false".

Vickers was impressed with the fact that the parties were all members of the same small Taiwanese business community. He awarded $90,000 in damages and given that the actions of two of the defendants were "malicious, high-handed and vindictive", he added a further $60,000 in aggravated damages but distinguished and then denied the application for additional punitive damages.

$950,000

In Dr. Frans Leenen v CBC, Justice Cunningham of the Ontario Superior Court of Justice was not impressed. CBC had aired a program that raised serious issues regarding the plaintiff's participation in drug trials. Justice Cunningham referred to the "malicious, offensive, cruel and insensitive conduct on the part of the defendants from the very beginning" and:

"In light of the defendants reprehensible conduct towards this plaintiff, I have concluded that a message must be sent to the defendants. Parasitic sensationalists should not be allowed to prey upon society’s obsession with scandal and to reap personal benefit from their irresponsible actions."

You can probably guess the rest of the story; deep pocket, high-profile, should-of-known-better defendant ....

A whopping award of $950,000 ($400,000 + aggravated damages of $350,000 and punitive damages of $200,000).

$1,600,000

The Titanic of Canadian damage awards, Hill v Church of Scientology, resulted in an award of $800,000 in general damages plus a further $800,000 in punitive damages. The libel? The Church called Hill an "enemy Canada" and that he had misled a justice of the Court. Hill was a Crown prosecutor investigating the Church. The Church stood behind its lawyer, Morris Manning, "who was wearing his barrister's gown" when some of the false allegations were made, a fact not lost on cranky, proud judges as the case made its way up the judicial chain of command.

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