Canadian Defamation Verdicts - October 23, 2007 to September 30, 2008

From Ad IDEM / CMLA

By Michael Skene and Evan Cooke

Borden Ladner Gervais LLP

1200 Waterfront Centre

200 Burrard Street, P.O. Box 48600

Vancouver, B.C., V7X 1T2

(604) 640-4248/4107

mskene@blgcanada.com

ecooke@blgcanada.com

AWARDS ALL HEADS OF DAMAGE – ALL PLAINTIFF CASES
to September 30, 2008

Rank	Award Total	Case Name	Decision Date
1.	$3,000,000.00	Fennimore v. Skyservice Airlines et al.	May 15, 2008
2.	$1,600,000.00	Hill v. Scientology	July 20, 1995
3.	$1,475,000.00	Grant v. Torstar Corporation**	February 5, 2007
4.	$1,208,153.00	Gilles Neron v. CNQ & CBC	October 15, 2002
5.	$950,000.00	Leenen v.CBC	April 20, 2000
6.	$875,000.00	Southam v. Chelekis	April 15, 1998
7.	$780,000.00	Hodgson v. Cdn Newspapers	June 22, 2000
8.	$705,000.00	ATU v. ICTU	February 28, 1997
9.	*$576,000.00	Newman v. Halstead	January 11, 2006
10.	$550,000.00	Duke v. Puts	March 15, 2001
11.	$534,000.00	Johnson v. Arcand	October 1, 2002
12.	$500,000.00	Second Cup Ltd. v. Eftoda	July 18, 2006
13.	$475,665.00	Fiola v. Lebrun	December 12, 2002
14.	$465,000.00	Botiuk v. Toronto Free Press	September 21, 1995
15.	$433,200.00	Pulisysteme v. Quebec	February 25, 1999
16.	$410,000.00	Elomari v. ASC	October 12, 2004
17.	$400,000.00	Reichmann v. Berlin	July 9, 2002
18.	$385,000.00	Salpeter v. 153986	March 26, 2001
19.	$350,000.00	Myers v. CBC	June 12, 2001
20.	$340,000.00	Chiasson v. Fillion	April 11, 2005
21.	$336,100.00	Andre v. Quebec	September 15, 1999
22.	$300,000.00	Hiltz v. Nova Scotia	February 9, 1999
23.	$285,000.00	Clark v. RAES	August 23, 2004
24.	$284,681.00	La Croix v. TVA	February 20, 2004
25.	$277,000.00	Emery v. Canada	May 12, 1999
26.	$275,000.00	McKerron v. Marshall	August 11, 1999
27.	*$257,500.00	WeGo Kayaking Ltd. v. Sewid	January 11, 2007
28.	$250,000.00	Rogacki v. Betz	November 5, 2002
29.	$250,000.00	Leblanc v. Turpin	June 29, 2001
30.	*$230,000.00	John v. Kim	August 15, 2007
31.	$220,000.00	Medecins v. Breton	June 4, 2003
32.	$212,500.00	Ferguson v. Ferstay	August 2, 2000
33.	*$210,000.00	Manno v. Henry	June 10, 2008
34.	$200,000.00	Barriere v. Filion	March 10, 1999
35.	$200,000.00	Parizeau v. Lafferty	October 24, 2003
36.	$200,000.00	Norman v. Westcomm	November 27, 1994
37.	$200,000.00	Perron v. Quebec	September 28, 2000
38.	$200,000.00	Ager v. Canjex	September 28, 2005
39.	$192,146.00	Samuelli v. Jouhannet	June 3, 1996
40.	$186,093.83	Labeuf v. Assoc	July 3, 1997
41.	$180,000.00	Blouin v. Larose	July 25, 2001
42.	$179,644.50	Griffin v. Sullivan	July 15, 2008
43.	$175,000.00	Kaneff v. Ivanov	September 4, 1997
44.	$171,411.00	Taillefer v. Air Transat	February 28, 2005
45.	$170,000.00	Wilson v. Rae	June 18, 2002
46.	$170,000.00	Rizzuto v. Rocheleau	February 20, 1996
47.	$164,108.00	Guitouni v. CBC	October 16, 2002
48.	$160,000.00	Brown v. Cole	October 26, 1998
49.	$160,000.00	Graf v. Duhaime	May 5, 2003
50.	$160,000.00	Lee v. Lee	December 7, 2000

*Indicates award to multiple plaintiffs.
**Jury Award – Appeal decision from OCA reserved.

Introduction

While it is difficult to identify national or provincial trends in defamation damage awards, in part due to the lack of uniformity in categorizing various heads of non-pecuniary damages and the eventual allocation of damages under those various heads, there were several decisions rendered in the last 12 months that are worth noting:

Fennimore v. Skyservice Airlines et al.[Unreported Ontario Jury Award – May, 2008]:

Rick Fennimore was a professional pilot employed by Skyservice Airlines. Skyservice's Chief Pilot heard that Fennimore was seen at a party, beer in hand, only seven hours before he was scheduled to fly. Fennimore was dismissed, and was unable to find another flying job. A jury awarded Fennimore $3,000,000, clearly accepting Fennimore's view that he had been 'blackballed' by the tight knit flying community. Fennimore had been offered several jobs by other airlines prior to trial, but those offers were each abruptly withdrawn, which the plaintiff attributed to the defendants spreading defamatory rumours about him. The defendants were unable to establish the truth of the allegations, and Fennimore denied even attending the subject party. There is no printed decision as the award was by jury, but it was reported that the rationale for the large defamation award related to lost earnings from Fennimore not being able to work in his chosen field. Counsel for the plaintiff was Keith MacLaren of Ottawa.

Manno v. Henry, 2008 BCSC 738:

The five successful plaintiffs are all members of a family living in the Fraser Valley of British Columbia. The plaintiffs were wrongly identified in a local newspaper, and its online version, as having been the owners and residents of a house with a marijuana grow-op. The reporter wrote that the family were uncooperative with the police when they were robbed, and included the robbery details in a story about "Grow-Rips" (a term given to robberies at marijuana grow ops). While it was true that the plaintiffs owned the house, there was no evidence that there was, or had ever been, a marijuana grow-op on the property. The court found that it was also doubtful whether the family had been uncooperative with police. The court accepted that the plaintiffs had suffered emotionally and psychologically as a result of the article, and the online version thereof. Because of the lack of an apology from the newspaper, despite an informal acknowledgement that the article was incorrect, and the fact that the plaintiffs were easily identifiable in the town due to their ethnicity, the court awarded significant damages to five members of the family. There was varying impact on the plaintiffs and the court awarded them $55,000, $45,000, $45,000, $35,000 and $30,000 in general damages, for a total of $210,000.

Griffin v. Sullivan, 2008 BCSC 827:

The Canadian defendant published an avalanche of defamatory statements about the Australian plaintiff on website chat-rooms. The court found the postings to be "numerous and monstrous" and "so extreme that it is difficult to find case precedents that come anywhere close". The parties were both frequenters of sites dedicated to explicit discussion of suicide; sites that attracted the infirm and the vulnerable. The defendant accused the plaintiff of preying on other posters, of sexual perversion, of violent sexual crimes against children and an array of other misdeeds. The defendant refused to stop making these types of statements despite being served with a libel notice, and continued to make similar statements right up to trial. Despite the fact that the plaintiff did not have an especially high standing in his community and there was a lack of evidence as to how many people who knew him actually saw the postings, general damages were awarded in the amount of $100,000. The court also considered malice to be a significant factor and awarded an additional $50,000 in aggravated damages. Finally, as a result of the publication of the plaintiff's home address in Australia and other such personal information, the court awarded $25,000 for breach of privacy and $4,644.50 for the cost of having the postings removed from foreign servers.

The court issued a permanent injunction against further postings, and a mandatory injunction that the defendant make all efforts to remove the existing postings from cyberspace.

OTHER DECISIONS RENDERED IN THE LAST 12 MONTHS

DATE	CASE NAME
November 26, 2007 $70,000 General Damages	Das v. Hussain, 2007 BCSC 1696: Defendant was the editor and publisher of a weekly Bengali language newspaper based in Toronto and circulated globally. The paper published three stories about the plaintiff, a respected member of the Bangladeshi community, alleging that he headed a business aimed at stealing from senior citizens through telemarketing fraud. There was no evidence led to support the truth of the allegations. Because Mr. Das had a recognizable name in his community and the article reached a great number of people in that community, general damages were assessed at $70,000. The court did not find any particular malice behind the article and did not award aggravated or punitive damages.
October 10, 2008 P1 $20,000 General Damages P2 $22,000 General Damages	Reaburn and Maw v. Langden dba The Kootenay Chronicle et al, 2008 BCSC 1342: Defendant was the editor and publisher of a small local newspaper in the interior of British Columbia. He interviewed a man who alleged he was beaten by two RCMP officers, and reported a one sided account of the incident. The reporting was neither balanced, nor accurate, and the Defendant knew this at the time of publication. While the court did not find malice, they found the Defendant was not responsible in his research of the incident. Moreover the court found the Defendant adopted the allegations of a man with pre-existing brain damage as fact, and drafted his articles in a politically charged tone. The court ultimately accepted the RCMP officers' account of the incident, and found that the articles were defamatory. The award to the two Plaintiffs totalled $42,000 in general damages.
December 6, 2007 $25,000 General Damages $10,000 Punitive Damages	Smith v. Cross, 2007 BCSC 1757: Defendant sent several emails defaming the Chairman of the local Board of School Trustees, claiming that through inaction the Chairman (the Plaintiff) had facilitated and condoned the bad acts of a teacher. The emails were sent to a number of B.C. MLAs, and accused the plaintiff of lying and covering up a scandal involving a teacher accused of inappropriate behaviour with female students. The emails claimed, among other things, that the plainitff broke the law by not reporting the teacher's bad conduct. The court found the accusations were not published honestly or fairly and awarded $25,000 in general damages. The award was made despite the fact that neither the plaintiff nor the voting public gave the emails much credence, as evidenced by the plaintiff being elected city councillor shortly after publication. The court also found that the defendant’s reckless disregard for the truth constituted malice, but did not result in undue humiliation or anxiety to the plaintiff such that aggravated damages should be awarded. However, the court did hold that the defendant’s refusal to retract his comments or to apologize warranted an award of $10,000 for punitive damages, twice the amount the plaintiff had sought.
March 19, 2008 $25,000 General Aggravated Damages $7,000 Special Damages (loss of income)	MacDonald v. Trustees of the Kirkfield Park Baptist Church et al., 2008 MBQB 82: The plaintiff was a Minister of the Church and CEO of the Church School. One of the individual defendants ("G") was hired by the plaintiff to be administrator of the School and assistant pastor of the Church. While the plaintiff was on leave, G made multiple defamatory statements to numerous church members alleging that the plaintiff had stolen from the church and had committed fraud against the parishioners. The statements were made over a relatively short period of time and G ceased making them at the Church’s request. Nonetheless, the court found that G was motivated by malice and the statements were based purely on gossip. Moreover, G never apologized and ultimately ignored the court proceedings. As a result, the court awarded $25,000 for general aggravated damages. In addition, the court awarded $7,000 for loss of income as the plaintiff had to leave his position and was unemployed for a period of time while looking for a new position. Award against G personally, not the Church.
November 23, 2007 $20,000 General Damages $10,000 Aggravated Damages	Warman v. Fromm, [2007] O.J. No. 4754 (S.C.J.) (QL): The plaintiff was a lawyer with the Canadian Human Rights Commission. He was repeatedly defamed online by white supremacists, who accused him of being an enemy of free speech, a member of the thought police, and an employee who abused his position at the CHRC to limit freedom of expression of others. The court found that the defendant's allegations were untrue, as the plaintiff was working in good faith to restrain hate speech. The court also found that the constant insults and efforts to personally humiliate the plaintiff were demonstrative of malice. The court awarded $20,000 in general damages and $10,000 in aggravated damages.
June 18, 2008 $5,000 General Damages $5,000 Punitive Damages $5,000 Damages for the Tort of Passing-Off	Inform Cycle Ltd. v. Draper, 2008 ABQB 369: The plaintiff operated a website at InformCycle.ca as a conduit for their bicycle business in Canmore. The defendant purchased the domain name InformCycle.com and set the forwarding address for that website to an explicit gay porn site. The court found that the defamation in this case consisted of deliberately and maliciously forwarding accidental visitors to the .com address to the explicit site for sixteen days. The court found that the defendant’s motive was to embarrass and harm Inform (a competitor), and to harm their goodwill. The court awarded $5,000 in general damages and while the judge noted that a corporation cannot receive aggravated damages, he did award $5,000 in punitive damages, finding the defendant's actions malicious and requiring deterrence. Lastly, the court assessed $5,000 in damages for the tort of passing-off, which is comprised of a misrepresentation that creates a public belief that the parties were associated, with the resulting damage occurring to the complaining party.
January 14, 2008 $15,000 General Damages	Kurtenback v. Lalach, 2008 SKQB 20: Plaintiff was a young RCMP officer, married with children, working extensively with youth in a small community. The defendant verbally defamed the plaintiff to members of the community, alleging that the plaintiff spent most of shifts in a coffee shop and that he was engaged in an extramarital affair with a 19 year old woman. The court found that the statements were unproven, and were clearly designed to damage the reputation, career and home life of the plaintiff. Further, the defendant never offered an apology, made further defamatory statements about the plaintiff and his witnesses at trial, and boasted that he had run a previous RCMP officer out of town through similar efforts. The court held that it has zero tolerance for anyone impairing the morale of hardworking RCMP officers and awarded $15,000 in general damages.
March 28, 2008 $11,511 (General Damages - Upheld)	Angle v. LaPierre, 2008 ABCA 120: Court of Appeal upheld the decision of court in Angle v. LaPierre [2006] A.J. No. 304 (Q.B.), where a group of Plaintiff teachers were awarded various damages for defamation, totaling $11,511.00. The Court refused both the appeal and cross-appeal, finding that the trial judge had been right to refuse the defence of qualified privilege and that there was no malice warranting aggravated or punitive damages.
October 29, 2007 $7,500 General Damages	Shell v. Cherrier, [2007] O.J. No. 5152 (S.C.J.) (QL): The plaintiff, a lawyer, was defamed by his client in a series of emails sent to prominent members of the labour movement in Ontario, as well as various politicians and members of the legal community. The emails alleged that the plaintiff had acted while under a conflict of interest, was actively obstructing justice, was a liar and was a party to a conspiracy against the defendant. The court found that the emails were clearly defamatory, but were based on false assumptions rather than motivated by malice. As a result, the court only awarded $7,500 in general damages.
November 22, 2007 $5,000 General Damages	Hong v. Chang, 2007 BCSC 1686: A prominent member of a church congregation took an unpopular stance against the appointment of a new minister. The defendant used his role as publisher of the church's newsletter to defame the plaintiff. The court found it particularly troubling that the defendant portrayed his personal distaste for the plaintiff and the plaintiff's views as the opinion of the collective congregation. Noting that the plaintiff must have known in taking his unpopular stance that there could be negative repercussions, the court awarded only $5,000 in general damages.
June 17, 2008 P: $2,000 General Damages D: $1,000 General Damages	Spence v. Hamlyn et al., 2008 NLTD 109: There was an exchange of defamatory letters between the defendant snowplow driver and the plaintiff, an individual who was subsequently elected as a town councilor. The parties each delivered defamatory letters to the other’s employer. The defendant alleged that the plaintiff was a drug user who visited known drug dealers. The plaintiff claimed that the defendant had recklessly and dangerously driven his snowplow in the direction of teenagers with the intent to do harm. The court awarded the plaintiff $2,000 in general damages and the defendant $1,000 in general damages for the defamatory letters.
July 17, 2007 $2,000 General Damages	G. (H.R.) v. L. (M.S.), 2007 BCSC 930: The parties were formerly husband and wife. The plaintiff wife had chosen to work as an "escort" during the marriage and had posed for pornographic photos on several occasions. After the divorce, the plaintiff obtained legitimate employment with a software company. Her employers received an anonymous letter informing them of the plaintiff’s past. The letter advised that the plaintiff had worked as a prostitute, advised that she was infected with STDs, claimed she was under investigation by several police departments and stated she had been previously fined by the tax authorities for non-disclosure of income. The Court found that the materials had been sent by the defendant, and while the majority of the information was true, the defendant’s motivations were malicious and served no socially useful purpose. However, because the information was largely true, the award for defamation was limited to $2,000 for general damages.