[Note: All figures are Canadian currency].

Canadian defamation verdicts have soared to dazzling new levels since the landmark judgment of the Supreme Court of Canada on July 20, 1995, which unanimously upheld an unprecedented $1.6 million (Cdn) award by an Ontario civil jury. In that case -- Hill v Church of Scientology [1995] 2 SCR 1130 – a government lawyer recovered $300,000 general damages, $500,000 aggravated damages and $800,000 punitive damages without establishing actual pecuniary loss. In fact, before Scientology’s appeal was heard by the Supreme Court of Canada, plaintiff Hill had been appointed a judge of the Ontario High Court.

Prior to Hill v Church of Scientology, the largest Canadian award for defamation sustained on appeal to the Supreme Court of Canada was $135,000 (Cdn), awarded by a Quebec jury as non-pecuniary damages against a Montreal daily newspaper. Snyder v Montreal Gazette Ltd., [1988] 1 SCR 494.

Shortly more than a year after Hill v Church of Scientology was decided, another Ontario jury awarded $700,000 to Toronto lawyer T. Allen Eagleson against The Globe and Mail newspaper, which is headquartered in Toronto and distributed across Canada. The jury’s August 1996 award of $600,000 general damages and $100,000 aggravated damages related to a single paragraph in a 1992 sports column concerning vacancies for general managers in the National Hockey League. In his testimony, the plaintiff (son of former NHL Players Association Executive Director Alan Eagleson) conceded that he did not know whether the Globe’s article had affected his law practice. The Globe and Mail is appealing this verdict to the Ontario Court of Appeal.

Eagleson v The Globe and Mail remained the record Canadian defamation verdict against the news media until last summer when a judge of the Ontario Court, sitting without a jury, ordered The Globe and Mail newspaper to pay $880,000 damages to a municipal engineer over a series of articles concerning his decisions which benefited a developer friend. Justice Lane’s July 3, 1998 verdict, reported as Hodgson v Canadian Newspapers Co. (1998), 39 O.R. (3d) 235, consisted of $400,000 for general damages, $100,000 for punitive damages and $380,000 for special damages for lost employment income and benefits. This decision is also being appealed by the newspaper.

Aside from a handful of small claims court verdicts, there have been only eleven other defamation awards registered against the Canadian news media in the four and a half years since Hill v Scientology, one of which was entered by an appellate court. These eleven awards have been modest by comparison to the two large verdicts against The Globe and Mail newspaper mentioned above, ranging in magnitude from $2,500 to $145,000. The nature of the libel, scope of publication, and occupation of the plaintiff differ in each case. It is impossible to discern any pattern of judicial reasoning from this limited sample which would permit one to predict a likely future damage award in any specific case, even where no jury is involved. Each of the trial verdicts was by judge alone. Although some of the 10 trial verdicts have been appealed to the provincial court of appeal, none of them has yet been the subject of an appellate ruling.

Ranked by quantum, the eleven modest judgments against the news media since Hill v Church of Scientology are as follows:

(20 December 1996) In Nepvue v Limoges, [1997] R.R.A. 25, the Quebec Court of Appeal allowed an appeal by the plaintiff from the dismissal of his libel action against a journalist and a bi-monthly magazine, awarding the plaintiff $1,500 non-pecuniary damages and $1,000 punitive damages. The libellous article alleged favouritism by the plaintiff mayor to a developer.

(18 November 1997) Beaudoin v La Presse Ltee, [1997] A.Q. No. 3721 – a judge of the Quebec Superior Court awarded $5,000 non-pecuniary damages to the Chairman of the Quebec Track Commission over newspaper articles critical of the plaintiff’s performance of his official duties.

(23 June 1998) Gouveia v Toronto Star Newspapers Ltd., [1998] O.J. No. 3830 – a judge of the Ontario Court awarded a plaintiff security guard $5,000 general damages against the newspaper over a column which alleged that the plaintiff security guard assaulted a homeless person and subsequently lied about it to police.

(6 January 1998) Fulton v West End Times Ltd. (1998), 45 B.C.L.R. (3d) 288 – a judge of the British Columbia Supreme Court awarded NDP MP Jim Fulton $10,000 general damages over a false, mistaken editorial which incorrectly referred to the plaintiff as treasurer of the Nanaimo Commonwealth Holdings Society, a non-profit organization recently fined by the courts for financial improprieties. The intended reference in the editorial was to an entirely different person.

(17 January 1997) Ungaro v Toronto Star (1997), 144 D.L.R. (4th) 84 – a judge of the Ontario Court awards the plaintiff lawyer $25,000 general damages over a newspaper story which falsely alleged he had been successfully sued for negligence.

(15 April 1997) Des Rosiers v Nelson, [1997] A.Q. No. 1300 – a judge of the Quebec Superior Court awarded at total of $26,225 in relation to a weekly newsmagazine which imputed dishonesty and criminal activity. The award included $10,000 non-pecuniary damages, $8,000 punitive damages and $8,225 pecuniary damages.

(29 April 1996) Lepine v Proulx [1996] A.Q. No. 1197, [1996] R.R.A. 718 – a judge of the Quebec Superior Court awarded damages aggregating $28,700, consisting of $20,000 non-pecuniary damages and $8,700 punitive damages over a broadcast alleging the plaintiff businessman had breached Quebec’s French Language legislation.

(24 June 1996) Yellowhead Honda v Canadian Broadcasting Corporation [1996] A.J. No. 689, No. 9503-02215 – a judge of the Alberta Court of Queen’s Bench awards $30,000 general damages to a car dealership over a CBC radio promotion of a CBC television story.

(20 May 1998) Pressler v Lethbridge and Westcom TV Group Ltd., [1998] B.C.J. No. 1195 – a judge of the British Columbia Supreme Court made awards aggregating $71,500, including, with respect to the female plaintiff, general damages of $10,000 against the defendant Westcom and $1,500 against the defendant Lethbridge over a defamatory broadcast which falsely alleged that she was deceiving municipal authorities by building a large fortified convention centre with a potential for paramilitary use; and with respect to the male plaintiff, $50,000 general damages against the defendant Westcom and $10,000 general damages against the defendant Lethbridge

(9 December 1996) Prodor v Canwest Publishers Limited, B.C.J. No. 2504 Vancouver Registry – a judge of the British Columbia Supreme Court awards a lawyer $100,000 general damages and $10,000 punitive damages for an article which wrongly reported that he had "fled Canada for the Bahamas" and had "left the tax man holding the bag". The defendant was a small community newspaper which publishes every Wednesday and Saturday and is delivered without charge to 2,100 businesses and 30,000 households.

(26 June 1996) Hayer v Chardhi Kala Punjabi Newspaper Society, [1996] B.C.J. No. 1426 Vancouver Registry No. C926276 – a judge of the British Columbia Supreme Court awarded damages aggregating $145,000 for numerous articles published over a three year period in the defendant Punjabi language newspaper disparaging the plaintiff Hayer, the editor of a competing newspaper, and his three daughters;

The thirteen verdicts against the conventional news media do not reveal the full impact of Hill v Scientology on Canadian defamation awards, however, because there have been more than 50 other verdicts which did not involve news media defendants. Further, Hill v Church of Scientology has doubtless had an impact on the amount paid by news media defendants to settle defamation lawsuits, although precise details are not available because settlement amounts are normally confidential.

The largest defamation verdict in Canadian history was pronounced in June, 1998 by a Manitoba jury in Laufer v Buckalschak, where the plaintiff was given $2 million (Cdn) broken down as follows: $500,000 for general damages, $1,000,000 for aggravated damages, and $500,000 for punitive damages. The defendant made defamatory comments in March and June, 1987 disparaging of the plaintiff, who had earlier been fired as president of the government-owned Manitoba Public Insurance Corporation. [see [1998] M.J. No. 360.] This case is under appeal to the Manitoba Court of Appeal.

Ranking fourth in the Canadian top ten after the jury awards in Laufer and Hill v Church of Scientology, and the judge-alone award in Hodgson v Canadian Newspapers Co., is the $875,000 verdict of a British Columbia judge in favour of journalist David Baines, an employee of the Vancouver Sun newspaper, for libels contained in several business newsletters and a press release, and for slander uttered at a business seminar. Southam Inc. v Chelekis, [1998] BCJ no. 848. The various general damages awards to Baines totalled $675,000; aggravated damages were$100,000, and punitive damages were $100,000. One unique feature of this case was the Internet component. The verdict for general damages included $250,000 concerning an electronic newsletter disseminated by e-mail to major business reports, including Bloomberg (which was not a defendant). An appeal is pending to the British Columbia Court of Appeal.

The remaining defamation verdicts which rank in the Canadian top ten defamation awards also involved non-media defendants. Amalgamated Transit Union v Independent Canadian Transit Union, [1997] 5 WWR 662: $705,000, including general damages of $500,000 and punitive damages of $205,000; (Rank 5); Botiuk v Toronto Free Press Publications Ltd.,[1995} 3 SCR 3: $465,000; including $140,000 general damages and $325,000 special damages for actual pecuniary loss [a non-media case despite its name] (Rank 7); Hiltz and Seamone Co. v Nova Scotia (Attorney General), [1997] NSJ No. 530: $300,000; including $200,000 general damages and $100,000 punitive damages (Rank 8); Norman v Westcomm International Sharing Corp., [1997] 46 OTC 321: $265,600 including $230,600 for income loss and $35,000 general damages (Rank 9); and Lebeuf v Assoc des proprietaires du Lac Dore, [1997] AQ no. 2370: $186,093.83, consisting of $116,093.83 for pecuniary loss, $50,000 for moral damages, and $20,000 for exemplary damages (Rank 10).

During the period from July 1, 1995 to December 31, 1998, there have been 5 other defamation damages verdicts against non-media libel defendants which equalled or exceeded $150,000. Below $150,000, there have been another 5 verdicts against non-media defendants which exceeded $50,000. All of these were judge-alone verdicts.

A decision of the British Columbia Court of Appeal pronounced October 26, 1998 gives libel plaintiffs a considerable incentive to elect a trial by jury, which could mean that news media defendants and others will confront a more serious "chilling effect" from defamation lawsuits than has been the case to date. In Brown v Cole, Ostler and Bennett, unreported, Vancouver No. CA022410/CA022411, a three-judge panel of the Court of Appeal unanimously held that appellate courts can more readily intervene to change a trial verdict for general and aggravated damages if it has been pronounced by a judge sitting without a jury. The Court of Appeal also suggests that trial judges can take considerable guidance from a detailed comparison of libel awards, including those which pre-date Hill v Church Scientology. This may be contrasted with the Supreme Court of Canada’s decision in Hill v Church of Scientology, which held that appellate courts should intervene with jury awards for general damages only where such awards "shock the court’s conscience and sense of justice." The Supreme Court of Canada also said there is little to be gained from a detailed comparison of libel awards since each case is unique.

January 22, 1999