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Damages - Defamation. Konstan v. Berkovits
In Konstan v. Berkovits (Ont CA, 2024) the Ontario Court of Appeal comments on aggravated and punitive damages in the defamation context:[115] Aggravated and punitive damages may be awarded for defamation if the defendant’s conduct has been high-handed and oppressive: Hill, at paras. 190, 196. Aggravated damages are compensatory: Plester v. Wawanesa Mutual Insurance Co. (2006), 2006 CanLII 17918 (ON CA), 269 D.L.R. (4th) 624, 213 O.A.C. 241 (C.A.), at para. 62, leave to appeal refused, [2006] S.C.C.A. No. 315; McIntyre v. Grigg (2006), 2006 CanLII 37326 (ON CA), 83 O.R. (3d) 161, at para. 50. By contrast, punitive damages are designed to signal the court’s disassociation with the defendant’s conduct: Whiten v. Pilot Insurance, 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 94. For a court to award aggravated damages, a plaintiff must prove that the defendant had “actual malice” in making the defamatory remarks: Hill, at para. 190.
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[118] Citing Rogacki v. Belz, (2004) 2004 CanLII 21439 (ON CA), 243 D.L.R. (4th) 585, at para. 44, Jack argues that malice means “acting out of spite or ill will”. He therefore argues that the trial judge’s finding that Harold acted out of ill will necessarily means that actual malice was proved.
[119] Rogacki does not stand for the proposition that every act of ill will attracts an exceptional award of aggravated or punitive damages. The trial judge’s reasons show that he understood the principles underlying the award of aggravated or punitive damages. He found that actual malice had not been proved because Harold did not know and could not have known that Oziel fabricated the text messages. Although Harold took pleasure in bringing the fake messages to the attention of the local media, the trial judge effectively found that his act did not rise to the level of high handed and outrageous conduct necessary to attract aggravated damages. This finding was also sufficient to dispose of the claim for punitive damages. . Konstan v. Berkovits
In Konstan v. Berkovits (Ont CA, 2024) the Ontario Court of Appeal comments generally on defamation damages:[108] As the trial judge correctly held, general damages in defamation cases “are presumed from the very publication of the false statement and are awarded at large”: Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 164. The injured plaintiff need not prove any actual loss or injury: Rutman v. Rabinowitz, 2018 ONCA 80, 420 D.L.R. (4th) 310, at para. 62, citing Hill, at para. 167; Raymond E. Brown, Brown on Defamation, loose-leaf, 2d ed. (Toronto: Thomson Reuters, 2017), at 25.1. A plaintiff’s inability to point to specific reputational harm is, moreover, “not an admission that such harm did not occur”: Rutman, at para. 65. . Rutman v. Rabinowitz
In Rutman v. Rabinowitz (Ont CA, 2018) the Court of Appeal considered damages in a defamation case:(ii) Compensatory damages
(a) Absence of evidence of actual harm
[61] The appellants maintain that the trial judge erred in quantifying compensatory damages by failing to accord sufficient or any weight to Rutman’s alleged concession at trial that he suffered no pecuniary losses or reputational injury as a result of the Internet defamation campaign. As a result, they assert, only modest compensatory damages were appropriate.
[62] This submission is problematic for several reasons. First, it is trite law that general damages in libel cases are presumed from the very publication of the false statement. The injured plaintiff bears no obligation to prove actual loss or injury: Hill, at para. 167; Raymond E. Brown, Brown on Defamation, loose-leaf, 2d ed. (Toronto: Thomson Reuters, 2017), at 25.1. The appellants’ focus on the alleged lack of pecuniary or reputational damage to Rutman discounts this foundational principle.
[63] Second, as the Supreme Court pointed out in Hill, at para. 172, special damages for pecuniary loss are rarely claimed in libel actions and are “often exceedingly difficult to prove”. Thus, “the whole basis for recovery for loss of reputation usually lies in the general damages award”: Hill, at para. 172. This case is no exception in this regard.
[64] Third, we do not accept the suggestion that Rutman conceded at trial that he sustained no reputational damage as a result of the defamatory statements at issue. The record, in our view, confirms merely that he acknowledged that he was unaware of any specific injury to his reputation.
[65] The inability to point to specific reputational harm is not an admission that such harm did not occur. To the contrary, the courts have accepted that, “[t]he consequences which flow from the publication of an injurious false statement are invidious” and that, “[a] defamatory statement can seep into the crevasses of the subconscious and lurk there ever ready to spring forth and spread its cancerous evil. The unfortunate impression left by a libel may last a lifetime”: Hill, at paras. 168-169.
[66] The injurious effects of defamatory statements regarding a professional are particularly acute. Hill, which involved libelous statements about a young lawyer who went on to achieve great professional success, is a case in point. As the Supreme Court stressed, at paras. 180-181, a lawyer’s reputation is of paramount importance. Clients, colleagues and the courts depend on the lawyer’s integrity, and “[a]nything that leads to the tarnishing of a professional reputation can be disastrous for a lawyer.” The defamed lawyer has no way of knowing what members of the public, colleagues and others may have been affected by the defendant’s defamatory allegations or of being certain who may have accepted the false allegations of wrongdoing levied against him.
[67] These comments are apposite here. The importance of a reputation for integrity and trustworthiness is not confined to lawyers. It applies equally to other professions and callings, including chartered accountants and tax advisors like Rutman: Botiuk, at paras. 91-92.
[68] This leads to an additional, key consideration. This is an Internet defamation case. As this court held in Barrick, at para. 28, the pernicious effect of defamation on the Internet, or “cyber libel”, distinguishes it, for the purposes of damages, from defamation in another medium. Consequently, while the traditional factors to be considered in determining general damages for defamation remain relevant (for instance, the plaintiff’s conduct, position and standing, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence or refusal of any apology or retraction, the whole conduct and motive of the defendant from publication through judgment, and any evidence of aggravating or mitigating circumstances: Hill, at para. 185), they must be examined in light of the Internet context of the offending conduct. Justice Blair explained in Barrick, at para. 31:[O]f the criteria mentioned above, the mode and extent of publication is particularly relevant in the Internet context, and must be considered carefully. Communication via the Internet is instantaneous, seamless, inter-active, blunt, borderless and far-reaching. It is also impersonal and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed. [Citation omitted.] [69] He continued, at para. 34:It is true that in the modern era defamatory material may be communicated broadly and rapidly via other media as well. The international distribution of newspapers, syndicated wire services, facsimile transmissions, radio and satellite television broadcasting are but some examples. Nevertheless, Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility. The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases. ....
(b) Compensatory awards in other libel cases
[81] Rabinowitz next argues that the total compensatory damages award in this case is “incoherent” because it is inconsistent with the quantum of compensatory damages awarded in allegedly similar cases. We reject this argument for two reasons.
[82] First, as the courts have repeatedly emphasized, libel cases are particularly fact-sensitive and, in that sense, each is unique. In fashioning his damages awards, the trial judge appreciated that, for this reason, a comparison with awards in other libel cases was of little assistance.
[83] This conclusion accords with the jurisprudence in libel cases. In Hill, at para. 190, the Supreme Court held:The assessment of damages in a libel case flows from a particular confluence of the following elements: the nature and circumstances of the publication of the libel, the nature and position of the victim of the libel, the possible effects of the libel statement upon the life of the plaintiff, and the actions and motivations of the defendants. It follows that there is little to be gained from a detailed comparison of libel awards. [Emphasis added.] See, to the same effect, Botiuk, at para. 105.
[84] Second, and in any event, although Rabinowitz relies on several libel cases in which the amount of the compensatory damages awarded was lower than that awarded here, other libel cases reveal compensatory damages awards in amounts higher than those awarded by this trial judge. The variability in the amount of compensatory damages awarded in Canadian libel cases does not mean that the award in this case is “incoherent”, as Rabinowitz argues. Rather, it underscores the highly fact-sensitive and unique nature of each libel case. Given all the factors at play here, including Rabinowitz’s admitted misconduct, the nature of the defamatory statements, and their impact on Rutman, no other libel case is especially instructive, let alone controlling, on the issue of the quantification of damages.
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