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Torts - Defamation - Damages. Teneycke v. McVety
In Teneycke v. McVety (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, this from a dismissed defendents' anti-SLAPP CJA s.137.1(3,4) motion.
The court consider defamation reputational damages, here in the context of assessing the SLAPP harm/expression balance:(ii) The public interest in allowing the action to continue – harm suffered by the respondents
[74] As indicated above, the first part of the balancing analysis is to assess the public interest in “allowing an aggrieved party who has established a prima facie case that its legal rights have been infringed to vindicate those rights”: 40 Days, at para. 65. As part of this analysis, the court is to assess on a preliminary basis the nature and extent of the harm suffered.
[75] This court has reviewed the general principles governing the harm inquiry on several occasions, including in Marcellin, at para. 89:. Section 137.1(4)(b) requires both: (i) the existence of harm, and (ii) causation, that is, the harm was suffered as a result of the moving party’s expression;
. Either monetary or non-monetary harm will suffice. The harm need not be monetized or quantified, although there must be evidence that the harm is of a magnitude sufficient to outweigh the public interest in protecting the impugned expressions;
. Reputational harm is also relevant to the harm inquiry even if at this stage it is not quantifiable. Reputation is one of the most valuable assets a person or a business can possess;
. General damages are presumed in defamation actions. This alone is sufficient to constitute harm, although it is not sufficient to establish that the harm is serious;
. A fully developed damages brief is not required; and
. A responding party need not prove harm or causation but must simply provide evidence from which an inference of the likelihood of harm and causation may be drawn. This inquiry is undertaken by the motion judge on a case-by-case basis.
See also: Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 165 O.R. (3d) 753, at para. 46. ....
[80] In my view, it was not an error for the motion judge to consider that, given that Mr. McVety’s statements were directed at Mr. Teneycke’s professional reputation, including suggestions of criminal conduct and corruption, damage would be presumed. Certainly, in the context of anti-SLAPP motions, the Supreme Court and this court have taken a similar approach. In Hamer, at para. 113, Roberts J.A. summarized the relevance of reputational damages in the weighing stage of the analysis under s. 137.1 of the Courts of Justice Act:In Bent, at para. 146, Côté J. emphasized that “reputational harm is eminently relevant to the harm inquiry under s. 137.1(4)(b)” and that the Supreme Court’s jurisprudence “has repeatedly emphasized the weighty importance that reputation ought to be given”, because “reputation is one of the most valuable assets a person or a business can possess”: see also Pointes, at para. 69. Moreover, she noted in Bent, at para. 147, that the “import of reputation is only amplified when one considers professional reputation” (emphasis in original). As a result, she concluded, the harm analysis requires the consideration of not only the pleaded monetary harm, but also the harm to a plaintiff's reputation, “even if it is not quantifiable at this stage”, noting that “the damaging effects that a defamatory remark may have on a plaintiff’s ‘position and standing’ in the professional community exacerbate the harm suffered as a result”: Bent, at para. 148; Pointes, at para. 71; Thorman, at para. 24.
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