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Torts - Defamation - Damages. James Bay Resources Limited v. Mak Mera Nigeria Limited [corporate damages]
In James Bay Resources Limited v. Mak Mera Nigeria Limited (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal - here from orders that "Mak Mera to pay James Bay the amount of US$405,000, which she characterized as “advances”" and "damages for defamation in the amount of $200,000".
The court considers defamation damages, here corporate:[79] It is well-established that damages are presumed if defamation is established. However, there is no presumption as to the impact or amount of those damages: United Soils Management Ltd. v. Mohammed, 2019 ONCA 128, 53 C.C.L.T. (4th) 1, at para. 22, leave to appeal refused, [2019] S.C.C.A. No. 38592. Moreover, while a corporation may be entitled to general damages beyond nominal damages without proof of specific loss, it is unlikely to obtain a substantial award without proof of special damages or at least of a general loss of business or impact on reputation or goodwill: Walker, at pp. 113-14.
[80] As this court further noted in Walker, at p. 113: “[U]nlike an individual, a company is not entitled to compensation for injury to hurt feelings or, it follows, to compensation by way of aggravated damages for a loss of this nature.” In the often-cited words of Lord Reid in Lewis v. Daily Telegraph Ltd., [1963] 2 All E.R. 151 (H.L.), at p. 156: “A company cannot be injured in its feelings, it can only be injured in its pocket. Its reputation can be injured by a libel but that injury must sound in money.”
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[122] The repetition of defamation by way of an unsuccessful plea of justification as part of a defence may aggravate the damages of an individual because it perpetuates hurt feelings and humiliation: Hill, at para. 191. However, in the case of a corporate plaintiff, the mere repetition of a libel by way of a plea of justification is insufficient, by itself, to establish reputational or economic loss or impact. As this court noted in Barrick Gold Corporation, at para. 51, “[r]epetition [of the libel] … is only one factor to be considered in determining what award of damages is required to vindicate a plaintiff’s reputation”. Accordingly, it should be considered in the context of other relevant factors such as the conduct of the defendant and the mode and extent of the publication: Second Cup Ltd., at paras. 32-35. It is not automatically applicable: in Walker and Malak, for example, the failed defences of justification did not serve to ground a substantial award of damages to the corporate plaintiff.
[123] In the case of a corporate plaintiff, absent proof of loss or impact, it is unlikely that substantial damages will be awarded. Rather, the judgment itself will often serve as a vindication of the plaintiff’s rights. As this court in Walker explained, “the judgment enables the plaintiff publicly to brand the defamatory publication as false or groundless, and, when there is no actual damage, can perform the vindicatory function of this cause of action”: at p. 113. The real value of such an action thus lies in the corporate plaintiff securing a court pronouncement of the falseness of the defamation and thus rehabilitating the plaintiff’s reputation in the public’s eye. It may therefore be that the judgment, along with nominal damages plus costs, will serve this vindicatory purpose. For these reasons, a substantial award of damages is unwarranted.
[124] The appellants submit that, applying the proper principles, nominal damages should be awarded in the circumstances of this case.
[125] I agree. Despite the absence of an apology or a retraction, nominal damages are appropriate where, as here, the corporate plaintiff can establish a cause of action but there is extremely limited publication and there is no substantial loss or the loss is unproven: see Langille v. McGrath (2001), 2001 NBCA 106 (CanLII), 243 N.B.R. (2d) 360 (C.A.), at para. 18, citing Jamie Cassels, Remedies: The Law of Damages (Toronto, Irwin Law, 2000), at pp. 281, 285; Skafco Ltd. v. Abdalla, 2020 ONSC 136, 62 C.C.L.T. (4th) 14, at para. 66; and Singh v. Doad, [1990] A.J. No. 240 (Alta. Q.B.), at para. 9.
[126] I conclude that damages in the nominal amount of $1,000 should have been awarded. . 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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