What Determines How Much Money a Person Should Get In a Defamation Case?
Damage Awards For Defamation of Character Are Affected By How Widespread the Communication Was Published, Whether There Was a Retraction and Apology, Whether the Victim Was Within a Professional Vocation or Other Special Position, What Harm Resulted, and Whether the Defamation Was Maliciously Intended.
A Helpful Guide For How to Understand the Claimable Damages and Quantums Within Defamation Litigation
When a person is defamed without a legally applicable excuse, such as when the defamation occurs during an occasion protected by qualified privilege, the victim may claim compensation in a variety of forms, including actual damages, general damages, and punitive damages. When determining appropriate compensation, the courts will review the nature and extent of the defamatory conduct, the characteristics of the victim, among other factors.
Types of Damages to Claim
Within a defamation of character case, the various types of damages that may be claimed as a legal remedy are broad and may encompass most types including actual or special damages, general damages, aggravated damages, and exemplary or punitive damages. The basis for determining which type of damages may apply and the manner in which the quantum, or amount, of damages should be assessed for each type was very well explained in the case of Focus Graphite Inc. v. Douglas, 2015 ONSC 1104 wherein it was said:
 In defamation cases, three types of damages can be awarded: compensatory [general and special], aggravated, and punitive.
General Compensatory Damages
 General compensatory damages are presumed once defamation is made out and once none of the common law defences are found to apply. They arise by inference of law and do not require proof of actual injury. There is no formula for the quantification of the damages. Factors such as conduct and character of the defendant, the conduct and character of the plaintiff, the impact of the defamation on the plaintiff, and the nature, scope and motive of the publication can be aggravating factors supporting a higher award. Similarly, malice is an important factor in assessing damages.
 Damages must also reflect both the size and nature of the audience. Defamation which enjoys a wide circulation earns a higher award. At the same time, courts also consider the nature of the audience, and whether it is the type of audience which would give any credence to the remarks.
 General damages are intended to provide comfort for personal distress or to vindicate one’s reputation, including one’s business reputation.
 Special damages are material and temporal losses suffered by a plaintiff as the natural and proximate result of the defamation and capable of monetary measurement. They have a specific economic or pecuniary value and are part of the compensatory award. Unlike general compensatory damages, they are not assumed to be necessary or inevitable, and therefore, must be proved at trial.
 Aggravated damages may be awarded in circumstances where the defendant’s conduct has been high handed or oppressive, thereby increasing the plaintiff’s humiliation and anxiety arising from the libelous statement. Their assessment requires consideration of the entire conduct of the defendant prior to the publication of the libel and continuing to the conclusion of the trial.
 Corporate plaintiffs cannot receive aggravated damages because aggravated damages are intended to compensate for mental distress and hurt feelings.
 These are available to both an individual plaintiff and a corporate plaintiff. Punitive damages are awarded against the defendant in exceptional cases or “malicious, oppressive and high handed” misconduct that “offends the court sense of decency”. The test for punitive damages is whether the defendant’s conduct “represents a marked departure from the ordinary standards of decent behaviour” Punitive damages will be awarded where the compensatory damages are insufficient to achieve the objectives of punishment and deterrence.
Damages – Corporations
 In this case, one of the plaintiffs is a corporation and since corporations are incapable of suffering personal distress, they may not receive general damages under that particular head. “A company cannot be injured in its feelings, it can only be injured in its pocket”. A company, however, does have a business reputation and statements which cast aspersions upon that reputation may be actionable. If so, the law will presume damages from the publication of the libel itself and, as in the case of an individual, the action will be maintainable without proof of special damages.
 A corporate plaintiff may also claim special damages for special economic loss that was caused by the defamation. Special damages, unlike general damages are not presumed. The test to be met by corporate plaintiff for such losses is:
a. that there must be the “natural and proximate result” of the defamatory publication, and capable of monetary measurement; or
b. such losses must also be established with “reasonable certainty” and must be more than mere “speculation and surmise.”
 The Plaintiffs argue that where a court cannot determine a corporate plaintiff’s economic losses with any precision, the court can take losses into account in fixing general damages. The Plaintiffs submit that general damages for defamation may have an economic component even though it is incapable of precise quantification. They allege that this includes the market capitalization of a corporation that is negatively affected following the publication of each defamatory comment.
 The Plaintiffs rely on well-established case law that the fact that the assessment of damages is difficult because of the nature of the damages suffered is no reason to limit an award of damages or to refuse compensation for the plaintiffs.
 The quantum of general damages to be awarded is based on each individual case’s circumstances. In determining the quantum of the award, the court uses the following factors:
a. the plaintiff’s position and standing;
b. the nature and seriousness of the defamatory statements;
c. the mode and extent of publication;
d. the absence or refusal of any retraction or apology;
e. the whole conduct and motive of the defendant from publication through judgment; and
f. any evidence of aggravating or mitigating circumstances.
As it is nearly impossible to accurately ascertain an exact monetary value for damage to reputation, awards in defamation cases are general and 'at-large', meaning at the discretion of judge or jury (Klar, Lewis: Tort Law (3d) at 710). The basis for awarding general damages was recently stated in Grochowski v. Young, 2019 ONSC 326 at paragraph 27. Also per Grochowski at paragraph 83, the factors for consideration when reviewing quantum of general damages include whether the defamatory statement was genuinely believed as actually true rather than ultimately false and whether the statement was expressed from a place of "hatred, ridicule and contempt and to destroy ... reputation". Additionally, the position or status of the defamer may also play a role especially where the defamer possesses the power to inflict great harm as was said in the case of Leenen v. Canadian Broadcasting Corp., 2000 CanLII 22380 at pararaph 207. Within the Leenen case, it was also stated that the reputation of the defendant, and thus the likelihood that people would believe the defamations as uttered or published by the defendant is also a reviewable factor.
 General damages are presumed in defamation cases from the very publication of the false statement and are awarded at large. They need not be established by proof of actual loss. General damages serve three functions: 1) to act as a consolation for distress suffered from the publication of the statement; 2) to repair harm to reputation; and 3) as a vindication of reputation. A successful plaintiff is entitled to receive an award of general damages that will be sufficient to provide suitable compensation, consolation and vindication on the basis of all of the circumstances.
 I am mindful that defamatory statements occupy a continuum ranging from a defamatory statement made in the bona fide belief, though wrongly held, that the statement is true all the way to a defamatory statement made, knowing that it is untrue and made with the express intent to bring the plaintiff into hatred, ridicule and contempt and to destroy the plaintiff’s reputation in society. Each libel case is unique and damages flow from the confluence of many factors and must be done with restraint and knowing that general damages are not based on any provable or measurable loss.
 As I have stated, the defamatory innuendoes presented in this broadcast caused great suffering to Dr. Leenen and made him feel as though his well-earned reputation for integrity, both professional and otherwise, had been destroyed. These innuendoes would have been devastating for anyone; for a world- renowned research scientist they were almost fatal. This was the CBC firing its guns at Dr. Leenen, not some little tabloid to which no one would have paid much attention. How does one respond when the CBC strikes? As Esson J. stated in Vogel v. C.B.C., supra, at p. 178:
The identity of the accuser is an important factor. The accusation might have [been] made by some nasty little tabloid scandal sheet and have done no harm. Strident scandal-mongering is the stock in trade of certain publications and, because it is, they have little or no effect upon the opinions of anyone whose good opinion matters. To their ugly accusations it is a sufficient response to say: "Regard the source".
Such a response is not available when one is defamed by the C.B.C. In terms of prestige, power and influence, it is at the opposite end of the spectrum from the sleazy scandal sheet. Created and maintained by Parliament to inform the Canadian public, its news services are accorded great respect throughout Canada. They have a well-merited reputation for reliability. For that very reason, C.B.C. has an enormous capacity to cause damage. The general-run of right thinking people tend to think that "it was on the C.B.C. news, it must be so".
 Such a response is not available when one is defamed by C.B.C. In terms of prestige, power and influence, it is at the opposite end of the spectrum from the sleazy scandal sheet. Created and maintained by Parliament to inform the Canadian public, its news services are accorded great respect throughout Canada. They have a well-merited reputation for reliability. For that very reason, C.B.C. has an enormous capacity to cause damage. The general run of right-thinking people tend to think that "it was on the C.B.C. news, so it must be so".
 If any authority is needed for the proposition that the defendant's reputation for reliability is relevant in assessing damages, it is to be found in McElroy v. Cowper-Smith, 1967 CanLII 70 (SCC),  S.C.R. 425, 60 W.W.R. 85, 62 D.L.R. (2d) 65. In that case the trial judge awarded damages of $25,000 to each of the two plaintiffs, and that award was upheld by the Alberta Court of Appeal. The Supreme Court of Canada ordered a new trial on assessment of damages, because the defendant was temperamentally unstable and given to making unreasoned and extravagant statements about the plaintiffs, so that "no reasonable businessman would be likely to be affected in his dealings with [the plaintiffs] by statements coming from the source which they did in this case" [p. 87 W.W.R.]. That was held to be a factor which should have been taken into account as a mitigating circumstance.
 A defamatory statement appearing on a C.B.C. news program would have great impact, even if presented as a routine item of news. In this case, that impact was multiplied immeasurably by the special treatment accorded the Vogel story. For C.B.C. to devote to that story 14 minutes of the evening news was to guarantee that it would be widely received as a revelation not only of major scandal but of a situation of crisis. That impression was heightened by repeating the substance of the story on the late night news and the national news, which added the portentous implication that the government itself might be threatened. For the very reason that it deals with images and impressions, television has a capacity which the printed word does not have for blowing things out of proportion. Had the same revelations been made in a front page story in a major newspaper, it would have been difficult, it not impossible, to conceal the fact that, as news, this was rather stale stuff, involving something short of mortal sin. By making the same material the subject of a blockbuster production on television, it was possible to present it as a major and urgent issue.
Defamatory Conspiracy, jointly liable
Furthermore, where multiple persons took part in the defamatory statements, whereas one person may write the defamatory statement, another may repeat the defamatory statement, and another may endorse or approve the defamatory statement, all such persons become jointly and severally liable for the defamatory statement. Such was said by the Supreme Court in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC),  2 SCR 1130 as well as the Court of Appeal in the cases of D'Addario v. Smith, 2018 ONCA 163 and Rutman v. Rabinowitz, 2018 ONCA 80 while citing the Supreme Court in Botiuk v. Toronto Free Press Publications Ltd.,  3 S.C.R. 3 and wherein each it was said:
176 Thus, both Manning and Scientology published the notice of motion. It is a well‑established principle that all persons who are involved in the commission of a joint tort are jointly and severally liable for the damages caused by that tort. If one person writes a libel, another repeats it, and a third approves what is written, they all have made the defamatory libel. Both the person who originally utters the defamatory statement, and the individual who expresses agreement with it, are liable for the injury. It would thus be inappropriate and wrong in law to have a jury attempt to apportion liability either for general or for special damages between the joint tortfeasors Manning and Scientology. See Lawson v. Burns, 1976 CanLII 1499 (BC SC),  6 W.W.R. 362 (B.C.S.C.), at pp. 368‑69; Gatley on Libel and Slander (8th ed.), supra, at p. 600. However, this comment does not apply to aggravated damages, which are assessed on the basis of the particular malice of each joint tortfeasor.
 The trial judge instructed the jury that it was open to them to find Frank and Ferne D’Addario jointly liable for the statements if they planned to meet Father Kerslake to say the words complained of, even if only one of them said the words. It was enough that there was a common plan.
 He did not err in doing so. In Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC),  3 S.C.R. 3, at pp. 27-28, the Supreme Court of Canada adopted the law as set out by John Fleming:
The critical element of [concerted action liability] is that those participating in the commission of the tort must have acted in furtherance of a common design.… Broadly speaking, this means a conspiracy with all participants acting in furtherance of the wrong, though it is probably not necessary that they should realise they are committing a tort.
 Concerted action may occur in a variety of ways. Generally, it involves a common design or conspiracy. In Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC),  3 S.C.R. 3, the Supreme Court of Canada adopted the following formulation of the law regarding concerted action liability as set out by John G. Fleming in The Law of Torts, 8th ed. (Sydney: Law Book Co., 1992), at p. 255:
The critical element of [concerted action liability] is that those participating in the commission of the tort must have acted in furtherance of a common design. … Broadly speaking, this means a conspiracy with all participants acting in furtherance of the wrong, though it is probably not necessary that they should realize they are committing a tort.
 The difficulty, of course, is determining the degree of involvement or connection necessary to meet the requirements of concerted action liability. Canadian authorities suggest that concerted action liability arises when a tort is committed in furtherance of a common design or plan, by one party on behalf of or in concert with another party: see Lewis N. Klar & Cameron S.G. Jefferies, Tort Law, 6th ed. (Toronto: Thomson Reuters, 2017), at p. 657; G.H.L. Fridman, The Law of Torts in Canada, 3rd ed. (Toronto: Carswell, 2010), at p. 856. In The Law of Torts, 10th ed. (Sydney: Thomson Reuters, 2011), at p. 302, Fleming puts it this way: “[k]nowingly assisting, encouraging or merely being present as a conspirator at the commission of the wrong would suffice, so too would any form of ‘inducement, incitement or persuasion’ which procures the commission of the wrong.” And, W. Page Keeton, in Prosser and Keeton on the Law of Torts, 5th ed. (Minnesota: West Publishing Co., 1984), at p. 323, states:
All those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt the wrongdoer’s acts done for their benefit, are equally liable.
 The key point is that concerted action liability is a fact-sensitive concept. Lord Neuberger emphasized as much in Sea Shepherd, at para. 56, reiterating Bankes LJ’s admonition from The Koursk,  P 140, at p. 151 that “[i]t would be unwise to attempt to define the necessary amount of connection”, and that each case “must depend on its own circumstances”. We agree.
 In our view, on the facts here, the trial judge was correct to hold that the test for concerted action liability was made out in respect of Bergman. That Bergman did not publically approve or repeat the defamatory statements at issue does not absolve him from liability for Rabinowitz’s tortious conduct. Bergman was not merely a passive or silent observer of the Internet defamation campaign. There was ample evidence at trial to support the trial judge’s conclusion that there was a common design between Bergman and Rabinowitz to cause harm to Rutman, not only by the campaign of defamatory statements but also by threats of litigation and reports to the CRA levied against Rutman in order to exhort him to settle the parties’ Laptide dispute on terms favourable to Bergman and Rabinowitz.
Interestingly, per the D'Addario case, it is unnecessary that the defendants intend or realize that the joint conduct constitutes as a defamatory conspiracy or that both defendants publish or utter the defamatory words. For a defamatory conspiracy, from which the defendants will be jointly liable, arises where the defendants agreed that even just one would speak.
Status of Victim as Factor
Additionally, the profession or vocation of the person defamed may give rise to a higher damages award. This occurred in Hill as was cited and restated in the recent case of McNairn v. Murphy, 2017 ONSC 1678 wherein both cases a lawyer was the target of the defamation. In the case of Rutman v. Rabinowitz, 2018 ONCA 80 a chartered accountant was defamed and the professional status was considered. Furthermore, in addition to the title or position of the victim, per the case of Labourers’ International Union of North America, Local 183 v. Castellano, 2019 ONSC 506 special positions and roles a person holds may also be a factor for review. Within these various cases, the courts have said:
 The reputation of a lawyer is of paramount importance; to clients, to the members of the legal profession to the judiciary and to the public. A good reputation is a cornerstone of the lawyer’s professional life. In Hill v. The Church of Scientology, 1995 CanLII 59 (SCC),  2 S.C.R. 1130, the Supreme Court of Canada remarked upon the potentially insidious effect of the defamatory allegations of criminal behaviour on a lawyer.
 General damages in defamation cases are be assumed from the very publication of false statements and are awarded at large. McNairn need not show a loss. In Mina Mar Group Inc. v. Divine, 2011 ONSC 1172, Justice Perrell noted that general damages in defamation cases can serve three functions;
a) to console the plaintiff for the distress suffered in the publication of the defence
b) to repair the harm to the plaintiff’s reputation including, where relevant, business reputation and
c) to vindicate the plaintiff’s reputation.
 He identified the following six factors in determining general damages:
a) the plaintiff’s position and standing;
b) the nature and seriousness of the defamatory statements;
c) the mode in extent of the publication;
d) the absence or refusal to retract the defamatory statement or to apologize for;
e) the conduct and motive of the defendant;
f) the presence of aggravating or mitigating circumstances
 Aggravated damages may be awarded in defamation cases in circumstances where the defendant’s conduct has been particularly high-handed, malicious or oppressive, thereby increasing the plaintiff’s humiliation and anxiety arising from the defamatory statement.
 Like a general damages that are compensatory nature, the assessment of aggravated damages requires a consideration of the entire conduct of the defendant prior to the publication of the defamatory statement and continuing through to the inclusion of trial. For aggravated damages to be awarded there must be a finding that the defendant was motivated by actual malice which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff.
 Factors relevant to an assessment of aggravated damages include:
a) whether the defendant retracted the defamatory statement tendered apology;
b) whether there was a repetition of the defamatory statement;
c) whether the defendant’s conduct was calculated to deter the plaintiff from proceeding with the defamation action;
d) whether the defendant conducted a prolonged or hostile cross-examination or pleaded a justification which the defendant knew was bound to fail;
e) the general manner in which the defendant presented his case; and
f) the conduct of the defendant at the time of the publication of the defamatory statement.
 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.
 In Rutman v. Rabinowitz, 2018 ONCA 80, 420 D.L.R. (4th) 310, leave to appeal to SCC refused,  S.C.C.A. No. 130, the Ontario Court of Appeal stated at para. 66 that the injurious effects of defamatory statements regarding a professional are particularly acute. In Hill, which concerned libelous statements about a young lawyer, the Supreme Court of Canada observed, at para. 177, that “[a]nything that leads to the tarnishing of a professional reputation can be disastrous for a lawyer”. Citing Hill, the Ontario Court of Appeal in Rutman noted at para. 66 that the importance of a reputation for integrity and trustworthiness is not confined to lawyers, and also applies to other professions and callings.
 Union officials are expected to act honestly and with integrity in the pursuit of the union members’ best interests: O’Neal v. Pulp, Paper & Woodworkers of Canada, 1974 CanLII 1815 (BC SC),  B.C.J. No. 522, (B.C.S.C.) (“O’Neal”) at para. 10. A reasonable person would understand that words suggesting that a union official acted dishonourably, lacked integrity, or acted contrary to the interests of those he/she was elected to serve would, if untrue, be defamatory: O’Neal at para 11. A union has a reputation to uphold and statements which cast aspersions upon that reputation may be actionable: Focus, para. 61.
 The aspersions cast on Mr. Evans, a lawyer, and Mr. Melo, the president of Local 183, Mr. Sheridan, a director of Local 183, Mr. Giovinazzo, a union steward, and Mr. Teixeira, a sector coordinator for Local 183, have the potential to be very damaging to their professional reputations. Similarly, Local 183 attracts new members based on its reputation for representing its members’ interests at the bargaining table and by pursuing grievances on behalf of its members. Its fundamental obligation is to fairly represent its members. It follows that Local 183 needs to be seen to be fairly representing its members. As with many organizations, its reputation is critical to its brand as well as its ability to successfully bargain on behalf of its members and lobby all levels of government. I am satisfied that the language of the posts would lower the reputation of each plaintiff in the eyes of any reasonable person.
Entity as Victim
As mentioned above in Focus Graphite Inc., a corporation can be defamed; however, whereas a corporation is incapable of emotional feelings, a general damages award may be less than that which would be applicable in the same circumstances when a human is victimized by a defamation. Further to Focus Graphite Inc., this principle was also stated in United Ventures Fitness Inc. v. Twist, 2019 ONSC 3613 while citing the case of Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 wherein each it was said:
 Corporations, like individuals, are entitled to compensatory damages without proof of damage, to vindicate the company’s business reputation. While a corporation is entitled to more than nominal damages, the amount may be less substantial since a corporation cannot be compensated for injured feelings: Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 (ON CA),  O.J. No. 2329 (C.A.), at para. 49.
 Fourthly, when considering the question of general or compensatory damages, the motions judge did not take into account Mr. Lopehandia's refusal to retract or apologize. She correctly recognized that, while corporations are entitled, without proof of damage, to compensatory damages representing the amount necessary to vindicate the company's business reputation, they cannot receive compensation for injured feelings -- and therefore are not entitled to aggravated damages. She also held, properly, that a corporation is entitled to recover more than nominal damages but that compensatory damages may be lower for a corporation than damages received by an individual (who is entitled to receive compensation both for injury to reputation and for injury to feelings): Walker v. CFTO, supra, at pp. 113-14 O.R. However, there is a caveat to the latter principle. It is to be found in the following passage from Carter-Ruck on Libel and Slander, supra, at p. 197 (quoted wit h approval from the 3rd ed. by Robins J.A. in Walker, supra, at pp. 113-14 O.R.):
Limited companies, and other corporations, may also be awarded general damages for libel or slander, without adducing evidence of specific loss. However, it is submitted that in practice, in the absence of proof of special damage, or at least of a general loss of business, a limited company is unlikely to be entitled to a really substantial award of damages. As was made clear by Lord Reid in Lewes v. Daily Telegraph Ltd., '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.' . . . That there is an entitlement to general damages which are more than nominal damages is certain, but the amount likely to be awarded to a corporation may be small in commercial terms, unless the defendant's refusal to retract or apologise makes it possible to argue that the only way in which the reputation of the company can be vindicated in the eyes of the world is by way of a really substantial award of damages.
Furthermore, where the defamation was malicious and harmful, punitive damages as a means of denouncing the conduct of the defendant may be awarded. Such was stated in Hill where it was said:
196 Punitive damages may be awarded in situations where the defendant's misconduct is so malicious, oppressive and high‑handed that it offends the court's sense of decency. Punitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judge expresses its outrage at the egregious conduct of the defendant. They are in the nature of a fine which is meant to act as a deterrent to the defendant and to others from acting in this manner. It is important to emphasize that punitive damages should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence.
197 Unlike compensatory damages, punitive damages are not at large. Consequently, courts have a much greater scope and discretion on appeal. The appellate review should be based upon the court's estimation as to whether the punitive damages serve a rational purpose. In other words, was the misconduct of the defendant so outrageous that punitive damages were rationally required to act as deterrence?
198 This was the test formulated by Robins J.A. in Walker v. CFTO Ltd., supra. In that case, he found that the general damages award of $908,000 was obviously sufficient to satisfy whatever need there was for punishment and deterrence. He found that, in those circumstances, the $50,000 punitive damage award served no rational purpose. The Court of Appeal, in the case at bar, applied the same reasoning and upheld the award of punitive damages.
199 Punitive damages can and do serve a useful purpose. But for them, it would be all too easy for the large, wealthy and powerful to persist in libelling vulnerable victims. Awards of general and aggravated damages alone might simply be regarded as a licence fee for continuing a character assassination. The protection of a person's reputation arising from the publication of false and injurious statements must be effective. The most effective means of protection will be supplied by the knowledge that fines in the form of punitive damages may be awarded in cases where the defendant's conduct is truly outrageous.
The topic of defamation of reputation is a very deep legal subject with many subtopics that can only be lightly touched upon within a webpage article. Legal practitioners and scholars could spend hours discussing the various twists and turns that apply to the principles and concepts mentioned here.