Legal Research

Defamation ? No More Symbolic Damages?

By John Gregory

Will the law on proportionality put an end to symbolic damages in defamation?

A recent English decision threw out a defamation action on the ground that the damages, if any, would be too small to justify the use of the court?s and jury?s time. Vindication of the plaintiff?s reputation was not important enough to justify continuing the action.

A report is here. The case is Kaschke v Osler.

Will we have a similar result in Canada, at least in the jurisdictions that have rules on ?proportionality? of costs of a proceeding and what is at stake in it? Quebec has had such a rule for several years, Ontario?s rule is in effect since the beginning of this year, and BC?s comes into effect on July 1st.

Is this a change in the law of defamation, where symbolic damages of one dollar have at least provided vindication (and where the plaintiff presumably recovered some of his/her costs from the other side)?

Is it appropriate to consider the costs to the court system in assessing proportionality, and not just the costs to the parties?

Is the court motivated in some degree by an unwillingness to (further?) promote ?libel tourism?? In any event would a concern for overuse of the courts be available as an argument against cases brought by those with little real connection to the forum? (Of course in Canada the court is to take jurisdiction only if there is a real and substantial connection with the case, so that may be an impediment to such forum shopping anyway.)

Full post as published by Slaw.ca on May 21, 2010 (boomark / email).