CAPPING DEFAMATION DAMAGES

Abstract

The law governing defamation damages is problematic. Injury is presumed, without the need for any supporting evidence. Damages are at large and reflect intangible injuries, so their quantification is inevitably arbitrary. Amounts are increasing at far greater than the rate of inflation. Particularly given the free speech consequences of large defamation damages awards, the law should do more to restrict them.

One possibility is to cap non-pecuniary damages in defamation law. While the Supreme Court of Canada rejected this approach in Hill v Church of Scientology, several things have changed since that case was decided in 1995. First, courts have consistently modified defamation law to provide greater protection for freedom of expression. Second, the quantum of defamation damages awards has increased dramatically since Hill. Third, non-pecuniary defamation damages have been capped in England and Australia, and subject to ranges or caps in other jurisdictions. Fourth, Ontario and other provinces have created privacy torts, protecting interests similar to reputation, which generate relatively low damages awards. Finally, the reasons given in Hill for rejecting a cap were, in our view, unconvincing even in 1995.

We therefore argue that the time has come for a cap on non-pecuniary defamation damages in Canada, or for a set of ranges to guide the damages assessment. Since cap thresholds are arbitrary, it is difficult to defend any specific number. However, we argue for a cap of half the personal injuries damages cap—$50,000 in 1978 dollars, or about $234,000 in 2026 dollars.