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Aggravated Damages Award Reviewed by Court of Appeal


Aggravated damages compensate a claimant for intangible injuries, such as distress and humiliation, which are caused by a defendant’s conduct. The appellants were found to have defamed the plaintiff and the judge awarded damages of $1,205,000 and special costs, and granted a permanent injunction against the appellants, restraining publication of any defamatory words concerning the Plaintiff.  All grounds of appeal were dismissed with the exception of the award of $500,000 for aggravated damages. It was found to be inordinately high and was reduced to $200,000.(N. v. Mitchell,2018 BCCA 104)

In reducing this award the Court of Appeal provided a useful review of aggravated damage awards in BC:

[86]  It seems to me that an award of aggravated damages in an amount higher than the award of general damages should be reserved for cases explicitly found to be extraordinary, like Hill.  In general, one would expect the amount of aggravated damages to be less than the amount of general damages.  This is borne out by the awards of aggravated damages in the authorities referred to by the trial judge and the additional authorities to which I have referred.  Following is a list of the cases where separate awards for general damages and aggravated damages were made against the defendant/multiple defendants:

Case GeneralDamages Aggravated Damages
Chelekis $250,000 $100,000
Ager $200,000 $100,000
Griffin $100,000 $50,000
Leenen $400,000 $150,000/$100,000/$50,000/$50,000
Myers $200,000 $150,000
Reichmann $200,000 $50,000/$50,000
Fiola $250,000 $100,000
Rutman $200,000 $200,000

[87]  The only explanation given by the judge for awarding $500,000 for aggravated damages was that it was the amount awarded in Hill.  It may be that there was double counting by the judge of the nature discussed in Brown on Defamation and Brown v. Cole.  For example, it may be that the judge gave such a high award in order to punish the appellants for their high-handed conduct, but this objective was accomplished by the award of punitive damages.  However, I need not decide whether there was double counting, and it is sufficient for me to conclude that the award is inordinately high.

[88] There can be no doubt that Mr. N. is entitled to an award of aggravated damages.  The judge was of the view that the appellants’ conduct was high-handed and that it increased Mr. N.’s humiliation and anxiety.  However, the aggravation was not of an extreme nature where, for example, it led to the hospitalization of the plaintiff.  It must also be borne in mind that Mr. N. would have suffered some humiliation and anxiety from the publication of the defamatory words even if the appellants’ conduct was not high-handed.  I am of the view that an appropriate award for Mr. N.’s increased humiliation and anxiety resulting from the high-handed conduct was $200,000.

Posted by Mr. Renn A. Holness, B.A. LL.B. – Called to the BC Bar 1995

Tags: aggravated damages, defamation

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"Renn A. Holness is a gifted lawyer and author to over 1000 legal blog articles. Married father of two daughters, son of a neurosurgeon and founder of Holness Law Group."

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