In Ager v. Canjex Publishing Ltd., the B.C. Court of Appeal considered an appeal from a lower court ruling which found the defendants liable for defamation. The lower court awarded the following damages: general damages in the amount of $200,000.00, aggravated damages in the amount of $50,000.00 and further aggravated damages in the amount of $50,000.00 against two of the three defendants, Canjex Publishing Ltd, the owner of the publication and Mr. Woods, the editor of the publication.
The alleged defamation involved three articles that were published by the defendants and made available to subscribers, in newspaper and online form. The articles alleged that the plaintiff, a geophysicist, had misrepresented the value of mining claims to the “Josh Property” and had engaged in related fraudulent activity.
Justice Saunders dismissed the application seeking to adduce fresh evidence and upheld the finding of defamation by the lower court. However, Justice Saunders set aside the order for aggravated damages. Her reasoning followed that of the Supreme Court of Canada (SCC) in Hill v. Scientology of Toronto, where the SCC stated that “a finding of actual malice is required for an award of aggravated damages” in a defamation case. The SCC further noted that:
If aggravated damages are 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. …. The malice may be established by intrinsic evidence derived from the libellous statement itself and the circumstances of its publication, or by extrinsic evidence pertaining to the surrounding circumstances which demonstrate that the defendant was motivated by an unjustifiable intention to injure the plaintiff.
In setting aside the order for aggravated damages, Justice Saunders referred to the trial judge’s acknowledgement of the continued presence of the offending articles on the company’s website, but was of the view that it did not warrant an award of aggravated damages. She noted that retention of the articles on the website is not synonymous with actual malice and that, absent a finding of actual malice, there is no support for an award of aggravated damages.
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