Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3
Ihor Bardyn, Bohdan Onyschuk, Bohdan
Zarowsky, Q.C., and W. Yurij Danyliw, Q.C. Appellants
v.
Y. R. Botiuk Respondent
and between
B. I. Maksymec and
Maksymec & Associates Ltd. Appellants
v.
Y. R. Botiuk Respondent
Indexed as: Botiuk v. Toronto Free Press Publications Ltd.
File Nos.: 23517, 23519.
1994: December 8; 1995: September 21.
Present: La Forest, L'Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Libel and slander ‑‑ Joint liability ‑‑ Defences ‑‑ Qualified privilege ‑‑ Appellants alleging in three different documents that respondent lawyer had breached promise to give certain fees he was paid to community organization ‑‑ Whether appellants defamed respondent ‑‑ Whether appellants jointly and severally liable for damage caused by all three publications ‑‑ Whether defence of qualified privilege available.
Libel and slander ‑‑ Damages ‑‑ Aggravated damages ‑‑ Special damages ‑‑ Appellants alleging in three different documents that respondent lawyer had breached promise to give certain fees he was paid to community organization ‑‑ Combined effect of documents clearly defamatory -- Whether appellants motivated by malice ‑‑ Whether award for aggravated damages should stand ‑‑ Whether loss of business sufficiently pleaded to warrant special damages award.
In 1971 members of the Ukrainian community became involved in a confrontation with the police during a demonstration organized by the Ukrainian-Canadian Committee (UCC). The UCC obtained standing as the representative of the Ukrainian community at the public inquiry that was subsequently held. It retained counsel, who was assisted by the respondent, the UCC's legal adviser. The costs of both lawyers were reimbursed by the municipality following the inquiry. The respondent retained the amount paid to him. Rumours began to circulate in the Ukrainian community that he was in breach of his agreement to donate this money to the UCC. The issue was raised at a meeting of the UCC executive, where the concerns were addressed by the respondent and others to the complete satisfaction of those in attendance. The UCC published a letter in a community newspaper reiterating that financial matters connected with the demonstration had already been reported and were satisfactorily settled. Just over a year later, however, the individual appellant M tabled a report at the UCC's general meeting alleging that the respondent had reneged on his promise to give the money he received to the UCC. The UCC drafted a response which was published in a community newspaper. M in turn prepared a declaration signed by eight lawyers, four of whom are appellants here, confirming M's report. The declaration was reproduced in a community newspaper and mailed to certain members of the Ukrainian community. M also presented a separate reply to the Ontario Council of the UCC which incorporated the lawyers' declaration. The respondent sued the appellants for libel. The trial judge awarded him $140,000 in compensatory damages, which included general damages, aggravated damages and the present value of future pecuniary loss, and special damages of $325,000 for loss of income. Prejudgment interest was awarded for a 12½-year period. The Court of Appeal held that since special damages were not specifically pleaded, they could only form a part of the general damage award. It awarded $200,000 in compensatory damages. The court also reduced the term of prejudgment interest to 10 years.
Held: The appeals should be dismissed and the cross‑appeals allowed.
Per La Forest, L'Heureux‑Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ.: The combined effect of the report, the declaration and the reply published by M and the appellant lawyers was clearly defamatory. The documents unmistakeably implied that the respondent was dishonourable and dishonest. They cast doubt upon his integrity, the most important attribute of any lawyer. The appellant lawyers are joint tortfeasors who are jointly and severally liable with M for the damage caused by publication of all three documents. The declaration expressly adopted the contents of the report, and its inclusion in the reply was a natural and logical consequence of the lawyers' signing it without placing any restrictions on its use. The appellant company is also liable since M, by his action and in his capacity as the principal shareholder and officer of the company and its directing mind, clearly associated the company with the defamatory statements.
Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. Where an occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish remarks which may be defamatory and untrue about the plaintiff. The privilege is not absolute, however, and may be defeated if the dominant motive for publishing is actual or express malice. Qualified privilege may also be defeated if the limits of the duty or interest have been exceeded. If the information communicated was not reasonably appropriate to the legitimate purposes of the occasion, the qualified privilege will be defeated. While M had a duty to discharge arising from his position as a former president of the UCC, and the UCC's annual general meeting was an appropriate forum at which to present the report, the limits of the privileged occasion were clearly exceeded in relation to the report. Although M may have wished to address the rumours in order to distance himself from the gossip, in doing so it was unnecessary to defame the respondent. Similarly, while the appellants were entitled to respond to the attack on the report to protect their interest, neither the declaration nor the reply was a measured response. The appellants went well beyond what was reasonably appropriate to the occasion and as a result lost the protection afforded by the defence of qualified privilege.
If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by malice. It is clear in this case that M was motivated by express malice. Taking into account the appellant lawyers' status and influential position in the community, and the effect of their concerted action in signing the declaration, their conduct in signing the document without undertaking a reasonable investigation as to its correctness was reckless, as was their failure to place any restriction or qualification upon the use that could be made of it. The legal consequence of their recklessness is that their actions must be found to be malicious. Since both M and the appellant lawyers were motivated by malice, they are jointly and severally liable for the compensatory damages awarded, including that portion which represents aggravated damages. For the reasons given in Hill v. Church of Scientology of Toronto, a cap on damages in defamation cases is neither needed nor desirable. The loss of business was sufficiently pleaded to warrant the award of special damages, which should be restored. The trial judge's determination that the respondent was entitled to prejudgment interest for a period of 12½ years should also be restored.
Per Major J.: Cory J.'s reasons were agreed with, subject to observations on the extent of liability for defamatory publications where more than one defendant is involved. Not all actions in which multiple defendants are sued will result in a finding of joint and several liability. Depending on the circumstances of a given case, it may be necessary to assess each instance of publication as a separate cause of action. The question of whether the defendants acted jointly or in concert should be considered and where there is the absence of common action the defendants' liability ought to be assessed individually. It is not clear from the record in this case that all of the defamatory documents should have been treated as one libel nor that the necessary concerted action was present for a finding of joint and several liability. The trial judge has an advantage over appellate courts in making findings of fact, however, particularly in matters of credibility, and it would therefore be inappropriate absent palpable error to interfere with either the trial judge's findings of fact or the exercise of his discretion.
Cases Cited
By Cory J.
Applied: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Borland v. Muttersbach (1985), 53 O.R. (2d) 129; referred to: Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067; Basse v. Toronto Star Newspapers Ltd. (1983), 44 O.R. (2d) 164; Adam v. Ward, [1917] A.C. 309; McLoughlin v. Kutasy, [1979] 2 S.C.R. 311; Douglas v. Tucker, [1952] 1 S.C.R. 275; H. L. Bolton (Engineering) Co. v. T. J. Graham & Sons Ltd., [1957] 1 Q.B. 159; Standard Investments Ltd. v. Canadian Imperial Bank of Commerce (1986), 52 O.R. (2d) 473; People ex rel. Karlin v. Culkin, 162 N.E. 487 (1928); Horrocks v. Lowe, [1975] A.C. 135; Lindal v. Lindal, [1981] 2 S.C.R. 629.
By Major J.
Referred to: Barber v. Pigden, [1937] 1 K.B. 664; Hayward v. Thompson, [1982] 1 Q.B. 47; Westbank Indian Bank v. Tomat (1992), 63 B.C.L.R. (2d) 273.
Statutes and Regulations Cited
Courts of Justice Act, 1984, S.O. 1984, c. 11, s. 138(2).
Judicature Act, R.S.O. 1980, c. 223, s. 36(6).
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 49.10.
Trustee Act, R.S.O. 1990, c. T.23, s. 38.
Authors Cited
Brown, Raymond E. The Law of Defamation in Canada, 2nd ed. Scarborough, Ont.: Carswell, 1994 (loose‑leaf).
Fleming, John G. The Law of Torts, 8th ed. Sydney: Law Book Co., 1992.
Fridman, G. H. L. The Law of Torts in Canada, vol. 2. Toronto: Carswell, 1990.
Gatley on Libel and Slander, 8th ed. By Philip Lewis. London: Sweet & Maxwell, 1981.
APPEALS and CROSS‑APPEALS from a judgment of the Ontario Court of Appeal, [1993] O.J. No. 239 (QL), varying a judgment of the Ontario Court (General Division), [1991] O.J. No. 925 (QL), allowing the respondent's action and awarding him damages. Appeals dismissed and cross‑appeals allowed.
J. Edgar Sexton, Q.C., and Mark A. Gelowitz, for the appellants Ihor Bardyn et al.
Bryan Finlay, Q.C., and Christopher J. Tzekas, for the appellants B. I. Maksymec and Maksymec & Associates Ltd.
Sheila R. Block and Jenifer E. Aitken, for the respondent.
The judgment of La Forest, L'Heureux-Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ. was delivered by
1 Cory J. -- These appeals must consider the consequences which flow from the publication of documents which either directly alleged or clearly implied that the respondent Y. R. Botiuk, a lawyer of Ukrainian descent, had misappropriated money that belonged to the Ukrainian‑Canadian community. As a result of these publications, Botiuk, who had previously enjoyed an excellent reputation, was branded as a dishonourable person who could not be trusted. Publishing the documents had a devastating and lasting effect on both his private life and his professional career.
I. Factual Background
2 Botiuk is a lawyer who has practised in the City of Toronto since 1962. From the time of his emigration to Canada in 1951, he has been extensively involved in the affairs of the Ukrainian community and his practice, to a large extent, served the members of that community.
3 The appellant B. I. Maksymec is a professional engineer and principal shareholder and officer of Maksymec & Associates Ltd. Mr. Maksymec has also played a prominent role in the Ukrainian community. It was he who instituted, augmented and continued the libellous attacks on the respondent.
4 The appellants I. Bardyn, B. Onyschuk, B. Zarowsky, Q.C., and W. Y. Danyliw, Q.C., are lawyers of Ukrainian descent who have held positions of importance in their community. They became involved in this case when they agreed to sign a document written by Maksymec which supported his allegations of misconduct by Botiuk.
5 The Ukrainian‑Canadian Committee ("UCC") is an extremely important institution in the Ukrainian community. It is an umbrella organization serving the needs of Ukrainian‑Canadians on the national, provincial and local levels. The facts of this case arise from the activities of the Toronto branch of the UCC.
6 In October 1971, the Russian Premier Alexei Kosygin visited Toronto. In light of their position that their homeland was occupied by the Soviet regime, this was an event of great concern to Toronto's Ukrainian community. The UCC organized a demonstration to coincide with a dinner to be held for Mr. Kosygin at the Ontario Science Centre on October 25, 1971. During the demonstration, members of the Ukrainian community became involved in a vigorous confrontation with officers of the Metropolitan Toronto Police Force. This led to criminal charges being laid against some of those members.
7 At a meeting of the UCC held on October 28, 1971, while Maksymec was the president of the organization, it was determined that arrangements should be made to provide legal assistance and representation to those charged with criminal offences. As a result of this decision, the UCC retained the services of a prominent Toronto lawyer, Arthur Maloney, Q.C. At the same time, it set out to raise the necessary funds by seeking donations from members of the community. In this way, some $21,000 was gathered for what became known as the "Kosygin Demonstration Fund".
8 Botiuk, who had been appointed as legal adviser to the UCC immediately following the demonstration, organized and coordinated the defence of the demonstrators. It was known to all that the money collected from members of the Ukrainian community was not intended to be used to pay any Ukrainian lawyer for services relating to the criminal proceedings.
9 At the October 28 meeting, the decision was also made to collect evidence as to what transpired at the demonstration and to use it to lobby the Ontario government to hold a public inquiry. The province eventually agreed and appointed Judge Vannini to preside.
10 The UCC obtained standing as the representative of the Ukrainian community and retained Robert Carter, Q.C., as its counsel. There was some concern as to whether sufficient funds existed to cover the legal expenses which would be incurred and, as a result, it was decided that Carter would be assisted by a Ukrainian lawyer throughout the inquiry.
11 It was suggested that Botiuk might assume the full‑time position as Carter's assistant. He declined because he was a sole practitioner who could not leave his practice unattended for the five weeks scheduled for the inquiry hearings. Instead, he agreed to try to recruit and coordinate various Ukrainian duty counsel who, it was understood, would provide their services at no charge to the UCC.
12 Botiuk had little success in recruiting other Ukrainian lawyers to assist Carter, save for two or three who contributed very limited time. Consequently, Botiuk performed much of the work himself, attending 23 of the 35 days of the inquiry hearing. As well, he did a great deal of night work interviewing and preparing witnesses for their attendance at the inquiry.
13 On June 5, 1972, Judge Vannini released his decision. He found that the police were responsible for the confrontation and in effect vindicated the Ukrainian community. Thereafter, it was announced that the costs of counsel representing the Metropolitan Toronto Police Force at the inquiry would be paid by Metropolitan Toronto. On behalf of the UCC, efforts were then made by the appellants Maksymec and Onyschuk and the respondent Botiuk to obtain funding for its representatives. The Ontario government eventually agreed to this request.
14 The proposed reimbursement was looked upon as an opportunity to replenish the UCC treasury. To this end, it was thought by some that Botiuk would submit a single figure which would encompass the work done by all the lawyers who assisted at the inquiry and that this amount would be turned over to the UCC. However, as the trial judge found, whatever the understanding may have been in this regard, it became unworkable for a number of reasons. First, none of the lawyers concerned ever submitted any information regarding their fees or disbursements. Further, both the acting president of the UCC, Dr. Hlibowych, and counsel for Metro Toronto rejected the suggested approach and insisted that every lawyer prepare his own account for the UCC. These accounts would then be submitted for payment together with a declaration that the amounts were incurred by the UCC as a legal expense connected with the inquiry.
15 Botiuk submitted two accounts in this fashion, one in the amount of $12,960 for the payment made to Carter, and the other in the amount of $10,256.79 to compensate him for his disbursements and work. In accordance with the direction, acknowledgement and release executed on behalf of the UCC by Dr. Hlibowych, Metro Toronto forwarded a cheque to Botiuk for the total amount of both accounts. He in turn sent the UCC a cheque in the amount of $12,960 to cover Carter's account. Botiuk had indicated at a meeting of the UCC executive that since he would have to pay taxes on the fees paid to him, he would retain them.
16 When it received the funds for the Carter account, the UCC appointed Maksymec, A. Bandera and Botiuk to a special financial commission to decide where and how to apply this money. Although the commission never held a formal meeting, it was decided not long after its inception that a special immigration fund should be created to assist Ukrainian immigrants to settle in Canada.
17 On September 7, 1974, the UCC published a communiqué in the Ukrainian community newspaper the New Pathway. Translated into English, it read as follows:
Thanks to the relentless efforts of the lawyer Y. R. Botiuk, with the assistance of Messrs. Frolick, Onyschuk and Kostuk and with support received from Alderman Bill Boychuk and Ed Negridge and Mr. Archer, and a few others, the Metropolitan Council approved the repayment of the costs in the amount of $12,960.00, which our Committee had paid to the lawyer Carter, for his role in the public enquiry connected with the demonstration against Kosygin.
18 Subsequently, rumours concerning the Kosygin Demonstration Fund and the money paid by Metro Toronto began to circulate throughout the Ukrainian community. At a meeting of the UCC executive on March 2, 1977, the issue was raised. The record of that meeting indicates that the concerns pertaining to the funds were addressed by Botiuk and others to the complete satisfaction of those in attendance. In essence, it became clear to everyone at the meeting that a single account could not be submitted for all lawyers, and that it was open to each lawyer to submit his own account and receive payment from the City. It was emphasized, however, that nothing was paid by the UCC to any Ukrainian lawyer, including Botiuk. Botiuk was then congratulated by Dr. Hlibowych for his generosity and held up as an example for others to follow.
19 Nonetheless, an article appeared in the March 12, 1977, edition of the Free Word, a Ukrainian community newspaper, which raised anew the doubts concerning the financial aspects of the UCC's management of the criminal defence and inquiry proceedings. The article asked who had the money which had been remitted by Metro Toronto to the UCC to reimburse it for the payments made to non‑Ukrainian lawyers out of the Kosygin Demonstration Fund.
20 In response, Dr. Sokolsky, then president of the UCC, sent a letter to the Free Word, dated March 15, 1977, in which he vigorously defended the integrity of the organization. He wrote:
Financial matters connected with the demonstration are no secret and our branch has . . . already . . . reported on them more than once. It seems odd to us that almost three years after this matter was concluded, those asking the questions remembered this (money)....
(A) The "Maksymec Report"
21 At the general meeting of the UCC held just over a year later on May 5, 1978, Maksymec sought to table a report entitled "Financial Accounting with Respect to the Demonstration Against Kosygin in Toronto". Initially, there was relatively forceful opposition to its presentation. However, Dr. Sokolsky introduced a motion which was seconded by Botiuk to include the Report as an item on the agenda. Before Maksymec spoke, those present expressed their gratitude for the efforts made by Botiuk on behalf of the community and emphasized it with "sincere applause".
22 In his Report, Maksymec put forward a number of allegations. First, that there was an agreement or understanding that the Ukrainian lawyers would not charge for the taking of affidavits in the aftermath of the demonstration. Second, that they would voluntarily assist Carter at the inquiry. Third, that Botiuk reneged on the promise he made to members of the UCC executive that he would deliver to the UCC the $10,256.79 paid to him by Metro Toronto and instead declared that he would do with it as he saw fit. This document is the first of three which were found to have libelled Botiuk.
23 In the May 20, 1978 edition of the Free Word, an article appeared concerning the May 5 annual meeting of the UCC and the controversy surrounding the $10,256.79 allegedly withheld by Botiuk. The article reproduced the contents of the Maksymec Report together with editorial comment which indicated that Botiuk's explanation that he was required to pay income tax on this amount was not convincing since he could have immediately transferred the amount from the client's account to the account of the UCC branch. It called for an impartial investigation into the matter.
(B) The "Sokolsky‑Muz Declaration"
24 On June 16, 1978, there was a meeting of the executive of the UCC during which a declaration was drafted in response to the charges levelled by Maksymec in his Report. Since Dr. Sokolsky and Dr. Muz were then the President and Secretary of the organization, it has been called the "Sokolsky‑Muz Declaration".
25 The Declaration in its final form, dated July 1, 1978, was published in the New Pathway. It stated that the charges levelled by Maksymec were "groundless and untrue". It asserted that the UCC never had any claim to the money which was paid by Metro Toronto to Botiuk in connection with the inquiry. This was money, it stated, which Botiuk had earned and to which he was legally entitled. The Declaration again expressed the gratitude and appreciation of the UCC for the great sacrifices Botiuk had made on behalf of the Ukrainian community. It further affirmed that there were no agreements among the Ukrainian lawyers, including Botiuk, that no one would be remunerated for work done in relation to the inquiry. Finally, the Declaration asserted that the statement by Maksymec and the subsequent article in the Free Word were "harmful to the community and do an injustice to Mr. Botiuk".
(C) The "Lawyers' Declaration"
26 According to his evidence, Maksymec regarded the Sokolsky‑Muz Declaration as a "massive, massive attack upon his honesty and integrity". In response, he prepared a declaration, dated July 7, 1978. It was signed by the eight lawyers who (along with Botiuk and another) had allegedly participated in the inquiry proceedings. This is the second document upon which this libel action was based. The relevant portions follow:
DECLARATION
We, the Ukrainian lawyers of Toronto who assisted in the proceedings connected with the demonstration against Kosygin, having familiarized ourselves with the report of the former President of the UCC Toronto Branch on the 5th day of May of this year, do affirm, that,
. . .
We hereby confirm the report of Engineer B. Maksymec about the fact that all of our efforts and endeavours connected with the court proceedings and the Vannini Royal Commission were on a voluntary and gratis basis, in accordance with our (including Mr. Botiuk) agreement with the then President of the UCC Toronto Branch, Engineer B. Maksymec, and that we never demanded payment for the services which we, to the extent we were able, contributed to those proceedings. Our work we dedicated to the Ukrainian Community through the Toronto Branch of the UCC.
27 Of the original eight lawyers who signed this document, four remain as appellants in this Court. Two of the lawyers, M. Romanick and S. Frolick, had died by the time of trial thus escaping liability pursuant to the provisions of s. 38 of the Trustee Act, R.S.O. 1990, c. T.23. Another lawyer, R. Kostuk, had withdrawn his support for the Declaration soon after signing it. R. Maksymiw, together with the late M. Romanick, did not sign the Declaration itself, but only a qualification at the end of the document which stated that in their understanding there was an agreement at the time of the Vannini inquiry to volunteer services. The Court of Appeal ruled that Maksymiw had sufficiently qualified his statement to escape liability and this finding was not challenged.
28 The Declaration was reproduced with some modifications in the July 22, 1978, edition of the Ukrainian community newspaper Our Aim. After the names of the lawyers, Maksymec gratuitously added descriptions of the positions they held in community organizations. This was obviously done to add weight to the document in the eyes of those who would read it.
29 On July 27, 1978, Maksymec mailed copies of the Lawyers' Declaration, the Sokolsky‑Muz Declaration and the Maksymec Reply to those members of the Ukrainian community who had donated $100 or more to the Kosygin Demonstration Fund.
30 The trial judge found that the Lawyers' Declaration was published at the request of and upon payment by Maksymec. The newspaper subsequently published an article on September 30, 1978 in which it acknowledged this fact and apologized to Dr. Sokolsky, Dr. Muz and Botiuk for "any unpleasantness and damages that publishing the referred to `declaration' may have caused them".
31 The modified version of the Lawyers' Declaration together with the Sokolsky‑Muz Declaration and the Maksymec Report was also reproduced in the August 19‑26, 1978, edition of the Free Word. The trial judge held, and there was ample evidence to support his conclusion, that Maksymec also provided this newspaper with the material upon which the article was based.
(D) The "Maksymec Reply"
32 Maksymec also prepared a separate reply to the Sokolsky‑Muz Declaration which he presented to the Ontario Council of the UCC on July 27, 1978. This is the third and final document which led to the respondent's libel suit. In it, Maksymec alleged that the authors of the Sokolsky‑Muz Declaration were "ill‑informed" about matters related to the Vannini inquiry since they did not participate in the events connected with it.
33 The Maksymec Reply incorporated the Lawyers' Declaration and set out a promise alleged to have been made by Botiuk during a meeting of the executive of the UCC. It was presented in these words:
. . . [Mr. Botiuk] switched off the microphone and assured all those present that they had no reason to worry about his previous statement [that he would do whatever he wanted with the money] to the switched on microphone because he had to say this formally, in order to justify his account in the amount of $10,256.79. However, he assured all those present that he considered this money to be public money and that he would hand it over to the UCC Toronto Branch. Mr. Botiuk requested that his last statement should not appear in the minutes so that it would not fall into undesirable hands. [Emphasis added.]
34 Maksymec further alleged that the sum which was earmarked by the special financial commission for a special immigration fund included the $10,256.79 paid to Botiuk. He demanded that it be transferred to the UCC.
35 The Ontario branch of the UCC refused to deal with Maksymec's complaint, which it considered to be nothing more than a personal dispute.
II. Judgments Below
(A) Ontario Court, General Division, [1991] O.J. No. 925 (QL)
36 Carruthers J. stated that the controversy between the parties "stems solely from the fact that the [respondent] kept the sum of $10,256.79 and Maksymec has objected to his having done so because he has thought that the plaintiff should have handed that amount over to UCC".
37 It was the opinion of the trial judge that the defamatory sense of the publications was clear. Namely, that Botiuk did not live up to an agreement to volunteer his services and did not fulfil his assurances to return to the UCC the money which he received from Metro Toronto.
38 The trial judge observed that counsel for all parties proceeded on the basis that although the contents of each document could be taken individually as to its defamatory nature, all three were to be considered together as creating a single act of libel. He proceeded on this basis.
39 The trial judge then turned to the three grounds of defence which were advanced by the appellants: justification, fair comment and qualified privilege. With respect to justification, he emphatically rejected the argument that there was some kind of agreement between the lawyers that they would volunteer their services. He set out his conclusions on this issue in these words:
At the highest, all that can be said is that each of them, including the [respondent], understood that was to be the case for the very simple reason that no one [i.e. the UCC] was available, prepared or able to pay them. And the [respondent] has never suggested that the situation was otherwise until the prospect of payment by Metro arose.
40 He stressed that all the lawyers were well aware that they could submit an account for their work and receive payment from Metro Toronto. It was his opinion that they did not do so, not because of any agreement, but because they did not wish to make the community aware of how very little work they had done at the Vannini inquiry. Their minimal efforts would suffer by comparison with the very significant contribution to the work of that inquiry made by Botiuk.
41 The trial judge rejected the appellants' allegation that during a meeting of the UCC executive in 1974, Botiuk had switched off the microphone and undertaken to turn over to the UCC the funds that Metro Toronto had paid to him. Rather, he accepted Botiuk's testimony that it was always understood that he would keep those funds for himself.
42 The trial judge recognized that it was open to the appellants to have made a fair comment with regard to any concern they had about the funds which Botiuk received for his participation in the inquiry. However, he found that this defence was lost to them because "the whole story was not told and as a result misstatements of fact about the [respondent] were published".
43 Finally, with regard to qualified privilege, the trial judge rejected the submission that Maksymec had a duty to prepare and publish the Report as a member of the special financial commission and as past president of the UCC during the relevant times. The mandate of the commission, according to the trial judge, was not to recover money from Botiuk but merely to set out the expenses incurred and to suggest a program for using both the money collected from donations as well as that received from Metro Toronto for the account of Carter. Finally, the trial judge rejected as unreasonable the explanation provided by Maksymec that he had delayed his report for four years because he was waiting for Botiuk to change his mind and hand over the money. The trial judge noted that by 1978, those present at the general meeting neither expected the Report nor wanted it.
44 The trial judge then turned to the appellants' argument that the Lawyers' Declaration and the Maksymec Reply were validly made in response to the Sokolsky‑Muz Declaration. He concluded that the defamatory references to Botiuk were not necessary to offset what the appellants considered to be an attack upon their integrity. Although Maksymec's involvement in these publications was not in doubt, there was some dispute as to whether all of the appellant lawyers would be held responsible for the wording of the Lawyers' Declaration or the extent of its publication. The trial judge concluded that they were liable since none of them placed any qualifications or restrictions upon the use Maksymec could make of the Lawyers' Declaration.
45 The trial judge concluded that the Lawyers' Declaration extended and augmented the damaging effect of the Maksymec Report on Botiuk's reputation. He added, as well, that the Maksymec Reply significantly increased the sting of the libel by its incorporation of the words "public money".
46 Once he had found that the privileged occasion had been exceeded by all of the appellants and therefore that the defence was not available to them, the trial judge determined that it was unnecessary to deal with the question of express malice except in relation to its effect on the assessment of damages.
47 In his consideration of the damages that should be awarded, the trial judge observed that the appellant lawyers failed to make any independent inquiry as to the truth of the allegations contained in the Lawyers' Declaration. He noted that none of the appellant lawyers had apologized to Botiuk, that some had demonstrated hostility towards him in their testimony and that, contrary to their assertions, the respondent had actually done the lion's share of the work at the inquiry. I would have thought that these findings would have established express malice in fact and in law. However, the trial judge concluded that, while the lawyers were "careless, impulsive or irrational", they had not exhibited the indifference or recklessness to the truth necessary for a finding of express malice.
48 With regard to Maksymec, the trial judge found that express malice was established on the grounds that, first, he was indifferent to the truth, and second, that he was actuated by an intention to injure Botiuk. The trial judge acknowledged that it may have been necessary for Maksymec to prepare a report to distance himself from the gossip and rumours which had been circulating. This he could have done without defaming Botiuk. However, he found that Maksymec had threatened Botiuk when he told him "[i]f you don't turn over the funds I will create a scandal and ruin you". The trial judge concluded that this statement alone provided a sufficient basis for a finding of malice. It would also explain why in the course of distancing himself from the rumours Maksymec defamed Botiuk. This he did in order to carry out his threat.
49 Turning to the question of damages, the trial judge ruled that:
. . . a lawyer whose practice is primarily concerned with a large, long standing, well established ethnic community, cannot suffer a more significant blow than to have his reputation for honesty, integrity and reliability publicly attacked on the basis that he wrongfully kept money which belonged to the members of that community by prominent lawyers and businessmen from that community.
50 He concluded that Botiuk had reached a "high pinnacle of success" and that the attack upon his reputation had severely damaged his health, family relations, practice, professional and business connections and social life. The trial judge found that for many years, Botiuk would be known as "the lawyer who took or kept $10,000.00 from that community".
51 The trial judge reviewed the principles governing the assessment of damages and considered the awards made in earlier libel cases. He concluded that an appropriate sum for compensatory damages, which included general damages, aggravated damages and the present value of future pecuniary loss, was $140,000. In his view, this was not a case for punitive damages.
52 The trial judge also awarded special damages for the loss of income incurred by Botiuk as a result of the libel. He considered the evidentiary difficulties that are always present in proving actual loss and assessed the special damages at $325,000. This sum represented a loss of approximately 10 percent per year of Botiuk's income or one‑half of the lower estimate of damages provided by Botiuk's expert.
53 The trial judge rejected the argument of the appellant lawyers that since they were only involved with the Lawyers' Declaration, the damages assessed against them should be reduced accordingly. Rather, he found that all the appellants were joint tortfeasors with respect to all three documents and that they were jointly and severally liable to the respondent for all damages. I agree with this finding. In my view, there was a sound evidentiary and legal basis for the trial judge to reach this conclusion.
54 On the issue of costs, the trial judge considered that the respondent had offered to settle in the amount of $400,000, an apology and costs. However, as this offer was lower than the $465,000 that Botiuk was awarded at trial, pursuant to Rule 49.10 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Botiuk was entitled to costs assessed on a solicitor‑client basis. Prejudgment interest was awarded for a period of 12½ years at a rate of 13 percent per annum on $120,000 of the $140,000 compensatory damage award and on the entire $325,000 special damage award.
(B) Court of Appeal, [1993] O.J. No. 239 (QL)
55 On the question of malice, the court agreed that there was evidence which supported the trial judge's finding that Maksymec was motivated by spite and acted with an intention to injure Botiuk.
56 On the issue of qualified privilege, it determined that Maksymec had no duty to present the Report. First, the special financial commission, on whose behalf he professed to be reporting, had made its recommendation to the UCC executive and had ceased to exist years before May 1978. Second, the general meeting of the UCC had no corresponding interest in receiving the Report. As for the Lawyers' Declaration and the Maksymec Reply, the Court of Appeal agreed with the trial judge that these documents went far beyond what was necessary in order to respond to the Sokolsky‑Muz Declaration and therefore exceeded any qualified privilege that might have existed.
57 On the question of joint liability, the court again agreed that the trial judge was correct in holding that the three documents should be treated as one act of libel and in awarding a single set of damages in respect of them against all the appellants jointly and severally.
58 The liability of Maksymec & Associates Ltd., as found by the trial judge, was affirmed. It was from this company's premises that Maksymec had mailed the Maksymec Report, Lawyers' Declaration and Maksymec Reply in an envelope bearing the company's name and return address. The court agreed that since Maksymec was the company's principal shareholder and officer and its directing mind, it became associated with his libellous publications.
59 Finally, with respect to the quantum of damages, the court agreed that there was evidence that the libel had adversely affected Botiuk's professional practice. However, it held that since special damages were not specifically pleaded, they could only form a part of the general damage award. In the court's view, a fair sum for compensatory damages was $200,000.
60 The court ruled that there should be some reduction in the term of prejudgment interest as a result of the delay occasioned by Botiuk in proceeding to trial. It reduced it to a period of 10 years. As for costs, the court agreed that since Botiuk discharged the burden of establishing that the judgment obtained by him was more favourable than the terms of his offer to settle, there was no basis for interfering with the trial judge's award of costs on a solicitor‑client basis subsequent to the date of the offer.
III. Analysis
(A) Did the Appellants Defame the Respondent
61 The nature and history of the action for defamation were discussed in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.
62 For the purposes of these reasons, it is sufficient to observe that a publication which tends to lower a person in the estimation of right‑thinking members of society, or to expose a person to hatred, contempt or ridicule, is defamatory and will attract liability. See Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067, at p. 1079. What is defamatory may be determined from the ordinary meaning of the published words themselves or from the surrounding circumstances. In The Law of Defamation in Canada (2nd ed. 1994), R. E. Brown stated the following at p. 1‑15:
[A publication] may be defamatory in its plain and ordinary meaning or by virtue of extrinsic facts or circumstances, known to the listener or reader, which give it a defamatory meaning by way of innuendo different from that in which it ordinarily would be understood. In determining its meaning, the court may take into consideration all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented.
63 When the payment was made by Metro Toronto to Botiuk for his work at the Vannini inquiry, insidious rumours began to circulate in the Ukrainian community that he was in breach of his agreement to donate those funds to the Kosygin Demonstration Fund. The article published in the Free Word on March 12, 1977 asked why, if there was an agreement among Ukrainian lawyers to donate their services, the funds were in the possession of Botiuk.
64 The UCC, the very organization that was purported to be the beneficiary of the funds, sought to put these pernicious rumours to rest. To that end, it published a letter in the community newspaper on March 15, 1977, reiterating that financial matters connected with the demonstration had already been reported and were satisfactorily settled. A few days earlier, it should be remembered, those same concerns had been raised during a meeting of the executive of the UCC and answered to the complete satisfaction of all those in attendance. Indeed, Botiuk was publicly thanked for his generosity. It was, by then, clear that Botiuk had done nothing wrong. Rather, he was to be commended for his actions.
65 In the face of the satisfactory explanations of the UCC executive, on May 5, 1978 Maksymec published a Report which seemed to be carefully calculated to injure Botiuk. He began by listing a large group of Ukrainian lawyers, including Botiuk, who had agreed to provide their services free of charge. He then set out the relevant financial aspects relating to the conduct of the criminal and inquiry proceedings, namely the fees paid to the non‑Ukrainian lawyers, the administrative expenses as well as the total income derived from donations and from Metro Toronto. He then asserted that this income was to be used for a special immigration fund for the benefit of Ukrainians outside Canada. He finished by stating that, while the portion of the funds received from Metro Toronto which was paid to Carter had been deposited in the immigration fund, the remainder of that money, which rightfully belonged to the UCC, was being withheld by Botiuk. The inference was very clear: Botiuk was a dishonourable person, if not a thief.
66 Once again, the leadership of the UCC attempted to rectify the situation by issuing the Sokolsky‑Muz Declaration. This document noted that while the original intention might have been for Botiuk to submit a general account in the name of all Ukrainian lawyers and turn over the money collected, this approach had been rejected. In other words, any understanding there might have been among the lawyers had been nullified.
67 The trial judge observed that, had matters ended with the Sokolsky‑Muz Declaration, there would probably have been no cause of action. However, Maksymec persisted in his efforts to defame Botiuk by recruiting the appellant lawyers and having them sign the Lawyers' Declaration. The endorsement of eight prominent lawyers from the Ukrainian community had the effect of greatly enhancing the credibility of Maksymec's charges. The testimony of a number of witnesses clearly demonstrated that members of the Ukrainian community were convinced that this group of lawyers would not have signed a document containing such serious allegations if they were not true.
68 As well, Maksymec published the Maksymec Reply and presented it to the Ontario Council of the UCC. It refused to deal with his complaint. Once again, despite the clear and repeated repudiations of his claims by the UCC, Maksymec continued with his vendetta against Botiuk.
69 There can be no doubt that the trial judge was correct in concluding that the combined effect of the three documents published by Maksymec and the appellant lawyers was clearly defamatory. These documents unmistakeably implied that Botiuk was dishonourable and dishonest. They cast doubt upon his integrity, the most important attribute of any lawyer.
70 The devastating effect of the three publications was confirmed by the testimony of many witnesses. For example, Alderman Negridge, a prominent member of the community, spoke with tears in his eyes about members of the Ukrainian community who had "walked miles to give their donations of five or ten dollars" to help the cause and how Botiuk had misappropriated those funds.
71 The publications led some people to believe, as Negridge obviously did, that Botiuk had received and wrongly kept money from the Kosygin Demonstration Fund of donations. This was a false and mistaken belief. In fact, only the appellants Onyschuk and Maksymec made use of Demonstration Fund monies, the former to recoup his disbursements and the latter to pay for the publication costs of a book by the UCC which he had personally guaranteed.
72 Unfortunately, even at the time of the trial, more than 12 years after the libels were published, some people still believed the rumours concerning Botiuk. The trial judge was correct in his assessment that "notwithstanding the result of this action, the [respondent] will continue for the rest of his time to be considered by some members of the Ukrainian community as the lawyer who took or kept $10,000.00 from that community". There can be no doubt that each of the impugned documents was libellous.
(B) Joint Liability
73 The appellant lawyers contend that the trial judge erred when he held that all three publications were to be considered a single libel. They submit that since they were only involved with the Lawyers' Declaration, their responsibility should be limited to damages flowing from the publication of that document. They rely for this proposition on the rule which provides that every defamatory publication generally gives rise to a fresh cause of action. I cannot accept that submission. The so‑called "single publication rule" does not apply to concurrent tortfeasors, who can be defined as persons whose torts concur, or run together, to produce the same damage.
74 In The Law of Torts (8th ed. 1992), Fleming discusses the concept of joint concurrent tortfeasors. He states this at p. 255:
A tort is imputed to several persons as joint tortfeasors in three instances: agency, vicarious liability, and concerted action. The first two will be considered later. The critical element of the third 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. [Emphasis added.]
75 The appellants' actions bring them within the third category of joint tortfeasors so well described by Fleming. In the context in which the text writer has utilized the word conspiracy, it refers to the design or agreement of persons to participate in acts which are tortious, even though they did not realize they were committing a tort.
76 As set out in Hill, supra, "[i]f one person writes a libel, another repeats it, and a third approves what is written, they all have made the defamatory libel" (para. 176). This statement is applicable to the case at bar. The Lawyers' Declaration expressly adopted the contents of the Maksymec Report. It follows that the appellant lawyers must be jointly responsible with Maksymec for the publication of the Report. The appellant lawyers accepted and intended that Maksymec would use the Declaration extensively and publish it. They placed no restrictions on the use to which it might be put. The Declaration and Report are by their terms inextricably interrelated. By their actions, the appellants became joint tortfeasors. Further, they, as lawyers, signed the Declaration without undertaking any investigation. For lawyers to act in this way constituted reckless behaviour. Therefore, they must be as responsible as Maksymec, not only for its publication but also for its subsequent republication.
77 The appellant lawyers are, as well, jointly and severally liable with Maksymec for the damage caused by the Maksymec Reply. The inclusion of the Lawyers' Declaration in the Maksymec Reply was a natural and logical consequence of the lawyers signing it without placing any restrictions on its use. Support for this position can be found in Basse v. Toronto Star Newspapers Ltd. (1983), 44 O.R. (2d) 164 (H.C.), at p. 165, and Gatley on Libel and Slander (8th ed. 1981), at pp. 119‑20.
(C) Qualified Privilege
78 Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. It was explained in this way by Lord Atkinson in Adam v. Ward, [1917] A.C. 309 (H.L.), at p. 334:
. . . a privileged occasion is . . . an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.
See also McLoughlin v. Kutasy, [1979] 2 S.C.R. 311, at p. 321.
79 Where an occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute. It may be defeated in two ways. The first arises if the dominant motive for publishing is actual or express malice. Malice is commonly understood as ill will toward someone, but it also relates to any indirect motive which conflicts with the sense of duty created by the occasion. Malice may be established by showing that the defendant either knew that he was not telling the truth, or was reckless in that regard.
80 Second, qualified privilege may be defeated if the limits of the duty or interest have been exceeded. In other words, if the information communicated was not reasonably appropriate to the legitimate purposes of the occasion, the qualified privilege will be defeated. This was discussed at some length in Hill, supra, and there is no need to repeat it in these reasons.
81 The appellants contend that they are entitled to raise the defence of qualified privilege in two ways. First, Maksymec asserts that in publishing his Report to the annual general meeting of the UCC in May 1978, he was acting pursuant to a duty to report which arose as a result of both his position on the special financial commission as well as his overall involvement in the inquiry proceedings. Second, both Maksymec and the appellant lawyers claim that the Lawyers' Declaration and the Maksymec Reply were a legitimate response to the Sokolsky‑Muz Declaration.
(1) Qualified Privilege in Relation to the Report
82 Maksymec argues that the special financial commission had been specifically established to make proposals as to how the UCC should use the costs paid by Metro Toronto and to present an accounting of the expenses incurred by the UCC in connection with the proceedings. I agree with the trial judge that by 1978, no duty, however widely it might be defined, remained to be discharged by Maksymec. The commission had long since ceased to exist. It had fulfilled its assigned function shortly after its creation by suggesting that a special immigration fund be established. The recovery of funds was never a part of its mandate.
83 Further, the UCC had no interest in receiving the Maksymec Report four years after the events. The evidence adduced indicated that those in attendance at the annual general meeting neither expected it nor wanted it to be introduced.
84 I am, however, prepared to accept the existence of a duty arising from Maksymec's position as a former president of the UCC. It was during his administration that the proceedings arising out of the anti‑Kosygin demonstration commenced. Similarly, the UCC had a reciprocal interest in receiving pertinent information in light of the rumours which had been circulating within the Ukrainian community. The annual general meeting of the UCC, where discussions relating to community affairs took place, was an appropriate forum to present the Maksymec Report.
85 This said, I am satisfied that the limits of the privileged occasion were clearly exceeded. As the trial judge stated, Maksymec may have wanted to address the rumours in order to distance himself from the gossip, but in doing so it was unnecessary to defame Botiuk. The libellous references to Botiuk contained in the Maksymec Report exceeded the qualified privilege that attached to the occasion.
(2)Qualified Privilege in Relation to the Lawyers' Declaration and the Maksymec Reply
86 Both Maksymec and the appellant lawyers claim that the occasion was privileged because in the Lawyers' Declaration and Maksymec Reply they were responding to what they perceived to be an attack on their honesty and integrity presented by the Sokolsky‑Muz Declaration. As this Court held in Douglas v. Tucker, [1952] 1 S.C.R. 275, at p. 286, following Adam v. Ward, supra, a response to a personal attack is protected by a qualified privilege. However, that response must be "germane and reasonably appropriate to the occasion". See also Gatley on Libel and Slander, supra, at p. 218.
87 The Sokolsky‑Muz Declaration attacked the Maksymec Report as "groundless and untrue" and "harmful to the community". The appellants were entitled to respond to protect their interest and, therefore, the defence of qualified privilege was available to them. However, they went well beyond what was reasonably appropriate to the occasion, and as a result, they lost the protections afforded by that defence.
88 As the trial judge observed, "it was [not] necessary for the [appellants] to continue to defame the [respondent] in order to deal with the Sokolsky‑Muz declaration". Neither the Lawyers' Declaration nor the Maksymec Reply was a measured response to the document authored by the UCC. By adopting the omissions and inaccuracies of the Maksymec Report, the Lawyers' Declaration and Maksymec Reply increased the injurious effect of the defamation contained in the Report.
(D) Liability of Maksymec & Associates Ltd.
89 On behalf of the company, it is argued that a corporation can only be held liable for the acts of its agents if they are acting pursuant to the corporation's express authorization, or in direct obedience of its orders, or within the authority and power conferred on them by the corporation. It is submitted that there was no evidence that either Maksymec or his secretary were acting with the authority of the corporation when they stamped the company's name and return address on the envelopes used to send the libellous documents to selected members of the Ukrainian community.
90 The Court of Appeal upheld the trial judge's finding of liability on the part of Maksymec & Associates Ltd. It found that, by his action and in his capacity as the principal shareholder and officer of the company and its directing mind, Maksymec clearly associated the company with the defamatory statements. I agree with this conclusion. As Lord Denning states in H. L. Bolton (Engineering) Co. v. T. J. Graham & Sons Ltd., [1957] 1 Q.B. 159 (C.A.), at p. 173, "the intention of the company can be derived from the intention of its officers and agents". See also Standard Investments Ltd. v. Canadian Imperial Bank of Commerce (1986), 52 O.R. (2d) 473 (C.A.).
(E) Damages
91 In Hill, supra, the importance of the reputation of the individual was discussed. These words appear at para. 107:
A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society's laws.
92 It was observed in Hill that this is particularly true of lawyers. A reputation for integrity and trustworthiness is the cornerstone of their professional life. Injury done to reputation can only with the greatest difficulty be repaired. As Cardozo J. put it in People ex rel. Karlin v. Culkin, 162 N.E. 487 (N.Y. 1928), at p. 492, "[r]eputation in such a calling is a plant of tender growth and its blossom, once lost, is not easily restored". It should be recognized that these observations will be equally applicable to other professions and callings. It is simply that this case is concerned with a lawyer. I would add that for a lawyer whose practice stems in large part from a tightly knit, ethnic community, a charge of dishonesty would undoubtedly cause a crushing injury.
93 The trial judge found that prior to the libel, Botiuk was, in every way, a leader in the Ukrainian community. He had reached a "high pinnacle of success" and enjoyed a "first‑class reputation". Following the publications, his practice, his personal and social life, even his health, suffered greatly. In addition, the devastating effects of the libellous statements have persisted over the years.
(1) Malice
94 The figure of $140,000 arrived at by the trial judge included an award for aggravated damages. In my reasons in Hill, supra, the following appears at para. 190:
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. See, for example, Walker v. CFTO, supra, at p. 111; Vogel, supra, at p. 178; Kerr v. Conlogue (1992), 65 B.C.L.R. (2d) 70 (S.C.), at p. 93; and Cassell & Co. v. Broome, supra, at pp. 825‑26. 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. See Taylor v. Despard, supra, at p. 975.
95 The trial judge had no difficulty finding that Maksymec was motivated by express malice. I agree. Overwhelming evidence was presented upon which he could base this conclusion. Of a little greater complexity is the question of whether the appellant lawyers were also motivated by malice.
96 A distinction in law exists between "carelessness" with regard to the truth, which does not amount to actual malice, and "recklessness", which does. In The Law of Defamation in Canada, supra, R. E. Brown refers to the distinction in this way (at pp. 16‑29 to 16‑30):
. . . a defendant is not malicious merely because he relies solely on gossip and suspicion, or because he is irrational, impulsive, stupid, hasty, rash, improvident or credulous, foolish, unfair, pig‑headed or obstinate, or because he was labouring under some misapprehension or imperfect recollection, although the presence of these factors may be some evidence of malice.
97 The author then puts forward the reasons of Lord Diplock in Horrocks v. Lowe, [1975] A.C. 135 (H.L.), as representative (though not definitively) of the Canadian position. In that case Lord Diplock wrote at p. 150:
. . . what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, "honest belief". If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. . . But despite the imperfection of the mental process by which the belief is arrived at it may still be "honest", that is, a positive belief that the conclusions they have reached are true. The law demands no more. [Emphasis added.]
98 This proposition does indeed seem to be generally representative of the Canadian position on the matter. However, when the defendants are lawyers who must be presumed to be reasonably familiar with both the law of libel and the legal consequences flowing from the signing of a document, their actions will be more closely scrutinized than would those of a lay person. That is to say, actions which might be characterized as careless behaviour in a lay person could well become reckless behaviour in a lawyer with all the resulting legal consequences of reckless behaviour. That is the very situation presented in this case.
99 The appellant lawyers signed a Lawyers' Declaration which stated that they had "familiarized" themselves with the Report and that it "correctly and accurately" reflected the state of affairs during and after the Kosygin demonstration. Yet, several of them had not even read it. Most of them did not know anything about the preparation of Botiuk's account. Some neither talked to Botiuk before signing the Lawyers' Declaration nor discussed it with the others. As lawyers, they should have known how significant the impact of the Lawyers' Declaration would be on Botiuk. They were duty-bound to take reasonable steps to investigate and ensure that the document was correct.
100 In the Maksymec Reply, Maksymec referred to the Lawyers' Declaration as the basis for the statement that the various lawyers, including the appellants, gave generously of their time and assistance before and during the Vannini inquiry and that they had agreed not to charge for their work. Although the appellants knew that in reality they had contributed very little and that there could not have been any such agreement, they did nothing to correct the inaccurate impression left by the Maksymec Reply and raised no objection to Maksymec's subsequent use of the Lawyers' Declaration.
101 Although it is not determinative, the conduct of the appellant lawyers prior to and during the trial can properly be taken into consideration as an indication of their general attitude toward Botiuk. None of them apologized to him or retracted what was written in the Lawyers' Declaration. Rather, as the trial progressed and the true situation was revealed, each continued to maintain that the plaintiff was wrong. As the trial judge found, the appellants Zarowsky and Bardyn manifested hostility towards the plaintiff during their testimony, particularly in relation to the extent of Botiuk's participation at the inquiry. Despite the overwhelming evidence on this point, most of the lawyers were reluctant to acknowledge how little each of them had done and, conversely, how much Botiuk had given of his time and energy.
102 The appellants must have, or at the very least should have, realized that the endorsement of eight prominent lawyers would have a devastating effect on Botiuk's reputation. The evidence indicates that after the publication of the Lawyers' Declaration, public opinion in the community swung decisively against Botiuk. Witnesses testified that they became convinced that the rumours might actually be true after they had read the document.
103 Taking into account the appellants' status as lawyers and influential persons in the community, and the effect of their concerted action in signing the Lawyers' Declaration, I am satisfied that their conduct in signing the document without undertaking a reasonable investigation as to the correctness of the document, which they were duty-bound to do, was reckless. This same conclusion can be reached from their failure to place any restriction or qualification upon the use that could be made of it. The legal consequence of their recklessness is that their actions must be found to be malicious. Since both Maksymec and the appellant lawyers were motivated by malice, they are, therefore, jointly and severally liable for the $140,000 award, including that portion which represents aggravated damages, as well as for the $325,000 special damages award, which I will discuss later.
(F) Assessment of Damages
104 A number of the issues raised in this appeal pertaining to damages have been discussed and determined in Hill, supra. As a result, they can be dealt with in a relatively summary manner in these reasons.
(1) Comparison With Awards Made in Other Libel Cases
105 In Hill it was emphasized that each libel case is unique and little can be gained from a detailed comparison of awards made in other cases. It was explained in these words (at para. 187):
The assessment of damages in a libel case flows from a particular confluence of the following elements: the nature and circumstances of the publication of the libel, the nature and position of the victim of the libel, the possible effects of the libel statement upon the life of the plaintiff, and the actions and motivations of the defendants.
(2) Should a Cap Be Imposed on Damages in Defamation Cases
106 For the reasons expressed in Hill a cap on damages in defamation cases is neither needed nor desirable.
(3)Appellate Review of Assessments of Damages in Defamation Cases
107 Perhaps the cautionary note expressed in Hill bears repeating. Namely, that appellate courts should, for the reasons expressed in Hill, proceed with restraint and caution before making any variation in assessments of damages in libel cases.
(4) Special Damages
108 It will be remembered that the trial judge awarded Botiuk special damages for the loss of income from his practice occasioned by the libellous publications. However, the Court of Appeal held that since Botiuk had not specifically claimed special damages, they should not have been awarded. A portion of the special damages was then added to the award as an element of the general damages. With the greatest respect, I cannot agree with that position.
109 It is true that proof relevant to special damages may be admissible for the purpose of supporting general damages. However, unlike general damages, actual pecuniary loss is not presumed. Therefore, special damages must be specifically pleaded and proved in court. See The Law of Defamation in Canada, supra, at p. 25‑75.
110 In my view, the loss of business was sufficiently pleaded to warrant the award of special damages. In his amended fresh statement of claim, Botiuk pleaded that, by reason of the defamatory statements made against him, he suffered, among other things, a "loss in his practice of his profession as a barrister and solicitor" and "suffered injury to his career". A lump sum for damages was claimed to compensate for these injuries.
111 Special damages may arise from a general falling of business, a loss or decline of patronage and a loss of custom. If the libellous words are in their nature intended, or are reasonably likely to produce, or actually do produce, such a loss, the plaintiff may recover. See Gatley on Libel and Slander, supra, at pp. 94‑100.
112 This is one of those rare cases in which it was possible to adduce the necessary evidence to prove actual pecuniary loss. There was ample evidence presented upon which the trial judge could properly base his decision to award and arrive at his assessment of the special damages. It follows that neither the finding that all of the appellants are jointly and severally liable for the compensatory damages, nor the assessment of special damages, should have been disturbed by the Court of Appeal. I would, therefore, restore the special damages award made by the trial judge.
(5) Prejudgment Interest
113 The trial judge made two decisions with respect to the award of prejudgment interest. First, he excluded that portion of the compensatory damage award attributed to the present value of future pecuniary loss. Second, he determined that the period of entitlement to prejudgment interest was governed by s. 138(2) of the Courts of Justice Act, 1984, S.O. 1984, c. 11, and amounted to 12½ years.
114 The Court of Appeal reduced the period for which prejudgment interest would be computed from 12½ to 10 years. It was said that this reduction was necessitated by the failure of successive counsel of record for Botiuk to pursue the action. The interest rate of 13 percent was not disputed.
115 The appellants contend that in fixing Botiuk's general damages, the trial judge explicitly and the Court of Appeal implicitly took into account the effects of inflation. It is argued that the addition of the prejudgment rate of 13 percent amounts to a double recovery. The appellants contend that Borland v. Muttersbach (1985), 53 O.R. (2d) 129 (C.A.), was wrongly applied or alternatively, that it was wrongly decided.
116 In Borland consideration was given to the question of prejudgment interest. Objection was taken to the award of prejudgment interest on the non‑pecuniary general damages of one of the plaintiffs. The award was made under the discretionary power conferred on the trial judge by s. 36(6) of the Judicature Act, R.S.O. 1980, c. 223. That subsection permits the judge to vary the rate of interest and the period for which it is payable, "where he considers it to be just to do so in all the circumstances", from the rate prescribed in s. 36(3) of the Act for general or non‑pecuniary damages.
117 It was contended in Borland that since the ceiling on awards for non‑pecuniary damages established by the "trilogy" of cases from this Court could be increased to reflect inflation (Lindal v. Lindal, [1981] 2 S.C.R. 629), the award of prejudgment interest on the inflated sum amounted to a double payment. The Court of Appeal did not agree and upheld the trial judge's decision on this matter.
118 The trial judge in Borland had observed that the award adjusted for inflation buys no more that the original figure did in 1978. He went on to determine that whatever the award, the statute gives the plaintiff the prima facie right to receive prejudgment interest on it at the prevailing prime rate. In the absence of such a guarantee, there would be no incentive for defendants to make advance payments, thereby foregoing investment income. He concluded that the fact of inflation is not a proper ground for depriving plaintiffs of their prima facie right to receive prejudgment interest.
119 In my view, the decision in Borland is correct and the reasoning should be applied to the award made to Botiuk. This is what the trial judge did and, with great respect, the Court of Appeal erred in varying his decision pertaining to the award of interest. The trial judge considered the delays occasioned by Botiuk's counsel and rightly concluded that they had been taken into account in the Court of Appeal's disposition of the 1990 motion to dismiss the action. In the result, I would restore the trial judge's determination that Botiuk was entitled to prejudgment interest for a period of 12½ years.
IV. Costs
120 The award of costs made by the trial judge should be upheld. Botiuk successfully met the burden of establishing that the judgment he obtained was more favourable than the terms of the offer to settle submitted by him.
V. Disposition
121 In the result, the appeals are dismissed with costs. The cross‑appeals are allowed with costs. The order of the Court of Appeal is set aside, and the judgment of the trial judge is restored.
The following are the reasons delivered by
122 Major J. -- I agree with the reasons of Justice Cory, but have some observations on the extent of liability for defamatory publications where more than one defendant is involved.
123 It is not clear how the trial judge concluded that he would treat all the defamatory publications as one libel. It was open to him to consider each act of publication as a separate cause of action. However, the trial judge had a discretion to combine the several closely related publications and to make a single award of damages in relation to those publications (e.g. Barber v. Pigden, [1937] 1 K.B. 664, Hayward v. Thompson, [1982] 1 Q.B. 47 (C.A.)). The various defamatory publications in these appeals were closely intertwined and no basis has been shown that would warrant interfering with that discretion.
124 The trial judge found that the appellant Maksymec and the appellants I. Bardyn, B. Onyschuk, B. Zarowsky, Q.C., and W. Y. Danyliw, Q.C., were joint tortfeasors. He must have concluded that all the appellants acted in concert with one another and that the defamatory statements were published in furtherance of a common design. In order to hold that all the appellants are joint tortfeasors, it is necessary to find concerted action towards a common end (G. H. L. Fridman, The Law of Torts in Canada (1990), vol. 2, at pp. 347-48). It is not evident from the record why the trial judge concluded that all of the appellants had a common intention to defame the respondent Botiuk and consequently were joint tortfeasors.
125 I am not certain from the record that all of the defamatory documents should have been treated as one libel nor that the necessary concerted action was present for a finding of joint and several liability. However, I recognize that the trial judge has an advantage over appellate courts in making findings of fact, particularly in matters of credibility. It would, therefore, be inappropriate absent palpable error to interfere with either the trial judge's findings of fact or the exercise of his discretion.
126 Nevertheless, it is important to note that not all actions in which multiple defendants are sued will result in a finding of joint and several liability. In some cases, it will be more appropriate to consider each defendant's participation separately from that of the others, and to assess liability on an individual basis. In Westbank Indian Bank v. Tomat (1992), 63 B.C.L.R. (2d) 273 (C.A.), the British Columbia Court of Appeal found that liability with respect to each defendant had to be considered separately because the defendants did not act as a formal group, nor did they act pursuant to a civil conspiracy such that the acts of one defendant will be imputed to all the defendants. The degree of each defendant's involvement in the commission of the tort had to be considered and assessed separately.
127 Depending on the circumstances of a given case, it may be necessary to assess each instance of publication as a separate cause of action. The question of whether the defendants acted jointly or in concert should be considered and where there is the absence of common action the defendants' liability ought to be assessed individually.
Appeals dismissed with costs and cross‑appeals allowed with costs.
Solicitors for the appellants Ihor Bardyn et al.: Osler, Hoskin & Harcourt, Toronto.
Solicitors for the appellants B. I. Maksymec and Maksymec & Associates Ltd.: Weir & Foulds, Toronto.
Solicitors for the respondent: Tory Tory DesLauriers & Binnington, Toronto.