ABSTRACT
The law governing defamation damages is problematic. Damages are presumed, without the need for any supporting evidence, once the elements of the tort are established. They are at large and reflect intangible injuries, so their precise quantification is inevitably arbitrary. Their quantum is increasing at far greater than the rate of inflation. Indeed, the internet era seems to have given rise to a dramatic increase in non-pecuniary damages in defamation. 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, and have rejected some of what was said in Hill to justify rejecting a cap. 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, since Hill. Fourth, Ontario and other provinces have created privacy torts, protecting interests similar to reputation, and they generate relatively low damages awards. The gap between defamation and privacy damages is unjustifiable. 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 $214,000 in 2024 dollars.
Young, Hilary and Bustard, Adora, Capping Defamation Damages (February 1, 2025).
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