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digest of the week—“filch from me my good name”

2013 CarswellBC 1094
Casses v. Canadian Broadcasting Corp.
British Columbia Court of Appeal

Judgment: May 1, 2013

 

 

 In Act III, Scene iii of Othello, William Shakespeare’s villain Iago reminds us that

 

      Good name in man and woman, dear my lord,

    Is the immediate jewel of their souls:

    Who steals my purse steals trash; 'tis something, nothing;

    ’Twas mine, 'tis his, and has been slave to thousands;

    But he that filches from me my good name,

    Robs me of that which not enriches him,

    And makes me poor indeed.


 I have often thought this speech to be the source of the arcane and frankly unjust rules of pleading (and of damages, more so) in defamation cases.  A basic rule of Anglo-Canadian jurisprudence is that a plaintiff must not only prove damages, but bears “the plaintiff’s duty to mitigate”, to make those damages as small as reasonably possible.  But not in defamation cases: “filch from me my good name”, and my damages are “at large”.  This means that a defendant’s conduct in the course of litigation, choosing to defend for example aggressively and without apology, sounds in further damages.  Literally, the “defendant’s duty to mitigate”.  This is, I submit, unfair.

Part of that unfairness is the rule of pleading that states that a defendant may not plead a plaintiff’s specific bad acts “tending to character and disposition” in defence to a libel action.  So how might one then value the immediate jewel of a particular plaintiff’s soul?  In Casses v. Canadian Broadcasting Corp., the British Columbia Court of Appeal adopts the judgment of the House of Lords in Plato Films Ltd. v. Speidel, permitting a defendant to plead facts which might on their face constitute a further defamatory statement for the limited purpose of evaluating damages.  “maybe”, says the defendant, “this plaintiff has been robbed of that which not enriches me, but how much poorer is he, really”?  Iago wasn’t a very nice guy, himself – was he?


 
Torts | Defamation | Practice and procedure | Pleadings | Miscellaneous

United Kingdom rule in Polly Peck (Holdings) plc v. Trelford is law of British Columbia — Plaintiff physician was described by various defendants/third parties for broadcast by defendant/third party broadcaster in ways which plaintiff considered defamatory of plaintiff — Plaintiff brought four actions for damages — Defendants/third parties in various actions defended actions on basis of justification, fair comment and responsible public media communication — Certain statements of defence and third party claim or reply pleadings ("impugned pleadings") made reference to allegations of negligence, unprofessional conduct and licence suspensions of plaintiff arising from civil and administrative proceedings in multiple jurisdictions — Plaintiff brought motions for orders striking impugned pleadings as repeating or amplifying alleged defamation and as accordingly contrary to rules of "sting" in defamation pleadings generally — Motions were dismissed and plaintiff appealed — Appeals dismissed — Judgment of Court of Appeal for England in Polly Peck (Holdings) plc v. Trelford ("Polly Peck") is properly applied in British Columbia — Pursuant to rule in Polly Peck, defendant may allege alternative to plaintiff's interpretation of sting of defamatory words, and plead that alternative interpretation — Defendants' pleading which repeats plaintiff's interpretation of sting remains improper pleading in accordance with common-law defamation pleadings rules — Following Polly Peck, before finding that sting of defamatory words claimed by defendant constitutes independent sting, court must "mine any broader context that may be derived from the whole of a publication, in order to determine whether the words complained of are capable of bearing the meaning ascribed to them by a defendant" — In present case, motions judge reasonably held that sting as alleged by defendants/third parties, essentially that protection of public by self-regulating professional college of physicians was inadequate, was capable meaning on record — Accordingly it would be inappropriate to deprive defendants/third parties of defences asserted at pleadings stage and appeals were properly dismissed.

Torts | Defamation | Practice and procedure | Pleadings | Pleading justification | Miscellaneous

"Near justification" pleadings as mitigation pleadings — Plaintiff physician was described by various defendants/third parties for broadcast by defendant/third party broadcaster in ways which plaintiff considered defamatory of plaintiff — Defamatory words included general allegations of plaintiff's incompetence in course of practice of medicine — Plaintiff brought four actions for damages — Defendants/third parties in various actions defended actions on basis of justification, fair comment and responsible public media communication — Certain statements of defence and third party claim or reply pleadings ("impugned pleadings") made reference to allegations of negligence, unprofessional conduct and licence suspensions of plaintiff arising from civil and administrative proceedings in multiple jurisdictions — Plaintiff brought motions for orders striking impugned pleadings as containing "particular facts tending to show the character and disposition of . . . plaintiff", barred by common-law defamation pleadings rules — Motions were dismissed and plaintiff appealed — Appeals dismissed — In judgment of House of Lords in Plato Films Ltd. v. Speidel ("Plato Films"), exception exists to rule barring character and disposition for evidence "which tends to justification" as mitigation of damages pleading — Plato Films exception permits particular facts "if they are of sufficient notoriety to be likely to contribute to his current reputation" — It could not be said that impugned pleadings did not meet that test at pleadings stage, and as they were at least potentially probative of live issues between parties motions judge properly exercised discretion not to strike pleadings and appeal was accordingly properly dismissed.

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