At the beginning of the year, the legislature amended Ontario’s simplified procedure regime set out in Rule 76 of the Rules of Civil Procedure, RRO 1990, Reg 194. It did so to streamline and simplify court processes, reduce the costs of litigation, and encourage settlements when dealing with modest claims.[1] Amongst other amendments, the new Rule 76 provides for:
- Monetary jurisdiction: The monetary jurisdiction for simplified procedure increased from $100,000 to $200,000;
- Short trials by way of affidavit: Trials are limited to five days, and evidence in chief will be adduced by way of affidavit; and
- Prohibitions on jury trials: Jury trials are no longer permitted and simplified procedure actions will be tried by judges alone, subject to specified exceptions (such as defamation and false imprisonment). When an exception applies and a party delivers a jury notice, the action will continue as an ordinary action.
Because defamation actions proceeding under Rule 76 may advance by way of a jury trial, if a party elects to do so, the defamation action will continue as an ordinary action. Consequently: (1) the jury will assess the quantum of damages; (2) direct examination will be permitted at trial (as opposed to evidence going in by way of affidavit); and (3) the plaintiff will minimize the risk of adverse cost consequences if the jury awards less than $200,000 in damages. These implications are particularly beneficial in defamation actions where a party’s reputation is at stake.
A necessary carve-out for defamation actions
In Hill v Church of Scientology of Toronto, the Supreme Court of Canada (SCC) underscored the significance of protecting an individual’s reputation, having to balance it against the freedom of expression. Recognizing that “[a] good reputation is closely related to the innate worthiness and dignity of the individual”,[2] the SCC held that “the protection of the good reputation of an individual is of fundamental importance to our democratic society”[3] and “it is an attribute that must, just as much as freedom of expression, be protected by society’s laws.”[4]
(1) Damages at large are in the “province of the jury”
It is appropriate that defamation actions be determined by a jury (as opposed to a judge alone). General damages in defamation actions may be awarded “at large” (meaning that a plaintiff does not need to prove the losses suffered from the defamatory statement), and the assessment of such damages are considered within the “province of the jury”.[5] As members of the plaintiff’s community, the SCC in Hill recognized that jurors are “uniquely qualified to assess the damages suffered by the plaintiff.”[6] In making this assessment, the jury may take into account various factors, including the conduct of the plaintiff, the plaintiff’s position and standing, the nature of the defamation, the absence or refusal of any retraction or apology, and “the whole conduct of the defendant from the time when the libel was published down to the very moment of their verdict.”[7] To give effect to these factors, the plaintiff must give direct evidence on his or her reputation.
(2) Examining the person whose reputation is at stake
By continuing under the ordinary procedure, direct examination (meaning that the plaintiff gives live testimony as opposed to an affidavit that is read by a judge) is permitted. Direct examination is important in defamation cases because it provides the jury with an opportunity to assess the plaintiff’s verbal testimony and non-verbal cues in considering the emotional and psychological impact of the defamatory act on the plaintiff.
In Hill, counsel for the defendant asserted that the plaintiff “demonstrated feigned and insincere emotion when he described his reaction to seeing the publication”,[8] further suggesting to the jury that “it may have been nothing more than a “skilled performance to tug at your heartstrings” in order to influence the verdict.”[9] While there is no foolproof mechanism to gauge the authenticity of a party’s demeanour, there is a good argument that examining the plaintiff, as opposed to simply reading their evidence, provides the jury with a value-added means to assess the defamatory act’s impact on the plaintiff.
(3) Minimizing adverse cost consequences
In light of the mandated continuation of the defamation action proceeding by way of an ordinary action if a party proceeds by way of jury, the court should not award an adverse cost award if the jury awards modest damages.
Typically, if a plaintiff fails to bring its action under Rule 76 when it should have (meaning the court awarded damages in an amount equal to or less than $200,000), the plaintiff may be penalized with respect to costs. However, if the plaintiff requests a jury in a defamation action, no adverse costs should flow if the jury awards $200,000 or less in damages to a successful plaintiff. Doing so would undermine the understanding that a jury can award damages “at large”, which are often less than $200,000.
The distinctiveness of defamation actions
The recent amendments to Rule 76 uphold the principles derived from Hill. These changes reflect the significant value placed on reputation, respecting not only that the assessment for damages in defamation actions remain in the “province of the jury”, but also the importance of examining the plaintiff who suffered from the defamatory act. Ultimately, such amendments give effect to protecting what is “cherished above all” – a good reputation.[10]
For more information, please contact Meredith Bacal or another member of Dentons’ Litigation and Dispute Resolution group.
The author would like to thank Michelle Ling, Dentons Articling Student, for her assistance with this article.
[1] Ontario Newsroom, Bulletin, “Ontario Making it Easier, Faster for People to Resolve Claims” (13 November 2019), online: <https://news.ontario.ca/mag/en/2019/11/ontario-making-it-easier-faster-for-people-to-resolve-claims.html>.
[2] Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130at para 107 [Hill].
[3] Hill at para 120.
[4] Supra note 2.
[5] Hill at para 164.
[6] Hill at para 158.
[7] Hill at para 182.
[8] Hill at para 49.
[9] Ibid.
[10] Supra note 2.
