Bernstein v. Poon and the pyrrhic perils of exaggerated injuries in Ontario defamation actions
- This article originally appeared in the Ontario Bar Association’s online newsletter on February 25, 2015. Full citations can be found there.
Libel law is all about reputation. So making out a successful and worthwhile defamation claim means proving that a particular publication or utterance was defamatory of the plaintiff. Practically speaking, as with any tort, the key to a worthwhile defamation claim is proving that the plaintiff’s reputation was tangibly harmed.
Considering that your average Ontario Superior Court trial costs tens of thousands of dollars, this reality should give prospective defamation plaintiffs pause for thought before they decide to head to court. In short, when a Court explicitly finds that your libel case is “more about “ego” and “turf warfare” than about reputation …..then you know you’ve got a hard road to hoe.
And yet, this is exactly what occurred in the Ontario Superior Court’s recent decision in Bernstein v. Poon. Consequently, the decision offers an important cautionary tale to prospective defamation litigants who are unable to make a clear distinction between reputational damage that is more akin to insult than actual injury.
Battle of the Bulge: The facts of Bernstein in brief
Two doctors with rival commercialized medical diet plans got all litigious after the defendant, Dr. Pat Poon made critical public statements about the plaintiff’s, Dr. Bernstein’s popular diet program. The comments were made by the defendant in a book and on a Cantonese-language television show that subsequently appeared online. In broad terms, the court found the defendant liable for defamatory statements and innuendos that the plaintiffs’ “Dr. Bernstein Diet” was nutritionally unsound, harmful to patients, merely transitory in its effects, based on false or incorrect science and questionable in its alleged successes.
So, you’ve been defamed: now what?
The truly interesting part of Bernstein however is not that the defendant was found to be liable, but rather, the Court’s discussion of the proper measure of damages. In his decision, Justice Mew pointed out Professor Brown’s seminal proposition regarding damages in defamation [citations omitted]:
General damages in defamation cases flow from the defamatory publication and compensate the plaintiffs for any harm to his or her reputation or emotional well-being. This is often referred to as compensation for the “sting” of the defamation.
His honour went on to quote from the recent Ontario Superior Court decision involving conservative media firebrand Ezra Lavant, in Awan v. Lavant [citations removed]:
The factors to consider in determining the quantum of damages for defamation include the following: the plaintiff’s position and standing, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence or refusal of any retraction or apology, the whole conduct and motive of the defendant from publication through judgment, and any evidence of aggravating or mitigating circumstances….
In the Internet context [recalling that a defamatory television interview had been posted on Dr. Poon’s website], these factors must be examined in the light of the ubiquity, universality and utility of that medium…
Applying these principles to the case at bar, the Court in Bernstein took a rather dim view of the harm alleged by Dr. Bernstein as a result of Dr. Poon’s defamatory statements. Dr. Bernstein had testified that:
a. Dr. Poon’s statements undermined his decades of practice as a physician;
b. He had lost sleep over Dr. Poon’s statements. They had dominated his thoughts and interfered with his life;
c. He had to reassure his family, close friends, patients and staff in order to safeguard his reputation; and
d. Overall, that Dr. Poon’s statements created a public perception that the he did not practice good medicine, and therefore that the public would consequently be suspicious of his competence as a doctor.
Defamation is easy; damages are hard
In analyzing this evidence, the Court compared Dr. Bernstein’s alleged damages to those suffered by a defamed doctor in a similar case: Canadian Broadcasting Corporation v. Meyers. The issues in both cases were roughly analogous: in Meyers, a prominent cardiologist had been defamed on the CBC’s popular Fifth Estate television program. The Supreme Court of Canada made a damage award of $200,000, emphasizing the tangible damages that were visited upon the good doctor by Canada’s National Broadcaster:
a. Broadcasts and rebroadcasts of the programme was seen by over one million people
b. The aftermath of the broadcasts led to Dr. Meyers receiving calls from friends and colleagues inquiring of his professional reputation;
c. The CBC was found to be a news outlet with a wide viewership and a commensurate ability to significantly harm the defendant’s reputation; and
d. The defendants were found to have acted maliciously.
In contrast, on the facts of Bernstein, the Court found that the plaintiff’s alleged damages were of a wholly different order. Justice Mew stated that he was “unconvinced” as to the damages caused to the plaintiff’s reputation, describing them as lacking particularity and “exaggerated” at best. His Honour summed-up at paragraph 169 as to the facts that drove the damages award downwards:
Approximately 10,000 copies of the second edition of Dr. Poon’s book entered circulation, less than the number of patients who each week pass through the plaintiffs’ clinics. Eight thousand copies of the third edition have been sold, with another 12,000 copies still in existence. There was no evidence concerning the traffic on Dr. Poon’s website or what proportion of people visiting Dr. Poon’s website would understand Cantonese and, hence, the video. Indeed, other than the evidence of Dr. Bernstein referred to above, there was no other evidence of the impact, if any, which the publication of Dr. Poon’s words has had on the plaintiff’s reputation or his business interests.
In the result, Justice Mew ordered damages of $10,000 — essentially Small Claims Court money for what turned out to be an 8-year long Superior Court action and all its attendant expense. With this in mind, his Honour mused in closing: “It is for others to decide whether the substantial public resources that have been made available to enable this dispute to be adjudicated are proportionate to the rights and interests that were at stake.” An interesting question indeed.
Takeaways from Bernstein
In the author’s opinion, what comes through Justice Mew’s decision is that Dr. Bernstein’s evidence of harm apparently lacked the definition or specificity seen in Meyers and therefore led to a greatly diminished damages award. Bernstein therefore teaches defamation practitioners everywhere about the importance of pre-action preparation with their prospective client. Identifying prima facie defamatory language and a prospective plaintiff’s bruised ego is the easy part. However, discerning tangible damages is the real driver behind any tort claim and therefore must be considered in the cold light of day.
In addition to its illumination of damages principles in defamation law, Bernstein offers some other interesting features that libel practitioners should know about. Firstly, in the author’s opinion, Bernstein surveys some of the foundational case law regarding making and defending a defamation action, and includes valuable citations, especially for historical cases where the harm caused by defamatory words to a plaintiff’s reputation was negligible. Justice Mew’s reasons therefore serve as an excellent “refresher” for counsel seeking to remind themselves of some of defamation law’s procedural peculiarities.
Second, the Court in Bernstein reminds us of an important point about damages in defamation actions: unlike in classic print-media cases, damages in the online libel cases are, generally speaking, not presumed once the impugned statement has been found to be legally defamatory. As a result, Bernstein reminds all plaintiffs’ counsel that when it comes to cyberlibel, they’d better be ready to document and prove downloads, hits, shares, retweets and the like in order to ground their damages claim. While the plaintiff in Bernstein jumped this hurdle, the principle remains especially relevant in cases where the media outlet accused of defamation is not generally well known, but possibly frequented by a niche community.
- This article is a general survey of the law and expresses Mr. Donald’s personal views on the subject matter discussed. It is not a substitute for, nor does it constitute legal advice. Viewing this article does not create a lawyer-client relationship.
