Citation and Court Information
CITATION: Wright v. Kehoe, 2010 ONSC 319
DIVISIONAL COURT FILE NO.: 451/09
DATE: 20100112
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, LEDERMAN AND SACHS JJ.
BETWEEN:
CAMILLE WRIGHT Plaintiff (Respondent)
– and –
DAVID KEHOE and TOTAL CREDIT RECOVERY LIMTED Defendants (Appellant)
Hugh Pattison, for the Respondent
Mark A. Ross, for the Appellant
HEARD at Toronto: January 12, 2010
Reasons for Judgment
LEDERMAN J. (ORALLY)
[1] This is an appeal from a judgment of D. Wilson J. dated November 27, 2008 confirming a jury’s assessment of damages in the sum of $40,000.00 for slander and costs awarded on a substantial indemnity basis.
[2] The appellant is a collection agency, Total Credit Recovery Limited or TCR. TCR had a dispute with the respondent Camille Wright who worked as a float officer at a bank. The dispute was related to a leased automobile which had been repossessed by the lessor. Ms. Wright received several phone calls from TCR’s employee David Kehoe regarding payment beginning in June 2005. The respondent asked for the particulars of the sale of the vehicle and the calculation of what was owing which she did not receive.
[3] On November 18, 2005, Mr. Kehoe phoned the manager, Karen Avery-Lum at the bank where the respondent Ms. Wright worked and made false statements about her. The jury found that Mr. Kehoe falsely represented himself as a lawyer to Ms. Avery-Lum, stated that the Court had awarded his client a garnishment of Ms. Wright’s wages for her failure to defend herself in Court and stated that he needed to confirm Ms. Wright’s address. He also stated that Ms. Wright’s failure to defend herself in Court had resulted in the garnishment and that it would be in Ms. Wright’s best interests to contact him and settle the matter. The jury found that these words had been spoken, that they were defamatory and it assessed the general damages at $40,000.00.
[4] The appellant submits that the jury’s assessment of damages is patently excessive and out of proportion with the proper compensation for the type of injury suffered by the respondent. It claims that the assessment of damages constituted an erroneous determination of the facts that was palpable and overriding. It accepts that the words were spoken and that they were defamatory. However, the appellant argues that the damages should be reduced to $10,000.00 because Ms. Avery-Lum was not concerned about the words spoken to her; she did not tell anyone else at the bank about this conversation; and the conversation was a private matter unrelated to Ms. Wright’s employment. It claims that there was no evidence that Ms. Wright was passed over for a promotion or failed to obtain regular raises and bonuses.
[5] The appellant admits that the threshold for reviewing a jury’s award is set very high, requiring that the verdict is so exorbitant or so grossly out of proportion to the slander as to shock the Court’s conscience and sense of justice, or so inordinately high that it must be a wholly erroneous estimate of damages. Relying on the cases of Howes v. Crosby, [1984] O.J. No. 3127 (C.A.) and Snushall v. Fulsang, [2005] O.J. No. 4069 (C.A.), the appellant defined “inordinate” as too high or too low by fifty percent.
[6] The appellant acknowledges that general damages are at large and include reputational loss, injured feelings, conduct of the parties and absence of an apology or retraction.
[7] The appellant takes no issue with the trial judge’s charge to the jury on general damages.
[8] No apology or retraction of the false statements has been made by the appellant at any time.
[9] There was some evidence before the jury upon which it could reasonably conclude that the slander adversely affected the respondent in her workplace. Of particular importance is the fact that she was employed as a float officer handling large amounts of cash at the bank.
[10] The jury could have reasonably concluded that the appellant made the call to the respondent’s employer for the obvious malicious purpose to have her employer exert pressure on the respondent to pay the debt.
[11] A jury, as representative of the community, is uniquely positioned to assess reputational loss caused by slander. General damages, by their nature, may be assessed differently by different juries and judges. A jury is given wide latitude in performing this function and it is not for an appellate court to second guess the amount awarded so long as the amount is within a range of reasonableness and not wholly out of all proportion to the circumstances.
[12] Here, the appellant submits that the proper and reasonable amount for general damages ought to have been a maximum of $10,000.00.
[13] In our view, while $40,000.00 is on the high side, it is not anomalous. It was reasonable for the jury, on a consideration of the evidence before it, to award this amount. There was no palpable and overriding error and we see no basis to interfere with this award.
[14] The appeal is therefore dismissed.
FERRIER J.
[15] I have endorsed the Appeal Book, “Appeal dismissed for oral reasons delivered this day. Costs to the respondent fixed in the amount of $4,000.00 including disbursements and GST.”
LEDERMAN J.
FERRIER J.
SACHS J.
Date of Reasons for Judgment: January 12, 2010
Date of Release: January 26, 2010
CITATION: Wright v. Kehoe, 2010 ONSC 319
DIVISIONAL COURT FILE NO.: 451/09
DATE: 20100112
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, LEDERMAN AND SACHS JJ.
BETWEEN:
CAMILLE WRIGHT Plaintiff (Respondent)
– and –
DAVID KEHOE and TOTAL CREDIT RECOVERY LIMTED Defendants (Appellant)
REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: January 12, 2010
Date of Release: January 26, 2010