CITATION: Gill v. Singh, 2011 ONCA 770
DATE: 20111207
DOCKET: C51782
COURT OF APPEAL FOR ONTARIO
Feldman, Sharpe and Epstein JJ.A.
BETWEEN
Gurdev Singh Gill
Plaintiff (Respondent)
and
Kanwar N. Singh and Kanwaljit Kaur Singh, both carrying on business as “AJIT”, Kanwar Sandeep Singh, Author and Darshan Singh also known as Darshan Singh Sapmark
Defendants (Appellants on Appeal) Kanwar N. Singh and Kanwaljit Kaur Singh
Bobby H. Sachdeva, for the appellants
Sidney Klotz, for the respondent
Heard & released orally: November 25, 2011
On appeal from the decision of Justice Gordon Lemon of the Superior Court of Justice dated February 2, 2010.
ENDORSEMENT
[1] The appellants appeal both liability and the damages awarded in this defamation action arising from articles published in a newspaper intended for the Sikh community. The respondent is a member of that community and a publisher of a rival newspaper.
1. Liability
[2] We see no merit in the argument that the appellants are not liable on the ground that the respondent failed to prove their specific roles in the publication of the articles. All named defendants, including the appellants, admitted in the statement of defence that they “published” the article and that provides a complete answer to this submission.
[3] While the trial judge found one named defendant, Darshan Singh, not liable, the statement of defence did provide some elaboration as to why that defendant should not be liable, distinguishing him from the appellants.
2. Damages
[4] The trial judge awarded $50,000 for general damages and $25,000 for punitive damages.
(a) General damages
[5] We do not agree with the submission that there was any procedural unfairness accruing to the appellants because of inadequate pleading or inadequate answers given to written interrogatories as to the damages claimed by the respondent. In defamation, damages are at large and damages for mental suffering form the essence of those damages. We do not accept that the appellants were taken by surprise by the claim advanced at trial and accepted by the trial judge.
[6] While the award of $50,000 general damages was certainly generous in the light of the evidence that the respondent did not suffer loss of political career or business, it was not so excessive so as to attract appellate intervention. In his reasons at para. 29, the trial judge focused on the mental suffering and distress suffered by the respondent in the particular circumstances of his prominence in this particular community and the humiliation he felt because of the articles. In our view, the damages he awarded, while generous, were within the range of acceptability.
[7] In the circumstances, we see no basis upon which an appellate court could interfere with those findings or with the general damage award.
(b) Punitive damages
[8] This was not a case for punitive damages which in law are reserved for exceptional cases. Malice was neither pleaded nor proven as found by the trial judge. The lack of an apology standing by itself did not, in our view, provide an adequate basis for punitive damages. The other factors identified by the respondent as justifying punitive damages namely, late admissions at trial, were matters of trial tactics that would more appropriately be taken into account with respect to the costs of the trial.
[9] In our view, the trial judge erred in law in awarding punitive damages, particularly in the light of that generous damage award.
DISPOSITION
[10] Accordingly, the award of punitive damages is set aside but otherwise the appeal is dismissed with costs to the respondent fixed at $5,000 inclusive of disbursements and H.S.T.
“K. Feldman J.A.”
“Robert J. Sharpe J.A.”
“G.J. Epstein J.A.”