ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-44653
DATE: 2012/12/12

BETWEEN:

Walsh Energy Inc. (c.o.b. as “The Energy Centre”) and Waltek Energy Services Inc. (c.o.b. as “Waltek” or “Energy Plus and Chateau Heating and Cooling”) Plaintiffs

– and –

Better Business Bureau of Ottawa-Hull Incorporated/Bureau d’éthique commercial d’Ottawa-Hull Incorporée (c.o.b. as “Better Business Bureau Serving Eastern and Northern Ontario and the Outaouais”) and Better Business Bureau of Ottawa-Hull Inc. Defendants

John H. Yach, for the Plaintiffs

J. Bruce Carr-Harris and Karen Perron, for the Defendants

HEARD: September 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26 and 28, 2012

REASONS FOR JUDGMENT

McLEAN, J.

[ 1 ] Sometimes an advertising plan can go sour and litigation results. This is an action in libel. The plaintiffs are companies specializing in heating and air conditioning installations. While this is not important for the litigation itself, both companies are controlled by Barry Walsh. For ease, the plaintiffs will be known in this judgment as “Walsh” meaning Walsh Energy Inc. and “Waltek” meaning Waltek Energy Services Inc. operating under their various business styles. Mr. Walsh has a long history of being involved in the heating and air conditioning business and has managed a very successful enterprise for a long period of time. The defendant is the Better Business Bureau (“BBB”) for both the Ottawa area and the Outaouais. BBB is a not-for-profit corporation that provides the consumer with opinions with respect to various businesses.

[ 2 ] BBB publishes opinions on the internet and it is in this sense that they are public. However, they must be searched individually by consumers wishing to obtain information about an individual company. The main way BBB reports on companies is by creating a reliability report. These are provided individually to the public upon an internet search on specific companies. The reports are based on certain criteria which are found on BBB’s website. Prior to 2009, these reliability reports were characterized as ‘satisfactory’, ‘neutral’ (or ‘no report’), and ‘unsatisfactory’. In January, 2009 these reports were changed to a system of grades. The grades – and these will be dealt with later – ranged from ‘A+’ to ‘F’. Both these types of reports were generated by an evaluation of certain criteria, which in turn generated a weighted average, and through a proprietary algorithm, a lettered or other grade or mark was assigned.

[ 3 ] The libels alleged with regard to Waltek are that it went from a ‘neutral’ rating to a ‘B’ rating. Specifically, the libel alleged is that that was low in comparison to other heating, ventilation and air conditioning (“HVAC”) companies that could be searched on the BBB website.

[ 4 ] The libel alleged with regard to Walsh is that with the change in January, 2009 it went from an ‘unsatisfactory’ rating to a ‘D’ to a ‘D–’ rating. An additional allegation of libel in combination with this ‘D–’ rating change is that BBB website indicates ‘unanswered complaints’ when in fact there was only one unanswered complaint.

[ 5 ] From the outset, it should be noted however, that a complete report is found on one webpage that must be scrolled through even though at trial, facsimiles were provided in four separate pages. From the materials provided with respect to the rating system, the weighted average and the algorithm are applied to all businesses listed by BBB on their website. Further, the algorithm generating the lettered grade is applied to each company on the basis of certain criteria as indicated on the website. Both Waltek and Walsh were members of BBB for a period of time. Both companies signed a letter of agreement to abide by the terms of BBB. See Exhibit 1, Volume 1 at Tabs 7 and 10. Walsh was a member of BBB from 1994 to 2007 and Waltek from 2000 to 2007. One of the bases of the agreement was that a business must answer complaints received by it from BBB. These complaints would be forwarded to BBB by a customer of the company itself. Failure to answer complaints would negatively affect the company’s rating.

[ 6 ] Trouble began when Waltek did not respond to a complaint forwarded to BBB in November, 2007. On the basis of the agreement between BBB and Waltek, Waltek’s membership in BBB was revoked because of this failure to answer a complaint. Shortly thereafter Waltek’s membership was reinstated due to a perceived error on the part of BBB of failing to notify Waltek that an appeal route was available and because the revocation policy within BBB had changed from revocation upon two complaints to revocation upon one unresponded-to complaint.

[ 7 ] Notwithstanding the reinstatement of Waltek’s membership, both Walsh and Waltek resigned their memberships by letters of March 27, 2007. (See Exhibit 1, Tabs 74 and 75.) The letters, contained the following paragraph: “Complaints from our customers directed through the BBB will no longer be addressed and will instead be handled directly by Energy Centre/Waltek should the complainant elect to contact us.” Clearly Mr. Walsh was not satisfied with BBB’s method of dealing with complaints. He testified at trial that he was concerned about BBB’s method of conciliating complaints as it forced him to deal with complaints which, in his opinion, had no merit whatsoever. Indeed, it seemed to him, from the information on BBB’s website as to “dealing” with complaints, that it left him vulnerable to frivolous complaints made by unscrupulous customers. He testified that this would show weakness and he felt that it risked leading him to being victimized by customers.

[ 8 ] After this resignation, Waltek’s rating was ‘neutral’ and Walsh’s rating was ‘unsatisfactory’ based on failure to respond to complaints.

[ 9 ] The libels themselves are alleged to have taken place in January, 2009. As noted above, at that time, BBB changed its reliability report system from the prior system, that is to say, from ‘satisfactory’, ‘neutral’ (or ‘no report’), and ‘unsatisfactory’, to a lettered grade system (on an A+ to F scale). There was also a ‘no report’ indication which apparently was below ‘F’.

The Libels

[ 10 ] Regarding Walsh, there are two libels alleged. The first is alleged to have occurred in January, 2009 on the basis of the change of reporting which saw Walsh’s status as being changed from ‘unsatisfactory’ to a ‘D–’ rating. The second is alleged to have occurred since the ‘D–’ rating inaccurately cited complaints when there was in fact only one complaint. The libel alleged as to Waltek is that Waltek went from ‘neutral’ to ‘B’. This is alleged to be libellous when it is compared with the ratings of other similar businesses on BBB’s website.

[ 11 ] The legal definition of ‘libel’ has evolved. The Supreme Court has held that it includes words that are published which tend to lower a person in the estimation of right thinking members of society, or to expose a person to hatred, contempt or ridicule. What is in itself defamatory may be determined from the ordinary meaning of the words published themselves or from the surrounding circumstances. The publication is judged by the standard of an ordinary, right thinking member of society, and therefore the test is an objective one. See Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3, at para. 62, and Color Your World Corp. v. Canadian Broadcasting Corp., 1998 1983 (ON CA), at paras. 14 and 15.

[ 12 ] The objective standard is defined by virtue of a reasonable or ordinary member of the public. This may be difficult to articulate. It has been stated that it should not be so low as to stifle free expression unduly, nor so high as to impair the ability to protect the integrity of a person’s reputation. Impressions about the content of any broadcast or written statement should be assessed from the perspective of someone reasonable, that is, a person who is reasonably thoughtful and informed, rather than someone with an overly fragile sensibility. A degree of common sense must be attributed to the viewers. See Color Your World Corp., at para. 15.

The Waltek Libel

[ 13 ] It is alleged that BBB’s attribution of a ‘B’ rating attracted liability in libel. On cross-examination. Mr. Walsh was also of the view that the report’s reasons for this rating included a number of complaints filed against the business that were not resolved.

[ 14 ] This allegation of libel must be considered in context. When we consider the website, it indicates that a ‘B’ rating translates into a percentage mark of 84 to 86.99. (See Exhibit 6, Tab 155, p. 1115.) Ms. Iadeluca, BBB’s President, testified that when the rating system was changed in January, 2009, this information was available on their website via a hyperlink on the reliability report itself.

[ 15 ] Regarding Waltek, I note that prior to January, 2009 a ‘neutral’ or ‘no reliability’ rating was agreed to by Mr. Walsh. Indeed, he consented to the complaint being posted as unresolved on March 22, 2007. See Exhibit 1, Volume 3, Tabs 71, 72 and 73. A reliability report was approved by Mr. Walsh as having a ‘neutral’ rating. When we consider this in the normal context and meaning of the words “from neutral to B+” it can only seem to the court that this is an improvement, not a diminution and not something that is libellous.

[ 16 ] Moreover, the matter must be considered in its context. The meaning of the ‘B’ rating was part of the BBB website. It indicated this ranking as a numerical mark of 84 to 86.99 percent. See Exhibit 6, Tab 55, page 115. When we consider the reliability report itself, it clearly indicates that there is only one resolved complaint. Simply put, the resolved complaint is part of the reliability report itself and one only has to scroll down to find the statement on the report itself.

[ 17 ] As noted above, this reliability report was a form of report that was indeed consented to by Mr. Walsh. Ms. Iadeluca testified that, prior to the change in rating system, Waltek had a ‘neutral’ rating from March, 2007 to December, 2008, except for one small revocation glitch which is not subject to this litigation. Moreover, it is clear from Mr. Walsh’s testimony that the BBB’s website was monitored from time to time and this ‘neutral’ reliability report was never complained about. It is also clear from Mr. Walsh’s testimony that he was a hands-on type of manager and was at all times well aware of business conditions affecting his company. He was most vociferous of complaining to BBB on a previous occasion with respect to certain reports affecting Waltek that he deemed unsatisfactory. It is therefore the Court’s view that he was satisfied with the ‘neutral’ rating that was in place.

[ 18 ] To establish a proper context with regard to this libel, and the Walsh libel, we must consider the contents of the website itself. (See Exhibit 6, Tab 155.) The website explains the following:

• “Ratings are determined by a proprietary formula that represents BB’s opinion as to (1) the importance of each category, and (2) the appropriate score given to the business for each category.” (See Volume 6, Tab 155, page 1112.)
• “BBB’s rating of a business reflects BBB’s opinion about the business based on information in our files and BBB experience. The rating is not a guarantee of a business’ reliability or performance, and readers should consider a business’ rating in addition to all other available information about the business.” (See Volume 6, Tab 155, page 1112.)
• “The BBB rating is a grade based on a proprietary formula that uses information known to BBB and incorporates BBB experience with the business. The formula evaluates numerous categories of information, and reflects BBB’s weightings as to the relative importance of each category. This rating represents BBB’s degree of confidence the business is operating in a trustworthy manner and will make a good faith effort to resolve any customer concerns.” (See Volume 6, Tab 155, page 1114.)
• Ms. Iadeluca testified that all reliability reports contain the following disclaimer: “BBB Reliability Reports are provided solely to assist you in exercising your own best judgment. Information in this BBB Reliability Report is believed reliable, but not guaranteed as to accuracy.” (See example of Reliability Report at Volume 6, Tab 155, page 1111.)

[ 19 ] Clearly the context for the ratings was provided in detail on the BBB website. This was supported by Ms. Iadeluca’s testimony when she indicated what a potential customer or a viewer should do with these reports: they were only to assist in exercising your best judgment that the reports are believed to be reliable but not guaranteed as to accuracy. In this wider context, the court cannot find that the Plaintiff has satisfied it on the balance of probabilities that these words alleged by Waltek are indeed libellous. The context laid out above suggests that it would appear that the ‘B’ rating, vis-à-vis the ‘neutral’ rating, is certainly not a relatively lower rating: if anything, it indicates that the view or the opinion of BBB as to the company has improved. This is even more compelling when we consider the website itself, as provided for in the exhibits, since neither Walsh nor Waltek was assigned a ‘no report’ rating which seems from its position to be lower than an ‘F’.

[ 20 ] As such, the court is not satisfied that this rating is libellous. An argument was raised that the context of other HVAC companies should be viewed when we consider the libellous nature of these words. However, there was no evidence led that there was any comparison on the website with respect to HVAC companies themselves. It was Ms. Iadeluca’s evidence that a customer would have to consider the site itself to make his own comparisons between these companies. In this regard, it is also clear that the same method of evaluation was applied to all HVAC companies. There was no evidence that BBB was in any way being discriminatory in its evaluation against Waltek, or indeed Walsh for that matter. When we consider this issue as a whole, the court is simply not satisfied that the Waltek has proved that it was defamed on the balance of probabilities, and therefore that part of the action will be dismissed.

The Walsh Libel

[ 21 ] This allegation consists of the January, 2009 report on the BBB website stating that the rating is a ‘D–’ and further that it is based on no response to complaints. The court however must view this in context. Prior to January, 2009, Walsh was rated as ‘unsatisfactory’ on essentially the same basis.

[ 22 ] In the Shorter Oxford English Dictionary, 5th ed., “unsatisfactory” is defined at page 3464 as “not satisfactory”. “Satisfactory” is defined at page 2674 as: “3. Sufficient, adequate; (of an argument) convincing. Also, that causes or gives satisfaction; such as one may be content or pleased with.” It seems by inference that Walsh was content with the ‘unsatisfactory’ rating, for he did nothing about it until the change, though he threatened litigation to have the Waltek reliability report modified. It seems that a rating of ‘unsatisfactory’, as explained above, is not a positive rating. Therefore, a ‘D-’ rating, which indicates a percentage of 66 to 63.99 as found at Exhibit 6, Tab 55, page 1115, would not appear to be a lower rating to ‘unsatisfactory’. In Mr. Walsh’s evidence, he was of the view that ‘D–’ was worse than ‘unsatisfactory’ since a ‘D–’ was an explicit mark. However, when we consider the matter on its face this statement does not hold water: from any definition, ‘unsatisfactory’ is not a positive grade. Indeed it would appear that a ‘D–’ rating is at least equal to an ‘unsatisfactory’ rating and may well be an improvement.

[ 23 ] The other part of the libel complaint is that it indicates in the early part of the reliability report that there were complaints, plural. However, it was clear from the evidence that there was one complaint – by Mr. Fleischman. It is also Mr. Walsh’s argument that it would appear that the ‘unsatisfactory’ vis-à-vis the ‘D–’ mark, on the website report, was made worse as he alleges the “complaints” plural appear on the website when in fact there was only one complaint. However, when we consider the reliability report itself, it would appear that the report correctly states that there was one complaint that was not responded to.

[ 24 ] We, however, again must look at the alleged libel in context. With regard to the Waltek complaint, as noted earlier at para. 11, there are disclaimers and explanations on the website itself with regard to the ratings and further their accuracy is explicitly not guaranteed. It is also a matter of evidence that the application of the algorithm and the rating were universal and that was what generated the ‘D–’ report. In addition, it is plain from the evidence that Mr. Walsh or someone from the company regularly monitored the BBB site and no complaint was made with regard to the prior ‘unsatisfactory’ rating nor the complaint basis for it.

[ 25 ] Argument was also made by Mr. Walsh that he was not aware of the rating system since it was proprietary and thus he could not assess whether undue weight would be given to an unresponded-to client complaint through BBB. However, Walsh had been a member of the BBB and was well aware of the commitments made to BBB in the initial letter of agreement. Indeed, he had been informed of the necessity to respond to complaints. He chose to ignore this. Therefore it seems that at least part of the rating was due to his unwillingness to comply with the internal regulations of BBB which he had previously agreed to. Walsh may not have been aware that he would lose 31 points because of unresponsiveness to a complaint in detail; however, he was aware that non-responsiveness would result in a diminution of ratings. This can be readily seen from the fact he was aware that unresolved complaints could lead to a revocation of membership itself. He was aware of this from the previous experience he had with Waltek and BBB. It appears that his complaint is really that the rating system had changed, not with the rating itself. Specifically, the allegation is that the ‘D–’ was libellous when compared with an ‘unsatisfactory’ rating. The court finds, however, that in considering both the words in and of themselves, and in their greater context, it is not satisfied on the balance of probabilities that defamation has been made out. Indeed it is uncertain whether ‘D–’ was a diminution or an improvement over ‘unsatisfactory’.

[ 26 ] In the Plaintiff’s pleadings, there was an inference of an innuendo that both companies were untrustworthy and should not be dealt with by the general public. When we consider this in context, there is nothing on the face of the record that the website indicates this. Indeed when the Plaintiffs’ counsel asked Ms. Iadeluca on her examination for discovery if she felt that the Plaintiffs were unethical and untrustworthy, she replied no. (See the Plaintiff’s Examination for Discovery, pp. 120-121, Q. 444). Indeed the witness, Mr. Klunder, indicated that he had retained the services of a contractor who was rated ‘D–’ and he would recommend that contractor to anyone. Furthermore he indicated that a ‘D–’ rating did not indicate that the company was untrustworthy or lacked integrity. Simply put, the court is not satisfied that this innuendo was made out.

Defences

[ 27 ] Though it is not necessary for the court to decide defences in this matter, as it has already formed the view that the statements complained of are not defamatory, if this view should be mistaken, then these defences should also be considered.

First Defence: Qualified Privilege

[ 28 ] In Reynolds v. Times Newspaper Ltd., [1999] UKHL 45, [2001] 2 A.C. 127 at 195, the House of Lords defined “qualified privilege” as follows:

The essence of this defence lies in the law’s recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. That is the end the law is concerned to attain. The protection afforded to the maker of a statement is the means by which the law seeks to achieve that end. Thus the Court has to assess whether in the public interest, the publication should be protected in the absence of malice.

[ 29 ] Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. The Supreme Court of Canada held that a “… privileged occasion is … an occasion where the person who makes the communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.” See Hill v. Church of Scientology of Toronto, 1995 59 (SCC) at para. 143, in citing Adam v. Ward, [1917] A.C. 309 (H.L.), at 334.

[ 30 ] In determining whether a person has an interest, or a legal, social, or moral duty to make a communication, an objective test is applied. The court should ask: would the duty be recognized by people of ordinary intelligence and moral principles? In other words, would the great majority of right-minded persons in the position of the defendant have considered it a duty to communicate the criminatory matter to those to whom it was published? See Halls v. Mitchell, 1928 1 (SCC) at 133.

[ 31 ] In determining whether a communication is protected by qualified privilege, the social conditions prevailing at the time of publication should be considered. As stated by the English House of Lords in Reynolds v. Times Newspaper Ltd., at 195:

In determining whether an occasion is regarded as privileged the Court has regard to all the circumstances: see, for example, the explicit statement of Lord Buckmaster L.C. in London Association for Protection of Trade v. Greenlands Ltd. [1916] 2 A.C. 15, 23 (‘every circumstance associated with the origin and publication of the defamatory matter’). And circumstances must be viewed with today’s eyes. The circumstances in which the public interest requires a communication to be protected in the absence of malice depend upon current social conditions. The requirements at the close of the twentieth century may not be the same as those of earlier centuries or earlier decades of this century.

[ 32 ] The issue of qualified privilege concerning BBBs has been considered by other courts. It is noted that in evidence it is clear that this BBB is a not-for-profit corporation. In Upton v. Better Business Bureau of the Mainland of British Columbia, 1980 692 (BC SC), the British Columbia Supreme Court held that the publication of a defamatory statement by the BBB of the Mainland British Columbia was published on an occasion of qualified privilege. The court held it is in the public interest that information from an institution such as the BBB should be available and that, pursuant to its stated purpose and objective, the BBB is under duty to supply such information.

[ 33 ] This carries on the line of cases in England from which “ ... it may be deduced from the speech of Lord Buckmaster that the privilege exists if (a) the association consists of persons who are themselves involved in trade, and (b) it exercises control over the person who on their behalf procures the information and over the manner in which he procures it, and (c) it does not conduct its business purely for the purposes of gain.” (See: W.V.H. Rogers, Winfield and Jolowicz on Tort, 16th ed. (London: Sweet & Maxwell, 2002) at 457).

[ 34 ] When we consider the BBB on these particular facts, the court is satisfied that qualified privilege does exist. It is established on the evidence that there is certainly reciprocity on this occasion. It is clearly in the public’s interest that the information from such an institution as BBB should be available. Pursuant to its objects, BBB is under a duty to accumulate and supply such information.

Second Defence: Fair Comment

[ 35 ] The general test for fair comment is the Defendant must prove that: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment though it can include inferences of fact must be recognizable as commented upon; and (d) the comment must satisfy the objective test in analyzing whether any man could honestly express that opinion on the facts proved. (See WIC Radio Ltd. v. Simpson, 2008 SCC 40, at para. 28.) With that definition it would seem that this defence would likewise apply since both defences have the same basis and the court has already found that the facts have been made out for qualified privilege.

Malice

[ 36 ] The remaining issue with respect to the defences is the question of malice. ‘Malice’ has been defined in Raymond E. Brown, The Law of Defamation in Canada, 2d ed. (Scarborough: Thomson Canada, 1994), at 1043:

Publications that are protected by a conditional or qualified immunity, or by the defence of fair comment, may be defeated by evidence of actual or express malice. Malice may be shown if it is proven that the defendant used the occasion upon which the immunity is founded for some wrong or improper purpose or motive, other than the interest which gave rise to the privileged occasion, or that he or she spoke dishonestly or in knowing or reckless disregard of the truth.

[ 37 ] Corey J. further stated, in Hill v. Church of Scientology of Toronto, 1995 59 (SCC), at para. 145, as follows:

Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes ... “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created. ... Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth.

[ 38 ] As concerns Walsh, it is alleged that the plaintiffs have proved malice by the statement that failure to respond to complaints filed against the business was untrue. However, the court notes that the statement was modified in the reliability report to indicate there was one complaint, as noted earlier, specifically that of Mr. Fleischman. With regard to this allegation that the “complaints” aspect of the reliability report was clearly wrong. The court notes that in a subsequent part of the same web page, it indicates the correct statement of affairs with regard to the failure to respond to one report. The argument would depend on whether or not this statement was modified: that is, there were complaints outstanding as opposed to one complaint. However, when we consider the website as a whole, it is apparent that this fact was modified to indicate there was only one complaint. Moreover, it would seem that this part was not complained about earlier by Walsh when there was a pre-existing unsatisfactory rating given to the company.

[ 39 ] Further, it was the plaintiff’s argument that the ‘D–’ rating was part of a plan to force the plaintiff into the conciliation process or indeed become a member of the BBB, and that was the improper purpose of the rating of ‘D–’. However, when considered as a whole, the evidence simply does not suggest that any kind of plan or “hidden agenda” existed. Mr. Walsh in his testimony clearly stated that he did not like the issue raised by BBB about settling complaints. Therefore he resigned his membership as set forth in the letter cited above. However, he was also aware of the way that a company was rated by BBB when he was a member of it. Also there is no evidence that BBB dealt with Walsh or Waltek in any different manner than other companies that they assessed. The court therefore finds no evidence of malice on the defendant’s part such that it would defeat qualified privilege.

[ 40 ] This finding also applies to the issue of fair comment. There is simply no evidence that would convince a court on a balance of probabilities that malice exists in this case.

Damages

General Damages

[ 41 ] In defamation actions, general damages are presumed from the very publication of the false statement and are awarded at large. General damages represent the judge’s or jury’s estimate of the amount necessary in all the circumstances in the case to vindicate the plaintiff’s reputation and to compensate him for his wounded feelings. (See Hill v. Church of Scientology of Toronto, 1995 59 (SCC), at para. 164, and Walker et al. v. CFTO Ltd. et al., 1987 126 (ON CA).)

[ 42 ] Factors to be considered in assessing general damages are: the conduct of the plaintiff; the plaintiff’s position and standing; the nature of the libel; the mode and extent of publication of the libel; the absence or refusal of any retraction or apology; the whole conduct of the defendant from the time when the libel was published down to the very moment of the verdict; the conduct of the defendant and their counsel; the recognition that no apology, retraction or withdrawal can ever be guaranteed completely to undo the harm that was done; and any evidence led in aggravation or mitigation of damages. (See Hill v. Church of Scientology of Toronto, at para. 182.)

[ 43 ] However, when the plaintiff is a corporation, there are additional principles that must be considered in assessing general damages.

[ 44 ] First, unlike an actual person, a corporation is an artificial entity and as such has no reputation in the personal sense which can be defamed by words which would affect the purely personal reputation of an individual, though a corporation does have a business reputation. Thus, a corporation is not entitled to compensation for injury due to hurt feelings, though it may receive compensation for injury to its business reputation. (See Walker v. CFTO, at paras. 25-26, and WeGo Kayaking Ltd. v. Sewid, 2007 BCSC 49, at para. 88.)

[ 45 ] Second, in the absence of proof of special damages, or at least a general loss of business, a corporation is unlikely to be awarded substantial awards of damages. In other words, the corporation generally should not receive large awards for loss of reputation unless actual financial loss is shown. Corporate plaintiffs cannot receive aggravated damages because aggravated damages are intended to compensate for mental distress and hurt feelings. (See Walker v. CFTO, at paras. 26-27, and WeGo Kayaking Ltd. v. Sewid, at para. 95.)

[ 46 ] As there has been no finding of defamation in this case, it is usually not necessary for the court to decide general damages. However, because of the nature of the alleged damages, I hereby make an award of damages of $15,000. Certainly there is nothing on this particular record to indicate that there is a business loss such that they should be increased. This is so when we consider the allegations brought forth by Mr. Walsh as to only the “Red Flag Blog” deals and the fifteen purported lost proposals. (See Exhibit 5, Tab 135 and Exhibit 1, Tab 3). Certainly the evidence regarding the Red Flag Blog seems contradictory. It seems to be that the blog contains both negative and positive comments towards BBB. (See Exhibit 5, Tab 135). This was confirmed by Mr. Greg Lague, one of the plaintiff’s customers, who testified that the blog did not interfere with the Plaintiffs’ choice. He took information in the Red Flag Blog with a grain of salt and ultimately decided to take on the Energy Centre to conduct his work.

The Lost Proposals

[ 47 ] Mr. Walsh testified that he had lost approximately fifteen proposals as a result of the claim against BBB. To begin with, the court notes that only ten of the proposals were in the period for which the defamation would have been affected and a further two proposals were made to the same person. Certainly when we consider the reasons of those witnesses as to why they chose Walsh or Waltek over other companies, it appears from their testimony of those witnesses that it may have had some general effect but not a profound one and thus it seems that there is no causality with respect to BBB’s rating. For example, Mr. De Vos was concerned about the showroom at Chateau Energy and was not satisfied with the response to his enquiry about their advertising. In another instance, Mr. Baldwin did not use Energy Centre because he knew the proprietor of the competitor company. Indeed, Baldwin had recommended Energy Centre in the past. From the perspective of potential customers generally, it seems that BBB’s rating was not a factor in their choices. In brief, the court is not convinced that causality has been proved.

Damages for Future and Past Lost Profits

[ 48 ] The Plaintiffs’ claim for damages under these heads appears to be based, on certain assumptions that Mr. Walsh made in testifying. No expert evidence was called; it was solely based on balance sheets and certain calculations created by Mr. Walsh himself. In fact the court notes that in the various letters that were provided in answer to questions the suggested increase in sales year over year fluctuated throughout the litigation.

[ 49 ] On the other hand, Ms. Chenail‑Trépanier was provided as a defence expert in assessing damages. In the court’s view her testimony was clear and unbiased. The analysis in her evidence is that the loss of profits suggested by the plaintiffs does not hold up to close scrutiny and that it is based solely on assumptions made by Mr. Walsh himself. There is simply no calculable basis for the allegation that, but for the BBB rating, there would have been achieved a 25 percent increase in gross sales as alleged by the plaintiff. (See page 45 of Exhibit 25 and see para. 4.1 of Exhibit 34).

[ 50 ] Moreover, no details were provided that the alleged additional costs. For instance, no consideration was given by the plaintiffs concerning additional advertising labour costs associated with increased competition. This is especially noteworthy as there were numerous new market entrants as a result of the rebate program. (See Exhibit 34). They were simply stated without documentary backup or analysis. Nor was any evidence provided, aside from the assertion itself that lesser profits were due to lesser quality work requiring more labour. Indeed, Ms. Chenail‑Trépanier reported that the Plaintiffs’ margins were the same or better than the margins achieved in the period prior to the damages claim. (See Exhibit 34, page 7). The court is not satisfied that there is evidence that warrants past or future damages with respect to the libel alleged, though it is not necessary to decide this.

[ 51 ] Though it is doubly unnecessary, the court also is aware of the evidence presented under s. 21 of the Ontario Libel and Slander Act, R.S.O. 1990, c. L.12. Convincing evidence was led that any damage award should be likewise mitigated by that particular section. Evidence was called generally with respect to witnesses involved with the plaintiffs who testified with regard to their unhappiness with the way the work was done. They also testified as to how the company was operated and, if the court considered it necessary to deal with damages, how such mitigation should be considered with respect to their assessment.

[ 52 ] For all those reasons therefore, while recognizing it is not necessary to find them, general damages are determined to be in the amount of $15,000 while no damages are awarded for past or future loss of profits.

[ 53 ] Therefore the court finds that the allegations of defamation are not made out on the basis of the balance of probabilities and therefore, for the reasons set forth, the action is dismissed.

Costs

[ 54 ] With respect to costs, the counsel may address me in writing within 30 days with their costs submissions or, in the alternative, may request a date to deal with costs from the trial coordinator.

Mr. Justice Hugh R. McLean

Released: December 12, 2012

COURT FILE NO.: CV-09-44653
DATE: 2012/12/12

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Walsh Energy Inc. (c.o.b. as “The Energy Centre”) and Waltek Energy Services Inc. (c.o.b. as “Waltek” or “Energy Plus and Chateau Heating and Cooling”) Plaintiffs – and – Better Business Bureau of Ottawa-Hull Incorporated/ Bureau d’éthique commercial d’Ottawa-Hull Incorporée (c.o.b. as “Better Business Bureau Serving Eastern and Northern Ontario and the Outaouais”) and Better Business Bureau of Ottawa-Hull Inc. Defendants

REASONS FOR JUDGMENT

Mr. Justice Hugh R. McLean

Released: December 12, 2012