Defamation – No More Symbolic Damages?

Will the law on proportionality put an end to symbolic damages in defamation?

A recent English decision threw out a defamation action on the ground that the damages, if any, would be too small to justify the use of the court’s and jury’s time. Vindication of the plaintiff’s reputation was not important enough to justify continuing the action.

A report is here. The case is Kaschke v Osler.

Will we have a similar result in Canada, at least in the jurisdictions that have rules on ‘proportionality’ of costs of a proceeding and what is at stake in it? Quebec has had such a rule for several years, Ontario’s rule is in effect since the beginning of this year, and BC’s comes into effect on July 1st.

Is this a change in the law of defamation, where symbolic damages of one dollar have at least provided vindication (and where the plaintiff presumably recovered some of his/her costs from the other side)?

Is it appropriate to consider the costs to the court system in assessing proportionality, and not just the costs to the parties?

Is the court motivated in some degree by an unwillingness to (further?) promote ‘libel tourism’? In any event would a concern for overuse of the courts be available as an argument against cases brought by those with little real connection to the forum? (Of course in Canada the court is to take jurisdiction only if there is a real and substantial connection with the case, so that may be an impediment to such forum shopping anyway.)


  1. John: As I’m sure you know, systems based on English law don’t need proportionality (of costs) rules, or arguments from analogy to those rules, to refuse to deal with trivial matters, even where the issue involves not punishing civil or criminal misconduct. The “de minimis non curat lex” proposition is of ancient (enough vintage) – see, for example, here. And, of course, this well-enough-known (at least amongst law students of my era)limerick:

    There was a young law student named Rex,
    Who had very small organs of sex.
    When charged with exposure,
    He said with composure:
    De minimis non curat lex

    Of course, there are sometimes some unusually mysterious usages of the de minimis not curat principle, but I won’t go there (now).

  2. I agree with David that the common law allows judges to dismiss trivial (pur)suits, in the absence of a proportionality rule. However, judges are often reluctant to do so. Hence the rules of procedure reiterating the power to throw out frivolous actions, and hence too the inclination in some places (as discussed recently here) to enact legislation against SLAPP suits.

    The study paper of the Uniform Law Conference on SLAPPs in 2008 pointed out (notably in paras 19 – 40) the difficulty of persuading courts to dismiss meritless cases. Judges are professionally cautious; they want to know the facts and hear the arguments; thus they want a trial. But the cost of getting to trial is the principal punishment that the SLAPP plaintiff plans to inflict on its opponent.

    Maybe one more attempt, through a proportionality rule, will tilt the balance. The ULCC went beyond that to a uniform statute (not yet on line, but shortly…).

    Most of the attention paid lately to proportionality has been in the context of e-discovery, where it certainly has a (different) role to play.

    P.S. The limerick that yours reminds me of, David, is completely off topic, even for such a diverse forum as Slaw.

  3. David Cheifetz

    “Trivial (pur)suits” (nice: DC) exist in most cases because the plaintiff finds a lawyer who is prepared to take the case under payment terms the plaintiff will accept. Actually expose the lawyer to the risk of the punishment, too, and (I think) there will be less of that sort of suit.

    Whether one takes it as far as the hypothetical legal system sketched by Frank Herbert in “Whipping Star” and “The Dosadi Experiment” – the default rule is that the lawyer for the losing side suffers the same punishment as does the client: that tended to keep down the number of lawyers defending capital criminal charges – is an interesting question for late night, substanace fueled, discussions.

  4. In the morning, fuelled only by a small breakfast, I think that Frank Herbert’s suggestions (I see why he is known as a fantasy writer) are inspired by ignorance of what a lawyer does for a client: ensures that the system is working, and tries to make it work for the client. The only conditions in which Herbert’s rule would make sense would be:

    (i) everyone in society is equally articulate and able to formulate arguments;

    (ii) everyone in society knows all the rules that apply to govern relations among its members (so probably a VERY simple society, and that does not mean ‘primitive’, as societies with the latter label are often very complex);

    (iii) lawyers – but why would you need lawyers in such a society? only as a matter of specialization of tasks, where specialization does not make you more expert than anyone else? – are required to be judges of their clients’ cases, so they can be held liable for their judgments;

    (iv) the results of the law fall on those who have profited from their actions and those who have not (a fee is not the same as a profit, not to mention the psychic benefits of what the clients may have done – like getting married, firing an employee, etc).

    Perhaps Herbert’s conditions are met in Uganda, or will be if that law about homosexuality passes so merely advocating a change of the law makes one guilty. Then at least condition (iii) is waived, since one does not have to be a lawyer to fall under the rule.

    Fascinating digression – but what about the original questions: can one have symbolic damages in an era of proportionality, and do the costs of running the court system form a legitimate part of a calculation of proportionality?

  5. As I expect you know, the view in the US is that the court room is a stage where one increases one’s chance of wining the case by telling a better story.

    As far as fantasy goes, though:

    In the universe of “the Dosadi Experiment”, what we call a court is called a “courtarena”. That’s a hint as to the structure of the legal system. The courtareana is “A combination of a court of law, and an arena of combat, in which every participant could be called out and executed under legal circumstances.” Here’s a link to a page with more detail, if you care. There is (was) something better on the web. If I can readily find it, assuming it’s still accessible, I’ll add it to this message.

    The commentator notes (correctly): “Everyone in the courtarena, plaintiffs, defendants, judges, lawyers and the audience, were all at risk when Gowachin law was at stake. According to the Gowachin, everyone was guilty of something; only the innocent were suspect. One rather admirable characteristic of Gowachin law was that the stakes meant that there were very few lawsuits, and fewer lawyers.”

    And “The traditional ending of a legal contest in the Gowachin courtarena was those who were found Gowachin-guilty (innocent) were torn apart by the audience just outside the doors.”

    Here’s a better link with a more detailed summary of the legal system.

    Gowachin regard their legal practices as the strongest evidence that they are civilized. Gowachin law is based upon the notion of a healthy disrespect for all laws; the purpose of this notion is to avoid the stulifying accretion of a body of laws and precedents that bind Gowachin mechanically. In a typical Gowachin trial, everything is on trail: every participant, including the judges; every law; even the foundational precept of Gowachin law. Legal concepts from other systems are often turned on their head: someone pronounced “innocent” (guilty in other terms) by the court is torn to pieces by angry spectators; judges may have bias (“if I can decided for my side, I will”), though not prejudice (“I will decide for my side, regardless”); defendant and plaintiff are chosen at the trial by the side bringing the complaint choosing on role or the other; torture is permitted; and all procedural rules may be violated, but only by finding conflict within procedural rules (an example of Nomic). Gowachin law is also illustrative of a dominant theme: that governments, law, and bureaucracy (collectively, society’s tools for regulating itself) are dangerous when allowed to escape sapient control.

    Jorj McKie is the only human ever admitted to the Gowachin bar. His greatest and most admired legal victory in a Gowachin trial came when he demonstrated to the court that “eternal sloppiness was the price of liberty”.

    Once upon at time, I collected some of the better aphorisms (about the system) in “The Dosadi Expirement”. I know there were websites were others had done that. Whether those lists are still available somewhere? Who knows.

  6. Returning to the point – or digressing from the digression

    JG: Fascinating digression – but what about the original questions: can one have symbolic damages in an era of proportionality, and do the costs of running the court system form a legitimate part of a calculation of proportionality?

    If de mimimis and proportionality matter, then the answer should be “no symbolic damages” so long as the we also provide that the winning party doesn’t get costs. That is, yes they do, where the remedy sought is trivial. But what’s trivial to one may not be to another. Is the test of triviality going to be subjective or objective. (Modified objective since we’re in Canada?)

    Recall the McDonald’s burger defamation case in the UK against the anti-MickyD activists. McDonald’s “damages” assessment was miniscule. Its costs award was enormous (or would have been if made – the activists didn’t have money to pay.

    Perhaps we’d have to go farther and allow a discretion for the winning party to be ordered to pay the losing side’s costs. Bear in mind the traditional name for what you’ve called symobolic damages was contemptous damages.