[66]
The Court of Appeal found two errors with the chambers judge’s analysis.
presumed in defamation law (para. 51). The Court of Appeal also noted that
Mr. Neufeld had alleged examples of reputational harm and argued that harm could be
inferred based on circumstantial factors (paras. 57-58). Second, the chambers judge
erred by assuming causation would be difficult to establish because others had made
similar statements about Mr. Neufeld (paras. 51-59). I disagree.
[67]
Although general damages are presumed in defamation law, s. 4(2)(b)
prescribes a weighing exercise which requires that the harm to the plaintiff be serious
enough to outweigh the public interest in protecting the defendant’s expression. While
the presumption of damages can establish the existence of harm, it cannot establish that
the harm is “serious” (see, e.g., Lachaux v. Independent Print Ltd., [2019] UKSC 27,
[2020] A.C. 612, at para. 13; see also United Soils Management Ltd. v. Mohammed,
2019 ONCA 128, 23 C.E.L.R. (4th) 11, at para. 22; Levant v. DeMelle, 2022 ONCA
79, 79 C.P.C. (8th) 437, at para. 68). To hold otherwise would be to presumptively tip
the scales in favour of the plaintiff in defamation cases and effectively gut the weighing
exercise. Rather, to succeed on the weighing exercise, a plaintiff must provide evidence
that enables the judge “to draw an inference of likelihood” of harm of a magnitude
sufficient to outweigh the public interest in protecting the defendant’s expression
(Pointes, at para. 71; Bent, at para. 154). Presumed general damages are insufficient for
this purpose, as are bare assertions of harm.
2023 SCC 14 (CanLII)
First, the chambers judge failed to give effect to the general principle that damages are
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