2024 November 6

Malak v. Hanna, 2024 BCCA 370 (indexed as Valley Traffic Systems Inc. v Malak)

The British Columbia Court of Appeal unanimously dismissed an appeal from an August 2, 2023 trial judgment [2023 BCSC 1337] which had awarded $500,000 general damages to the individual plaintiff Malak, $300,000 general damages to The Ansan Group, $200,000 aggravated damages to Malak, and $500,000 punitive damages collectively to Malak and The Ansan Group. With respect to the award of $300,000 general damages to The Ansan Group, the Court of Appeal noted that “Courts review damage awards on a deferential standard and will only disturb them if they are based on a mistake of law or a palpable and overriding mistake in fact, or the award is so inordinately high or low that it must be a wholly erroneous estimate of the damage.” In this case, the Court held that “given the nature and persistence of the defamation …, the [trial] judge did not err in inferring that The Ansan Group would likely suffer economic harm. He recognized that damages for a corporate plaintiff are intended to compensate for the harm to the corporation’s goodwill and business reputation. The judge noted The Ansan Group relied on its reputation to attract and retain flaggers and subcontract trucking companies needed to perform traffic control services…The Ansan Group’s customers were cities, municipalities, and utility companies…. Public or quasi-public bodies, like The Ansan Group’s customers, generally wish to avoid public controversy.” “As [the individual plaintiff] testified, the defamatory publications were an attack on the companies as well as an attack on him personally.” With respect to the punitive damages awarded, the Court of Appeal referred to the caution of the Supreme Court of Canada in Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130 that without punitive damages awards, general and aggravated damages might simply be a regarded as a license fee for the wealthy to defame. In this case, the Appeal Court held “[t]hat caution applies with particular force to those who expect to gain from a competitor’s reputational downfall.”