Botiuk v. Toronto Free Press Publications Ltd.

Botiuk v. Toronto Free Press Publications Ltd.
Collection
Supreme Court Judgments
Date
1995-09-21
Report
[1995] 3 SCR 3
Case number
23517, 23519
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Torts
Notes
SCC Case Information: 23517, 23519
Decision Content
Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3
Ihor Bardyn, Bohdan Onyschuk, Bohdan
Zarowsky, Q.C., and W. Yurij Danyliw, Q.C. Appellants
v.
Y. R. Botiuk Respondent
and between
B. I. Maksymec and
Maksymec & Associates Ltd. Appellants
v.
Y. R. Botiuk Respondent
Indexed as: Botiuk v. Toronto Free Press Publications Ltd.
File Nos.: 23517, 23519.
1994: December 8; 1995: September 21.
Present: La Forest, L'Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Libel and slander ‑‑ Joint liability ‑‑ Defences ‑‑ Qualified privilege ‑‑ Appellants alleging in three different documents that respondent lawyer had breached promise to give certain fees he was paid to community organization ‑‑ Whether appellants defamed respondent ‑‑ Whether appellants jointly and severally liable for damage caused by all three publications ‑‑ Whether defence of qualified privilege available.
Libel and slander ‑‑ Damages ‑‑ Aggravated damages ‑‑ Special damages ‑‑ Appellants alleging in three different documents that respondent lawyer had breached promise to give certain fees he was paid to community organization ‑‑ Combined effect of documents clearly defamatory -- Whether appellants motivated by malice ‑‑ Whether award for aggravated damages should stand ‑‑ Whether loss of business sufficiently pleaded to warrant special damages award.
In 1971 members of the Ukrainian community became involved in a confrontation with the police during a demonstration organized by the Ukrainian-Canadian Committee (UCC). The UCC obtained standing as the representative of the Ukrainian community at the public inquiry that was subsequently held. It retained counsel, who was assisted by the respondent, the UCC's legal adviser. The costs of both lawyers were reimbursed by the municipality following the inquiry. The respondent retained the amount paid to him. Rumours began to circulate in the Ukrainian community that he was in breach of his agreement to donate this money to the UCC. The issue was raised at a meeting of the UCC executive, where the concerns were addressed by the respondent and others to the complete satisfaction of those in attendance. The UCC published a letter in a community newspaper reiterating that financial matters connected with the demonstration had already been reported and were satisfactorily settled. Just over a year later, however, the individual appellant M tabled a report at the UCC's general meeting alleging that the respondent had reneged on his promise to give the money he received to the UCC. The UCC drafted a response which was published in a community newspaper. M in turn prepared a declaration signed by eight lawyers, four of whom are appellants here, confirming M's report. The declaration was reproduced in a community newspaper and mailed to certain members of the Ukrainian community. M also presented a separate reply to the Ontario Council of the UCC which incorporated the lawyers' declaration. The respondent sued the appellants for libel. The trial judge awarded him $140,000 in compensatory damages, which included general damages, aggravated damages and the present value of future pecuniary loss, and special damages of $325,000 for loss of income. Prejudgment interest was awarded for a 12½-year period. The Court of Appeal held that since special damages were not specifically pleaded, they could only form a part of the general damage award. It awarded $200,000 in compensatory damages. The court also reduced the term of prejudgment interest to 10 years.
Held: The appeals should be dismissed and the cross‑appeals allowed.
Per La Forest, L'Heureux‑Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ.: The combined effect of the report, the declaration and the reply published by M and the appellant lawyers was clearly defamatory. The documents unmistakeably implied that the respondent was dishonourable and dishonest. They cast doubt upon his integrity, the most important attribute of any lawyer. The appellant lawyers are joint tortfeasors who are jointly and severally liable with M for the damage caused by publication of all three documents. The declaration expressly adopted the contents of the report, and its inclusion in the reply was a natural and logical consequence of the lawyers' signing it without placing any restrictions on its use. The appellant company is also liable since M, by his action and in his capacity as the principal shareholder and officer of the company and its directing mind, clearly associated the company with the defamatory statements.
Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. Where an occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish remarks which may be defamatory and untrue about the plaintiff. The privilege is not absolute, however, and may be defeated if the dominant motive for publishing is actual or express malice. Qualified privilege may also be defeated if the limits of the duty or interest have been exceeded. If the information communicated was not reasonably appropriate to the legitimate purposes of the occasion, the qualified privilege will be defeated. While M had a duty to discharge arising from his position as a former president of the UCC, and the UCC's annual general meeting was an appropriate forum at which to present the report, the limits of the privileged occasion were clearly exceeded in relation to the report. Although M may have wished to address the rumours in order to distance himself from the gossip, in doing so it was unnecessary to defame the respondent. Similarly, while the appellants were entitled to respond to the attack on the report to protect their interest, neither the declaration nor the reply was a measured response. The appellants went well beyond what was reasonably appropriate to the occasion and as a result lost the protection afforded by the defence of qualified privilege.
If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by malice. It is clear in this case that M was motivated by express malice. Taking into account the appellant lawyers' status and influential position in the community, and the effect of their concerted action in signing the declaration, their conduct in signing the document without undertaking a reasonable investigation as to its correctness was reckless, as was their failure to place any restriction or qualification upon the use that could be made of it. The legal consequence of their recklessness is that their actions must be found to be malicious. Since both M and the appellant lawyers were motivated by malice, they are jointly and severally liable for the compensatory damages awarded, including that portion which represents aggravated damages. For the reasons given in Hill v. Church of Scientology of Toronto, a cap on damages in defamation cases is neither needed nor desirable. The loss of business was sufficiently pleaded to warrant the award of special damages, which should be restored. The trial judge's determination that the respondent was entitled to prejudgment interest for a period of 12½ years should also be restored.
Per Major J.: Cory J.'s reasons were agreed with, subject to observations on the extent of liability for defamatory publications where more than one defendant is involved. Not all actions in which multiple defendants are sued will result in a finding of joint and several liability. Depending on the circumstances of a given case, it may be necessary to assess each instance of publication as a separate cause of action. The question of whether the defendants acted jointly or in concert should be considered and where there is the absence of common action the defendants' liability ought to be assessed individually. It is not clear from the record in this case that all of the defamatory documents should have been treated as one libel nor that the necessary concerted action was present for a finding of joint and several liability. The trial judge has an advantage over appellate courts in making findings of fact, however, particularly in matters of credibility, and it would therefore be inappropriate absent palpable error to interfere with either the trial judge's findings of fact or the exercise of his discretion.
Cases Cited
By Cory J.
Applied: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Borland v. Muttersbach (1985), 53 O.R. (2d) 129; referred to: Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067; Basse v. Toronto Star Newspapers Ltd. (1983), 44 O.R. (2d) 164; Adam v. Ward, [1917] A.C. 309; McLoughlin v. Kutasy, [1979] 2 S.C.R. 311; Douglas v. Tucker, [1952] 1 S.C.R. 275; H. L. Bolton (Engineering) Co. v. T. J. Graham & Sons Ltd., [1957] 1 Q.B. 159; Standard Investments Ltd. v. Canadian Imperial Bank of Commerce (1986), 52 O.R. (2d) 473; People ex rel. Karlin v. Culkin, 162 N.E. 487 (1928); Horrocks v. Lowe, [1975] A.C. 135; Lindal v. Lindal, [1981] 2 S.C.R. 629.
By Major J.
Referred to: Barber v. Pigden, [1937] 1 K.B. 664; Hayward v. Thompson, [1982] 1 Q.B. 47; Westbank Indian Bank v. Tomat (1992), 63 B.C.L.R. (2d) 273.
Statutes and Regulations Cited
Courts of Justice Act, 1984, S.O. 1984, c. 11, s. 138(2).
Judicature Act, R.S.O. 1980, c. 223, s. 36(6).
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 49.10.
Trustee Act, R.S.O. 1990, c. T.23, s. 38.
Authors Cited
Brown, Raymond E. The Law of Defamation in Canada, 2nd ed. Scarborough, Ont.: Carswell, 1994 (loose‑leaf).
Fleming, John G. The Law of Torts, 8th ed. Sydney: Law Book Co., 1992.
Fridman, G. H. L. The Law of Torts in Canada, vol. 2. Toronto: Carswell, 1990.
Gatley on Libel and Slander, 8th ed. By Philip Lewis. London: Sweet & Maxwell, 1981.
APPEALS and CROSS‑APPEALS from a judgment of the Ontario Court of Appeal, [1993] O.J. No. 239 (QL), varying a judgment of the Ontario Court (General Division), [1991] O.J. No. 925 (QL), allowing the respondent's action and awarding him damages. Appeals dismissed and cross‑appeals allowed.
J. Edgar Sexton, Q.C., and Mark A. Gelowitz, for the appellants Ihor Bardyn et al.
Bryan Finlay, Q.C., and Christopher J. Tzekas, for the appellants B. I. Maksymec and Maksymec & Associates Ltd.
Sheila R. Block and Jenifer E. Aitken, for the respondent.
The judgment of La Forest, L'Heureux-Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ. was delivered by
1 Cory J. -- These appeals must consider the consequences which flow from the publication of documents which either directly alleged or clearly implied that the respondent Y. R. Botiuk, a lawyer of Ukrainian descent, had misappropriated money that belonged to the Ukrainian‑Canadian community. As a result of these publications, Botiuk, who had previously enjoyed an excellent reputation, was branded as a dishonourable person who could not be trusted. Publishing the documents had a devastating and lasting effect on both his private life and his professional career.
I. Factual Background
2 Botiuk is a lawyer who has practised in the City of Toronto since 1962. From the time of his emigration to Canada in 1951, he has been extensively involved in the affairs of the Ukrainian community and his practice, to a large extent, served the members of that community.
3 The appellant B. I. Maksymec is a professional engineer and principal shareholder and officer of Maksymec & Associates Ltd. Mr. Maksymec has also played a prominent role in the Ukrainian community. It was he who instituted, augmented and continued the libellous attacks on the respondent.
4 The appellants I. Bardyn, B. Onyschuk, B. Zarowsky, Q.C., and W. Y. Danyliw, Q.C., are lawyers of Ukrainian descent who have held positions of importance in their community. They became involved in this case when they agreed to sign a document written by Maksymec which supported his allegations of misconduct by Botiuk.
5 The Ukrainian‑Canadian Committee ("UCC") is an extremely important institution in the Ukrainian community. It is an umbrella organization serving the needs of Ukrainian‑Canadians on the national, provincial and local levels. The facts of this case arise from the activities of the Toronto branch of the UCC.
6 In October 1971, the Russian Premier Alexei Kosygin visited Toronto. In light of their position that their homeland was occupied by the Soviet regime, this was an event of great concern to Toronto's Ukrainian community. The UCC organized a demonstration to coincide with a dinner to be held for Mr. Kosygin at the Ontario Science Centre on October 25, 1971. During the demonstration, members of the Ukrainian community became involved in a vigorous confrontation with officers of the Metropolitan Toronto Police Force. This led to criminal charges being laid against some of those members.
7 At a meeting of the UCC held on October 28, 1971, while Maksymec was the president of the organization, it was determined that arrangements should be made to provide legal assistance and representation to those charged with criminal offences. As a result of this decision, the UCC retained the services of a prominent Toronto lawyer, Arthur Maloney, Q.C. At the same time, it set out to raise the necessary funds by seeking donations from members of the community. In this way, some $21,000 was gathered for what became known as the "Kosygin Demonstration Fund".
8 Botiuk, who had been appointed as legal adviser to the UCC immediately following the demonstration, organized and coordinated the defence of the demonstrators. It was known to all that the money collected from members of the Ukrainian community was not intended to be used to pay any Ukrainian lawyer for services relating to the criminal proceedings.
9 At the October 28 meeting, the decision was also made to collect evidence as to what transpired at the demonstration and to use it to lobby the Ontario government to hold a public inquiry. The province eventually agreed and appointed Judge Vannini to preside.
10 The UCC obtained standing as the representative of the Ukrainian community and retained Robert Carter, Q.C., as its counsel. There was some concern as to whether sufficient funds existed to cover the legal expenses which would be incurred and, as a result, it was decided that Carter would be assisted by a Ukrainian lawyer throughout the inquiry.
11 It was suggested that Botiuk might assume the full‑time position as Carter's assistant. He declined because he was a sole practitioner who could not leave his practice unattended for the five weeks scheduled for the inquiry hearings. Instead, he agreed to try to recruit and coordinate various Ukrainian duty counsel who, it was understood, would provide their services at no charge to the UCC.
12 Botiuk had little success in recruiting other Ukrainian lawyers to assist Carter, save for two or three who contributed very limited time. Consequently, Botiuk performed much of the work himself, attending 23 of the 35 days of the inquiry hearing. As well, he did a great deal of night work interviewing and preparing witnesses for their attendance at the inquiry.
13 On June 5, 1972, Judge Vannini released his decision. He found that the police were responsible for the confrontation and in effect vindicated the Ukrainian community. Thereafter, it was announced that the costs of counsel representing the Metropolitan Toronto Police Force at the inquiry would be paid by Metropolitan Toronto. On behalf of the UCC, efforts were then made by the appellants Maksymec and Onyschuk and the respondent Botiuk to obtain funding for its representatives. The Ontario government eventually agreed to this request.
14 The proposed reimbursement was looked upon as an opportunity to replenish the UCC treasury. To this end, it was thought by some that Botiuk would submit a single figure which would encompass the work done by all the lawyers who assisted at the inquiry and that this amount would be turned over to the UCC. However, as the trial judge found, whatever the understanding may have been in this regard, it became unworkable for a number of reasons. First, none of the lawyers concerned ever submitted any information regarding their fees or disbursements. Further, both the acting president of the UCC, Dr. Hlibowych, and counsel for Metro Toronto rejected the suggested approach and insisted that every lawyer prepare his own account for the UCC. These accounts would then be submitted for payment together with a declaration that the amounts were incurred by the UCC as a legal expense connected with the inquiry.
15 Botiuk submitted two accounts in this fashion, one in the amount of $12,960 for the payment made to Carter, and the other in the amount of $10,256.79 to compensate him for his disbursements and work. In accordance with the direction, acknowledgement and release executed on behalf of the UCC by Dr. Hlibowych, Metro Toronto forwarded a cheque to Botiuk for the total amount of both accounts. He in turn sent the UCC a cheque in the amount of $12,960 to cover Carter's account. Botiuk had indicated at a meeting of the UCC executive that since he would have to pay taxes on the fees paid to him, he would retain them.
16 When it received the funds for the Carter account, the UCC appointed Maksymec, A. Bandera and Botiuk to a special financial commission to decide where and how to apply this money. Although the commission never held a formal meeting, it was decided not long after its inception that a special immigration fund should be created to assist Ukrainian immigrants to settle in Canada.
17 On September 7, 1974, the UCC published a communiqué in the Ukrainian community newspaper the New Pathway. Translated into English, it read as follows:
Thanks to the relentless efforts of the lawyer Y. R. Botiuk, with the assistance of Messrs. Frolick, Onyschuk and Kostuk and with support received from Alderman Bill Boychuk and Ed Negridge and Mr. Archer, and a few others, the Metropolitan Council approved the repayment of the costs in the amount of $12,960.00, which our Committee had paid to the lawyer Carter, for his role in the public enquiry connected with the demonstration against Kosygin.
18 Subsequently, rumours concerning the Kosygin Demonstration Fund and the money paid by Metro Toronto began to circulate throughout the Ukrainian community. At a meeting of the UCC executive on March 2, 1977, the issue was raised. The record of that meeting indicates that the concerns pertaining to the funds were addressed by Botiuk and others to the complete satisfaction of those in attendance. In essence, it became clear to everyone at the meeting that a single account could not be submitted for all lawyers, and that it was open to each lawyer to submit his own account and receive payment from the City. It was emphasized, however, that nothing was paid by the UCC to any Ukrainian lawyer, including Botiuk. Botiuk was then congratulated by Dr. Hlibowych for his generosity and held up as an example for others to follow.
19 Nonetheless, an article appeared in the March 12, 1977, edition of the Free Word, a Ukrainian community newspaper, which raised anew the doubts concerning the financial aspects of the UCC's management of the criminal defence and inquiry proceedings. The article asked who had the money which had been remitted by Metro Toronto to the UCC to reimburse it for the payments made to non‑Ukrainian lawyers out of the Kosygin Demonstration Fund.
20 In response, Dr. Sokolsky, then president of the UCC, sent a letter to the Free Word, dated March 15, 1977, in which he vigorously defended the integrity of the organization. He wrote:
Financial matters connected with the demonstration are no secret and our branch has . . . already . . . reported on them more than once. It seems odd to us that almost three years after this matter was concluded, those asking the questions remembered this (money)....
(A) The "Maksymec Report"
21 At the general meeting of the UCC held just over a year later on May 5, 1978, Maksymec sought to table a report entitled "Financial Accounting with Respect to the Demonstration Against Kosygin in Toronto". Initially, there was relatively forceful opposition to its presentation. However, Dr. Sokolsky introduced a motion which was seconded by Botiuk to include the Report as an item on the agenda. Before Maksymec spoke, those present expressed their gratitude for the efforts made by Botiuk on behalf of the community and emphasized it with "sincere applause".
22 In his Report, Maksymec put forward a number of allegations. First, that there was an agreement or understanding that the Ukrainian lawyers would not charge for the taking of affidavits in the aftermath of the demonstration. Second, that they would voluntarily assist Carter at the inquiry. Third, that Botiuk reneged on the promise he made to members of the UCC executive that he would deliver to the UCC the $10,256.79 paid to him by Metro Toronto and instead declared that he would do with it as he saw fit. This document is the first of three which were found to have libelled Botiuk.
23 In the May 20, 1978 edition of the Free Word, an article appeared concerning the May 5 annual meeting of the UCC and the controversy surrounding the $10,256.79 allegedly withheld by Botiuk. The article reproduced the contents of the Maksymec Report together with editorial comment which indicated that Botiuk's explanation that he was required to pay income tax on this amount was not convincing since he could have immediately transferred the amount from the client's account to the account of the UCC branch. It called for an impartial investigation into the matter.
(B) The "Sokolsky‑Muz Declaration"
24 On June 16, 1978, there was a meeting of the executive of the UCC during which a declaration was drafted in response to the charges levelled by Maksymec in his Report. Since Dr. Sokolsky and Dr. Muz were then the President and Secretary of the organization, it has been called the "Sokolsky‑Muz Declaration".
25 The Declaration in its final form, dated July 1, 1978, was published in the New Pathway. It stated that the charges levelled by Maksymec were "groundless and untrue". It asserted that the UCC never had any claim to the money which was paid by Metro Toronto to Botiuk in connection with the inquiry. This was money, it stated, which Botiuk had earned and to which he was legally entitled. The Declaration again expressed the gratitude and appreciation of the UCC for the great sacrifices Botiuk had made on behalf of the Ukrainian community. It further affirmed that there were no agreements among the Ukrainian lawyers, including Botiuk, that no one would be remunerated for work done in relation to the inquiry. Finally, the Declaration asserted that the statement by Maksymec and the subsequent article in the Free Word were "harmful to the community and do an injustice to Mr. Botiuk".
(C) The "Lawyers' Declaration"
26 According to his evidence, Maksymec regarded the Sokolsky‑Muz Declaration as a "massive, massive attack upon his honesty and integrity". In response, he prepared a declaration, dated July 7, 1978. It was signed by the eight lawyers who (along with Botiuk and another) had allegedly participated in the inquiry proceedings. This is the second document upon which this libel action was based. The relevant portions follow:
DECLARATION
We, the Ukrainian lawyers of Toronto who assisted in the proceedings connected with the demonstration against Kosygin, having familiarized ourselves with the report of the former President of the UCC Toronto Branch on the 5th day of May of this year, do affirm, that,
. . .
We hereby confirm the report of Engineer B. Maksymec about the fact that all of our efforts and endeavours connected with the court proceedings and the Vannini Royal Commission were on a voluntary and gratis basis, in accordance with our (including Mr. Botiuk) agreement with the then President of the UCC Toronto Branch, Engineer B. Maksymec, and that we never demanded payment for the services which we, to the extent we were able, contributed to those proceedings. Our work we dedicated to the Ukrainian Community through the Toronto Branch of the UCC.
27 Of the original eight lawyers who signed this document, four remain as appellants in this Court. Two of the lawyers, M. Romanick and S. Frolick, had died by the time of trial thus escaping liability pursuant to the provisions of s. 38 of the Trustee Act, R.S.O. 1990, c. T.23. Another lawyer, R. Kostuk, had withdrawn his support for the Declaration soon after signing it. R. Maksymiw, together with the late M. Romanick, did not sign the Declaration itself, but only a qualification at the end of the document which stated that in their understanding there was an agreement at the time of the Vannini inquiry to volunteer services. The Court of Appeal ruled that Maksymiw had sufficiently qualified his statement to escape liability and this finding was not challenged.
28 The Declaration was reproduced with some modifications in the July 22, 1978, edition of the Ukrainian community newspaper Our Aim. After the names of the lawyers, Maksymec gratuitously added descriptions of the positions they held in community organizations. This was obviously done to add weight to the document in the eyes of those who would read it.
29 On July 27, 1978, Maksymec mailed copies of the Lawyers' Declaration, the Sokolsky‑Muz Declaration and the Maksymec Reply to those members of the Ukrainian community who had donated $100 or more to the Kosygin Demonstration Fund.
30 The trial judge found that the Lawyers' Declaration was published at the request of and upon payment by Maksymec. The newspaper subsequently published an article on September 30, 1978 in which it acknowledged this fact and apologized to Dr. Sokolsky, Dr. Muz and Botiuk for "any unpleasantness and damages that publishing the referred to `declaration' may have caused them".
31 The modified version of the Lawyers' Declaration together with the Sokolsky‑Muz Declaration and the Maksymec Report was also reproduced in the August 19‑26, 1978, edition of the Free Word. The trial judge held, and there was ample evidence to support his conclusion, that Maksymec also provided this newspaper with the material upon which the article was based.
(D) The "Maksymec Reply"
32 Maksymec also prepared a separate reply to the Sokolsky‑Muz Declaration which he presented to the Ontario Council of the UCC on July 27, 1978. This is the third and final document which led to the respondent's libel suit. In it, Maksymec alleged that the authors of the Sokolsky‑Muz Declaration were "ill‑informed" about matters related to the Vannini inquiry since they did not participate in the events connected with it.
33 The Maksymec Reply incorporated the Lawyers' Declaration and set out a promise alleged to have been made by Botiuk during a meeting of the executive of the UCC. It was presented in these words:
. . . [Mr. Botiuk] switched off the microphone and assured all those present that they had no reason to worry about his previous statement [that he would do whatever he wanted with the money] to the switched on microphone because he had to say this formally, in order to justify his account in the amount of $10,256.79. However, he assured all those present that he considered this money to be public money and that he would hand it over to the UCC Toronto Branch. Mr. Botiuk requested that his last statement should not appear in the minutes so that it would not fall into undesirable hands. [Emphasis added.]
34 Maksymec further alleged that the sum which was earmarked by the special financial commission for a special immigration fund included the $10,256.79 paid to Botiuk. He demanded that it be transferred to the UCC.
35 The Ontario branch of the UCC refused to deal with Maksymec's complaint, which it considered to be nothing more than a personal dispute.
II. Judgments Below
(A) Ontario Court, General Division, [1991] O.J. No. 925 (QL)
36 Carruthers J. stated that the controversy between the parties "stems solely from the fact that the [respondent] kept the sum of $10,256.79 and Maksymec has objected to his having done so because he has thought that the plaintiff should have handed that amount over to UCC".
37 It was the opinion of the trial judge that the defamatory sense of the publications was clear. Namely, that Botiuk did not live up to an agreement to volunteer his services and did not fulfil his assurances to return to the UCC the money which he received from Metro Toronto.
38 The trial judge observed that counsel for all parties proceeded on the basis that although the contents of each document could be taken individually as to its defamatory nature, all three were to be considered together as creating a single act of libel. He proceeded on this basis.
39 The trial judge then turned to the three grounds of defence which were advanced by the appellants: justification, fair comment and qualified privilege. With respect to justification, he emphatically rejected the argument that there was some kind of agreement between the lawyers that they would volunteer their services. He set out his conclusions on this issue in these words:
At the highest, all that can be said is that each of them, including the [respondent], understood that was to be the case for the very simple reason that no one [i.e. the UCC] was available, prepared or able to pay them. And the [respondent] has never suggested that the situation was otherwise until the prospect of payment by Metro arose.
40 He stressed that all the lawyers were well aware that they could submit an account for their work and receive payment from Metro Toronto. It was his opinion that they did not do so, not because of any agreement, but because they did not wish to make the community aware of how very little work they had done at the Vannini inquiry. Their minimal efforts would suffer by comparison with the very significant contribution to the work of that inquiry made by Botiuk.
41 The trial judge rejected the appellants' allegation that during a meeting of the UCC executive in 1974, Botiuk had switched off the microphone and undertaken to turn over to the UCC the funds that Metro Toronto had paid to him. Rather, he accepted Botiuk's testimony that it was always understood that he would keep those funds for himself.
42 The trial judge recognized that it was open to the appellants to have made a fair comment with regard to any concern they had about the funds which Botiuk received for his participation in the inquiry. However, he found that this defence was lost to them because "the whole story was not told and as a result misstatements of fact about the [respondent] were published".
43 Finally, with regard to qualified privilege, the trial judge rejected the submission that Maksymec had a duty to prepare and publish the Report as a member of the special financial commission and as past president of the UCC during the relevant times. The mandate of the commission, according to the trial judge, was not to recover money from Botiuk but merely to set out the expenses incurred and to suggest a program for using both the money collected from donations as well as that received from Metro Toronto for the account of Carter. Finally, the trial judge rejected as unreasonable the explanation provided by Maksymec that he had delayed his report for four years because he was waiting for Botiuk to change his mind and hand over the money. The trial judge noted that by 1978, those present at the general meeting neither expected the Report nor wanted it.
44 The trial judge then turned to the appellants' argument that the Lawyers' Declaration and the Maksymec Reply were validly made in response to the Sokolsky‑Muz Declaration. He concluded that the defamatory references to Botiuk were not necessary to offset what the appellants considered to be an attack upon their integrity. Although Maksymec's involvement in these publications was not in doubt, there was some dispute as to whether all of the appellant lawyers would be held responsible for the wording of the Lawyers' Declaration or the extent of its publication. The trial judge concluded that they were liable since none of them placed any qualifications or restrictions upon the use Maksymec could make of the Lawyers' Declaration.
45 The trial judge concluded that the Lawyers' Declaration extended and augmented the damaging effect of the Maksymec Report on Botiuk's reputation. He added, as well, that the Maksymec Reply significantly increased the sting of the libel by its incorporation of the words "public money".
46 Once he had found that the privileged occasion had been exceeded by all of the appellants and therefore that the defence was not available to them, the trial judge determined that it was unnecessary to deal with the question of express malice except in relation to its effect on the assessment of damages.
47 In his consideration of the damages that should be awarded, the trial judge observed that the appellant lawyers failed to make any independent inquiry as to the truth of the allegations contained in the Lawyers' Declaration. He noted that none of the appellant lawyers had apologized to Botiuk, that some had demonstrated hostility towards him in their testimony and that, contrary to their assertions, the respondent had actually done the lion's share of the work at the inquiry. I would have thought that these findings would have established express malice in fact and in law. However, the trial judge concluded that, while the lawyers were "careless, impulsive or irrational", they had not exhibited the indifference or recklessness to the truth necessary for a finding of express malice.
48 With regard to Maksymec, the trial judge found that express malice was established on the grounds that, first, he was indifferent to the truth, and second, that he was actuated by an intention to injure Botiuk. The trial judge acknowledged that it may have been necessary for Maksymec to prepare a report to distance himself from the gossip and rumours which had been circulating. This he could have done without defaming Botiuk. However, he found that Maksymec had threatened Botiuk when he told him "[i]f you don't turn over the funds I will create a scandal and ruin you". The trial judge concluded that this statement alone provided a sufficient basis for a finding of malice. It would also explain why in the course of distancing himself from the rumours Maksymec defamed Botiuk. This he did in order to carry out his threat.
49 Turning to the question of damages, the trial judge ruled that:
. . . a lawyer whose practice is primarily concerned with a large, long standing, well established ethnic community, cannot suffer a more significant blow than to have his reputation for honesty, integrity and reliability publicly attacked on the basis that he wrongfully kept money which belonged to the members of that community by prominent lawyers and businessmen from that community.
50 He concluded that Botiuk had reached a "high pinnacle of success" and that the attack upon his reputation had severely damaged his health, family relations, practice, professional and business connections and social life. The trial judge found that for many years, Botiuk would be known as "the lawyer who took or kept $10,000.00 from that community".
51 The trial judge reviewed the principles governing the assessment of damages and considered the awards made in earlier libel cases. He concluded that an appropriate sum for compensatory damages, which included general damages, aggravated damages and the present value of future pecuniary loss, was $140,000. In his view, this was not a case for punitive damages.
52 The trial judge also awarded special damages for the loss of income incurred by Botiuk as a result of the libel. He considered the evidentiary difficulties that are always present in proving actual loss and assessed the special damages at $325,000. This sum represented a loss of approximately 10 percent per year of Botiuk's income or one‑half of the lower estimate of damages provided by Botiuk's expert.
53 The trial judge rejected the argument of the appellant lawyers that since they were only involved with the Lawyers' Declaration, the damages assessed against them should be reduced accordingly. Rather, he found that all the appellants were joint tortfeasors with respect to all three documents and that they were jointly and severally liable to the respondent for all damages. I agree with this finding. In my view, there was a sound evidentiary and legal basis for the trial judge to reach this conclusion.
54 On the issue of costs, the trial judge considered that the respondent had offered to settle in the amount of $400,000, an apology and costs. However, as this offer was lower than the $465,000 that Botiuk was awarded at trial, pursuant to Rule 49.10 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Botiuk was entitled to costs assessed on a solicitor‑client basis. Prejudgment interest was awarded for a period of 12½ years at a rate of 13 percent per annum on $120,000 of the $140,000 compensatory damage award and on the entire $325,000 special damage award.
(B) Court of Appeal, [1993] O.J. No. 239 (QL)
55 On the question of malice, the court agreed that there was evidence which supported the trial judge's finding that Maksymec was motivated by spite and acted with an intention to injure Botiuk.
56 On the issue of qualified privilege, it determined that Maksymec had no duty to present the Report. First, the special financial commission, on whose behalf he professed to be reporting, had made its recommendation to the UCC executive and had ceased to exist years before May 1978. Second, the general meeting of the UCC had no corresponding interest in receiving the Report. As for the Lawyers' Declaration and the Maksymec Reply, the Court of Appeal agreed with the trial judge that these documents went far beyond what was necessary in order to respond to the Sokolsky‑Muz Declaration and therefore exceeded any qualified privilege that might have existed.
57 On the question of joint liability, the court again agreed that the trial judge was correct in holding that the three documents should be treated as one act of libel and in awarding a single set of damages in respect of them against all the appellants jointly and severally.
58 The liability of Maksymec & Associates Ltd., as found by the trial judge, was affirmed. It was from this company's premises that Maksymec had mailed the Maksymec Report, Lawyers' Declaration and Maksymec Reply in an envelope bearing the company's name and return address. The court agreed that since Maksymec was the company's principal shareholder and officer and its directing mind, it became associated with his libellous publications.
59 Finally, with respect to the quantum of damages, the court agreed that there was evidence that the libel had adversely affected Botiuk's professional practice. However, it held that since special damages were not specifically pleaded, they could only form a part of the general damage award. In the court's view, a fair sum for compensatory damages was $200,000.
60 The court ruled that there should be some reduction in the term of prejudgment interest as a result of the delay occasioned by Botiuk in proceeding to trial. It reduced it to a period of 10 years. As for costs, the court agreed that since Botiuk discharged