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Ego vs. injury – Why pursuing defamation claims is not always about the money

A recent decision of the Ontario Superior Court of Justice is an example of how hurt feelings and damaged egos may not necessarily be a good reason to sue for defamation.

In Bernstein v Poon, Dr. Stanley Bernstein, who heads a well-known chain of diet clinics, sued Dr. Pat Poon, a Toronto physician, for defamation, claiming damages totalling over $1 million. The lawsuit alleged that Dr. Poon had defamed Dr. Bernstein in various statements he made about the “Dr. Bernstein Diet”, which Dr. Poon had published in his books and on his website. After several years of litigation (and likely significant legal fees), the action proceeded to an eight day trial. In his trial decision, Justice Mew found only partially in favour of Dr. Bernstein. In fact, Justice Mew found Dr. Poon liable for defaming Dr. Bernstein in only two out of the several publications that Dr. Bernstein had complained of.

One of the issues that rose in the Bernstein case, and which invariably rises in most defamation actions is: how should the court compensate the plaintiff for the harm to his reputation? More particularly, how much damages should be awarded to adequately compensate the plaintiff for the injury to his reputation? This is an issue that lawyers and judges often struggle with, because those damages are, in most cases, intangible. In the Bernstein case, Justice Mew awarded Dr. Bernstein $10,000 in damages, an amount that is significantly lower than what Dr. Bernstein had sued for, and which falls within the jurisdiction of the Small Claims Court.

Before the advent of online defamation claims, damages awards such as the one in the Bernstein case would have been the norm, rather than the exception. Indeed, defamation claims were, more often than not, brought before the Small Claims Court. Online defamation actions have significantly changed the damages landscape. In online defamation cases, courts have been awarding damages that far exceed those awarded in non-online cases, sometimes in the hundreds of thousands of dollars. The Bernstein case is, therefore, somewhat unique, in that Justice Mew awarded the plaintiff an amount of damages that is more suited to a non-online publication, even though at least one of the subject publications were online (perhaps because there had been no evidence that anyone had actually read or viewed the online publications).

The Bernstein case is an example of why it may not be financially worthwhile for plaintiffs to pursue a defamation claim all the way to trial. After all, the legal fees may far exceed the damages award. Then again, from my experience, defamation actions are often motivated not by financial compensation, but rather from a need to vindicate one’s reputation or to assuage hurt egos. As Justice Mew poignantly put it: “this case is more about ego than injury. It is more about turf warfare in the competitive world of diet medicine than about reputation.”

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Maanit Zemel

Internet and Social Media lawyer, commercial litigator at MTZ Law
Maanit Zemel is a commercial litigator admitted to practice in Ontario and New York, with substantial experience and expertise in Internet and social media law, including Canada’s Anti-Spam Legislation (CASL), privacy, online defamation, cyberbullying and cyber-security. Read more.
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