





CITATION:
Gill v. Singh, 2011 ONCA 770



DATE: 20111207



DOCKET: C51782



COURT OF APPEAL FOR ONTARIO



Feldman, Sharpe and Epstein JJ.A.



BETWEEN



Gurdev Singh Gill



Plaintiff (Respondent)



and



Kanwar
          N. Singh and Kanwaljit Kaur Singh
, both carrying on business as
          AJIT, Kanwar Sandeep Singh, Author and Darshan Singh also known as
          Darshan Singh Sapmark




Defendants
          (Appellants on Appeal)

Kanwar N. Singh and Kanwaljit Kaur
          Singh



Bobby H. Sachdeva, for the
          appellants



Sidney Klotz, for the respondent



Heard & released orally:
November 25,
          2011



On appeal from the decision of Justice Gordon Lemon of the
          Superior Court of Justice dated February 2, 2010.



ENDORSEMENT



[1]

The appellants appeal both liability and the damages awarded in this
    defamation action arising from articles published in a newspaper intended for
    the Sikh community.  The respondent is a member of that community and a
    publisher of a rival newspaper.

1. Liability

[2]

We see no merit in the argument that the appellants are not liable on
    the ground that the respondent failed to prove their specific roles in the
    publication of the articles.  All named defendants, including the appellants,
    admitted in the statement of defence that they published the article and that
    provides a complete answer to this submission.

[3]

While the trial judge found one named defendant, Darshan Singh, not
    liable, the statement of defence did provide some elaboration as to why that
    defendant should not be liable, distinguishing him from the appellants.

2. Damages

[4]

The trial judge awarded $50,000 for general damages and $25,000 for
    punitive damages.

(a) General
    damages

[5]

We do not agree with the submission that there was any procedural unfairness
    accruing to the appellants because of inadequate pleading or inadequate answers
    given to written interrogatories as to the damages claimed by the respondent. 
    In defamation, damages are at large and damages for mental suffering form the
    essence of those damages.  We do not accept that the appellants were taken by
    surprise by the claim advanced at trial and accepted by the trial judge.

[6]

While the award of $50,000 general damages was certainly generous in the
    light of the evidence that the respondent did not suffer loss of political
    career or business, it was not so excessive so as to attract appellate
    intervention.  In his reasons at para. 29, the trial judge focused on the
    mental suffering and distress suffered by the respondent in the particular
    circumstances of his prominence in this particular community and the
    humiliation he felt because of the articles. In our view, the damages he
    awarded, while generous, were within the range of acceptability.

[7]

In the circumstances, we see no basis upon which an appellate court could
    interfere with those findings or with the general damage award.

(b) Punitive
    damages

[8]

This was not a case for punitive damages which in law are reserved for
    exceptional cases.  Malice was neither pleaded nor proven as found by the trial
    judge.  The lack of an apology standing by itself did not, in our view, provide
    an adequate basis for punitive damages. The other factors identified by the
    respondent as justifying punitive damages namely, late admissions at trial,
    were matters of trial tactics that would more appropriately be taken into
    account with respect to the costs of the trial.

[9]

In our view, the trial judge erred in law in awarding punitive damages,
    particularly in the light of that generous damage award.

DISPOSITION

[10]

Accordingly, the award of punitive damages is set aside but otherwise
    the appeal is dismissed with costs to the respondent fixed at $5,000 inclusive
    of disbursements and H.S.T.

K. Feldman J.A.

Robert J. Sharpe J.A.

G.J.
    Epstein J.A.


