Mullins v. Beneteau
John Thomas Mullins, plaintiff, and
Raymond Beneteau, Beneteau Brothers Excavating Limited,
 O.J. No. 2784
11 O.T.C. 298
64 A.C.W.S. (3d) 1242
Court File No. 91-GD-14858
Ontario Court of Justice (General Division)
July 24, 1996.
Libel and slander -- Defences -- Evidence and proof -- Burden of proof -- Privileged reports, judicial proceedings.
This was an action for defamation. The plaintiff, Mullins, was a municipal landfill supervisor. The defendant, Beneteau, operated an excavation and landfill business. Beneteau alleged that Mullins ordered Beneteau to hire his sons and terminate the employment of other personnel. He also alleged that Mullins offered to withdraw the demands if offered a bribe. Beneteau informed police of these allegations. Mullins was later arrested and charged with bribery. The charge was partially based on Beneteau's statement to the police. Mullins was fired from his employment. The charges were subsequently dismissed. Beneteau admitted that he fabricated elements of his statement. Mullins denied that he made any demands of Beneteau. He claimed that Beneteau damaged his reputation and caused his dismissal. Beneteau argued that he did not make false statements and that Mullins made the demand. He also argued that his statement to the police was covered under an absolute privilege and was not actionable.
HELD: The action was allowed. Beneteau did not prove that Mullins made the bribery demand. He fabricated important elements of the claim and was not a credible witness. Beneteau's statement to police was malicious. The statement was not privileged. Mullins was entitled to compensation for the injuries he suffered.
Raymond G. Colautti and David Kunsch for the plaintiff.
Grant English and Larry Bellowus for the defendant.
1 QUINN J.:-- The plaintiff brings this action against the defendants for general, aggravated, punitive and special damages for defamation, injurious falsehood, inducing breach of contract and wrongful interference with economic interests.
2 The plaintiff, and the defendant, Raymond Thomas Beneteau, hereinafter "Raymond") have been acquainted with each other for at least 30 years. The plaintiff, and the defendant, Raymond, resided approximately 2 to 3 miles apart in a rural area of Essex County. The defendant, Raymond, his brother Ivan and his father were at one time in the farming business and leased the plaintiff's farm in the course of their business.
3 In or about January 1982, the defendant, Raymond, and his brother Ivan, were involved in the excavating business under the name of Beneteau Brothers Excavating Limited. On January 1, 1982, Beneteau Brothers Excavating Limited was awarded a contract by the Corporation of the County of Essex. The contract was the most lucrative work that Beneteau Brothers Excavating Limited had done to that time. The work was to be carried out at County Landfill Site No. 1 in Colchester North Township. The work involved digging a trench, filling the trench with garbage and then covering over the trench. The contract with the County involved year round steady employment.
4 In August 1982, the plaintiff was appointed Landfill Supervisor. The plaintiff's function was to supervise the work being done at the landfill sites including the landfill where the defendants were employed.
5 On a Thursday evening in September 1982 the defendant, Raymond, alleges that he was at the Grand Central Hotel in the Town of Essex. Raymond stated that at some point the plaintiff who was also in the hotel came over and sat at his table. The two men talked for a while and then the plaintiff according to Raymond made demands that he wanted the defendant Beneteau Brothers Excavating Limited to carry out at the landfill. The plaintiff, Raymond alleges wanted two extra men hired, a night watchman hired, he wanted Beneteau Brothers Excavating Limited to hire his sons for any trucking the landfill required, he wanted the barriers removed, and he wanted Jim Campeau fired. Raymond replied that all this would cost money. The plaintiff then, according to Raymond, indicated if he was paid money all these demands could be overlooked. The two gentlemen had approximately 3 beers each during the conversation and the conversation lasted approximately 45 minutes.
6 Approximately 6 weeks later according to Raymond, the plaintiff came to the landfill site and asked Raymond if had given any more thought to what they had discussed at the Grand Central Hotel. Raymond indicated to the plaintiff that he would not be paying any money. Raymond alleges that the plaintiff in response made a threat.
7 Raymond shortly thereafter told Mr. Skinner, a cousin with the Windsor Police Department, that the plaintiff had demanded a large sum of money from him. Mr. Skinner indicated that Raymond did not mention an amount. Raymond also relayed the conversation to Mr. Allan Parr, the Reeve of Sandwich South Township at the time. Mr. Parr recalled that Raymond had indicated that he was asked for an amount of $10,000 by the plaintiff. Raymond also reported the conversation to his brother Ivan and indicated that the plaintiff had demanded the sum of $10,000.
8 Raymond stated that from 1982 until 1984 he and the plaintiff got along well on the job site and no further mention was made of the Grand Central bribe incident.
9 In the Fall of 1984, a Corporal Ryder of the Ontario Provincial Police who was a fishing acquaintance of Raymond and his brother Ivan, met Raymond at the Charcoal Pit in the Town of Essex. Corporal Ryder on this occasion asked Raymond many questions concerning the operation of the landfill site. Raymond told Corporal Ryder of the bribery incident in September of 1982. Raymond subsequently gave the Ontario Provincial Police at least three statements describing the bribery incident at the Grand Central Hotel.
10 The contract of Beneteau Brothers Excavating Limited was due to expire in 1985. Raymond believed that the plaintiff might again request money from him to ensure the renewal of the landfill contract. Raymond was subsequently given a concealed voice recording system in order to record any conversation that he might have with the plaintiff. There were no conversations recorded. Raymond was also given a recording device for his telephone. The only message recorded was one from the plaintiff advising Raymond Thomas Beneteau that his company had been awarded an extension of its' contract.
11 The plaintiff was arrested on February 23, 1986, and was charged with five counts of criminal activity relating to activities at the landfill sites. Count #3 on the Information was based on Raymond's statement of bribery which occurred at the Grand Central Hotel in September 1982.
12 When the plaintiff's employer received a copy of the Information they requested an immediate meeting with the plaintiff. The plaintiff refused to meet with his employer on the advice of his criminal lawyer and also due to his health condition at the time. The plaintiff's employer terminated the plaintiff's employment when he failed to respond to the employer's request for a meeting. The plaintiff filed a grievance.
13 A preliminary hearing and a criminal trial were held with regard to the five charges against the plaintiff. Three of the charges against the plaintiff were withdrawn at the preliminary hearing. The Crown Attorney elected to proceed to trial on Count 3 and after a full trial before a jury, Count 3 which was based on Raymond's allegations, was dismissed. The Crown Attorney subsequently withdrew the final charge against the plaintiff. The defendant, Raymond, at the preliminary hearing and at the trial, testified that the plaintiff had demanded the sum of $10,000 from him as a bribe.
14 On April 29, 1990 at approximately 10:00 p.m. Raymond and his wife attended at the residence of his brother Ivan. Ivan described his brother Raymond as being hysterical. Raymond indicated to Ivan that his conscience was bothering him and he was concerned about his 14 month old son. Raymond wished to attend at the Ontario Provincial Police Detachment that evening. Raymond and Ivan went to the police detachment at approximately 10:30 p.m. Raymond told Detective John Repys that he wished to clear up his conscience and that the figure of $10,000 in his statements was fabricated and also that the bribery occurred in 1984 and not 1982. Detective Repys advised Raymond that he could be charged with a criminal offence and that he should speak to a lawyer before he made a formal statement. Raymond subsequently spoke to a lawyer and was told to say nothing. Raymond subsequently gave a statement in which he indicated that the plaintiff had never asked for a sum of $10,000 but rather a sum of money. Detective Repys in his evidence indicated that Raymond also indicated that the incident did not happen in 1982 but rather 1984.
15 A grievance hearing was held in June 1990 concerning the plaintiff's job with the Corporation of the County of Essex. The plaintiff's cousin, Paul Mullins, a lawyer, approached the lawyer for the Corporation of the County of Essex and suggested a settlement wherein the plaintiff would receive a sum of money in return for his resignation. The plaintiff accepted a sum of money in return for his resignation from the Corporation of the County of Essex.
16 The plaintiff at all times denied that there was ever a conversation as alleged by the defendant, Raymond, at the Grand Central Hotel in Essex in September 1982. The plaintiff denies ever asking the defendants for money.
17 The issues raised by counsel during the trial were as follows - Justification, Privilege, Malice, Liability of Corporate Defendant, Damages and Costs. I have dealt with these issues as follows:
18 Raymond made three statements to the police in which he described in detail the alleged conversation he had with the plaintiff at the Grand Central Hotel in Essex in September 1982. If, as the plaintiff alleged, the conversation in September 1982 at the Grand Central Hotel in Essex never occurred, then Raymond's statements to the police are defamatory of the plaintiff. If the conversation however did occur, then this would be a complete defence to the plaintiff's claims.
19 After listening to the evidence of the witnesses and submissions of counsel, I would conclude that on a balance of probabilities the defamatory statements alleged to have been uttered by the plaintiff in September 1982 at the Grand Central Hotel in Essex were never made by the plaintiff. The onus is on the defendant in pleading justification to prove that the defamatory statements are true (Gatley, Libel And Slander, Eighth Edition, 1981, p. 150, para. 352).
20 The defendant, Raymond, by his own admission lied to Allen Parr, his brother Ivan, in three statements to the police, at one preliminary hearing and at one Ontario Court (General Division) jury trial. Raymond stated on these occasions that the plaintiff had requested a bribe of $10,000. Raymond told this court that the plaintiff never requested $10,000 but rather a sum of money. Raymond explained that the sum of $10,000 would be the estimated cost to carry out the additional work demanded by the plaintiff. Counsel for Raymond argued that the gist of the bribery allegation was still present despite the admitted lies in the past. This may be true but Raymond's credibility was not enhanced by this admission.
21 On April 30, 1990, Raymond attended at his brother's residence in an hysterical state. Raymond told his brother that his conscience was troubling him and that he wished to attend at the Ontario Provincial Police Detachment immediately. The two brothers attended at the Police Detachment. Raymond told police that he lied and he wished to change his statement. After being told by the police that he would be charged with perjury and that he should speak to a lawyer Raymond's statement was that the plaintiff did not demand $10,000 as indicated in previous statements but rather a sum of money. This factual scenario does not add to Raymond's credibility. First, it is difficult to accept that Raymond's conscience would affect him to such a degree that he would be hysterical over the fact that the plaintiff did not demand $10,000 but rather a sum of money. This appears to be a distinction without a difference. Second, one wonders what effect the threat of perjury charges and the lawyer's advice had on Raymond's disclosure.
22 Detective Repys stated that Raymond had told him the bribery incident occurred in 1984 and not 1982. This is a further factor which weakens the credibility of Raymond's evidence on the bribery allegation.
23 In summary, the onus was on Raymond to establish his plea of justification and on these facts I do not believe he has met the onus.
Absolute Privilege - Qualified Privilege - Malice
24 The case law referred to by counsel would indicate that there IS an absolute privilege for statements made in the course of a judicial proceeding (see O'Connor v. Waldron  1 W.W.R. 1, Lincoln v. Daniels  1 Q.B. 237 (C.A.)) It would appear therefore that the statements of Raymond at the preliminary hearing and at the trial before a jury are protected by an absolute privilege.
25 The issue that was addressed at some length by counsel was whether or not the three statements made by Raymond to the police officers are protected by an absolute privilege or a qualified privilege. Counsel for the defendants relied on the case of Canada v. Lukasik (1985), 18 D.L.R. (4th) 245 (Alta. Q.B.). In this case there is a statement by the court that a false statement given by a witness to a police officer may be protected by an absolute privilege. This is obiter dicta and not a very strong statement of the law.
26 Counsel for the plaintiff has referred the court to Gatley on Libel and Slander (Seventh Edition). The author in chapter 13 under the heading "Qualified Privilege" at paragraphs 480 and 481 states that if a charge is made honestly and to the proper authorities, the mere fact that it is found to be groundless or that proceedings in respect of it are subsequently abandoned will not destroy the privilege. The key word for our purposes is that the charge is made honestly. Counsel for the plaintiff also referred to the following cases to support this proposition: Dijkstra v. Westerink, 401 A.R. (2d) 1118 (168 NJ. Super. 128; Heggy v. Grutzner, 456 N.W. (2d) 845 (Wis-App. 1990). These decisions are of the New Jersey Superior Court and the Wisconsin Court of Appeal. The two cases clearly stand for the proposition that a statement to a police officer is subject to a qualified and not an absolute privilege. In my opinion Gatley and the two American decisions clearly reflect the law with regard to a statement to a police officer.
27 In summary, Raymond knew the statements that he made to the police were false. This would constitute malice on the part of Raymond and the qualified privilege would be lost.
Liability of Corporate Defendant
28 Plaintiff alleges that the corporate defendant is liable for the defamatory statements made by its employee Raymond. The plaintiff argued that Raymond was one of two principal shareholders of the corporate defendant. The subject matter of the defamatory statements related to the affairs of the corporate defendant. Counsel for the defendants argued that the alleged defamatory remarks were not within the scope of the employment of Raymond. The cases referred to by the plaintiff would support the proposition that for the defamatory statements to apply to the corporate defendant, the employee would have had to be within the scope of his employment when the statements were made. The plaintiff referred to the cases of Harrison v. V. Joy Oil Co. Ltd. et al, , O.R. 679 (C.A.); Citizens' Life Assurance Company Limited v. Brown, , A.C. 423.
29 In my opinion, the defamatory statements made to the police officers were not made within the course or scope of the employment of Raymond. The scope of Raymond's employment was to dig trenches at Landfill Site #3 and fill the trenches with garbage. The defamatory statements were made to police officers. Statements to police officers, in my opinion, do not come within the scope of the employment of Raymond.
30 I would conclude therefore that the defendant, Beneteau Brothers Excavating Limited is not liable to the plaintiff for the defamatory statements of Raymond.
31 Special damages are not presumed and must be proved to be recovered. [The Law of Defamation in Canada, Brown (Carswell 1987, p.p. 1046 - 1048)]. The plaintiff claims three areas of special damages. The legal costs for the criminal proceedings, the legal costs incurred in the arbitration proceedings, and his lost income and pension as a result of the termination of his employment.
32 I will deal first with the legal costs arising from the criminal proceedings and the arbitration proceedings. The plaintiff claims that he has paid to Donald Tait the sum of $47,500, to Paul Mullins $17,500, to Rena John the sum of $79 and to Colwell Investigations the sum of $5,777.15.
(i) Donald Tait Account - $47,500
33 Donald Tait is a criminal lawyer who acted for the plaintiff with regard to the 5 criminal charges. Mr. Tait indicated in his evidence that 3 of the 5 charges were withdrawn at the preliminary hearing and that one of the charges did not proceed. The charge that originated with Raymond's statements to the police involved one week of preliminary hearing and one week of a jury trial. Mr. Tait indicated that the majority of his time was spent on this charge. Mr. Tait estimated that approximately 80 to 90% of his time was attributable to the Raymond related charge. I accept this evidence as it is undisputed and seems reasonable.
34 Mr. Tait indicated that he gave the plaintiff the option of being billed on a time basis or a block fee. There was no evidence adduced as to the method of arriving at the block fee. I assume this fee was based on Mr. Tait's estimate as to the time involved, the seriousness of the charge and Mr. Tait's experience. The evidence in support of this account is sparse. There is no account, there are no dockets, and there is no formula to assess whether the block fee is reasonable. The evidence I believe is that the criminal jury trial lasted approximately one week as did the preliminary hearing. I would assume based on the Colwell Investigation reports that there was some preparation in advance of the preliminary hearings. Based on this evidence, Mr. Tait's experience as a criminal lawyer, and the seriousness of the charges, I would conclude that the block fee in this instance is reasonable.
35 Mr. Tait's evidence was that most of the preliminary hearing time and all of the criminal trial involved Count #3 which was the charge flowing from the statement of Raymond. I would therefore conclude that Mr. Tait's account is a special damage that flows naturally and directly from the defamatory statement of the defendant, Raymond. I would therefore conclude that the plaintiff should recover from the defendant, Raymond, the sum of $38,000 as special damages (80% of $47,500).
(ii) Paul Mullin's Account - $17,500
36 Paul Mullins is a distant cousin of the plaintiff and was consulted by the plaintiff on the plaintiff's arrest. Mr. Mullins indicated that he has not charged for his earlier work for the plaintiff. This work was done as a relative and a friend. The account of $17,500 includes work done on a real estate transaction (459.58) which was necessary to allow the plaintiff to pay Mr. Tait's account. The balance of the account relates to negotiations with the plaintiff's employer which resulted in an agreement wherein the plaintiff resigned from the Corporation of the County of Essex in return for other consideration.
37 The only documentation in support of the fee charged of $17,500 is a cheque dated July 21, 1986 in the amount of $2,500 drawn by the plaintiff and payable to Paul Mullins, a trust statement dated December 17, 1986 wherein it is indicated that Paul Mullins' fees and disbursements for a real estate transaction are $459.58 and a receipt dated July 26, 1990 from Paul Mullins indicating receipt of the sum of $15,000 from the plaintiff. There are no accounts or dockets submitted on which an assessment could be made on the reasonableness of the account. There was an estimate in Mr. Tait's case with regard to the length of time of the preliminary hearing and the jury trial. In the case of Mr. Paul Mullins there is no estimate as to how much time was spent on the negotiations. The real estate account of $459.58 appears reasonable. There is no way to assess the balance of the $17,500. If Mr. Paul Mullins spent 75 hours at approximately $200 per hour the account would probably be reasonable. If Mr. Mullins' time however was in the area of 10 hours the account would not be reasonable. I would conclude that this account has not been proved except for the sum of $459.58.
38 I would have thought that if the plaintiff were of the view that there was no merit to any of the allegations contained in the 5 counts in the Information, that he would have pursued the arbitration hearing through to a successful conclusion and return to his employment. Mr. Paul Mullins testified that the reason for the settlement initiative on the part of the plaintiff was that the plaintiff did not feel he would be able to return to his former employment because of the atmosphere that was created as a result of the trial and also concerns of the plaintiff coping with the employment if he returned. There is no concrete evidence that the plaintiff would not have been able to carry out his former duties or that the atmosphere in light of the acquittals would have made it impossible for the plaintiff to return to his employment.
39 On the basis of these facts I do not understand why it was necessary to incur the cost of the account of Paul Mullins to negotiate a settlement. The plaintiff should have proceeded with the arbitration.
40 If there was only one allegation instead of 5, would charges have been laid, would the plaintiff have been arrested, would the plaintiff have received the same publicity, and would he have been terminated from his employment. The onus is on the plaintiff to prove his special damages. The Raymond related charge contributed to the damages but may not have on its own caused the damages. The answer to this issue I believe is found in the Law of Torts, Fleming, Remoteness of Damages, Chapter 9, where the author states the following at page 174 under the heading Divisible Harm.
"The law does not excuse a defendant from liability for a consequence merely because other causal factors for which he is not responsible were also necessary to produce it. As we have seen, every event is the result of a complex set of (jointly sufficient) conditions and, if a defendant were allowed to escape because his conduct, unaided by other factors, would not alone have produced the harm, no plaintiff would ever be compensated. Liability is not necessarily precluded even by the presence of contributory causes which involved the wrongdoing of others. If two negligent drivers collide and injure a pedestrian, one is as accountable as the other. Indeed, responsibility may ensue even for loss caused by two or more parties each of which, standing alone, would not be wrongful at all. If, for example, several defendants create a noise, cause an obstruction or pollute a stream so as to amount in the aggregate to a nuisance, they are all separately liable, notwithstanding that they were acting independently of each other and that the act of each would have been harmless by itself.
... The resulting harm (to which both contributed) being indivisible, each will be answerable for all the damage, though the plaintiff is not entitled to more than a single satisfaction of his claim. If one of them makes good the loss, he may today have recourse against the other for contribution in an amount which the court deems just and equitable, having regard to their share of individual responsibility for the damage."
41 In summary, I would allow the sum of $459.58 in satisfaction of the account of Paul Mullins relating to the real estate transaction which was necessary to pay the account of Donald Tait, whose account I concluded flowed naturally and directly from the defamatory statement of the defendant. The balance of the account I have not allowed as I conclude the account has not been proved and may not have been necessary. The account otherwise would have flowed directly and naturally from the defamatory statement for the reasons stated above.
(iii) Rena John - $79.00
42 I do not recall hearing any evidence on this issue. I would not allow this account.
(iv) Colwell Investigations - $5,777.15
43 The evidence of Donald Tait was that the Colwell Investigation accounts were spread equally over the 5 counts. I would therefore allow 1/5 of this account as special damages flowing directly and naturally from the defendant's defamatory statement. I would allow the sum of $1,155.43.
(v) Lost Income, Pension and Sick Leave - Mitigation
44 Counsel for the plaintiff in his submissions argued that the plaintiff was attempting to get his job back from 1986 through 1990. Four of the five charges against the plaintiff were withdrawn without a trial. The plaintiff was acquitted by a jury after a trial on the fifth charge. Raymond before the arbitration hearing commenced, advised the police that he had lied with regard to his statement. The plaintiff with these facts as a background resolved his arbitration hearing for approximately 4 years back salary. The reasons given by Mr. Paul Mullins were that the plaintiff did not feel he could cope in his old job because of the atmosphere created by the publicity. There were also concerns as to the plaintiff's ability to cope in his new job which I assume was from a health point of view. There was no evidence presented that the plaintiff would not be able to cope for any reason at his old job.
45 On the bases of these facts I would conclude that the plaintiff should not have settled his grievance claims for four years salary but should have mitigated his damages and proceeded with the grievance. On the facts presented before this court the plaintiff's prospects of getting his job back were good. I therefore would not allow the plaintiff's claim for lost income, pension or sick leave.
46 On review of the reports filed by Collins Barow (Exhibit 62) and Michael F. Charette (Exhibit 66), I prefer the approach taken by Michael F. Charette. The assumptions and the contingencies used by Michael F. Charette in my opinion more accurately reflect the plaintiff's position. In the event therefore that I am wrong in the conclusion that the plaintiff has not proved lost income, pension and sick leave, I would fix the present value of this loss at $146,782.
(vi) General Damages, Aggravated Damages and Punitive Damages
47 I have concluded that the defendant Raymond made defamatory statements of the plaintiff. These defamatory statements resulted in a criminal charge which received widespread and extensive publication in the newspapers, radio and T.V. The plaintiff was arrested, incarcerated for a short period of time, and required to appear in court for a preliminary hearing and a trial before jury. All these events were widely publicized. Despite the plaintiff's acquittal, after trial by a jury on the Raymond related charge, the plaintiff will always have to live with members of the community retaining erroneous impressions concerning the allegations. The plaintiff was a prominent member of his community, involved with the School Board and other political activities. The effect of this experience on the plaintiff's emotional and physical health will never be able to be compensated with a damage award.
48 The criteria for the assessment of general and aggravated damages are set out in Gatley on Libel and Slander, 8th Ed., pp. 592-4, Section 1, Assessment of Damages.
"1451. Province of the Jury. In an action of libel 'the assessment of damages does not depend on any legal rule'. The amount of damages is 'peculiarly the province of the jury,' who in assessing them will naturally be governed by all the circumstances of the particular case. They are entitled to take into consideration the conduct of the plaintiff, his position and standing, the nature of the libel, the mode and extent of publication, the absence or refusal of any retraction or apology, and 'the whole conduct of the defendant from the time when the libel was published down to the very moment of their verdict. They may take into consideration the conduct of the defendant before action, after action, and in court at the trial of the action, and also, it is submitted, the conduct of his counsel, who cannot shelter his client by taking responsibility for the conduct of the case. They should allow 'for the sad truth that no apology, retraction or withdrawal can ever be guaranteed completely to undo the harm it has done or the hurt it has caused.' They should also take into account the evidence led in aggravation or mitigation of the damages."
"1452. Aggravated damages. The conduct of the defendant, his conduct of the case, and his state of mind are thus all matters which the plaintiff may rely on as aggravating the damages. 'Moreover, it is very well established that in cases where the damages are at large the jury (or judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff's proper failings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation.' 'In awarding "aggravated damages" the natural indication of the court at the injury inflicted on the plaintiff is a perfectly legitimate motive in making a generous, rather than a more moderate award to provide an adequate solatium ... that is because the injury to the plaintiff is actually greater, as a result of the conduct exciting the indignation, demands a more generous solatium.'"
49 I would assess the general and aggravated damages at $50,000. I would not assess any amount for punitive damages. In my opinion the general and special damage award together with the cost award are sufficient without the necessity of a further deterrent by way of punitive damages. In the decision of Manning et al v. Hill, 126 D.L.R. (4th) 129, the jury awarded $300,000 in general damages, $500,000 in aggravated damages and $800,000 in punitive damages. From 1987 to 1991 there were 27 reported libel decisions in Canada with an average award of $30,000 and from 1992 to 1995 there were 24 judgments with an average award of less than $20,000 (see Manning vs. Hill (supra) p. 177). I do not believe that an award of the magnitude in the Manning and Hill decision is justified. The parties involved in this particular case are obviously not of the same substantial means as the parties in the case of Manning vs. Hill. A more modest award is more realistic and consistent with the parties' economic reality.
50 I would allow the plaintiff his costs on a solicitor and client basis against the defendant, Raymond. The claim of the plaintiff against the corporate defendant will be dismissed without costs. The costs of the plaintiff shall be on a solicitor and client basis to fully compensate the plaintiff as a result of the defendant's conduct.
51 The solicitor and client cost disposition above is subject to there being no effective Rule 49 offer. If such an offer has been made further submissions may be made on the issue of costs.