I agree with counsel for the appellant that it is the duty of the trial judge, in such a case as this, to decide whether or not the words spoken are capable of being understood in the meaning ascribed to them in any innuendo alleged and, if he concludes that they are not capable of being understood in the meaning ascribed to them in any particular innuendo alleged, he should so instruct the jury, so that they will not include in their award of damages any amount in respect of an innuendo of which the words spoken are not susceptible. On this point, Gwynne J., in Higgins v. Walkem (1889), 1889 CanLII 24 (SCC), 17 S.C.R. 225, stated at p. 232 (after saying that the article there complained of was not susceptible of all the innuendoes ascribed to it): “It was, however, susceptible of the first, but it is impossible to say what effect in increasing the amount of damages the ruling of the learned Chief Justice that it was susceptible of all the others, of a very aggravated nature, may have had upon the jury. What the learned Chief Justice should have done beside telling the jury what is the legal definition of a libel, I think, was to have told them that the article was susceptible of the meaning attributed to it in the first innuendo, and that it was for them to say whether in point of fact that meaning was fairly attributed to it. If on such a charge they had rendered a verdict for the amount of damages which they have given, although that amount might seem to me to be excessive, I should have had great difficulty in interfering with it; but as I think the case was submitted to the jury in a manner which may have misled them, and as it is impossible to say how much the opinion of the learned Chief Justice that the article was susceptible of all the meanings, of an aggravated nature attributed to it—in which, I think, he erred—may have influenced the jury in awarding the amount of damages given by their verdict, I think there should be a new trial, unless the plaintiff is willing to reduce his verdict…”
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