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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD June 6, 2002

The high price of defamation


People who sue for libel and slander normally do so to set the record straight and to hopefully vindicate their reputations .If the purpose is vengeance or to strike it rich a libel action is not the proper course of action. Simply put, judges don't like plaintiffs who try to make a profit out of their misfortunes.

Principles underlying compensation

Under the Quebec civil law the general rule is that compensation must be made in full, thereby placing the victim in the same position, as he would have been if the incident had not occurred. In the words of the Supreme Court of Canada, the " indemnity is calculated so as to take account of the loss actually suffered and the gain lost." This explains why the size of the amount awarded to a plaintiff is normally in direct proportion to the extent of the damages.

In addition to pecuniary damages a victim is entitled to compensation for his non-pecuniary losses. In libel cases, this requires a judge to place a price, albeit arbitrary, on the pain, humiliation and anguish suffered by the victim. When estimating the non-pecuniary loss Quebec courts consider the seriousness of the act, the good or bad faith and the intent of the offender.

In exceptional cases judges may impose "punitive " or exemplary damages particularly when the conduct of a defendant is so considered so "malicious, oppressive and high-handed that it offends the court's sense of decency".

Earlier awards were modest

Up to the mid 90's, awards for libel actions in Canada were downright modest, in comparison to the United Kingdom and the United States. Prior to 1988, awards in excess of $50,000 for non- pecuniary loses were extremely rare, especially in Quebec where they rarely exceeded $5,000. From 1987 to 1995, there were only 51-reported libel judgments in Canada. While six awards were higher than $100,000 the average was only $25,000.

$1.6 million award in favor of a crown attorney

The largest awards in Canada have involved plaintiffs who were injured in their profession or occupation. In 1995 one particular Ontario verdict hit a dazzling new height and in doing so dramatically transformed the level of awards throughout Canada. The case involved a crown attorney who recovered from a well known attorney and the Church of Scientology, the amount of $300,000 in general damages and from Scientology alone, aggravated damages of $500,000 and punitive damages of $800,000 .The defendant attorney had alleged during the course of a press conference that the prosecutor had misled a judge and had breached orders sealing certain documents belonging to Scientology and as a result sought an order to jail him. The landmark judgment was upheld by the Supreme Court of Canada even though the crown attorney had been appointed a judge of the Ontario High Court by the time the appeal was heard and had never established an actual pecuniary loss.

Libel lawsuits by politicians


Politicians, both active and retired are also prone to sue for libel, even at the risk of being perceived as "thin skin " or trying to "muzzle" the press .In 1999, former Premiers Lucien Bouchard and Jacques Parizeau sought $300,000 in damages in a libel suit against an investment counselor who compared their political tactics to those of Adolf Hitler, in a confidential newsletter to his clients. A judge awarded them $40,000 plus costs in March 2000.

Former Prime minister Mulroney launched a successful libel suit against the federal government for $36 million because of allegations he received payoffs in conjunction with the purchase of Airbus jetliners by Air Canada 10 years ago. As a result of an-out -of-court settlement in 1997, the government had to officially apologize and pay him $1.44 million to cover his legal and public relations fees.


Libel suits against the media

While the purpose of a libel judgment is to restore the defamed person's reputation, in some cases this can be achieved as much by the publicity surrounding the trial as by the amount of the award. When a newspaper is at fault, section 13 of the Quebec Press Act empowers a judge to also order the newspaper to publish the judgment at its expense and under penalty of contempt of court.

One such case deserves a brief mention. In 1975, Gerry Snyder, a well-known public figure, brought a series of actions for defamation. They were directed against a police officer and various media following the publication of a news item identifying him as having contacts with organized crime. One newspaper published a front-page article titled "Former city official called member of `Jewish Mafia' ". Without naming him, the newspaper clearly identified him in the article. Snyder sued the newspaper, seeking damages totaling $735,000. The jury found that none of the allegations mentioned in the article in question were true and recommended $135,000 which at the time was the largest Canadian award for non-pecuniary damages against a newspaper. In 1988 the Supreme Court of Canada reduced the amount to $35,000 plus interests, largely because of the low range of libel awards during the mid 70's when the defamation occurred.

Those who wish to sue a newspaper for libel must be prepared to face highly qualified and experienced attorneys. Their specialty combines criminal, constitutional, delictual, defamation, contempt, privacy and confidentiality law. These specialized attorneys are either retained by insurance companies or directly by newspapers that can afford them. Their mandate often involves keeping their clients out of legal trouble as well as finding creative ways to get a story out without being sued for libel. As for the select group of attorneys who spend much of their time checking articles for defamation on behalf of their newspaper clients, many of them have developed editing skills that are as refined as their expertise in court.

Less legalistic alternatives

When it comes to libelous statements by the media, there are also other less legalistic and inexpensive alternatives than filing a lawsuit such as demanding an apology, a retraction, or by writing rebuttal articles. Furthermore, most responsible newspapers show a willingness to publish letters to the editor criticizing a reporter or columnist.

Because of the all important publicity angle a complaint to the Quebec Press council is still another alternative. Despite the legal inability to enforce its decisions, the Quebec Press council has proven to be effective in large part because of the many news organizations, which have agreed to publish them.