Practitioners often have to warn their clients that the rules which apply in Quebec and in the United States are different where defamation is concerned (amongst other matters!).
For example, a person can commit a fault in Quebec even if the information they circulate is true, which is not the case in the U.S. where only false statements are condemned Under the law of defamation.
In Québec, a person must act in a reasonable manner (art. 1457 C.C.Q.), as a man of ordinary prudence. This means that one cannot circulate true information with intent to harm. As the Supreme Court indicated in Prud'homme v. Prud'homme, 2002 SCC 85 (citing Jean-Louis Baudouin and Patrice Deslauriers) :
"[35] […] the wrongful act may derive from two types of conduct, one malicious and the other merely negligent:
[translation] The first is an act in which the defendant, knowingly, in bad faith, with intent to harm, attacks the reputation of the victim and tries to ridicule or humiliate him or her, expose the victim to the hatred or contempt of the public or a group. The second results from conduct in which there is no intent to harm, but in which the defendant has nonetheless interfered with the reputation of the victim through the defendant’s temerity, negligence, impertinence or carelessness. Both kinds of conduct constitute a civil fault and entitle the victim to reparation, and there is no difference between them in terms of the right. In other words, we must refer to the ordinary rules of civil liability and resolutely abandon the false idea that defamation is only the result of an act of bad faith where there was intent to harm."
This significant difference, as well as the "full compensation" (but no more) principle that applies in Québec affect the quantum of damages awarded by the courts. We should not expect outlandish awards like those granted by American jurys in "libel" or "slander" cases, that are abundently publicized in the media.
In Québec, moral damages granted for an attack on one's reputation varies greatly, depending on the facts of each case. As the Court of Appeal stated in Métromédia CMR Montréal inc. v. Johnson, 2006 QCCA 132:
"[98] The evaluation of moral damages where defamation is concerned is difficult, because it pertains to compensating an attack on one's reputation, repairing humiliation, despise, hate or ridicule caused by the reprehensible statements. The gravity of the conduct, its voluntary rather than impolite nature, the fact that the statements were reiterated during the proceedings, a large circulation of the statements, the condition of the parties, are amongst the elements that will increase the award [...]"
[OUR TRANSLATION]
Baudouin and Deslauriers (in Responsabilité civile) report the following criteria which much be considered:
- the gravity of the conduct
- the intention of the defendant
- the circulation of the defamatory statements;
- the condition of the parties;
- the effect the defamation has had on the victim and his entourage;
- the duration of the conduct;
- Apologies or disavowal.
Individuals
Obviously, the cases where the moral damages awarded were the highest were those where the attacks on the victim's reputation had been particularly vicious and were largely circulated:
- Chiasson v. Fillion, 2005 CanLII 10511 (C.S.), conf. by Fillion c. Chiasson, 2007 QCCA 570 ($100,000)
- Jobin v. Fillion, 2007 QCCS 6575 ($100,000)
- Abou-Khalil v. Diop, 2008 QCCS 1921 conf. by 2010 QCCA 1988 ($100,000)
- Lafferty, Harwood & Partners v. Parizeau, 2003 CanLII 32941 ($75,000)
These cases should be seen as representing the maximum amount one can get on the spectrum of possibilities, as far as the quantum in defamation cases is concerned. They are exceptional cases and are not representative of the amounts one typicially would get, which more likely will vary between a nominal amount and $50 000, depending on the facts of the case.
Consideration should also be given to the fact that the jurisprudence has Evolved since the abovementioned decisions were rendered. Medias have taken an ever increasing part in our lives, and jurisprudence has adapted accordingly.
For exemple, courts now distinguish between defamation and insults, and they take more and more into consideration the role played by the person who made the defamatory statements, because this role influences the audience that hears the defamatory statements being made. A gradation must be made in fault and damages depending on whether the wrongful statements were made by a journalist reporting information as if it was "fact", and commentary (editorials, debates, radio call-in programs, caricature, satire, etc.).
The Court of Appeal applied these distinctions in Genex Communications inc. v. Association québécoise de l'industrie du disque, du spectacle et de la vidéo, 2009 QCCA 2201, amongst others, where it recognized that the statements made by "excessive" commentators are not taken as seriously by the people who hear them and therefore do not affect the reputation of the victim as badly.
Also, the fact that a person is in the public eye now tends to minimize the amounts of damages that are awarded. As the Court of Appeal noted in Proulx v. Martineau, 2015 QCCA 472 :
"[31] Even though the fact that someone is in the public eye does not grant everyone else a license to attack his reputation and his honor, it is also estblished that ublic personnalities must show a higher tolerance as a result of their public engagements which inevitably expose them to critiques, mockery and satire, which our Court has previously recognized as a risk of the trade. Justice LeBel also mentioned the following in WIC Radio: [OUR TRANSLATION]
[75] People who voluntarily take part in debates on matters of public interest must expect a reaction from the public. Indeed, public response will often be one of the goals of self‑expression. In the context of such debates (and at the risk of mixing metaphors), public figures are expected to have a thick skin and not to be too quick to cry foul when the discussion becomes heated. This is not to say that harm to one’s reputation is the necessary price of being a public figure. Rather, it means that what may harm a private individual’s reputation may not damage that of a figure about whom more is known and who may have had ample opportunity to express his or her own contrary views."
As we saw in Chenail v. Lavigne, 2011 QCCA 862, for example, where the mayor of a small town was granted $50,000 in first instance following the circulation of false statements regarding a supposed conflict of interests, but where the amount was reduced to $7,500 by the Court of Appeal.
Legal persons
A Superior Court decision rendered in 2013 summarizes well the prevailing approach where legal persons are concerned. In BCOMC Canada inc. v. Regroupement des cabinets de courtage d'assurance du Québec, 2013 QCCS 3, the trial judge mentioned that:
"[156] We must specify that our courts have been particularly prudent when awarding moral damages to a legal person because their right to reputation had been violated."
Indeed, the Court of Appeal surveyed the jurisprudence regarding awards to legal persons in Voltec Ltée v. CJMF FM Ltée, [2002] R.R.A. 1078 (C.A.), Fondation québécoise du cancer c. Patenaude, 2006 QCCA 1554 and Genex Communications inc. v. Association québécoise de l'industrie du disque, du spectacle et de la vidéo, 2009 QCCA 2201, and found that the trend was to award between $10,000 and $25,000 in reparation for he moral prejudice suffered by legal persons in matters of defamation.
Considering that these decisions are still being followed today (see, for example, Garderie Loulou de Marieville inc. v. Lavigne, 2015 QCCS 100, one should not expect to recover enormous amounts under this head of damages.
Comments
Arguments can be made to increase the traditionally low quantum of damages, and ensure "full compensation". Namely, one could plead that these amounts should be indexed, just as the maximum amounts which can be granted for bodily injury (as decided by the Supreme Court) are indexed. Why not do the same in matters pertaining to defamation?
Also, one can claim pecuniary damages, subject to them being supported by the evidence. And let's not forget the possibility of claiming punitive damages, which can represent a substantial amount if the criteria set out at article 1621 C.C.Q. require it.
That said, we should always remember that everyone is held to mitigate their damages at all times!
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