Parizeau v. Lafferty, Harwood & Partners, [2000] R.R.A. 417 (C.S.)

Parizeau v. Lafferty, Harwood & Partners, [2000] R.R.A. 417 (C.S.)

Issue: Was this defamation?

Holding: Yes, this crossed the line.

Ratio:

• 
  defamation is a limit to freedom of expression – the task is always to determine if this limit has been surpassed
  
• 
  defamation is: written or oral communication that causes a lack of esteem or consideration for someone, or that solicits disagreeable or unfavourable sentiments towards him. They imply an unjust undermining of the person’s reputation by the wrong things that are said about them by the hatred, disdain or ridicule to which he is exposed
  
• 
  in order for an action in defamation to succeed there must be fault: this can result from two types of conduct – (1) where there is intention to injure, or (2) where there is no intention to injure but where the victim’s reputation is nonetheless undermined by the defendant’s negligence, imprudence or rashness. Both conducts constitute a civil fault. IN other words, it is sufficient to refer to the ordinary rules of civil liability and to abandon the idea that defamation has to be founded on bad faith or intent to injure. Moreover, it does not result merely from the publication of false information: it can result when the information is true, but when the sole goal of publication was to injure the victim.
  
• 
  the standard of the reasonable person is the proper test.
  
• 
  however, intention is important in so far as exemplary damages are concerned
  
• 
  the defenses of “commentaire loyal”: 3 criteria:
  

1. 
   public interest in the subject matter
   
2. 
   honest intention to serve a just cause
   
3. 
   reasonable supportable conclusion with respect to the reported facts
   

Re 2: The court also believe that Mr. Lafferty honestly believes what he wrote and that it was for the benefit of his clients.

Re 3: are his conclusions reasonably supportable?

-Court says no. First of all, L doesn’t really know anything about Hitler or Nazi Germany: He was just going on what he thought Hitler was all about, having done no research or verification. Given the fact that there is no basis for his opinion, there is evidently nothing which it can reasonably be supported. Defence fails.

• 
  Moral damages: the defendant argues that: Parizeau and Bouchard consistently said that they weren’t looking for cash, but wanted the court to draw the line between acceptable political debate and defamation. Thus, what they really want are exemplary damages. Second, the publication was only destined to 275 clients. Moreover, so many journalists condemned Lafferty’s hype and unfounded comparisons that any injury they suffered was short lived.
  
• 
  Court says that even if exemplary damages is one motive, and even if they have decided to give any award to charity, that doesn’t mean that the court should still not award money for the moral damages they suffered.
  
• 
  Moreover, those 275 clients were mainly big corporate clients that they knew would be spreading the report around.
  
• 
  Finally, with respect to the third contention it is true that awards vary according to the gravity of the statement and the severity of the damages suffered
  

-but, it is true that most journalists came immediately to their defence, so the injury was probably short-lived, and Parizeau did win the election in ’94 after all while Bouchard became the leader of the official oposition in Ottawa.

• 
  in terms of exemplary damages, the criteria to consider are:
  

1. 
   preventive, deterrent and punitive function
   
2. 
   conduct of the author of the delict
   
3. 
   gravity of the prejudice suffered
   
4. 
   capacity of the wrongdoer to pay
   
5. 
   the amount of compensatory damages already awarded
   

• 
  Two big questions surrounding defamation:
  

1. 
   Should the cap be applied? SCC says no, but Jukier says this makes absolutely no sense. Why have a cap on moral damages in personal injury cases, but not in defamation?
   
2. 
   Is loss of reputation really more serious than physical pain and suffering? A reputation can be restored, the injury is temporary, whereas a personal injury is probably permanent
   

• 
  awards in defamation cases are probably more arbitrary, and end up being more punitive than anything: high damages should be reserved for awards of punitive damages, if we’re going to cap personal injury we should definitely cap defamation
  
• 
  moreover, we should worry about the effect of high awards of damages on freedom of expression: we don’t want to silence people because they are afraid of being sued
  
• 
  in the USA, people who are public figures have little to no protection from defamation: the assumption is that if you put yourself under public scrutiny, that’s the risk you take. Short of malicious intent, it’s pretty difficult to win a defamation case if you are a public figure
  
• 
  Jukier says that usually in defamation cases, the pecuniary damages are pretty low because there is rarely a true loss of income, and in point of fact, the non-pecuniary damages are also pretty low.
  
• 
  Factors to consider in assessing whether there was defamation:
  

1. 
   Was it true? Lack of truth is not determinative, you can make a false statement without being held liable. In the civil law you don’t necessarily need intention to convey a false statement, it may be enough that you were negligent.
   
2. 
   Gravity of the statement: this is reminiscent of the conceptual approach: how serious was the statement? This factor implies that damages will vary according to the severity of the statement. However, this doesn’t always lead to more damages: a really bad statement might actually hurt you less because if it is so outrageous, then fewer people may have believed it. If this is the case, then it may be more akin to a personal approach.
   

• 
  How do cts approach the quantification of moral damages in the absence of the cap?
  

-At CA, relied heavily on diffusion factor: picked up by Le Devoir. While Lafferty intended this only for the 275 recipients, after being picked up by le Devoir it went everywhere… it matters not only how broadly it is diffused, but who is doing the diffusing. Le Devoir is not a smutty tabloid.

-Also, “can’t push the Hitler button”: the gravity of the statements is very important. This has a direct bearing on the damages that wind up being given, this is a comparative sliding scale. It is not sophisticated.

-further, there is a lack of retraction.

-Jukier thinks that the above 3 factors are the important reasons. Damages are not linked to anything concrete.

-Lafferty’s statements were unresearched.