Snyder v. Montreal Gazette Ltd., [1988] 1 S.C.R. 494

Gerald M. Snyder Appellant

v.

The Montreal Gazette Limited Respondent

indexed as: snyder v. montreal gazette ltd.

File No.: 17888.

1987: June 8; 1988: March 24.

Present: Dickson C.J. and Beetz, McIntyre, Lamer and Wilson JJ.

on appeal from the court of appeal for quebec

Torts -- Defamation -- Non-pecuniary damages -- Assessment -- Whether jury's award of $135,000 unreasonable -- Publication of judgment.

Appellant, a nationally known personality, brought actions for defamation against a police officer and various media as a consequence of the publication and broadcast of a news item identifying him as a representative of the Jewish Mafia suspected of having contacts with organized crime. Only the action against respondent has been heard by the courts, the other seven having been stayed in the meantime. At the trial, the judge admitted evidence of the other seven actions brought by appellant, but he clearly instructed the jury to assess only the damage caused by respondent, regardless of any damage possibly flowing from the conduct of other media. The jury found that appellant had been a victim of defamation and awarded him $135,000 as non-pecuniary damages. The trial judge affirmed the verdict and ordered the judgment published. On appeal a majority of the Court of Appeal held that the amount awarded by the jury was unreasonable, set the compensation at $13,500 and quashed the order to publish the judgment. This appeal is to determine (1) whether the jury's verdict awarding appellant $135,000 for non-pecuniary damages was unreasonable; and (2) whether appellant was entitled to a publication order under s. 13 of the Press Act.

Held (McIntyre and Lamer JJ. dissenting in part): The appeal should be allowed.

Per Dickson C.J. and Beetz and Wilson JJ.: The reasons given by the majority of the Court of Appeal for concluding that the compensation awarded by the jury was unreasonable are vitiated by error. Although the compensation seems high the trial judge did not err in ruling that the jury's estimate was not so grossly inflated as to be branded as unreasonable, in the light of all the circumstances of the case. The trial court judgment should be restored, including the publication order, unless appellant waives this order.

Per McIntyre and Lamer JJ. (dissenting in part): In Quebec civil law, the defamation victim is entitled to full compensation of the loss sustained, both for the pecuniary and non-pecuniary loss. As the assessment of non-pecuniary damages is arbitrary, given the difficulty of objectively measuring those damages in pecuniary terms, a reference level should be set in Quebec law to guide the courts in their assessment and to avoid excessive awards. Aside from exceptional circumstances, therefore, it will not be necessary to award any amount greater than $50,000 (in 1978 dollars, the year of the trial judgment, now $100,000) to compensate in full for the non-pecuniary loss resulting from an attack on reputation. The judicial policy decision does not impair the principle of full compensation. The reference level does not constitute an upper limit that would prevent the courts from compensating the total non-pecuniary loss actually proven. The courts nevertheless must still guard against overcompensation. The compensation should not conceal a punitive purpose. The temporary nature of the loss suffered, the compensatory effect of the judgment obtained and the moderation displayed by Quebec courts in assessing the non-pecuniary loss in defamation cases are other reasons that justify the award of a maximum of $50,000.

In the case at bar, the award of $135,000 by the jury is well above the amount of $50,000 and clearly unreasonable. The trial judge made an error in affirming the verdict. However, the majority of the Court of Appeal erred in concluding that the verdict was unreasonable on the assumption that persons not parties to the action would eventually be held liable, and then reducing respondent's share in proportion to the entire amount of compensation claimed by appellant. It is premature for a court to rule on the outcome of other actions in the absence of the parties involved. A court cannot decide the issue submitted to it on the basis of such conclusions. As appellant chose to bring separate actions and respondent decided not to implead the third parties sued in those actions, the court can only rule on the damages caused by respondent.

The errors made by the trial judge and the Court of Appeal provide a basis for this Court to substitute its conclusions for those of the jury in determining the reasonable amount to which appellant is entitled. There is no doubt that appellant suffered serious injury as a result of respondent's wrongful act. But this case is not an exceptional one justifying an award greater than $50,000, nor is it a case in which that amount should be reached. The amount of $35,000 represents a reasonable and sufficient compensation in the circumstances.

As this judgment does not affirm all the trial judge's findings, it is not appropriate to order publication of his reasons. However, in the circumstances, appellant is entitled to a publication order. Respondent will therefore publish the English version of the instant judgment in a place as conspicuous as the article which gave rise to the litigation.

Cases Cited

By Lamer J. (dissenting in part)

Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Thornton v. School District No. 57 (Prince George), [1978] 2 S.C.R. 267; Arnold v. Teno, [1978] 2 S.C.R. 287; Imprimerie Populaire Ltée v. Hon. L. A. Taschereau (1922), 34 K.B. 554; Langlois v. Drapeau, [1962] Q.B. 277; Flamand v. Bienvenue, [1971] R.P. 49; Lachapelle v. Véronneau, [1980] C.S. 1136; Blanchet v. Corneau, [1985] C.S. 299; Trahan v. Imprimerie Gagné Ltée, [1987] R.J.Q. 2417; Flamand v. Bonneville, [1976] C.S. 1580; Desrosiers v. Publications Claude Daigneault Inc., [1982] C.S. 613; Goupil v. Publications Photo-Police Inc., [1983] C.S. 875; Poirier v. Leblanc, [1983] C.S. 1214; Côté v. Syndicat des travailleuses et travailleurs municipaux de la ville de Gaspé, J.E. 87-720; McGregor v. Montreal Gazette Ltd., [1982] C.S. 900; Dimanche-Matin Ltée v. Fabien, J.E. 83-971.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 2.

Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12, ss. 3, 49.

Code of Civil Procedure, S.Q. 1965, c. 80, arts. 332-381.

Jurors Act, S.Q. 1976, c. 9, s. 56.

Press Act, R.S.Q. 1977, c. P-19, s. 13.

Authors Cited

Baudouin, Jean-Louis. La responsabilité civile délictuelle. Cowansville: Yvon Blais, 1985.

Bissonnette, Christine. La diffamation civile en droit québécois. Thèse de maîtrise en droit, Université de Montréal, 1983.

Gatley, Clement Carpenter. Gatley on Libel and Slander, 7th ed. By Sir Robert McEwen and Philip Lewis. London: Sweet & Maxwell, 1974.

APPEAL from a judgment of the Quebec Court of Appeal, [1983] C.A. 604, 5 D.L.R. (4th) 206, allowing in part the appeal of respondent from a judgment of the Superior Court, [1978] C.S. 628, 87 D.L.R. (3d) 5, affirming a jury verdict awarding appellant compensation of $135,000. Appeal allowed, McIntyre and Lamer JJ. dissenting in part.

Claude-Armand Sheppard, for the appellant.

Daniel H. Tingley and Mark Bantey, for the respondent.

English version of the judgment of Dickson C.J. and Beetz and Wilson JJ. delivered by

[1] Beetz J.--I have had the benefit of reading the reasons for judgment of my brother Lamer and I adopt his statement of the facts, the judgments of the courts below and the points at issue.

[2] Like Lamer J., I consider that the reasons given by the majority of the Court of Appeal for concluding that the compensation awarded by the jury was unreasonable are vitiated by error.

[3] With respect for the contrary view, however, I am unable to say that this compensation is unreasonable on other grounds.

[4] Although the compensation seems high and is not necessarily what I would have determined, respondent did not persuade me that the trial judge erred in ruling as follows:

This Court is not prepared to say that the jury's estimate is so grossly inflated as to be branded as unreasonable, in the light of all the circumstances of the case.

([1978] C.S. 628, at pp. 635-36)

[5] I concur in substance with the reasons of L'Heureux-Dubé J.A., dissenting in the Court of Appeal, and in particular with the following:

[TRANSLATION] ...I would not look for bases of comparison in this matter in France, the United States or even the Commonwealth countries. Custom, usage and the law are so different there that, in my opinion, such comparisons cannot serve as useful guides for our courts.

([1983] C.A. 604, at p. 623)

[6] For these reasons I would allow the appeal, reverse the judgment of the Court of Appeal and restore the Superior Court judgment, including the order to publish the aforesaid judgment unless appellant waives this order, the whole with costs throughout.

English version of the reasons of McIntyre and Lamer JJ. delivered by

[7] Lamer J. (dissenting in part)--In the opinion of a jury, The Montreal Gazette Limited damaged the reputation of Mr. Gerald Snyder by publishing a defamatory article. The effect of this judgment is to order The Montreal Gazette Limited to pay Mr. Snyder, a resident of Montréal, the sum of $35,000, with interest at 10 percent annually as of May 27, 1975, and costs.

Facts

[8] In 1975, appellant was a member of the Montréal City Council, a position he had held since 1957, and Vice-President for Revenue of the Olympic Games Organizing Committee (COJO). He was also a member of COJO's Board of Directors and Executive Committee, discharging important functions which gave him a national profile.

[9] On March 13, 1975, The Gazette, a Montréal daily newspaper, published a front-page article by Mr. Steve Kowch titled "Former city official called member of `Jewish Mafia' ". Without naming appellant, but unequivocally identifying him, this article related the testimony given by an officer of the Quebec Provincial Police in the course of an inquiry by the Quebec Police Commission into a matter totally unrelated to the appellant. The article mentioned that appellant was regarded as a representative of the Jewish Mafia and suspected of having contacts with organized crime.

[10] The officer's testimony was given on the afternoon of March 12; that same evening a radio station broadcast the news and a press agency wired it to its members during the night. On the following morning the article in question appeared in The Gazette, and two other dailies published articles similar in content. On the same day, a second radio station broadcast an interview with reporter Kowch and another press agency wired the rumour throughout the country. As a consequence of these events appellant brought eight actions for defamation against the police officer and the various newspapers, radio stations and press agencies concerned, including respondent. Only the action against respondent was heard by the courts, the other seven having been stayed in the meantime.

Judgments

[11] The trial took place before a judge and jury pursuant to arts. 332-381 of the Code of Civil Procedure (since repealed by S.Q. 1976, c. 9, s. 56). The jury found that none of the allegations mentioned in the article in question was true and that appellant had been defamed. Deschênes C.J. admitted evidence of the other seven actions brought by appellant, but he clearly instructed the jury to assess only the damage caused by respondent, regardless of any damage possibly flowing from the conduct of other media. He also pointed out that the jury was not to impose punitive damages, but to award the plaintiff fair and just compensation for the loss suffered. The jury dismissed appellant's claims for pecuniary damages but awarded him $135,000 as non-pecuniary damages.

[12] In his written judgment affirming the jury verdict ([1978] C.S. 628), Deschênes C.J. agreed that the evidence justified the finding of defamation and the absence of compensation for pecuniary loss; only compensation for non-pecuniary loss had to be considered. In his opinion, the reasonableness of that compensation depends primarily on the value that society places on the reputation of individuals, especially those in public life. After reviewing French, British, Canadian and Quebec precedents, the judge observed that a jury is especially apt at determining the value placed by society on the reputation of an honest man. In light of all the circumstances, he considered that the jury's estimate was not so grossly inflated as to be unreasonable and that the verdict should be affirmed. In accordance with the jury's wishes, the defendant was ordered to publish the judgment in full at its own expense, in as conspicuous a place in the newspaper as the defamatory article had occupied.

[13] By a majority judgment the Quebec Court of Appeal ([1983] C.A. 604) varied the jury verdict, set the compensation for non-pecuniary loss at $13,500 and quashed the order to publish the judgment. In the view of Owen J.A., an award of $135,000 for non-pecuniary damages caused by appellant, independently of the damages resulting from the publication of similar statements by other media, is patently unreasonable. In a judgment released contemporaneously (Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229), the Supreme Court of Canada set the compensation for non-pecuniary loss, awarded to a young man who became a quadriplegic as the result of an accident, at $100,000. As the anguish and suffering of a person whose reputation has been attacked, but vindicated by a judgment holding such attacks unjustified, is not anywhere near the anguish and suffering of a quadriplegic, Owen J.A. considered that the compensation awarded in the case at bar should be considerably less than $100,000. In his opinion, in view of the other seven actions brought by the plaintiff, the jury must have concluded that the total non-pecuniary damages were practically one million dollars, which demonstrated that the verdict was unreasonable. In his eight actions, plaintiff claimed compensation amounting to over 27 times the $100,000 upper limit set by the Supreme Court of Canada; as the amount of $13,500 proposed by appellant corresponds to 1/27 of the amount claimed against appellant, Owen J.A. considered this a reasonable proposal. He therefore would have disposed of the appeal as did Monet J.A.

[14] Monet J.A., while concurring with the reasons of Owen J.A., noted that the plaintiff had not proved the slightest pecuniary loss and expressed his disapproval of the amount proposed by the plaintiff as representing the loss he had suffered from the defamation. After reviewing the evidence submitted to the jury, he concluded that the trial judge had not sufficiently explained to the jury that certain factors could mitigate the non-pecuniary loss suffered. Under the Code of Civil Procedure, the Court of Appeal has a wide discretionary power to reverse a jury verdict: in Monet J.A.'s opinion, it would be an error of law and equity not to reverse it in the case at bar. Earlier decisions indicate that the courts exercise moderation in awarding non-pecuniary damages in defamation cases. The courts do not contribute to the development of the law by outbidding each other. Publication of the judgment is an excellent means of compensation for non-pecuniary loss, but as the Court could only order publication of its own judgment, such remedial function was limited in the case at bar. The amount of $13,500 suggested by appellant is as good as any other. Monet J.A. accordingly allowed the appeal, directed appellant to pay $13,500 with interest at 10 percent as of May 27, 1975 and deleted the publication order from the conclusions of the trial judgment.

[15] L'Heureux-Dubé J.A., dissenting, recognized that the jury award was considerable and far in excess of amounts awarded for defamation in Canada. However, the only issue was whether this verdict was so unreasonable that the Court of Appeal should substitute its opinion for that of the jury. She found that the judge had properly explained to the jury the factors that could mitigate the damages awarded; if the jury did not take them into account as appellant would have liked, that was not a sufficient reason for the Court to intervene. The assessment of damages is necessarily subjective: no one can be blamed for placing a high price on his honour. Like the trial judge, L'Heureux-Dubé J.A. considered that the jury was in a good position to determine the value placed by society on the reputation of a public official. She would therefore not have substituted her opinion for that of the jury.

Issues

[16] This appeal essentially raises two issues: (1) whether the jury's verdict awarding appellant a $135,000 compensation for non-pecuniary loss is unreasonable; (2) whether appellant is entitled to a publication order under s. 13 of the Press Act, R.S.Q. 1977, c. P-19.

I--Whether Jury's Verdict Unreasonable

[17] The powers of a trial judge and of the Court of Appeal in jury trials were defined in the old arts. 380 and 381 respectively of the Code of Civil Procedure, as follows:

380. The judge shall render judgment in conformity with the verdict unless it appears to him to be unreasonable.

381. The judgment is subject to appeal in the same manner as any final judgment of the Superior Court. The Court of Appeal may confirm or reverse the judgment or order a new trial, applying the remedy by which it considers that the ends of justice will best be attained, even if it has not been specifically demanded.

[18] For the Court of Appeal to intervene in the judgment a quo and substitute its assessment of the damages for that of the jury, there must be an error on the part of the trial judge. Such error can be of two kinds: the judge either misdirected the jury or affirmed an unreasonable verdict. In either case, the Court of Appeal has the power to determine the compensation it considers to be reasonable in the circumstances.

[19] In the case at bar, Monet J.A. found certain errors in Deschênes C.J.'s charge to the jury. In my opinion, his directions to the jury were generally correct. A judge's charge to the jury must be considered as a whole: if the jury is properly directed as to its duties, the limits of its authority and the applicable law, the directions are then in principle unimpeachable. It is unnecessary to examine every minor detail. The fact that in the Court of Appeal's opinion the directions could have been better worded does not justify its intervention.

[20] The majority of the Court of Appeal further concluded that the amount awarded by the jury was unreasonable and that the trial judge had made an error in affirming this verdict. Though the Court was right on this point I consider, with respect, that this conclusion is based on erroneous grounds. The Court of Appeal assumed that other persons who are not parties to the case at bar, but were sued by appellant in separate actions, are indeed liable. No evidence was submitted at trial as to the fault of those third parties or the damages they allegedly caused. Owen J.A. wrote at pp. 622-23:

In assessing The Gazette's share of Mr. Snyder's total non-pecuniary damages at 135 000 $, the jury must have concluded that the total amount of Mr. Snyder's non-pecuniary damages arising from the defamation was many times greater than 135 000 $. In the action against The Gazette Mr. Snyder claimed as non-pecuniary damages 367 680 $. In the seven other actions Mr. Snyder claimed as non-pecuniary damages a total of 2 312 855 $. To arrive at the figure of 135 000 $ as The Gazette's share of Mr. Snyder's non-pecuniary damages the jury, if acting reasonably, must have calculated that Mr. Snyder's total non-pecuniary damages were practically 1 000 000 $.

In the eight actions taken by Mr. Snyder the total amount claimed for non-pecuniary damages is 2 680 535 $. For the reasons set out above, I consider the upper limit for total non-pecuniary damages in the eight actions to be less than 100 000 $. In other words in the eight actions Mr. Snyder is claiming at least 27 times the upper limit. Dividing the total amount claimed in the eight actions, 2 680 535 $, by 27 gives a quotient of 99 279 $. Dividing the sum claimed in the action against The Gazette, 367 680 $, by 27 gives a quotient of 13 618 $. This is another indication that the figure of 13 500 $ is a reasonable amount.

[21] It is apparent that, in his calculations, Owen J.A. assumed that appellant would succeed in each of the actions brought. However, proof of the other actions does not indicate whether the faults alleged by appellant in each case are separate, joint or contributory. It is also impossible to say whether those faults resulted in damages separate from those caused by respondent or merely contributed to bringing about those damages. In my opinion it is premature for a court to rule on the outcome of other actions in the absence of the parties involved. A court cannot decide the issue submitted to it on the basis of such conclusions.

[22] I am not indifferent to Owen J.A.'s concerns about the impact of the other actions brought by appellant on the assessment of the damages caused by The Gazette. However, as appellant chose to bring separate actions and respondent decided not to implead the third parties sued in those actions, the Court's jurisdiction is limited to ruling only on the damages caused exclusively by The Gazette.

[23] The trial judge ruled that evidence of the seven other actions brought by appellant was admissible. While the Court of Appeal was wrong to use this evidence as it did, the trial judge, in the exercise of his discretion, could admit it in order to give the jury an overall view of the situation and enable it to assess more effectively the relative importance of the fault committed by respondent. However, the judge was careful to point out to the jury that the amount awarded should reflect only the damages caused to appellant by respondent. The verdict returned by the jury is undoubtedly the result of an informed decision, since the jury had benefited from proper directions and had before it all the relevant information. With respect, the majority of the Court of Appeal erred in concluding that the verdict was unreasonable on the assumption that persons not parties to the action would eventually be held liable, and then by reducing respondent's share in proportion to the total amount claimed by appellant.

[24] Is the compensation awarded nonetheless unreasonable on other grounds? The jury concluded that appellant had proven no pecuniary loss as a result of the defamation and he therefore received nothing in this regard. The $135,000 awarded to appellant thus represents only non-pecuniary loss suffered by him. These damages are offered to the victim to compensate for the humiliation, suffering, scorn, embarrassment and ridicule he was subjected to as a result of the defamation. As in principle compensation cannot be made in kind, it generally consists of a sum of money. It is far from easy to do justice in this area. The amount awarded is necessarily arbitrary, in view of the difficulty of measuring objectively such loss in pecuniary terms, especially when it concerns someone else's reputation. It is precisely because this exercise is based on empirical considerations rather than on a mathematical and scientific operation that extravagant claims for this type of loss should not be allowed by the courts.

[25] The Court of Appeal's judgment indicates its concern to restrain the compensation awarded for non-pecuniary loss. In support of his opinion that the verdict was unreasonable, Owen J.A. referred to the upper limit established by this Court in 1978 in the "trilogy": Andrews v. Grand & Toy Alberta Ltd., supra; Thornton v. School District No. 57 (Prince George), [1978] 2 S.C.R. 267; Arnold v. Teno, [1978] 2 S.C.R. 287. In those cases Dickson J., as he then was, established that a maximum of $100,000 may be awarded as compensation for non-pecuniary loss resulting from physical injuries.

[26] According to Owen J.A., the amounts awarded for non-pecuniary loss in a defamation case also should not exceed this limit. Such a comparison is certainly conceivable, as both cases involve non-pecuniary loss which is difficult to determine objectively. However, Owen J.A. gives no reason for applying this upper limit to compensation for an attack on reputation. Should an upper limit be placed on non-pecuniary loss for defamation in Quebec law?

[27] Under the Quebec civil law, the general rule for the assessment of damages is contained in the axiom restitutio in integrum. In other words, compensation must be made in full, that is, it must place the victim in the same position he would have been if the incident had not occurred. He is entitled to compensation both for his non-pecuniary and pecuniary loss. As compensation must cover all the loss sustained, the concept of an upper limit is inconsistent with the principle of full compensation. Clearly compensation cannot be denied for part of the loss sustained nor can the amount of money awarded for pecuniary loss, which is objectively calculated once the damage has been proven, be limited. Similarly, non-pecuniary loss must be compensated in full, even if it is not as easy to assess as pecuniary loss. However, as the determination of the award for non-pecuniary loss falls within the realm of the arbitrary and subjective, a reference level should be established to facilitate the determination of this amount. Such a judicial policy decision does not in my opinion impair the principle restitutio in integrum rule.

[28] It should be emphasized that I do not propose to impose an upper limit that would prevent the courts from compensating the total non-pecuniary loss actually proven. The objective rather is to set parameters to which judges may refer in determining the monetary compensation to be awarded. In such an arbitrary matter, guidelines have to be established to ensure equal treatment of plaintiffs.

[29] To this end I think that in practice, the circumstances in which a victim of defamation will have to be paid more than $50,000 in order to be fully compensated for his non-pecuniary loss will be extremely rare. Naturally, as we must determine the reasonableness of the verdict at the time of the trial judgment, this amount is expressed in 1978 dollars. At the present time, allowing for inflation, it corresponds to approximately $100,000 (Statistics Canada, All-Items Consumer Price Index, December 1987).

[30] The Court is not here adopting the upper limit of the trilogy established under the common law system. I wish however to point out that I am not deciding whether it is appropriate to adopt a reference level in cases of non-pecuniary loss resulting from physical injuries. I simply consider that it is desirable to set reference points in Quebec law to guide the courts in assessing non-pecuniary damages resulting from a defamation.

[31] In fixing a sum of money to compensate a defamation victim for his pain and suffering, the court is undeniably making a purely arbitrary decision. Can the judge objectively place a price on pain, humiliation and anguish? As such a determination is not based on any mathematical calculation, he can easily get carried away and award compensation beyond all accepted limits. Although the victim is entitled to full compensation, the court must still ensure that he is not overcompensated. Compensation should not be a means of enriching him at the expense of the offending party.

[32] I am in any case inclined to be wary of high amounts designed to compensate for non-pecuniary loss, as it is hard to know whether such amounts do not to some extent conceal a punitive aspect. Apart from certain exceptional cases such as s. 49 of the Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12, Quebec civil law does not recognize the award of punitive damages:

[TRANSLATION] The damages awarded to a victim of an offence or quasi-offence are intended solely as compensation. The indemnity is calculated so as to take account of the loss actually suffered and the gain lost. It must be determined in light of the compensation owed, not the penalty for wrongful or reckless conduct by the offender. In theory, therefore, there can be no question of punitive or exemplary damages. The voluntary or involuntary nature of the act causing the damage is also not a factor. This rule, applied by the Quebec courts, has been approved by a judgment of the Supreme Court of Canada.

(Baudouin, La responsabilité civile délictuelle (1985), p. 108, No. 187.)

[33] However, among the criteria relied on by the Quebec courts in estimating the non-pecuniary loss in defamation cases are the seriousness of the act, the good or bad faith and the intent of the offender, and these are all criteria with a punitive connotation: see Bissonnette, La diffamation civile en droit québécois (Thèse de maîtrise en droit, Université de Montréal, 1983), at p. 400. In general, if these factors are present the court is prepared to increase this item of damage: see Baudouin, op. cit., at pp. 160-61. There is thus reason to believe that the higher the amount of the indemnity, the more likely it is to have a punitive aspect. In my opinion this aspect should disappear from our system, where the rule is to compensate the victim, not to punish the offending party.

[34] Additionally, the non-pecuniary loss suffered by a victim of defamation is in general temporary, since the suffering he experiences diminishes with the passage of time. However serious the defamation, people eventually forget the humiliating remarks made or written about the victim and the pain he has suffered gradually loses its edge. This temporary quality is a further reason which, to me, justifies the award of a maximum of $50,000 as full compensation for the damages caused in this regard.

[35] Moreover, a person defamed who sues successfully obtains a judgment which restores his reputation; the publicity surrounding both the trial and its outcome and the possible publication of the judgment, which is authorized by the Press Act, are all means of providing partial or total compensation for the non-pecuniary loss. In other words, a court action allows the victim to cleanse his honour and applies a balm to his pain and suffering.

[36] It can also be seen from the case law that Quebec courts have traditionally exercised restraint in assessing non-pecuniary damages for defamation. They have generally awarded amounts ranging from $500 to $5,000: Imprimerie Populaire Ltée v. Hon. L. A. Taschereau (1922), 34 K.B. 554--$1,000, or publication of the judgment and $500; Langlois v. Drapeau, [1962] Q.B. 277--$2,000; Flamand v. Bienvenue, [1971] R.P. 49 (Sup. Ct.)--$2,000; Lachapelle v. Véronneau, [1980] C.S. 1136--$2,000; Blanchet v. Corneau, [1985] C.S. 299--$4,500; Trahan v. Imprimerie Gagné Ltée, [1987] R.J.Q. 2417 (Sup. Ct.)--$2,000. Moreover, the highest awards rarely exceed $20,000: Flamand v. Bonneville, [1976] C.S. 1580--$12,000 (appealed; settled out of court); Desrosiers v. Publications Claude Daigneault Inc., [1982] C.S. 613--$20,000; Goupil v. Publications Photo-Police Inc., [1983] C.S. 875--$15,000 (appealed; settled out of court); Poirier v. Leblanc, [1983] C.S. 1214--$10,000; Côté v. Syndicat des travailleuses et travailleurs municipaux de la ville de Gaspé, J.E. 87-720 (Sup. Ct.)--$10,000; McGregor v. Montreal Gazette Ltd., [1982] C.S. 900--$50,000 (appealed; settled out of court); Dimanche-Matin Ltée v. Fabien, J.E. 83-971 (C.A.)--$35,000. Apart from rare exceptions, the amounts awarded fall within a quite limited range. As the assessment of non-pecuniary loss is arbitrary, judges seem to instinctively recognize a limit which they are not prepared to exceed. This limit is generally quite low.

[37] At common law, however, the courts have shown greater generosity. In the case at bar the trial judge reviewed the amount awarded by the courts in defamation cases. In addition to Quebec and France precedents, he consulted the case law of the United Kingdom and the other Canadian provinces. In my opinion, he should have limited himself to compensation awarded by Quebec courts, since different factors are used to determine non-pecuniary damages at common law. In addition to compensatory damages the common law allows the award of aggravated and punitive damages (Gatley, Gatley on Libel and Slander (7th ed. 1974), at pp. 1356-61). As we have seen, at civil law damages have a purely compensatory purpose. As the indemnity is often awarded in the form of a lump sum, it is impossible in a judgment rendered under the common law to know what portion of that sum is compensatory or punitive. Any comparison between the two systems is accordingly difficult to make.

[38] Though it is a secondary consideration, there is one other factor that must be taken into account in defamation cases. These often involve newspapers, press agencies and radio or television stations. In coming to the rescue of a defamation victim, the courts must not overlook the fact that the written and spoken press is indispensable and is an essential component of a free and democratic society. Moreover, both the Quebec and Canadian Charters recognize the importance of the press (s. 3 of the Charter of Human Rights and Freedoms and s. 2 of the Canadian Charter of Rights and Freedoms). If information agencies are ordered to pay large amounts as the result of a defamation the danger is that their operations will be paralyzed or indeed, in some cases, that their very existence may be endangered. Although society undoubtedly places a great value on the reputation of its members that value, as it is subjective, cannot be so high as to threaten the functioning or the very existence of the press agencies which are essential to preserve a right guaranteed by the Charters.

[39] In sum, in view of the arbitrary nature of the compensation awarded for non-pecuniary loss, the risk that it may have a punitive aspect, the temporary nature of the loss suffered, the compensatory effect of the judgment obtained and the moderation displayed by Quebec courts, I think that aside from truly exceptional cases it will not be necessary to award an amount greater than $50,000 (now $100,000) to compensate in full for the non-pecuniary loss resulting from an attack on reputation. Certainly, Quebec courts have never awarded compensation for non-pecuniary loss in a defamation case which comes even close to this limit. However, the concern for moderation should not lead us to underestimate the intrinsic value of reputation. There are many people who would prefer to suffer heavy pecuniary losses rather than to be lowered in the esteem of their friends. The reference level set by this judgment accordingly seems to me to be fair and reasonable because, while it may serve to prevent the award of extravagant claims, it is sufficiently high to encourage the courts to take into consideration the undoubted importance of reputation.

[40] As the $135,000 award in the case at bar is well above the reference level, namely $50,000 in 1978, the Court is bound to conclude that the jury's verdict was clearly unreasonable. I accordingly consider that the trial judge made an error in affirming this verdict. The errors made by the trial judge and the Court of Appeal accordingly provide a basis for this Court to substitute its conclusions for those of the jury in determining the reasonable amount to which appellant is entitled.

[41] The size of the amount awarded to appellant in the Superior Court indicates that in the jury's opinion the damage caused by respondent was very serious. In its judgment the Court of Appeal reduced this compensation by simply accepting the amount of $13,500 suggested by The Gazette; the majority found that this estimate was as good as any other, but as we have already indicated this decision was based on an unjustified extrapolation. In my view the defamation was serious, but the loss suffered is not such as to make the case an exceptional one justifying compensation above the reference level, nor is it a case in which that reference level should be reached. I accordingly consider that in view of the $50,000 reference level, the amount of $35,000 represents reasonable and sufficient compensation in the circumstances. This compensation will bear interest as of May 27, 1975, at the annual rate of 10 percent agreed on by the parties.

[42] This amount compensates only for the damages caused by respondent. In the absence of any evidence and of the parties concerned, I cannot make a ruling here on the possible liability of the parties to the other actions brought by appellant. If several faults contributed to the damages caused by respondent, respondent may ask the courts to allocate liability by a recursory action. If necessary, the other parties sued by appellant may avail themselves, successfully or otherwise depending on the circumstances, the compensation already obtained from a third party (other than a third party contractually liable to make such compensation). Finally, if separate faults caused additional damages, it will be for the courts hearing such cases to determine their extent.

II--Publication of Judgment

[43] Appellant is asking that the trial judgment be restored in its entirety, including the order to publish in full the judgment of Deschênes C.J. This order is authorized by s. 13 of the Press Act, which reads as follows:

13. Every judgment condemning a newspaper at fault must be published in the said newspaper, and at its expense, on the order of the court which rendered the judgment, under penalty of contempt of court.

As this judgment does not affirm all the trial judge's findings, it is not appropriate to order publication of his reasons. However, in the circumstances I consider that appellant is entitled to a publication order. I also took into account the remedial effect of publication in determining the reasonable compensation appellant should receive in the case at bar. I accordingly order respondent to publish the English version of the instant judgment in a place as conspicuous as the article which gave rise to the litigation.

Conclusion

[44] For these reasons I would allow the appeal in part with costs and order respondent to pay appellant the sum of $35,000 with interest at an annual rate of 10 percent as of May 27, 1975. I would also order respondent to publish, at its own expense and within 30 days, the complete text of the English version of this judgment, in as conspicuous a place as the article by reporter Steve Kowch dated March 13, 1975.

Appeal allowed, McIntyre and Lamer JJ. dissenting in part.

Solicitors for the appellant: Robinson, Sheppard, Borenstein, Shapiro, Montréal.

Solicitors for the respondent: Lafleur, Brown, de Grandpré, Montréal.