Prud'homme v. Prud'homme, 2002 SCC 85, [2002] 4 SCR 663

Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85

André Prud’homme, Gilles Prud’homme, Jean‑Paul Fortin,

André Fortin and Savino Cantatore                                                               Appellants

v.

Fernand Prud’homme                                                                                    Respondent

and

Canadian Broadcasting Corporation, La Presse Ltée,

3834310 Canada Inc., Groupe Transcontinental G.T.C. Ltée

and Fédération professionnelle des journalistes du Québec                       Interveners

Indexed as:  Prud’homme v. Prud’homme

Neutral citation:  2002 SCC 85.

File No.:  28117.

2002:  March 13; 2002:  December 20.

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for quebec

Civil liability — Municipal councillor — Defamation — Rules of civil liability applicable to wrongful individual act of municipal councillor in Quebec — Civil Code of Québec, S.Q. 1991, c. 64, arts. 1376, 1457.

Civil liability — Municipal councillor — Defamation — Common law defences — Whether defence of fair comment and defence of qualified privilege applicable to Quebec rules of civil liability — Civil Code of Québec, S.Q. 1991, c. 64, art. 1457.

Civil liability — Municipal councillor — Defamation — Ratepayers suing municipal councillor for defamation for remarks made at regular meeting of municipal council that allegedly interfered with their reputation — Whether municipal councillor committed a fault — Civil Code of Québec, S.Q. 1991, c. 64, art. 1457.

A school board purchased a lot located in a part of the city of Repentigny on which to build a school.  The municipal council passed a bylaw which provided that only residents of that part of the city would have to cover the cost of a loan to pay for the infrastructure work.  Some ratepayers, including the appellants, brought an action to have the bylaw quashed and the action was allowed by the Superior Court.  The respondent, who was then a municipal councillor, tried unsuccessfully to persuade the other councillors to appeal the judgment.  He decided to criticize publicly, for 20 minutes at a regular meeting of the council, the fact that no public debate had been held as to whether the judgment should be appealed.  The appellants, offended by the statement, which was, in their opinion, full of malicious insinuations about them that made them out to be bad citizens, brought an action against the respondent in damages for interfering with their reputation, honour and dignity.  The Superior Court allowed the action.  The Court of Appeal set the judgment aside.

Held:  The appeal should be dismissed.

Elected municipal officials are, as a rule, governed by public law.  Before finding that the wrongful individual act of an elected municipal official in Quebec is subject to the rules of civil liability, a rule of public law that provides for this must be identified.  When the new provisions of the Civil Code of Québec, and more particularly art. 1376, came into force, they no longer allowed the use of the method laid down by Laurentide Motels, insofar as that decision imposed an obligation on the individual to identify a public common law rule that made the private law applicable to his or her action in liability against the governmental body.  Article 1376 C.C.Q., which is public law, expressly provides that the rules set forth in Book Five of the Civil Code of Québec on obligations “apply to the State and its bodies, and to all other legal persons established in the public interest, subject to any other rules of law which may be applicable to them”.  The civil law principles of civil liability now apply, as a rule, to wrongful acts by such bodies.  It therefore belongs to the party which intends to rely on the public law in order to avoid or limit the application of the general rules of civil liability to establish, where the need arises, that there are relevant public law principles that prevail over the civil law rules.  Article 1376 C.C.Q. also applies to the persons who make up a public authority or a body of that authority, where their acts are connected with public duties.  In this case, the respondent was acting as a member of a public authority in the performance of important political duties.  The action thus gave rise to a public liability problem, within the meaning of art. 1376 C.C.Q.

Because Quebec civil law does not provide for a specific form of action for interference with reputation, the general rules that apply to questions of civil liability as laid down in  art. 1457 C.C.Q. apply.  In an action of that nature, the plaintiff must establish, on a balance of probabilities, the existence of injury, of a wrongful act, and of a causal connection.  To demonstrate the existence of injury, the plaintiff must convince the judge that the impugned remarks were defamatory.  Words may be defamatory because of the idea they expressly convey or by the insinuations that may be inferred from them.  Whether remarks are defamatory is determined by applying an objective standard.  It must be asked whether an ordinary person would believe that the remarks made, when viewed as a whole, brought discredit on the reputation of another person.  In defamation cases, the wrongful act may derive from two types of conduct, one malicious and the other merely negligent.  Determining fault is a contextual question.

An action in defamation involves two fundamental values: freedom of expression and the right to reputation.  While elected municipal officials may be quite free to discuss matters of public interest, they must act as would the reasonable person.  The reasonableness of their conduct will often be demonstrated by their good faith and the prior checking they did to satisfy themselves as to the truth of their allegations.

Because the laws governing elected municipal officials in Quebec are silent as to the personal liability of those officials for their wrongful individual acts, any public law rule that deviates from the jus commune of civil liability will therefore necessarily derive from the public common law.  The common law qualified privilege that protects a municipal councillor at council meetings is so intimately connected to the public nature of the duties of office performed by the councillor, and to the unique requirements of that office, that it must be recognized as a principle of the public common law that is applicable in Quebec law.  However, the defence of qualified privilege that applies to defamation actions in common law is based on the existence of a presumption of malice, and therefore cannot be incorporated in that form into the civil law rules, which are based on a presumption of good faith (art. 2805 C.C.Q.), without disturbing the coherence of its application in the area of public authority liability.

The fact that fault is determined from the context and that there is a presumption of good faith enables the Quebec rules of civil liability to provide equivalent protection for an elected municipal official and to protect the societal values and interests that the qualified privilege rule which applies to elected municipal officials in common law is designed to preserve; it is therefore not necessary simply to import that qualified privilege.  In Quebec civil law, the criteria for the defence of qualified privilege are circumstances that must be considered in assessing fault.  The only rules that apply to an action in defamation brought against an elected municipal official in Quebec are therefore still the rules set out in the Civil Code, applied based on the context, having regard to the requirements associated with the office of an elected municipal official and the specific constraints involved in municipal government.  As well, for reasons relating to the process followed by an action for defamation in the common law, the method of legal analysis that must be applied to the defence of fair comment is also incompatible with the general scheme of the law of delictual civil liability.  It is not only unjustified, but pointless, to import that defence into the civil law.  The rules of civil liability already provide that a defendant may rely on all the circumstances that tend to demonstrate the non‑existence of fault.  Because the criteria for the defence of fair comment are precisely the circumstances to be taken into consideration in determining whether a fault has been committed, those criteria are an integral part of Quebec civil law.

The intervention by the Court of Appeal in this case, and its decision to set aside the trial judgment, were not based on a general reassessment of the evidence.  The issue in this appeal is the legal characterization and effects of the events.  The issue is whether the respondent’s statement, when viewed in its context and in its entirety, was defamatory in nature and constituted a fault within the meaning of the law of civil liability, having regard to the judgment of the Superior Court and the findings of fact in that judgment.  The characterization of the respondent’s statements for the purpose of determining whether they were wrongful may, depending on the circumstances, be a question of mixed fact and law. In the circumstances, the Court of Appeal must accord a degree of deference to the trial judge’s decision, and, in order to review that decision, must find palpable and overriding error.

In this case, the respondent did not commit a fault.  The Superior Court focused its analysis on isolated elements of the respondent’s speech instead of examining it as a whole and in context, and this vitiated its assessment of the content and legal consequences of the speech.  Even assuming that this was an error on a question of mixed fact and law, it must be regarded as a palpable and overriding error. The nature and gravity of the error justified the Court of Appeal’s intervention with respect to the trial judge’s decision.  The respondent spoke to let the voters of the city know that he opposed the council’s decision not to appeal the judgment quashing the bylaw.  He was entitled to question the assessment of the facts done by the judge.  He remained steadfast in his original position, and argued that it was not the responsibility of the entire population of the city to pay the cost of the infrastructure work.  The respondent cannot be faulted for failing, in the time that he was allowed and in a speech punctuated by interruptions and calls to order, to present an exhaustive account of all of the facts of the case.  In his attempt to persuade the other councillors and his audience, he was entitled to stress the facts that appeared to support an appeal.  Overall, the respondent acted in good faith, with the aim of performing his duties as an elected municipal official.  While his comments about the appellants were sometimes harsh, they were made in the public interest.  His remarks remained within the bounds of his right of comment, opinion and expression, as a municipal official, about the affairs of his municipality that were matters of public interest.  If the respondent were to be found to have committed a fault in these circumstances, the right of free discussion within the municipal political precincts would be dangerously undermined, and the vitality of democracy at the local level would be weakened.

Cases Cited

Not followed:  Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705; referred to:  Steenhaut v. Vigneault, [1986] R.R.A. 548; Anns v. Merton London Borough Council, [1978] A.C. 728; Doré v. Verdun (City), [1997] 2 S.C.R. 862; Houde v. Benoit, [1943] Que. K.B. 713; Société Radio‑Canada v. Radio Sept‑Îles Inc., [1994] R.J.Q. 1811; Hervieux‑Payette v. Société Saint‑Jean‑Baptiste de Montréal, [1998] R.J.Q. 131, rev’d on other grounds [2002] R.J.Q. 1669; Beaudoin v. La Presse Ltée, [1998] R.J.Q. 204; Reference re Alberta Statutes, [1938] S.C.R. 100; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; R. v. Zundel, [1992] 2 S.C.R. 731; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v. Guignard, [2002] 1 S.C.R. 472, 2002 SCC 14; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Horrocks v. Lowe, [1975] A.C. 135; Shaw v. Morgan (1888), 15 R. 865; Ward v. McBride (1911), 24 O.L.R. 555; Edwards v. Gattmann (1928), 40 B.C.R. 122; Savidant v. Day (1933), 5 M.P.R. 554, aff’d [1933] 4 D.L.R. 456; Peckham v. Mount Pearl (City) (1994), 122 Nfld. & P.E.I.R. 142; Johnson v. Jolliffe (1981), 26 B.C.L.R. 176; Lamy v. Pagé (1910), 16 R. de J. 456; Belley v. Labrecque (1910), 20 Que. K.B. 79; Montreal Light, Heat & Power Co. v. Clearihue (1911), 20 Que. K.B. 529; Pichette v. Giroux (1914), 20 R. de J. 595; Joannette v. Jasmin (1914), 21 R.L. 78; Anjou 80 v. Simard, [1987] R.R.A. 805; Revelin v. Boutin, [1991] R.R.A. 507; Rouillard v. Malacort, [1993] R.R.A. 486; 129675 Canada Inc. v. Caron, [1996] R.R.A. 1175; Adam v. Ward, [1917] A.C. 309; McLoughlin v. Kutasy, [1979] 2 S.C.R. 311; Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3; Rubis v. Gray Rocks Inn Ltd., [1982] 1 S.C.R. 452; L. v. Éditions de la Cité Inc., [1960] C.S. 485; Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067; Paquet v. Rousseau, [1996] R.R.A. 1156; Conseil de la nation huronne v. Lainé, [1998] R.R.A. 495; Drouin v. La Presse Ltée, [1999] R.R.A. 714; Société Radio‑Canada v. Guitouni, [2001] R.R.A. 67; Picard v. Gros‑Louis, [2000] R.R.A. 62; Dhawan v. Kenniff, [2001] R.R.A. 53; Maison du Parc inc. v. Chayer, [2001] Q.J. No. 2663 (QL); Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; Repentigny (Ville de) v. Domaine Ti‑Bo inc., J.E. 96‑2062; Domaine Repentigny inc. v. Repentigny (Ville de), [1998] T.A.Q. 453.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms .

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 3, 4, 5, 44, 49, 52.

Cities and Towns Act, R.S.Q., c. C‑19, s. 47.

Civil Code of Lower Canada, art. 356.

Civil Code of Québec, S.Q. 1991, c. 64, Preliminary Provision, arts. 3, 35, 300, 1376, 1457, 2805.

Municipal Code of Québec, R.S.Q., c. C‑27.1, s. 79.

Quebec Act, 1774, R.S.C. 1985, App. II, No. 2.

Authors Cited

Baudouin, Jean‑Louis, et Patrice Deslauriers.  La responsabilité civile, 5^e éd.  Cowansville:  Yvon Blais, 1998.

Bisson, Alain‑François.  “La Disposition préliminaire du Code civil du Québec” (1999), 44 McGill L.J. 539.

Brown, Raymond E.  The Law of Defamation in Canada, 2nd ed., vols. 1‑2.  Scarborough:  Carswell, 1994 (loose‑leaf updated 2002, release 2).

Colas, Émile.  “Le droit à la vérité et le libelle diffamatoire” (1984), 44 R. du B. 637.

Côté, Pierre‑André.  “La détermination du domaine du droit civil en matière de responsabilité civile de l’Administration québécoise — Commentaire de l’arrêt Laurentide Motels”, dans Mélanges Jean Beetz.  Montréal:  Thémis, 1995, 385.

David, René.  English Law and French Law:  A Comparison in Substance.  London:  Stevens & Sons, 1980.

Gaudreault‑Desbiens, Jean‑François.  “Le traitement juridique de l’acte individuel fautif de l’élu municipal, source d’obligations délictuelles ou quasi délictuelles.  Un essai de systématisation critique du droit positif québécois” (1993), 24 R.G.D. 469.

Hétu, Jean, Yvon Duplessis et Dennis Pakenham.  Droit municipal:  principes généraux et contentieux.  Montréal:  Hébert Denault, 1998.

Jean, Claude.  “Responsabilité civile délictuelle:  la chasse aux élus et aux officiers municipaux est‑elle ouverte?”, dans Développements récents en droit municipal.  Cowansville:  Yvon Blais, 1989, 183.

Klar, Lewis N.  Tort Law, 2nd ed.  Scarborough:  Carswell, 1996.

Lemieux, Denis.  “L’impact du Code civil du Québec en droit administratif” (1994), 15 Admin. L.R. (2d) 275.

Linden, Allen M.  Canadian Tort Law, 6th ed.  Toronto:  Butterworths, 1997.

McLaren, John P. S.  “The Defamation Action and Municipal Politics” (1980), 29 U.N.B. L.J. 123.

Pineau, Jean, et Monique Ouellette.  Théorie de la responsabilité civile, 2^e éd.  Montréal:  Thémis, 1980. 

Rogers, Ian MacFee.  Municipal Councillors’ Handbook, 6th ed.  Scarborough:  Carswell, 1993.

Rogers, Ian MacFee.  The Law of Canadian Municipal Corporations, 2nd ed.  Toronto:  Carswell, 2001 (loose‑leaf updated 2002, release 3A).

Tremblay, Jacques.  “La responsabilité de l’élu municipal et sa protection contre certaines pertes financières: récents développements”, dans Développements récents en droit municipal.  Cowansville:  Yvon Blais, 1998, 155.

Trudel, Pierre.  “Poursuites en diffamation et censure des débats publics.  Quand la participation aux débats démocratiques nous conduit en cour” (1998), 5 B.D.M. 18.

Vallières, Nicole.  La presse et la diffamation.  Montréal:  Wilson & Lafleur, 1985.

APPEAL from a judgment of the Quebec Court of Appeal, [2000] R.R.A. 607, [2000] Q.J. No. 2070 (QL), setting aside a decision of the Superior Court.  Appeal dismissed.

William J. Atkinson, for the appellants.

Jean‑Jacques Rainville and Réjean Rioux, for the respondent.

Marc‑André Blanchard and Sylvie Gadoury, for the interveners.

English version of the judgment of the Court delivered by

L’Heureux‑Dubé and LeBel JJ. —

I.  Nature of the Appeal

1                                   The appellants have appealed from a decision of the Quebec Court of Appeal setting aside a judgment of the Superior Court ordering the respondent to pay the appellants $58,198 in damages for defamation.  The remarks in issue were made at a regular meeting of the Repentigny municipal council in the course of the respondent’s performance of his duties as a municipal councillor.  In this appeal, the Court is asked to determine the rules of civil liability that apply to the wrongful individual act of an elected municipal official in Quebec.  At the same time, it provides an opportunity to review and clarify the rules governing defamation actions in Quebec.

II.  Origin of the Case

2                                   The facts are relatively complex.  It is not necessary, for the purposes of this appeal, to reiterate them in full.  It will suffice to review the facts that are essential to a proper understanding of the remarks made by the respondent on the evening of July 7, 1997.

3                                   In 1988, the Commission scolaire de Le Gardeur announced plans for the building of a regional secondary school, which would serve the neighbouring municipalities of Repentigny and Saint‑Sulpice.  It instructed its Director General to negotiate the purchase of a site for the school.  Although the city of Saint‑Sulpice offered a lot fronting on highway 343 at $0.25 per square foot, the Director General of the Commission scolaire chose a site on the eastern outskirts of the city of Repentigny. At that time, that part of the city was zoned agricultural.  Hence, it could not be developed for construction purposes and had no road access.  In response to a written request by the Director General in 1989, the Mayor of Repentigny agreed to do whatever was necessary to ensure that the school be built in the desired location.  That unofficial commitment was made without a study of the potential cost of the infrastructure needed for building the school in that part of the city even being ordered.  After some negotiations, and subject to the approval of a change in zoning, the Commission scolaire bought a lot located in the eastern part of Repentigny, the value of which ranged from $0.42 to $0.63 per square foot, for $1.48 per square foot.  The sale was finalized on December 20, 1990.

4                                   In the winter of 1991, plans and specifications for completing the infrastructure work were filed.  The anticipated cost of that infrastructure work, which consisted primarily of extending Iberville boulevard, came to $7,748,000.  At that time, the City of Repentigny was one of the most heavily indebted cities in Quebec.  In March 1991, with no real development plan, and without studying the financial impact of the project for ratepayers, the municipal council passed bylaw 1055 which provided that residents of the eastern part of the city would have to cover the cost, themselves, of a loan in the amount of $7,748,000, through an increase in property taxes and a special levy, amortized over 20 years.  The fiscal repercussions were staggering.  For some residents, the special tax came to $200,000.  The City realized its error, and tried as best it could to reduce the cost of the work.  Its efforts resulted in only a very slightly lighter tax burden on ratepayers, who decided to organize in order to bring an action to have bylaw 1055 quashed.  That action was commenced in 1994 by 48 ratepayers, including the appellants.  In the interim, the City initiated expropriation proceedings against the appellants, who refused to convey the part of their lands to be used for extending Iberville boulevard for the sum of $1.

5                                   In June 1997, at the conclusion of a one‑month trial, Croteau J. of the Superior Court quashed bylaw 1055, which he found to be illegal, abusive and discriminatory.  In his judgment, Croteau J. commented particularly harshly on the municipal government.  He specifically criticized the City of Repentigny for refusing to amend bylaw 1055, despite the enormity of the tax burden that it had imposed on residents of the eastern part of the city.  He awarded the appellants costs against the City in the amount of $100,000 to reimburse them for their extrajudicial fees.

6                                   Fernand Prud’homme (the respondent), who is not related to the appellants, has been a municipal councillor for the City of Repentigny since November 1993.  He disagreed completely with the judgment of the Superior Court quashing bylaw 1055, and tried to persuade the other councillors to appeal the judgment.  They refused to back him up, and very much preferred to put an end to the entire matter, which had undeniably been extremely embarrassing for the City a few months before a municipal election.  The respondent was upset by this attitude, and decided to criticize publicly the fact that no public debate had been held as to whether the judgment should be appealed, at a regular meeting of the Council.  That meeting was held on the evening of July 7, 1997, the date on which the time for appeal expired.  Between 100 and 150 residents attended the meeting, which was also broadcast on the community television channel to a potential audience of 62,000 viewers.  For the purposes of this case, copies of the videotape were made available to the Court.

7                                   In a 20‑minute statement which was repeatedly interrupted by the Mayor, who tried in vain to end it, the respondent spoke against his colleagues’ refusal to make a decision as to whether the decision of Croteau J. should be appealed.  He said that he himself favoured appealing the decision, on the ground that it was based on erroneous findings of fact.  In essence, the respondent explained that bylaw 1055 was not discriminatory, since the facts clearly showed that the appellants had benefited financially from the plan to build the secondary school.  One of the things that he stressed was that the appellants’ land had risen in value substantially because of the zoning change in the eastern part of the city.  He also noted that the appellants had received compensation in the amount of $800,000 for the expropriation, after they had refused to convey the portion of their lands needed for the extension of Iberville boulevard for the sum of $1.  In addition, the respondent challenged the finding by Croteau J. that the appellants had not been aware of the legal notices concerning the passage of bylaw 1055.  He alleged that they had not objected to it.  Quoting what had been said by the Commission de la protection du territoire agricole du Québec (C.P.T.A.Q.), he accused the appellants of trying to have it both ways: portraying themselves as real estate speculators in respect of part of their lands, and as farmers in respect of the rest.  The respondent’s final point was to complain that the appellants had refused offers to settle that he considered to be reasonable.  What he did was to criticize both the appellants and the other members of the Council.

8                                   The appellants were offended by this statement, which was, in their opinion, full of malicious insinuations making them out to be bad citizens.  They called on the respondent to retract his words, but to no avail.  They were determined to obtain reparation, and applied to the Superior Court for a special order to compel the respondent to appear on a charge of contempt of court.  The application was dismissed by Michel Côté J. of the Superior Court, who found that the respondent was entitled to express his disagreement with the decision of Croteau J. without this constituting contempt of court.  Despite having lost in their attempt, the appellants decided to bring action against the respondent in damages for interfering with their reputation, honour and dignity.  On February 18, 1999, Tellier J. of the Superior Court allowed their defamation action and awarded damages of $58,198 against the respondent.  On June 26, 2000, the Quebec Court of Appeal set that judgment aside.

III.  Relevant Statutory Provisions

9                                   Charter of Human Rights and Freedoms, R.S.Q., c. C‑12

3.  Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.

4.  Every person has a right to the safeguard of his dignity, honour and reputation.

5.  Every person has a right to respect for his private life.

44.  Every person has a right to information to the extent provided by law.

49.  Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to exemplary damages.

Civil Code of Québec, S.Q. 1991, c. 64

                          PRELIMINARY PROVISION

The Civil Code of Québec, in harmony with the Charter of human rights and freedoms and the general principles of law, governs persons, relations between persons, and property.

The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication.  In these matters, the Code is the foundation of all other laws, although other laws may complement the Code or make exceptions to it.

                                                           BOOK ONE

                                                            PERSONS

3.  Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy.

These rights are inalienable.

35.  Every person has a right to the respect of his reputation and privacy.

No one may invade the privacy of a person without the consent of the person or his heirs unless authorized by law.

300.  Legal persons established in the public interest are primarily governed by the special Acts by which they are constituted and by those which are applicable to them; legal persons established for a private interest are primarily governed by the Acts applicable to their particular type.

Both kinds of legal persons are also governed by this Code where the provisions of such Acts require to be complemented, particularly with regard to their status as legal persons, their property or their relations with other persons.

                                                           BOOK FIVE

                                                        OBLIGATIONS

1376.  The rules set forth in this Book apply to the State and its bodies, and to all other legal persons established in the public interest, subject to any other rules of law which may be applicable to them.

1457.  Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person and is liable to reparation for the injury, whether it be bodily, moral or material in nature.

He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.

IV.  Judicial History

A.  Superior Court of Quebec, February 18, 1999

10                               After a detailed examination of the facts, Tellier J. stated a series of findings.  First, he noted that the respondent’s statement was made at a regular meeting of the municipal council barely an hour before the time for appeal expired.  Second, he observed that the respondent’s remarks appeared to have been made with aforethought.  Third, he found that the respondent had been acting completely alone, in that his colleagues had refused to support his request for a special meeting to be held to consider whether the judgment of Croteau J. of the Superior Court should be appealed.

11                               Tellier J. went on to acknowledge that everyone is free to state the reasons why he or she disagrees with a judgment.  However, no one may abuse that right in such a way as to interfere with the honour or reputation of another person.  Then, analysing the statement itself, Tellier J. criticized the respondent for a number of inexcusable omissions, and for referring to certain facts which were entirely outside the scope of any alleged discussion as to whether the judgment should be appealed.  He deduced from this that the respondent had intended to humiliate the appellants by making them out to be bad citizens who did not pay their taxes and who were getting rich at the community’s expense.  He added that the wrongdoing was such that the qualified privilege enjoyed by municipal councillors in the performance of the duties of their office could not protect him.

12                               Tellier J. moved on to the assessment of damages, and observed that while it may be difficult to assign a value to moral injury with mathematical exactitude, it is nonetheless a real injury.  He therefore ordered that the respondent pay each of the appellants the sum of $5,000 in damages.  Having regard to the intentional nature of the respondent’s remarks, he awarded each of the appellants an additional $3,000 as exemplary damages for interference with their fundamental rights.  He also ordered that $18,198 be paid for extrajudicial fees.

B.  Court of Appeal of Quebec, [2000] R.R.A. 607

13                               Michaud C.J., with whom Gendreau and Mailhot JJ.A. concurred, started by pointing out that the measured, unaggressive and polite nature of the respondent’s speech could be seen on the video recording.  He then said that the respondent was entitled to criticize publicly a judgment that could increase the tax burden on all the ratepayers of Repentigny.  Whether the judgment should have been appealed was a matter of public interest on which it was legitimate for him to state an opinion in the performance of the duties of his office as a municipal councillor.  Moreover, his statement was directed more to the Mayor and the other members of the municipal council than to the appellants.  The respondent was attempting to inform the public that he personally would have advocated an appeal.

14                               Michaud C.J. added, on this point, that the finding made by Tellier J. that the respondent’s remarks were made with the intention of damaging or interfering with the appellants’ reputations was not [translation] “obvious”.  In his view, the statement could just as well have been made to score political points in the lead‑up to a municipal election.  Although the respondent’s comments were incomplete, in the context and in the time allowed, they were not defamatory and did not interfere with the appellants’ reputations.

15                               In his final ruling, reaffirming the importance of freedom of political speech in a democratic society, Michaud C.J. held that the respondent was entitled to the defence of fair comment as defined by the Court of Appeal in Steenhaut v. Vigneault, [1986] R.R.A. 548.  He also found that the respondent’s remarks were protected by the qualified privilege enjoyed by municipal councillors in the performance of the duties of their office.

V.  Analysis

16                               Elected municipal officials are the leading players in municipal democracy.  They are chosen by the residents to look after the community’s interests; they take on a variety of responsibilities, some of which are provided by law and others of which are inherent in the nature of their position.  Because their office is an elected one, municipal officials are accountable primarily to their constituents if they are unable to meet the demands of their position.  However, like anyone else, elected municipal officials may commit wrongful acts that cause injury to individuals in the performance of the duties of their office.  Because such a wrongful act cannot be adequately remedied at the polls, an effective sanction for it can be applied only by the courts.  When this happens, because of the public nature of the duties of the office of elected municipal officials, the courts are faced with the question of how to apply the ordinary rules of liability in the jus commune to the wrongful individual acts of those officials.

17                               The parties did not examine the impact of the public nature of the duties of the respondent’s office on the rules that apply to this appeal, but they analysed the respondent’s actions under the rules of the civil law system of liability.  The respondent, citing case law, also raised two common law defences:  fair comment, and qualified privilege.  The appellants argued that the criteria that the first defence requires were not met, while the second defence simply could not be made in civil law.  Before addressing the central issue in this appeal, the respondent’s liability, this Court must try to resolve the difficulties associated with identifying and defining the rules that apply to a defamation action against an elected municipal official in Quebec.  For that purpose, the Court must revisit what it held in Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705, having regard to the provisions of the new Civil Code of Québec (“C.C.Q.”).  First, however, we should briefly outline the nature and scope of the duties of the office of elected municipal officials, since it is precisely those duties of office that define the framework within which the allegedly wrongful conduct of the municipal councillor here must be analysed.

A.     What Rules of Civil Liability Apply to the Wrongful Individual Act of an Elected Municipal Official in Quebec?

(i)  Legal Status and Duties of Elected Municipal Officials

18                               Despite the early emergence of municipal institutions in Quebec, the rights and duties of elected municipal officials are still not stated in precise, well-organized statutory provisions.  The few obligations imposed on elected municipal officials by the statutes in question plainly do not provide a complete guide to their legal status, and are rather, for the most part, particular applications of a general duty to take care of the municipality’s affairs honestly and fairly.  For example, there are laws that provide that they have an obligation to vote, they are entitled to remuneration, they have an obligation to declare financial interests, they have a duty of fairness that requires that they abstain from voting when they have a conflict of interest, and so on.  (See J. Tremblay, “La responsabilité de l’élu municipal et sa protection contre certaines pertes financières: récents développements”, in Développements récents en droit municipal (1998), 155, at p. 157.)

19                               Faced with the difficulties created by the legislature’s silence, the courts in Quebec have tried to define the legal status of elected municipal officials in order to identify their rights and duties.  For example, depending on the circumstances, elected municipal officials have been characterized as mandataries of the public, representatives, legislators, officers and trustees.  They have even been described as temporary employees.  (See C. Jean, “Responsabilité civile délictuelle: la chasse aux élus et aux officiers municipaux est‑elle ouverte?”, in Développements récents en droit municipal (1989), 183, at p. 210; J.‑F. Gaudreault‑Desbiens, “Le traitement juridique de l’acte individuel fautif de l’élu municipal, source d’obligations délictuelles ou quasi délictuelles.  Un essai de systématisation critique du droit positif québécois” (1993), 24 R.G.D. 469, at pp. 475‑82.)

20                               The ambiguous nature of the legal status of elected municipal officials is the result of their status as representatives of both the municipality and their own constituents.  That dual role means that on occasion they must choose between the best interests of the municipality and the demands of their constituents (I. MacF. Rogers, Municipal Councillors’ Handbook (6th ed. 1993), at p. 3).  Ultimately, the circumstances will determine which interests they must favour.  Sometimes, they will be required to justify their choices, and to do that they will have to refer to their duties and, if necessary, establish a hierarchy among them, while keeping the general interest of the municipality as their overarching concern (Gaudreault‑Desbiens, supra, at p. 484).

21                               Generally speaking, elected municipal officials are officials of the municipal corporation (s. 47 of the Cities and Towns Act, R.S.Q., c. C-19, and s. 79 of the Municipal Code of Québec, R.S.Q., c. C-27.1).  In that capacity, their rights and duties are those of a mandatary.  As well, in the course of their participation in the legislative or administrative activities of the council, they are not personally liable for the council’s acts, unless they acted fraudulently or with gross negligence amounting to gross fault.  Nor are they liable for the ultra vires acts of the municipality, unless they acted maliciously or in bad faith (Jean, supra, at p. 211; I. MacF. Rogers, The Law of Canadian Municipal Corporations (2nd ed. (loose-leaf)), at p. 214.16).  However, in the case of the collegial acts of the council, elected municipal officials are, as a rule, personally liable for their wrongful individual acts.

22                               The courts have found elected municipal officials to be personally liable not only for violating their statutory obligations, but also for breaching the “inherent” duties of their office.  For example, decisions have held that elected municipal officials had a duty to be concerned about enforcing public order, not to promote their private interests at the expense of the municipality’s interests, to ensure that municipal archives and records are supervised and secure, to superintend and inform themselves about municipal works, to inform themselves about the important details of municipal government, to select the City’s employees judiciously and to ensure the integrity of its police service.  More specifically, other judgments have acknowledged the existence of a duty to disclose information that could affect the proper administration of public affairs.  From a systematic standpoint, these inherent duties may all be regarded as particular applications of a general duty to protect the municipality’s interests and the proper administration of its affairs (Gaudreault‑Desbiens, supra, at pp. 484‑85).

23                               It can be concluded from this brief survey, summary though it is, that the relationship between elected municipal officials and the various players on the municipal state gives those officials a hybrid legal status.  They must both promote the subjective interests of their constituents and safeguard the objective interests of the municipality, and must often make difficult choices in which they are subject to important and sometimes conflicting duties.  Their office requires that they justify those choices in relation to a body which is decision‑making in nature.  For example, in the proceedings of the council or municipal bodies, they must explain and defend their options.  They must also explain them, and justify them publicly to their constituents, or to some constituents.  Their right, and even obligation, to speak is an important aspect of the performance of the duties of their office as officials of the municipality.

(ii)  Applicable Rules of Liability

24                               Elected municipal officials are, as a rule, governed by the law that creates their offices, which is public law.  This does not mean that they may never be subject to the civil law.  Public law, however, will determine the extent to which they will be subject to that law.  Accordingly, before finding that the wrongful individual act of an elected municipal official in Quebec is subject to the rules of civil liability set out in arts. 1457 C.C.Q. et seq., a rule of public law that provides for this must be identified.

25                               In Laurentide Motels, supra, this Court held that the extent to which public authorities are subject to the rules of the civil law in matters of liability was determined by the common law rule established by the House of Lords in Anns v. Merton London Borough Council, [1978] A.C. 728.  That rule provides that only those decisions of public authorities that are within the “operational sphere”, as opposed to the political sphere, are subject to the rules of private law, the private law in Quebec being composed of the rules found in the Civil Code.

26                               Laurentide Motels, supra, was decided under the Civil Code of Lower Canada (“C.C.L.C.”).  The only provision of that Code that is even remotely relevant to the definition of the rules of civil liability that apply to public authorities was found in art. 356 C.C.L.C.  That article provided that political corporations were governed by the public law and were only subject to the civil law in their relations, in certain respects, to individual members of society.  Beetz J. said that this article had no normative value, and noted that it was very surprising if the law of exception, which, in that area, was at that time the civil law, were to determine itself the sphere in which it applied to public authorities (p. 720).

27                               When the Civil Code of Québec came into force in 1994, it placed actions in liability against a public authority in a new context.  While art. 356 C.C.L.C. has its equivalent in art. 300 of the new Code, art. 1376 C.C.Q. now provides that the rules set forth in the Book On Obligations “apply to the State and its bodies, and to all other legal persons established in the public interest, subject to any other rules of law which may be applicable to them”.  That is a public law rule.  It relieves an individual who brings proceedings against a public authority from the obligation to identify a rule of public common law that makes the civil law applicable to his or her action.  (See P.‑A. Côté, “La détermination du domaine du droit civil en matière de responsabilité civile de l’Administration québécoise — Commentaire de l’arrêt Laurentide Motels”, in Mélanges Jean Beetz (1995), 385, at p. 397.) Article 1376 C.C.Q. also applies to the persons who make up a public authority or a body of that authority, where their acts are connected with public duties.  In the case that is the subject of this appeal, the respondent’s actions were not performed as a private matter.  They fell within the four corners of his actions as a municipal councillor.  He was acting in this instance as a member of a public authority, the City of Repentigny, in the performance of important political duties.  The action thus gave rise to a public liability problem, within the meaning of art. 1376 C.C.Q.

28                               It may seem surprising that a public law rule would be found in the Civil Code of Québec.  It is important to recall, however, that the new Code does not simply lay down a body of private law rules, or “a law of exception”.  As stated in its preliminary provision, it is the jus commune of Quebec:

The Civil Code of Québec, in harmony with the Charter of human rights and freedoms and the general principles of law, governs persons, relations between persons, and property.

The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication.  In these matters, the Code is the foundation of all other laws, although other laws may complement the Code or make exceptions to it.  [Emphasis added.]

29                               The expression “jus commune” was not chosen randomly.  An earlier version of the provision provided that the Code comprised a body of rules laying down the “private law”.  In response to the debate in the literature prompted by the decision in Laurentide Motels, supra, the expression “private law” was replaced by the more inclusive expression “jus commune”.  The backdrop against which this change was made leaves no doubt as to the very conscious decision made by the legislature to give the Civil Code the broadest possible operational scope.  (See A.‑F. Bisson, “La Disposition préliminaire du Code civil du Québec” (1999), 44 McGill L.J. 539.  See also D. Lemieux, “L’impact du Code civil du Québec en droit administratif” (1994), 15 Admin. L.R. (2d) 275, at pp. 295‑97.)

30                               In addition, there is no doubt as to the normative value of the preliminary provision at this point.  That value was acknowledged in Doré v. Verdun (City), [1997] 2 S.C.R. 862, which recognized that the three‑year limitation period established in art. 2930 C.C.Q. for actions for reparation for bodily injury prevailed over the time limits and short prescriptive periods set out in municipal legislation in Quebec.

31                               In short, when the new provisions of the Civil Code of Québec, and more particularly art. 1376, came into force, they no longer allowed the use of the method laid down by Laurentide Motels, supra, insofar as that decision imposed an obligation on the individual to identify a public common law rule that made the private law applicable to his or her action in liability against the governmental body.  The civil law principles of civil liability now apply, as a rule, to wrongful acts by such bodies.  It therefore belongs to the party which intends to rely on the public law in order to avoid or to limit the application of the general rules of civil liability to establish, where the need arises, that there are relevant public law principles that prevail over the civil law rules.

(iii)  Civil Law Rules of Liability

32                               Quebec civil law does not provide for a specific form of action for interference with reputation.  The basis for an action in defamation in Quebec is found in art. 1457 C.C.Q., which lays down the general rules that apply to questions of civil liability.  Thus, in an action in defamation, the plaintiff must establish, on a balance of probabilities, the existence of injury, of a wrongful act, and of a causal connection, as in the case of any other action in civil, delictual or quasi‑delictual liability. (See N. Vallières, La presse et la diffamation (1985), at p. 43; Houde v. Benoit, [1943] Que. K.B. 713, at p. 720; Société Radio‑Canada v. Radio Sept‑Îles Inc., [1994] R.J.Q. 1811 (C.A.), at p. 1818.)

33                               To demonstrate the first element of civil liability, the existence of injury, the plaintiff must convince the judge that the impugned remarks were defamatory.  The concept of defamation has been defined in several ways over the years.  Generally speaking, it is held that defamation [translation] “consists in the communication of spoken or written remarks that cause someone to lose in estimation or consideration, or that prompt unfavourable or unpleasant feelings toward him or her” (Radio Sept‑Îles, supra, at p. 1818).

34                               Whether remarks are defamatory is determined by applying an objective standard (Hervieux‑Payette v. Société Saint‑Jean‑Baptiste de Montréal, [1998] R.J.Q. 131 (Sup. Ct.), at p. 143, reversed on other grounds by Société Saint-Jean-Baptiste de Montréal v. Hervieux-Payette, [2002] R.J.Q. 1669 (C.A.)).  In other words, we must ask whether an ordinary person would believe that the remarks made, when viewed as a whole, brought discredit on the reputation of another person.  On this point, we should note that words may be defamatory because of the idea they expressly convey, or by the insinuations that may be inferred from them.  In Beaudoin v. La Presse Ltée, [1998] R.J.Q. 204 (Sup. Ct.), at p. 211, Senécal J. provided a good summary of the approach to be taken in determining whether particular remarks are defamatory in nature:

[translation]  “The form in which the libel is expressed is of little import; it is the result achieved in the mind of the reader that creates the delict.”  The defamatory allegation or imputation may be direct, or it may be indirect, “by simple allusion, insinuation or irony, or be made conditionally, as an expression of doubt, or hypothetically.”  Often, the allegation or imputation “is conveyed to the reader by way of a simple insinuation, an interrogative sentence, a reference to a rumour, mention of information that has infiltrated the public awareness, juxtaposition of unrelated facts that, together, take on the appearance of being related”.

The words must also be interpreted in their context.  For instance, “it is not possible to isolate a passage from a text and complain of it, if the entire text sheds a different light on that excerpt”.  On the other hand, “it matters little that the elements of which it is composed are true if the text as a whole conveys a message that is contrary to reality”.  In fact, truth or reality may be distorted by half‑truths, selective compilation, omissions, and so on. “We must consider a newspaper article or radio broadcast as a whole, and the sentences and words must be interpreted by reference to one another.”

35                               However, a person who has made remarks that are deemed to be defamatory will not necessarily be civilly liable for them.  The plaintiff must further demonstrate that the person who made the remarks committed a wrongful act.  In La responsabilité civile (5th ed. 1998), at pp. 301‑2, J.-L. Baudouin and P. Deslauriers point out that in defamation cases, 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.

36                               Based on the description of these two types of conduct, we can identify three situations in which a person who made defamatory remarks could be civilly liable.  The first occurs when a person makes unpleasant remarks about a third party, knowing them to be false.  Such remarks could only have been made maliciously, with the intention to harm another person.  The second situation occurs when a person spreads unpleasant things about someone else, when he or she should have known them to be false.  A reasonable person will generally refrain from giving out unfavourable information about other people if he or she has reason to doubt the truth of the information.  The third case, which is often forgotten, is the case of a scandalmonger who makes unfavourable but true statements about another person without any valid reason for doing so.  (See J. Pineau and M. Ouellette, Théorie de la responsabilité civile (2nd ed. 1980), at pp. 63‑64.)

37                               Accordingly, in Quebec civil law, communicating false information is not necessarily a wrongful act.  On the other hand, conveying true information may sometimes be a wrongful act.  This is an important difference between the civil law and the common law, in which the falsity of the things said is an element of the tort of defamation.  However, even in the civil law, the truth of what is said may be a way of proving that no wrongful act was committed, in circumstances in which the public interest is in issue (see the comments by Vallières, supra, at p. 10, cited with approval by the Quebec Court of Appeal in Radio Sept‑Îles, supra, at p. 1819).

38                               In every case, determining fault is a contextual question of fact and circumstances.  On this point, it is important to note that an action in defamation involves two fundamental values: freedom of expression and the right to reputation.  This Court has long recognized the importance of the first of those values in a democratic society.  In Reference re Alberta Statutes, [1938] S.C.R. 100, at pp. 145-46, Cannon J. explained that freedom of expression was a necessary prerequisite for the proper function of our parliamentary institutions:

Freedom of discussion is essential to enlighten public opinion in a democratic State; it cannot be curtailed without affecting the right of the people to be informed through sources independent of the government concerning matters of public interest.  There must be an untrammelled publication of the news and political opinions of the political parties contending for ascendancy. . . .  Democracy cannot be maintained without its foundation: free public opinion and free discussion throughout the nation of all matters affecting the State within the limits set by the criminal code and the common law.

39                               With the advent of the Canadian Charter of Rights and Freedoms  (“Canadian Charter ”), this Court has frequently reiterated the crucial role of freedom of expression.  In Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, for example, Cory J. said, at p. 1336, that it was “difficult to imagine a guaranteed right more important to a democratic society than freedom of expression”.  See also Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at p. 767; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at pp. 968-69; R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 763-64; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, at pp. 171‑77; R. v. Zundel, [1992] 2 S.C.R. 731, at p. 752; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, at paras. 28‑29; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para. 92; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 23; R. v. Guignard, [2002] 1 S.C.R. 472, 2002 SCC 14, at paras. 19-20.

40                               The Charter of Human Rights and Freedoms, R.S.Q., c. C-12, which is applicable in this case, a matter that is within the legislative jurisdiction of the National Assembly of Quebec, recognizes the crucial importance of freedom of expression.  Section 3 of that Charter ranks that freedom among the fundamental rights that s. 52 provides will prevail over Quebec’s legislation (see Ford, supra; see also Guignard, supra, at para. 18).

41                               In addition, this Court has often stressed that political discourse is central to the constitutional guarantee of freedom of expression (Thomson Newspapers, supra; Sharpe, supra; Guignard, supra).  In Keegstra, supra, at pp. 763-64, Dickson C.J. said, inter alia:

The connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy. Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons.

42                               In a defamation action against an elected municipal official, freedom of expression takes on singular importance, because of the intimate connection between the role of that official and the preservation of municipal democracy.  Elected municipal officials are, in a way, conduits for the voices of their constituents:  they convey their grievances to municipal government and they also inform them about the state of that government (Gaudreault‑Desbiens, supra, at p. 486).  Their right to speak cannot be limited without negative impact on the vitality of municipal democracy, as Professor P. Trudel noted in an article entitled “Poursuites en diffamation et censure des débats publics.  Quand la participation aux débats démocratiques nous conduit en cour” (1998), 5 B.D.M. 18, at p. 18:

[translation]  Municipal democracy is based on confrontation between views and on open, and sometimes vigorous and passionate, debate.  Discussion about controversial subjects can occur only in an atmosphere of liberty.  If the rules governing the conduct of such debates are applied in such a way as to cause the people who participate in them to fear that they will be hauled before the courts for the slightest breach, the probability that they will choose to withdraw from public life will increase.

43                               That freedom of speech is not absolute.  It is limited by, inter alia, the requirements imposed by other people’s right to the protection of their reputation.  As Cory J. observed in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 108, reputation is an attribute of personality that any democratic society concerned about respect for the individual must protect:

Democracy has always recognized and cherished the fundamental importance of an individual.  That importance must, in turn, be based upon the good repute of a person.  It is that good repute which enhances an individual’s sense of worth and value.  False allegations can so very quickly and completely destroy a good reputation.  A reputation tarnished by libel can seldom regain its former lustre.  A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited.

44                               The right to reputation is also protected, in Quebec, by s. 4 of the Charter of Human Rights and Freedoms and by art. 3 C.C.Q.  As well, although it is not specifically mentioned in the Canadian Charter , the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Canadian Charter  rights (Hill, supra, at para. 120).

45                               Accordingly, while elected municipal officials may be quite free to discuss matters of public interest, they must act as would the reasonable person.  The reasonableness of their conduct will often be demonstrated by their good faith and the prior checking they did to satisfy themselves as to the truth of their allegations.  These are guidelines for exercising their right to comment, which has been repeatedly reaffirmed by the courts.

(iv)  Public Common Law Rules That Prevail

46                               The question that arises at this stage is whether there are public law rules that defeat the application of the civil law rules of liability for the individual wrongful acts of elected municipal officials.  Quebec public law is composed of the written law and the “public” common law.  Only those common law rules that are public in nature apply in the province, because the Quebec Act, 1774, established that the civil law prevails in respect of property and civil rights.  Identifying the rules of the public common law may be an especially difficult task for the Quebec jurist, because the common law, as a rule, makes no distinction between private law and public law.  Public law and private law problems must be examined and resolved within a single legal system, using a consistent method and the same vocabulary or concepts.  Nonetheless, those rules must be identified, in order to coordinate the two legal systems in Quebec, which apply in separate spheres.  (See Laurentide Motels, supra, at p. 721.)  This Court has developed that legal technique as a method to be used for solving the problems that might arise when the common law and the civil law come in contact, in some areas of Quebec law, because of the mixed nature of that law.  This is not to suggest that outside that context, as a general rule, there is a summa divisio in common law that would distinguish public common law from private common law for all purposes.

47                               As noted earlier, the laws governing elected municipal officials in Quebec, apart from a few particular provisions that do not apply in this case, are silent as to the personal liability of those officials for their wrongful individual acts.  Accordingly, any public law rule that deviates from the jus commune of civil liability will necessarily derive from the public common law.

48                               The respondent raised two defences derived from the common law:  qualified privilege and the defence of fair comment.  Those defences were introduced into the civil law some years ago under the influence of an earlier tendency on the part of the Quebec courts to import common law concepts in areas of the law that are governed by both public law and private law rules.  In order to determine whether those defences may be applied directly in the civil law, we must determine the nature of the defences.  As noted earlier, whether they may be raised depends on whether they are public in nature.

(v)  Qualified Privilege

49                               Elected municipal officials do not enjoy the parliamentary privilege enjoyed by members of the National Assembly of Quebec or of the federal Parliament (R. E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), vol. 2, at pp. 12‑20 and 12-21; J. Hétu, Y. Duplessis and D. Pakenham, Droit municipal:  principes généraux et contentieux (1998), at p. 177).  The English and Canadian courts, however, have held that words spoken at a meeting of a municipal council are protected by qualified privilege (J. P. S. McLaren, “The Defamation Action and Municipal Politics” (1980), 29 U.N.B.L.J. 123, at pp. 134‑35).  Accordingly, the fact that words spoken at a meeting are defamatory does not, in itself, mean that a municipal councillor will be liable therefor.  In order to succeed in his or her action, the plaintiff must prove malicious intent or intent to harm on the part of the councillor (Brown, supra, at p. 13-4).  The reason for that qualified privilege was eloquently stated by Diplock L.J. in Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at p. 152:

My Lords, what is said by members of a local council at meetings of the council or of any of its committees is spoken on a privileged occasion.  The reason for the privilege is that those who represent the local government electors should be able to speak freely and frankly, boldly and bluntly, on any matter which they believe affects the interests or welfare of the inhabitants.  They may be swayed by strong political prejudice, they may be obstinate and pig‑headed, stupid and obtuse; but they were chosen by the electors to speak their minds on matters of local concern and so long as they do so honestly they run no risk of liability for defamation of those who are the subjects of their criticism.

See also Shaw v. Morgan (1888), 15 R. 865 (Ct. of Sess.), at p. 869; Ward v. McBride (1911), 24 O.L.R. 555 (Div. Ct.), at p. 568; Edwards v. Gattmann (1928), 40 B.C.R. 122 (S.C.); Savidant v. Day (1933), 5 M.P.R. 554 (P.E.I.S.C.), at p. 559, aff’d [1933] 4 D.L.R. 456 (P.E.I.S.C. en banc); Peckham v. Mount Pearl (City) (1994), 122 Nfld. & P.E.I.R. 142 (Nfld. S.C.); Johnson v. Jolliffe (1981), 26 B.C.L.R. 176 (S.C.); Brown, supra, at pp. 13‑162 to 13‑165.  There have also been a number of judgments of the Quebec courts recognizing the common law qualified privilege of elected municipal officials:  Lamy v. Pagé (1910), 16 R. de J. 456 (Sup. Ct.); Belley v. Labrecque (1910), 20 Que. K.B. 79; Montreal Light, Heat & Power Co. v. Clearihue (1911), 20 Que. K.B. 529; Pichette v. Giroux (1914), 20 R. de J. 595 (Ct. Rev.); Joannette v. Jasmin (1914), 21 R.L. 78 (Ct. Rev.); Houde, supra; Anjou 80 v. Simard, [1987] R.R.A. 805 (Sup. Ct.); Revelin v. Boutin, [1991] R.R.A. 507 (C.Q.); Rouillard v. Malacort, [1993] R.R.A. 486 (C.Q.); 129675 Canada Inc. v. Caron, [1996] R.R.A. 1175 (Sup. Ct.).

50                               The defence of qualified privilege is not reserved exclusively to elected municipal officials.  It applies whenever a person who makes a communication has an interest or a duty, legal, social or moral, to make it to another person who has a corresponding interest or duty to receive it (Adam v. Ward, [1917] A.C. 309 (H.L.), at p. 334, approved by this Court in McLoughlin v. Kutasy, [1979] 2 S.C.R. 311, at p. 321; Hill, supra, at paras. 143‑46; Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, at paras. 78-81).  This will be the case, for example, where an employer or professor provides references about his or her employee or student, or where a journalist publishes defamatory information in the public interest that he or she honestly believes to be true.

51                               The fact that the defence of qualified privilege may be raised by individuals who are not performing the duties of a public office casts doubt on its purely public nature.  We would note that if the defence derived from the private common law, it could not defeat the application of the usual rules of the civil law.  For the purpose of determining whether the rule is applicable in Quebec law, with or without adaptation or by identifying rules that are equivalent, in terms of their effects, in Quebec law, it therefore becomes necessary to distinguish between private common law and public common law.

52                               Any attempt to distinguish between two branches of a common law that is, in principle, a single body, will necessarily generate methodological difficulties.  Properly speaking, there are no established criteria by which a public common law rule may be identified.  However, in Laurentide Motels, supra, at p. 723, Beetz J. said that “[a] rule which has application only to public bodies, which exists and is justified by the public nature of those bodies, is surely a rule of public law.”  Professor Côté, supra, clearly understood what that statement meant when he wrote, at p. 401:

[translation]  We might think that Beetz J. did not intend to propose two distinct criteria for whether a common law rule is public in nature, because it is hard to imagine circumstances in which a rule would be applicable only to public authorities when this specific legal treatment was not justified by the public nature of the persons to whom it applied.  We may conclude that a common law rule will be in the nature of a public law rule, inter alia, when it applies only to public authorities.  On the other hand, a common law rule that applies without distinction to public authorities and to individuals would not be a priori in the nature of a public law rule.

53                               Qualified privilege is not, a priori, a concept unique to the public common law.  It may be raised by individuals just as it may be raised by persons performing the duties of public office.  In fact, as its definition suggests, qualified privilege attaches much more often to particular circumstances than to specific classes of identifiable persons.  It is therefore more accurate to talk about “privileged occasions” than about “privileged persons”.  Things done by municipal councillors acting in the course of the duties of their office fall into those privileged occasions where important public interest considerations call for them to be granted partial protection against the legal consequences that flow from words that would otherwise be regarded as defamatory.  As noted earlier, the duties of office of municipal councillors require that they take public positions and make efforts to explain and persuade with respect to the numerous problems that arise in a municipality and in the running of it.  The councillor’s freedom of expression is a crucial instrument for achieving effective participation in and transparent management of municipal affairs.  Decisions that sometimes have a negative effect on individuals or on important interests not only must be made, but must also be justified to the public.  Freedom of speech, when exercised in a manner that respects other persons but exercised freely, is an essential instrument for the proper performance of the duties of the office of an elected municipal official.  For that reason, it is generally acknowledged that words spoken by a municipal councillor at a council meeting are protected.  Although not all instances of qualified privilege fall into the realm of public law, obviously, the qualified privilege that protects a municipal councillor at council meetings is clearly part of it:  the application of this particular form of qualified privilege is so intimately connected to the public nature of the duties of office performed by a municipal councillor, and to the unique requirements of that office, that it must be recognized as a principle of the public common law that is applicable in Quebec law.

54                               Once a municipal councillor’s qualified privilege has been characterized as a principle of public law, this Court must determine whether that defence may be incorporated, in that form, into the rules governing civil liability in Quebec without disturbing the coherence of those rules.  It would be extremely unwise to import, holus bolus, legal concepts that were developed in another system of law without first determining whether they are compatible with the rules that apply to civil liability in Quebec.  This Court has, on occasion, noted the difficulties created by the transposition of blocks of rules from a different legal system, particularly in the law of civil liability.  Some of the comments made by Beetz J. in examining a case involving liability for the act of a thing are entirely on point here (Rubis v. Gray Rocks Inn Ltd., [1982] 1 S.C.R. 452, at pp. 467-69).  As well, as noted earlier, the Civil Code of Québec clearly establishes that the rules governing the extra‑contractual liability of public authorities in Quebec are the rules of the jus commune, that is, the rules of the civil law.  Even where a public common law rule is held to be applicable, the general framework for analysing liability is still the framework proposed by the civil law.  Accordingly, a common law rule will sometimes have to be reworked to remedy the contradictions or difficulties that result from superimposing concepts that derive from different legal systems.  As Professor Côté wrote, supra, at p. 398:

[translation]  When one legal system borrows from another, there will always be problems.  This is not a matter of simply taking an apple from one basket and putting it in another.  Each element of a legal system derives its meaning, its very value, from the fact that it belongs to that system.  We therefore cannot dissociate it from that system and introduce it into another system without effecting certain transpositions, which are in no way obvious.

55                               The transpositions to which Professor Côté refers require that jurists be very familiar with the common law rules of extra‑contractual liability.  On this point, it should be noted that there is no unified body of rules in the common law governing civil liability that is comparable to what exists in the civil law.  The law of liability in the common law is composed of a variety of torts, each of which is governed by a specific set of legal rules (R. David, English Law and French Law:  A Comparison in Substance (1980), at p. 150).  Accordingly, before transposing the defence of qualified privilege into the civil law, there must be an examination of the tort with which it is associated: the tort of defamation.

56                               The common law rules governing actions in defamation are essentially based on the rules of strict liability.  The plaintiff is not required to establish wrongdoing on the part of the defendant.  The plaintiff’s only burden of proof is to establish that the words spoken by the defendant were of such a nature as to bring the plaintiff’s reputation into disregard (Brown, supra, at p. 1‑26; L. N. Klar, Tort Law (2nd ed. 1996), at p. 551; A. M. Linden, Canadian Tort Law (6th ed. 1997), at p. 695).  In comparison, the civil law rules governing defamation actions are based on the concept of fault.  To succeed, as we saw earlier, the plaintiff must establish not only that the defendant uttered the offensive words about him or her, but also that the defendant committed a fault in so doing.

57                               As may be seen, an action in defamation in civil law in a way proceeds in the opposite direction from an action for defamation in common law.  In the civil law, the defendant’s good faith is presumed (art. 2805 C.C.Q.) and it is up to the plaintiff to establish that the defendant committed a fault.  In the common law, malice is presumed once the plaintiff establishes that the defendant spoke the offensive words about him or her.  The defendant may try to rebut that presumption by citing qualified privilege.  If the defendant succeeds in establishing that the criteria for that defence have been met, the presumption of malice will fall and give way to a presumption of good faith.  The plaintiff must then establish that the defendant acted in bad faith or had malicious intent (É. Colas, “Le droit à la vérité et le libelle diffamatoire” (1984), 44 R. du B. 637, at pp. 652-54; Brown, supra, at pp. 13‑15 to 13-20; Gaudreault-Desbiens, supra, at p. 500).

58                               As a result of the mechanism that it implies and the basic idea that underlies it, that is, the existence of a presumption of malice, the defence of qualified privilege cannot be incorporated in that form into the civil law rules which are based on a presumption of good faith, without disturbing the coherence of its application in the area of public authority liability.  Moreover, bad faith or malice need not be established in order for fault to be proved in the civil law:  liability may result from an act of negligence, in which case the defamation is a quasi‑delict.  Accordingly, permitting the defence of qualified privilege to be incorporated into the civil law would amount to reducing defamation, as it is understood in the civil law, to its delictual dimension alone, thereby stripping it of its important quasi‑delictual dimension (Gaudreault‑Desbiens, supra, at p. 500).

59                               To avoid that result, while still using legal techniques that are consistent with the methods of the civil law, simply importing qualified privilege does not seem to be the desirable or necessary solution.  What we must first determine is whether the Quebec law of civil liability includes rules that are capable of providing equivalent protection to an elected municipal official, and of preserving the societal values and interests that the rule of qualified privilege that applies to an elected municipal official in the common law is intended to preserve.  This approach to transposition is based, in this case, on the fact that the concept of fault in Quebec civil law is a flexible one.  However, the legal characterization of the conduct, which is based on an objective examination of reasonable conduct, is still determined from the context.  This makes it possible to take into consideration the situation of the person who committed the impugned act, and incorporate the values and interests that will be used to determine, when the analysis has been completed, whether a civil fault has been committed.  It can be concluded, from the facts that fault is determined from the context and that there is a presumption of good faith, that the application of the rules of the law of civil liability will protect the interests and values that the law respecting public authorities seeks to protect when it defines the status of an elected municipal official.  In other words, the defence of qualified privilege has an equivalent in the civil law, and, moreover, that defence must be applied in accordance with the legislative intent expressed in art. 1376 C.C.Q.  As Gaudreault‑Desbiens, supra, commented, at p. 502:

[translation]  In Quebec civil law, elected municipal officials may be protected by the application of the ordinary rules of civil liability, without reference to an extrinsic concept.  In this sense, the qualified privilege conferred on elected municipal officials by the civil law is not a mere defence of justification which a priori relies on the absence of fault on the part of the official, having regard to the nature of the office, the duties that it implies and the specific circumstances of the case.  The rules of civil liability mean that the conduct of an elected official will be assessed objectively, referring to the conduct that comparable persons would have adopted in the same circumstances.  What is called “qualified privilege” is therefore, in the civil law, simply the defence raised by a person who may have performed an objectively wrongful act, but who has not committed a fault, because the act was performed in the normal performance of the duties of public office, that office imposes a duty on him or her to perform that act (or the act may be connected to a duty inherent in the duties of that office) it was therefore in the public interest to perform it, and in performing it, the person who did so acted with all the care that a comparable person would reasonably have exercised in the same circumstances.

60                               In Quebec civil law, the criteria for the defence of qualified privilege are circumstances that must be considered in assessing fault.  Accordingly, the only rules that apply to an action in defamation brought against an elected municipal official in Quebec are still in fact the rules set out in the Civil Code.  However, the manner in which those rules are applied must be based on the context, having regard to the requirements associated with the office of an elected municipal official and the specific constraints involved in municipal government.  They may also incorporate the substance of the other defence proposed by the respondent, the defence of fair comment, which we shall now examine.

(vi)  Defence of Fair Comment

61                               The Quebec courts have often relied on the defence of fair comment to exonerate an elected official who has, in good faith and in the public interest, made defamatory remarks.  The defence takes its source from English law.  It appeared in Quebec civil law at a very early juncture, and by 1960 the Superior Court was holding that this defence was available in the civil law, having regard to the convergence between English and French law (L. v. Éditions de la Cité Inc., [1960] C.S. 485).  In 1979, this Court delivered a judgment which defined the parameters of that defence in the common law (Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067).  A few years later, apparently feeling that it was bound by that decision, although it had dealt only with actions for defamation in the common law, the Quebec Court of Appeal recognized that the defence was available, in Steenhaut, supra, although it did not discuss the compatibility of the defence with the civil law.  Since then, that decision has been followed on numerous occasions:  Rouillard, supra; Paquet v. Rousseau, [1996] R.R.A. 1156 (Sup. Ct.); Hervieux-Payette, supra; Conseil de la nation huronne v. Lainé, [1998] R.R.A. 495 (Sup. Ct.); Drouin v. La Presse Ltée, [1999] R.R.A. 714 (Sup. Ct.); Société Radio‑Canada v. Guitouni, [2001] R.R.A. 67 (C.A.); Picard v. Gros‑Louis, [2000] R.R.A 62 (C.A.); Dhawan v. Kenniff, [2001] R.R.A. 53 (C.A.); Maison du Parc inc. v. Chayer, [2001] Q.J. No. 2663 (QL) (Sup. Ct.).

62                               The problems that often arise when this defence has been asserted in the courts in Quebec were again in evidence in the recent decision of the Quebec Court of Appeal in Hervieux-Payette, supra.  In that case, which involved a defamation suit, the majority of the Court of Appeal placed its analysis in the civil law context at the outset, based on the concept of fault, and also referring, on that point, to the trial judgment (see p. 1673, para. 14).  Later, however, the majority reasons examined the defence of fair comment without any apparent connection to the concept of fault, although that concept was the underpinning of its analysis.  Terminological uncertainty and ambiguity, if not ambiguity in the legal concepts, could be avoided by focusing the analysis more on the objective, although still context-based, nature of the concept of civil fault.  This avoids the risk of forgetting that the reasonableness standard is not parallel to or concurrent with the standard set out in art. 1457 C.C.Q. for evaluating conduct.  The standard of what is reasonable, rather, is central to art. 1457 C.C.Q., which refers to it for the purpose of determining whether the conduct in issue adheres to the standard of the reasonable person, acting in a particular context.  Reasonableness serves as a method for making a legal assessment of the conduct in order to determine whether it must be legally characterized as a fault.  As we shall now see, the fact that this is a system of liability based on the establishment of fault means that contextual factors that the defence of “fair comment” attempts to incorporate into the legal rules governing defamation may be taken into consideration.

63                               In common law, the defence of fair comment may be raised by anyone against whom an action for defamation is brought.  Essentially, it consists of establishing that the remarks in issue were made in good faith and without malice, in the public interest.  An essential element of the defence is that the facts to which the comments or opinions related must have been true (McLoughlin, supra).  By definition, the defence of fair comment is a private common law concept, when analysed using the method applied in Laurentide Motels.  Any acknowledgement that this unique type of defence has been adopted into a civil liability system that recognizes only one defence, the defence of absence of fault, needs to be qualified, if only out of concern for coherence.  For reasons relating to the process followed by an action for defamation in the common law (which were explained in the previous section), the method of legal analysis that must be applied to the defence of fair comment is incompatible with the general scheme of the law of delictual civil liability.  It is not only unjustified, but pointless, to import that defence into the civil law.  The rules of civil liability already provide that a defendant may rely on all the circumstances that tend to demonstrate the non‑existence of fault.  Because the criteria for the defence of fair comment are precisely the circumstances to be taken into consideration in determining whether a fault has been committed, those criteria are already an integral part of Quebec civil law.  It therefore serves no purpose to mechanically apply the criteria for the defence of fair comment.  At the risk of repetition, the rules of civil liability are flexible and require that whether a fault has been committed be determined by examining all of the circumstances.

B.  Application of the Rules to the Facts

(i)  Characterization of the Facts and Assessment of Fault

64                               Having regard to the principles that have been examined, we must now determine whether the respondent committed a fault.  On that point, the appellants submitted that the Court of Appeal had completely reassessed the evidence when no serious, patent and determining errors had been made by the trial judge in assessing the facts.  The Court of Appeal, they submitted, thus violated the principles governing intervention by appellate courts in respect of questions of fact, which this Court has reiterated on many occasions (see for example Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33).

65                               Undeniably, the decision in Housen once again stressed, very strongly, the need for great caution and deference on the part of appellate courts when they review the assessment of the facts by a trial court.  That rule certainly does not preclude an appellate court from identifying errors in the findings of fact, where those errors are sufficiently palpable and important, and had a sufficiently decisive effect, that they would justify intervention and review on appeal.  In any event, in this case, notwithstanding the appellant’s arguments, the intervention by the Court of Appeal and its decision to set aside the trial judgment were not based on a general reassessment of the evidence.  In this appeal, as in the appeal originally taken to the Quebec Court of Appeal, the facts seemed to be relatively clearly established, overall.  Essentially, they consisted of a public statement, which was recorded in its entirety by a community television station, and a set of public documents such as municipal bylaws and resolutions and decisions of administrative tribunals or courts.  The issue in this appeal is not so much what happened as the legal characterization and effects of the events.  To justify reviewing the trial judge’s judgment, it would not have been sufficient to identify errors in the details of the findings of fact made by him if his characterization of the conduct of the respondent Prud’homme had been correct in law.  However, a few errors of fact, or omissions in selecting the relevant facts, were made, and it is nonetheless worth pointing them out.  Once again, the essential question is whether the respondent’s conduct, in the factual context that was presented to the Court and originally analysed by the Superior Court, amounts to a civil fault for which the respondent is civilly liable.

66                               The characterization of the respondent’s statements for the purpose of determining whether they were wrongful may, depending on the circumstances, be a question of mixed fact and law.  If that is the case, the Court of Appeal must accord a degree of deference to the decision of the trial judge, in accordance with the principles laid down in Housen.  It will be recalled that in a case of this nature the Court of Appeal, in order to review the decision of the trial judge on a question of mixed fact and law, must find palpable and overriding error, as defined in Housen.

67                               Accordingly, in reviewing the judgment of the Superior Court and the findings of fact in that judgment, the issue before this Court, like the Court of Appeal before it, is whether the respondent’s statement, when viewed in its context and in its entirety, was defamatory in nature and constituted a fault within the meaning of the law of civil liability.  In order to dispose of these questions, we must examine, more precisely, the elements of the respondent’s conduct that Tellier J. relied on in concluding that he was civilly liable.  For this purpose we shall examine those parts of the statement which the trial judge considered defamatory.  This examination will then lead us to the problem of the legal characterization of the facts and to our conclusions on the existence of fault.  To assist in understanding the analysis that follows, several passages from the respondent’s statement have been reproduced.

(ii)  Analysis of the Content of the Statement

68                               First, Tellier J. found that the respondent had improperly insinuated in his comments that the value of the appellants’ land had risen substantially, when the Quebec Court of Appeal had established in 1996, in Repentigny (Ville de) v. Domaine Ti‑Bo inc., J.E. 96-2062, that the value of farm land in the eastern part of the city was $0.07 per square foot.  The judge added that because the City of Repentigny was a party to that case, the respondent could not have been unaware of the judgment and have stated categorically that land in that location was worth $1.48 per square foot.  The following is the relevant passage from the respondent’s statement:

[translation]  And so the Commission scolaire passed a resolution in nineteen hundred and ninety (1990) to purchase land to build a school at the price of one dollar forty-eight ($1.48), okay, a dollar forty‑eight, while barely two (2) years earlier the municipal assessment was four cents ($0.04) and land had been purchased at three cents ($0.03) per square foot.  What this all means is that there are people who are claiming that they did not profit from this situation, the construction of a regional secondary school and the opening of highway 341 which provides access to an expressway on highway 40.  We know that when someone is in “business”, market value may vary and that is where the big money is made.

69                               With respect for the opinion of Tellier J., the respondent did not say that the appellants’ land was worth $1.48 per square foot.  At most, he suggested that the value of the appellants’ land had risen sharply.  There is nothing incorrect or defamatory about that statement.  First, the Court of Appeal had never established that the value of land in the eastern part of the city in 1996 was $0.07 per square foot.  Repentigny (Ville de), supra,  was indeed decided in 1996, but it involved the tax assessment of the Domaine Ti‑Bo inc. farm land for 1989, before the revision of the agricultural zoning.  In fact, one of the issues in that case was whether the BREF made an error when it refused to consider the rumours of an imminent revision of the zoning in the eastern part of the city at the time it assessed the respondent’s land.  The Court of Appeal held that the BREF was correct to assign no weight to those rumours, and accordingly decided to restore the value of the respondent’s land to $0.07 per square foot.

70                               As well, the transactions that took place shortly after the revision of the zoning show that the value of the land actually did change.  In 1993, Domaine Repentigny purchased part of the land from the Prud’homme brothers, for a price of $1.75 per square foot.  In 1998, in Domaine Repentigny inc. v. Repentigny (Ville de), [1998] T.A.Q. 453, the Tribunal administratif du Québec established the value of the appellant’s land, on July 1, 1993, at $0.40 per square foot.  In the opinion of Tellier J., that decision confirmed that the value of the appellant’s land had not risen as substantially as the respondent suggested.  Of course, that decision was rendered in 1998, after the respondent’s public statement.  The respondent can therefore not be faulted for having been unaware of that decision or failing to anticipate that the Tribunal administratif du Québec would reduce the value of the appellants’ land back to $0.40 per square foot, having regard to the negative impact of bylaw 1055 on urban development in the eastern part of the city.  The respondent therefore stated his opinion as to that value based on the known facts.

71                               Second, Tellier J. held that the respondent had stated a number of facts that had nothing to do with any alleged debate as to whether the judgment should have been appealed.  More specifically, he faulted the respondent for suggesting, in the following passage from his statement, that all of the appellants had not opposed the revision of the zoning, when he knew that the Prud’homme brothers had objected to it, through the Union des producteurs agricoles:

[translation]  There are events that led to this price increase.  In June of nineteen hundred and ninety (90), the eastern part of the city was dezoned.  Dezoned means that before nineteen hundred and ninety (90), it was zoned green, that is, agricultural zoning.  In June nineteen hundred and ninety (90), the city passed white zoning, that is, urban development.  It was the Commission de protection du territoire agricole that made this decision.  The municipalities, the R.C.M.s, applied to be permitted to develop the lands and each of the owners were therefore kept informed about this procedure, because they could have opposed it.  If it was agreeable to them, they would not oppose it.  One thing is certain, however:  there was correspondence entered into with those people, and so they were made aware that there was a zoning change to that effect.  So at that time, in June nineteen hundred and ninety (90), the C.P.T.A.Q. acknowledged the importance of urban development in that part of the city, and so it authorized the zoning change.

72                               That omission may appear insidious at first glance.  An examination of the context in which the statement was made, however, shows that the respondent had only a few minutes to make his point.  In addition, he was urged to hurry by the remarks made by the Mayor, who plainly did not want to hear anything about any of this.  It would of course have been wiser to mention the objection of the Prud’homme brothers.  However, having regard to the circumstances, that omission did not justify characterizing this part of the statement as defamatory.

73                               The third point on which Tellier J. faulted the respondent was that he had shown a lack of respect for judicial authority by challenging the findings of fact made by Croteau J. in respect of the appellants’ knowledge of the legal notices concerning bylaw 1055.  On this point, the respondent stated:

[translation]  In March nineteen hundred and ninety-one (91), a notice was published in the newspapers informing the public in that area, and the entire population, about bylaw 1055, that is, after the dezoning, okay.  The people contended that they had not been kept informed.  So after the dezoning, there was a notice in the newspapers talking about a bylaw 1055 and there was a deadline, as there always is these days, by which people could oppose it by entering their names in a registry to say no, I do not agree with these bylaws.  It gave the time for obtaining information, etc.  So during the period before the deadline, no one came forward to oppose bylaw 1055.  I am not making this up, it is in the Judge’s document.  I am not talking about the other documents that are this thick, the other files.  I am just citing the facts set out in it.  And all those facts were given to the Judge.  So in March nineteen hundred and ninety-one (91), there was a notice in the newspapers.

74                               Tellier J. held that the respondent should not have impugned the appellants’ sincerity and credibility when the judgment of Croteau J. had, for all practical purposes, become res judicata.  With respect, the respondent could legitimately have criticized the judgment of Croteau J. and the judge’s assessment of the facts.  He was entitled to argue that the judgment was wrong and to try to persuade his colleagues to that view.  The respect owed to the courts and the obligation to respect res judicata and to comply with judicial decisions do not mean that those decisions must be immune to all criticism.  Anyone, and a fortiori a municipal official, has the right to question the correctness of a judgment.  The respondent was entitled to comment on the findings made by Croteau J. if they appeared to him, in good faith, to be wrong.  There is no legal principle that would suggest that such comments are defamatory, in the form and the circumstances in which they were made.

75                               The fourth point on which Tellier J. faulted the respondent was that in the following passage he failed to mention the special circumstances which justified the appellants’ refusal to convey part of their lands for $1:

[translation]  In April nineteen hundred and ninety-one (91), the City asked those owners to convey the land so that Iberville boulevard could be opened all the way to the Repentigny city limits.  We know that in the history of Repentigny, roads and parks, roads, I am going to refer only to roads, are conveyed for one dollar ($1).  Iberville boulevard, the whole length of it, was conveyed for one dollar ($1), with the exception of Iberville boulevard that covers those lands, okay.  So those owners refused to convey it for one dollar ($1), and this meant that the municipality had to expropriate them.  So in December nineteen hundred and ninety-one (91) . . . in November nineteen hundred and ninety-one (91), some six (6) months later, construction started on the school.  A lot of things happened before that.  In December nineteen hundred and ninety-one (91), the City did expropriate the lands.  Today, we know that the expropriation established the value of those lands, for running Iberville boulevard, at two dollars sixty ($2.60) a foot.  This amounts to eight hundred thousand dollars ($800,000) in bylaw 1055 that you have paid, and that they have collected.

76                               The judge found that the respondent’s remarks were true in part, in that owners who wanted to have access to municipal services generally conveyed the roadbed for $1.  However, he added that those remarks were false in part, because Iberville boulevard was not extended for the benefit of the appellants, but to provide for access to a school freshly built in the middle of the countryside.

77                               In addition, Tellier J. faulted the respondent for failing to mention that the amount of $800,000 that was said to have been paid to the owners whose land was expropriated was payable over a 20‑year period.  He characterized that omission as particularly insidious in that it suggested that the appellants had received a huge compensation payment at the expense of their fellow ratepayers.

78                               It is true that the appellants never asked for Iberville boulevard to be extended and the infrastructure work done.  It is also correct that the appellants inherited a staggering tax burden after bylaw 1055 was passed.  Their refusal to convey the roadbed for the boulevard for $1 seems to have been entirely justifiable.  However, the respondent’s remarks in that respect are not a fault.  Throughout his statement, the respondent sought to show that Croteau J. had not placed sufficient weight on certain facts that were in evidence at the trial, and that his decision to quash bylaw 1055 was wrong.  By alluding to the fact that the appellants had not opposed bylaw 1055, and to the application made by some of them for re‑inclusion in the agricultural zone after they had received a sizeable payment in compensation for expropriation or sold land to a real estate promoter, the respondent was passing judgment as a public official on the appellants’ conduct since the beginning of this matter.  He was entitled to try to show that the appellants had played both ends, and that bylaw 1055 was not unjust and discriminatory.  Although critical, this comment was not defamatory.  We may disagree with the respondent’s opinion.  However, that is of no consequence, because the respondent was expressing a legitimate opinion about a decision that affected the entire population of Repentigny owing to its fiscal repercussions.  As an elected official, he had a duty to express his disagreement with the decision made by his colleagues not to appeal that decision, if that was his opinion after analysing the situation and the issues at stake in the case.

79                               It appears that because of the judgment of Croteau J., the appellants no longer have to repay the $800,000.  What the judgment did was to quash the provisions of s. 13 of bylaw 1055, which levied special taxes that would have operated to have the appellants repay the compensation for the expropriation.

80                               The fifth point on which Tellier J. faulted the respondent was that, in his view, the reference to an offer to purchase that was rejected by the Fortin brothers, in the following passage of the respondent’s statement, had nothing to do with a debate about whether the judgment should have been appealed.  He further noted that the offer to purchase had been made to the Fortin brothers in 1990, not in 1993, and that the Fortin brothers were justified in refusing it by its unattractive terms:

[translation]  At the same time, the Fortin brothers rejected one dollar thirty-five ($1.35) per square foot for two point two (2.2) million square feet, which amounted to very nearly three point four (3.4) million.  I have no ill will for anyone.  I am just mentioning facts, okay.  Since nineteen hundred and ninety-four (94), that is, our Council . . . .

81                               In the time he was allowed, and having regard to the numerous interruptions by the Mayor, it is difficult to see what the relevance of a detailed explanation of the offer to purchase rejected by the Fortin brothers would have been, let alone how such an omission could have been defamatory.  In referring to that offer to purchase, the respondent was simply trying to show that speculation prompted by the extension of Iberville boulevard had caused the value of the appellants’ land to shoot up, and that it was therefore unfair for the population of Repentigny as a whole to have to bear the costs of the infrastructure work.  That position is in fact the same one that the respondent argued throughout the entire epic tale in Repentigny.  His remarks remained within the bounds of his right of comment, opinion and expression, as a municipal official, about the affairs of his municipality that were matters of public interest.

82                               The final point on which Tellier J. faulted the respondent was for insinuating that the appellants had refused a reasonable offer from the City in bad faith.  After examining the terms of that offer, the judge added that it was anything but generous, and that it was readily understandable why the appellants had preferred to go to the courts.  The following comment about management is found in the respondent’s statement:

[translation] I’m finished . . . the ad hoc committee met, including Mr. Labrecque and Mr. Coutu, myself and Ms. (inaudible) who in fact never sat on the committee, and presented different alternatives to those people to promote development.  This was in order to find an out of court settlement to dispose of the matter.  Obviously, each time, the response from them was negative, and they preferred to sue in court.  They won.  In March nineteen hundred and ninety-five (95), the Prud’homme brothers again asked the C.P.T.A.Q., the Commission de protection du territoire agricole, to be re‑included in the agricultural zone, okay.  Because when you’re zoned agricultural, you don’t pay the taxes, the ministère de l’Agriculture pays them . . . .

83                               There would be no disagreement that the City’s offer was not the “deal of the century”.  However, that part of the statement does not disclose malicious intent on the part of the respondent.  He argued at all times that the appellants had to bear all of the costs associated with the construction of the school on the ground that they were the ones who primarily benefited from it.  He was therefore entitled to criticize the appellants’ refusal to sign an agreement if he, in good faith, considered the offers reasonable, without it being possible to regard his expression of opinion as defamatory.  Once again, it is important to note that the respondent’s statement must be considered in context and in its entirety.  The general impression that it conveys must govern in determining whether a fault was committed.  The fact that the Superior Court focused its analysis on isolated elements of the respondent’s speech and failed to examine it as a whole and in context vitiated the assessment of its content and its legal consequences.  Even if we assume that this was an error on a question of mixed fact and law, it must be regarded as a palpable and overriding error.  The nature and gravity of the error justified the Court of Appeal’s intervention with respect to the trial judge’s decision.

VI.  Conclusion

84                               The respondent did not commit a fault.  He spoke at the meeting on July 7, 1997, to let the voters of Repentigny know that he opposed the Council’s decision not to appeal the judgment quashing bylaw 1055.  He remained steadfast in the position he had argued throughout this judicial tale, and argued that it was not the responsibility of the entire population of Repentigny to pay the cost of the infrastructure work to extend Iberville boulevard.  The respondent was entitled to question the assessment of the facts done by Croteau J.  The C.P.T.A.Q. itself had faulted the appellants for switching hats, portraying themselves as farmers in respect of one part of their property and speculators in respect of the rest.  The respondent’s statement was of course incomplete.  However, he cannot be faulted for failing, in the time that he was allowed and in a speech punctuated by interruptions and calls to order, to present an exhaustive account of all of the facts of the case.  In his attempt to persuade the other councillors and his audience, he was entitled to stress the facts that appeared to support an appeal.  Overall, the respondent acted in good faith, with the aim of performing his duties as an elected municipal official.  While his comments about the appellants were sometimes harsh, they were made in the public interest.  The respondent did not abuse his right to comment on and discuss public affairs that affected the municipality.  If the respondent were to be found to have committed a fault in these circumstances, the right of free discussion within the municipal political precincts would be dangerously undermined, and the vitality of democracy at the local level would be weakened.

85                               For all these reasons, the appeal must be dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellants:  McCarthy Tétrault, Montréal.

Solicitors for the respondent:  Dunton Rainville, Montréal.

Solicitors for the interveners:  Gowling Lafleur Henderson, Montréal.