SUPREME
COURT OF CANADA
Between:
Farès
Bou Malhab
Appellant
and
Diffusion
Métromédia CMR inc.
and
André Arthur
Respondents
-
and -
Conseil
National des Citoyens et Citoyennes d’origine Haïtienne,
Canadian
Broadcasting Corporation, Canadian Civil Liberties Association,
Canadian
Newspaper Association, Ad IDEM/Canadian Media lawyers Association
and
Canadian Association of Journalists
Interveners
Official
English Translation: Reasons of Deschamps J.
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron
and Rothstein JJ.
Reasons for
Judgment:
(paras. 1 to 94)
Dissenting
Reasons:
(paras. 95 to 122)
|
Deschamps J. (McLachlin C.J. and Binnie, LeBel, Charron
and Rothstein JJ. concurring)
Abella J.
|
Bou
Malhab v. Diffusion
Métromédia CMR inc., 2011 SCC 9,
[2011] 1 S.C.R. 214
Farès
Bou Malhab Appellant
v.
Diffusion Métromédia CMR inc.
and
André Arthur Respondents
and
Conseil National des Citoyens et Citoyennes d'origine Haïtienne,
Canadian Broadcasting Corporation,
Canadian Civil Liberties Association,
Canadian Newspaper Association,
Ad IDEM/Canadian Media Lawyers’ Association and
Canadian
Association of Journalists Interveners
Indexed as: Bou Malhab v.
Diffusion Métromédia CMR inc.
2011 SCC 9
File No.: 32931.
2009: December 15; 2011: February 17.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Abella,
Charron and Rothstein JJ.
on
appeal from the court of appeal for quebec
Civil procedure — Class actions — Defamation —
Action in defamation on behalf of group following racist comments made during
radio show — Whether representative plaintiff must prove that each group member
suffered personal injury — Civil Code of Québec, S.Q. 1991, c. 64, art. 1457.
Civil liability — Defamation — Injury — Objective
standard of “ordinary person” — Action in defamation on behalf of group
following racist comments made during radio show — Whether ordinary person would
have found that the group members had sustained personal injury — Civil Code of
Québec, S.Q. 1991, c. 64, art. 1457.
Through
a class action, M sought compensation for the injury allegedly suffered by the
members of the group he represents as a result of racist comments made by A — a
radio host known for his provocative remarks — concerning Montréal taxi drivers
whose mother tongue is Arabic or Creole. While commenting on the taxi industry
in Montréal, A made accusations of uncleanliness, arrogance, incompetence,
corruption and ignorance of official languages. The Superior Court allowed the
class action and ordered that $220,000 be paid to a non‑profit
organization. The judge was of the view that the comments were defamatory and
wrongful, and that even if the evidence did not show that each member of the
group had sustained a personal injury, the collective recovery mechanism could
make up for this. A majority of the Court of Appeal set aside the judgment,
finding that an ordinary person would not have believed the comments and would
have thought that the offensive accusations had been diluted by the size of the
group concerned.
Held
(Abella J. dissenting): The appeal should be dismissed.
Per
McLachlin C.J. and Binnie, LeBel, Deschamps, Charron and
Rothstein JJ.: The concept of defamation requires that the right to the
protection of reputation be reconciled with the right to freedom of
expression. In reconciling these two rights, the principles on which a free
and democratic society is based must be respected, and the intersection point
will change as society changes. In Quebec, actions in defamation are governed
by the general principles of civil liability. An attack on a person’s
reputation can involve allegations of fact or merely offensive and insulting
comments. The plaintiff is entitled to compensation if fault, injury and a
causal connection are all present. Fault is determined by looking at the
defendant’s conduct, while injury is assessed by looking at the impact of that
conduct on the victim, and a causal link is established where the decision
maker finds that a connection exists between the fault and the injury.
Here,
injury is the only question in issue. The type of injury that defines
defamation is damage to reputation, which is assessed from the perspective of
an ordinary person. Injury exists where an ordinary person believes that the
remarks made, when viewed as a whole, brought discredit on the reputation of
the victim. The ordinary person is the counterpart, for injury, of the
reasonable person used to assess fault. While both concepts are objective,
they are not one and the same. The conduct of the reasonable person
establishes a standard of conduct whose violation constitutes a fault. The
ordinary person, by contrast, is the embodiment of the society that receives
the impugned comments. Although the ordinary person reacts like a sensible
person who, like the reasonable person, respects fundamental rights, care must
be taken not to idealize the ordinary person and consider him or her to be
impervious to all negligent, racist or discriminatory comments, as the effect
of this would be to sterilize the action in defamation. In assessing injury,
the judge considers the fact that the ordinary person has accepted that freedom
of expression is protected and that exaggerated comments can be made in certain
circumstances. However, the judge must also ask whether there is a decrease in
the esteem that the ordinary person has for the victim.
Since
the right to the protection of reputation, which is the basis for an action in
defamation, is an individual right that is intrinsically attached to the
person, only those who have suffered personal injury become entitled to
compensation. The requirement of proof of a personal injury contributes to
maintaining the balance between freedom of expression and the right to the
protection of reputation, and also applies where the defamatory comments are
made about a group. However, an individual will not be entitled to
compensation solely because he or she is a member of a group about which
offensive comments have been made. The member or members of the group who
bring an action must have sustained personal injury. Even if the members of a
group are indirectly covered by comments that mention the group, it will be
necessary, in order to establish their right to compensation, that the members
prove that they personally suffered damage to their reputations.
The
requirement of proving the existence of the elements of fault, injury and causal
connection in respect of each member of the group is not dispensed with in the
context of a class action. The plaintiff must prove an injury shared by all
members of the group so the court can infer that personal injury was sustained
by each member. Proof of injury suffered by the group itself and not by its
members will not in itself be enough to give rise to such an inference, but the
plaintiff is not required to prove that each of the members sustained exactly
the same injury. He or she must prove that an ordinary person would have
believed that each of the persons personally sustained damage to his or her
reputation. It is not until the existence of personal injury sustained by each
member of the group has been proved that the judge will focus on assessing the extent
of the injury and choosing the appropriate recovery method, whether individual
or collective.
To
determine whether personal injury has been sustained, the judge must analyse
the impugned comments, taking into account all the circumstances in which they
were made. The following non‑exhaustive criteria may be relevant.
Generally speaking, the larger the group, the more difficult it is to prove
that personal injury has been sustained by its members. The more strictly
organized and homogeneous the group, the easier it will be to establish that
the injury is personal to each member. The imputing of a single characteristic
to all members of a group that is highly heterogeneous would make an allegation
of personal injury implausible. Where the group’s members are identifiable or
very visible in the community, it will be easier to prove that they sustained
personal injury. The same is true where the offensive comments are made about
a group that has historically been stigmatized. The plaintiff’s status,
duties, responsibilities or activities in the group can also make it easier to
prove personal injury. The precision or generality of the allegations will
also influence the analysis. The more general the allegations, the more difficult
it will be to go behind the screen of the group. Similarly, where allegations
apply to only one segment of a group, it will be more difficult for them to
reflect personally on all members of the group. The seriousness of the
comments can help prove personal injury, but in some circumstances, this will
have the opposite effect: an ordinary person will see exaggeration or
excessive generalization in the allegations and will give them less credence as
a result. Generally speaking, a plausible or convincing allegation will
capture the ordinary person’s attention more and thus make it easier for that
person to connect the allegation with each or some of the group’s members
personally. Finally, several other factors, related to the maker or target of
the comments, the medium used and the general context, can cause comments that
appear to be general to be attached to certain persons in particular and defame
them personally.
Here,
an ordinary person would not have believed that the wrongful, scornful and racist
comments made by A damaged the reputation of each member of the group of taxi
drivers working in Montréal whose mother tongue is Arabic or Creole. First of
all, the relevant group is of considerable size (1,100 members). Furthermore,
while the drivers share a language and a job and belong to two visible
minorities, no one could reasonably believe that their common attributes extend
to their personal knowledge of English and French, their knowledge of driving
routes in the city of Montréal, their thoughtfulness with customers, their
personal hygiene or the cleanliness of their vehicles. These characteristics
could be attributed to such a heterogeneous group only by extrapolation and
could only stem from an intolerance of immigrants in general. Finally, there
is simply nothing rational about the suggestion that the drivers should be
blamed for all the problems A said existed in the taxi industry in Montréal.
The impugned comments were an extreme generalization by a known polemicist in
the area where the show was broadcast, and had very little plausibility from
the point of view of the ordinary person, who would have recognized that they
were a generalization on the part of A, based on an unpleasant personal
experience. This ordinary person would not have associated the allegations of
ignorance, incompetence, uncleanliness, arrogance and corruption with each taxi
driver whose mother tongue is Arabic or Creole personally. In the absence of
proof that a personal injury was sustained by the members of the group, the
Superior Court should have dismissed the class action.
Per
Abella J. (dissenting): To prove defamation under the Civil Code of Québec,
a plaintiff must prove that the defendant committed a fault and that the
plaintiff suffered an injury as a result. To prove injury, the plaintiff must
show that the remarks are defamatory. The question is whether an ordinary
person would believe that the remarks, when viewed as a whole, brought
discredit to someone’s reputation. Once this objective standard is met, injury
is established.
The
fact that comments are aimed at a group is not, in itself, reason to deny a
claim. If the members of the group can show that the defamatory words were
such as to impugn not only the group, but also the plaintiffs as individuals in
that group, the claim can succeed. It is not only the size of the group which
is relevant, it is also the extent to which the group is sufficiently defined
or identified such that each person in the group can be said to be harmed.
Here,
an ordinary person would conclude that the remarks were defamatory of the
plaintiffs and therefore injurious. The talk show host accused Arab and
Haitian taxi drivers of creating “Third World” public transportation in
Montréal, of corruption, of incompetence and of keeping unsanitary cars. He
said that neither Arab nor Haitian drivers knew their way around the city and
that they could not communicate in either English or French. He denigrated
Arab drivers as “fakirs” and the Creole language as “nigger”. The remarks were
blatantly racist, highly stigmatizing, and vilified members of vulnerable
communities. While the group targeted was large, it was not so diffuse as to
be indeterminate. The comments were aimed at a group of individuals who were
of particular racial backgrounds in a particular industry and in a particular
city. The group was defined with sufficient precision and the comments were
specific enough to raise, objectively, the clear possibility not only of harm
to reputation, but also of harmful economic consequences from customers.
Cases Cited
By Deschamps J.
Applied:
Prud’homme v. Prud’homme, 2002 SCC 85, [2002] 4 S.C.R. 663; Gilles E.
Néron Communication Marketing Inc. v. Chambre des notaires du Québec, 2004
SCC 53, [2004] 3 S.C.R. 95; referred to: Canadian Broadcasting
Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19; R. v. Keegstra, [1990] 3 S.C.R. 697; R.
v. Butler, [1992] 1 S.C.R. 452; Hill v. Church of Scientology of Toronto,
[1995] 2 S.C.R. 1130; WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2
S.C.R. 420; Grant v. Torstar Corp., 2009 SCC 61,
[2009] 3 S.C.R. 640; Reynolds v. Times Newspapers Ltd., [2001] 2 A.C.
127; Jameel v. Wall Street Journal Europe Sprl, [2006] UKHL 44, [2007] 1
A.C. 359; Theophanous v. Herald & Weekly Times Ltd. (1994), 124
A.L.R. 1; Lange v. Australian Broadcasting Corp. (1997), 189 C.L.R. 520;
Lange v. Atkinson, [2000] 3 N.Z.L.R. 385; New York Times Co. v.
Sullivan, 376 U.S. 254 (1964); BVerfGE 82, 272, June 26, 1990, Stern-Strauß
case; BVerfGE 93, 266, October 10, 1995, Soldiers are murderers case;
Bladet Tromsø and Stensaas v. Norway (GC), No. 21980/93, ECHR 1999‑III;
Colombani v. France, No. 51279/99, ECHR 2002‑V; Cass. ass. plén.,
July 12, 2000, Bull. civ., No. 8; de Montigny v. Brossard
(Succession), 2010 SCC 51, [2010] 3 S.C.R. 64; Béliveau St‑Jacques
v. Fédération des employées et employés de services publics inc., [1996] 2
S.C.R. 345; St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3
S.C.R. 392; Quebec (Public Curator) v. Syndicat national des employés de
l’hôpital St‑Ferdinand, [1996] 3 S.C.R. 211; Quebec (Commission
des droits de la personne et des droits de la jeunesse) v. Communauté urbaine
de Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789; Société Radio‑Canada
v. Radio Sept‑Îles inc., [1994] R.J.Q. 1811; Métromédia C.M.R.
Montréal inc. v. Johnson, 2006 QCCA 132, [2006] R.J.Q. 395; Sim v.
Stretch, [1936] 2 All E.R. 1237; Chohan v. Cadsky, 2009 ABCA 334,
464 A.R. 57; Color Your World Corp. v. Canadian Broadcasting Corp.
(1998), 38 O.R. (3d) 97, leave to appeal refused, [1998] 2 S.C.R. vii; Botiuk
v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3; Cherneskey
v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067; Ouellet v. Cloutier, [1947] S.C.R.
521; Hervieux-Payette v. Société Saint-Jean-Baptiste de Montréal, [1998]
R.J.Q. 131, rev’d 2002 CanLII 8266; Jeunes Canadiens pour une civilisation
chrétienne v. Fondation du Théâtre du Nouveau-Monde, [1979] C.A. 491; Bouchard
v. Agropur Coopérative, 2006 QCCA 1342, [2006] R.J.Q. 2349; Cabay v. Fafard, [1986] J.Q. no 2823
(QL), aff’d [1988] J.Q. no 1052 (QL); Bisaillon v. Concordia University,
2006 SCC 19, [2006] 1 S.C.R. 666; Dell Computer Corp. v. Union des
consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801; Ortenberg v. Plamondon
(1915), 24 B.R. 69, 385; Zhang v. Chau, 2008 QCCA 961, [2008] R.R.A.
523, leave to appeal refused, [2008] 3 S.C.R. xi; Raymond v. Abel,
[1946] C.S. 251; Cass. crim., January 29, 2008, Bull. crim.,
No. 23; Cass. crim., December 6, 1994, Dr. pénal 1995, comm. 93,
obs. M. Véron; Cass. crim., January 16,
1969, Bull. crim., No. 35; Cass. crim., November 22, 1934, D.P. 1936.1.27, note
M. Nast; Knupffer v. London Express
Newspaper, Ltd., [1944] A.C. 116; Butler v. Southam Inc., 2001 NSCA
121, 197 N.S.R. (2d) 97; Bai v. Sing Tao Daily Ltd. (2003), 226 D.L.R.
(4th) 477; O’Brien v. Williamson Daily News, 735 F. Supp. 218 (1990); Neiman‑Marcus v. Lait, 13 F.R.D. 311
(1952); Adams v. WFTV Inc., 24
Med. L. Rptr. 1350 (1995), aff’d 691 So.2d 557 (1997); A.U.P.E. v. Edmonton Sun (1986), 49 Alta. L.R.
(2d) 141; Gauthier v. Toronto Star Daily Newspapers Ltd. (2004), 188
O.A.C. 211, leave to appeal refused, [2005] 1 S.C.R. ix; McCullough v.
Cities Service Co., 676 P.2d 833 (1984); Fawcett Publications, Inc. v.
Morris, 377 P.2d 42 (1962); Jackson v. TCN Channel 9, [2001] NSWCA
108 (AustLII); Trahan v. Imprimerie Gagné Ltée, [1987] R.J.Q. 2417; Booth
v. British Columbia Television Broadcasting System (1982), 139 D.L.R. (3d)
88; Cass. crim., May 26, 1987, Bull.
crim., No. 217; Cass. crim.,
September 16, 2003, Bull. crim., No. 161; Farrington v. Leigh,
Times Law Report, December 10, 1987; Arcand v. Evening Call Publishing Co.,
567 F.2d 1163 (1977); Algarin v. Town of Wallkill, 421 F.3d 137
(2005); Gross v. Cantor, 270 N.Y.
93 (1936); Farrell v. Triangle Publications, Inc., 159 A.2d 734 (1960); Eastwood
v. Holmes (1858), 1 F. & F. 347, 175 E.R. 758; Association des policiers de Sherbrooke v. Delorme, [1997] R.J.Q. 2826; Sarrazin v. Duquette
(1935), 41 R. de J. 365; Gauthier v. Toronto Star Daily Newspapers Ltd.
(2003), 228 D.L.R. (4th) 748.
By Abella J. (dissenting)
Grant v. Torstar Corp.,
2009 SCC 61, [2009] 3 S.C.R. 640; Prud’homme v. Prud’homme, 2002 SCC 85,
[2002] 4 S.C.R. 663; WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008]
2 S.C.R. 420; R. v. Keegstra, [1990] 3 S.C.R. 697; Gilles E. Néron
Communication Marketing Inc. v. Chambre des notaires du Québec, 2004 SCC
53, [2004] 3 S.C.R. 95; St.
Lawrence Cement Inc. v. Barrette,
2008 SCC 64, [2008] 3 S.C.R. 392; Butler v. Southam Inc., 2001 NSCA 121,
197 N.S.R. (2d) 97; Knupffer v. London Express Newspaper, Ltd., [1944]
A.C. 116; Ortenberg v. Plamondon (1915), 24 B.R. 69, 385; A.U.P.E. v.
Edmonton Sun (1986), 49 Alta. L.R. (2d) 141.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
s. 2 (b).
Charter of human rights and freedoms,
R.S.Q., c. C‑12, ss. 3, 4, 49.
Civil
Code (France).
Civil Code of Québec, S.Q. 1991, c. 64,
arts. 3, 35, 1457, 1607, 1611.
Code
of Civil Procedure, R.S.Q., c. C‑25, arts. 55, 56, para. 1, 59, 67, 1002, 1003, 1028, 1034, 1051.
Loi
sur la presse (France)
Treaties and Other International
Instruments
American Convention on Human Rights,
1144 U.N.T.S. 123, arts. 11, 13(1), (2).
Convention for the Protection of Human Rights and Fundamental
Freedoms, 213 U.N.T.S. 221, art. 10
International Covenant on Civil and Political Rights, Can. T.S. 1976, No. 47, art. 19.
Authors Cited
American
Law Institute. Restatement of the Law, Second: Torts 2d, vol. 3. St. Paul, Minn.: American Law Institute Publishers, 1977.
Bissonnette, Christine. La diffamation civile en droit
québécois. Mémoire de thèse. Université de Montréal. Montréal: 1983.
Brown, Raymond E. The Law of Defamation in Canada,
2nd ed., vol. 1. Scarborough, Ont.: Carswell, 1999 (loose‑leaf updated 2010, release 2).
Buron, Denis. “Liberté d’expression et diffamation de
collectivités: quand le droit à l’égalité s’exprime” (1988), 29 C. de D.
491.
Grellet-Dumazeau, Théodore. Traité de la diffamation, de
l’injure et de l’outrage. Paris: E. Leboyer, 1847.
Jourdain, Patrice. “Notion de faute: contenu commun à toutes les
fautes”, Juris-Classeur Responsabilité civile et Assurances, fasc.
120-1, no 106. Paris: Éditions du Juris-Classeur/LexisNexis, 2002.
Mallet-Poujol, Nathalie. “Diffamations et injures”, dans Bernard Beignier,
Bertrand de Lamy et Emmanuel Dreyer, dir., Traité de droit de la presse et
des médias. Paris: Litec, 2009, 441.
APPEAL from a judgment of the Quebec Court of Appeal (Beauregard,
Morissette and Bich JJ.A.), 2008 QCCA 1938, [2008] R.J.Q. 2356, 60 C.C.L.T.
(3d) 58, [2008] J.Q. no 10048 (QL), 2008 CarswellQue 10002, allowing
an appeal from a decision of Guibault J., 2006 QCCS 2124, [2006] R.J.Q. 1145,
[2006] R.R.A. 435, 41 C.C.L.T. (3d) 190, [2006] Q.J. No. 3598 (QL), 2006
CarswellQue 14102. Appeal dismissed, Abella J. dissenting.
Jean El Masri and Éric Dugal, for the appellant.
David Stolow, Nicholas Rodrigo and Marie-Ève Gingras, for the respondents.
Stefan Martin and Mélisa Thibault, for the intervener Conseil
National des Citoyens et Citoyennes d’origine Haïtienne.
Guy J. Pratte and Jean-Pierre
Michaud, for
the intervener the Canadian Broadcasting Corporation.
Christian Leblanc et Marc-André Nadon, for the intervener the
Canadian Civil Liberties Association.
Ryder Gilliland, for the interveners the
Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers’ Association and
the Canadian Association of Journalists.
English
version of the judgment of McLachlin C.J. and Binnie, LeBel, Deschamps, Charron
and Rothstein JJ. delivered by
[1]
Deschamps J. — The law of defamation is a tool for protecting personal
reputations. The law keeps pace with changes in society and with the
importance attached by society to freedom of expression. In Quebec, actions in
defamation are governed by the general principles of civil liability. The
flexibility of those principles makes it possible to address society’s growing
concerns about freedom of expression. In two recent cases, this Court
considered the impact of freedom of expression on the element of “fault” in
civil liability: Prud’homme v. Prud’homme, 2002 SCC 85, [2002] 4 S.C.R.
663, at paras. 38-45; Gilles E. Néron Communication
Marketing Inc. v. Chambre des notaires du Québec, 2004 SCC 53, [2004] 3
S.C.R. 95, at paras. 48-51 and 54-55. In this appeal,
it is the element of “injury” that must be examined in light of freedom of
expression. The Court must examine the factors to consider when determining
whether racist comments made about a group can cause a compensable injury.
[2]
Through a class action, the appellant sought
compensation for the injury allegedly suffered by the members of the group as a
result of racist comments made by a radio host concerning Montréal taxi drivers
whose mother tongue is Arabic or Creole. The respondents argued, successfully
in the Court of Appeal, that the members had not been personally affected and
cannot be compensated. I find that there was no personal injury in this case
and that the rules of civil liability accordingly do not authorize
compensation. I would therefore dismiss the appeal.
I. Facts
[3]
On November 17, 1998, André Arthur — a host
known for his provocative remarks — was hosting the morning show on the CKVL
radio station, which is operated by the respondent Diffusion Métromédia CMR
inc. One topic during the show was whether Quebeckers were satisfied with
restaurants and hotels, particularly in Montréal. While his co‑host was
getting ready to present the results of a survey on that topic, Mr. Arthur
made, inter alia, the following comments about the taxi industry in
Montréal:
[translation]
Why is it that there are so many incompetent people and that the language of
work is Creole or Arabic in a city that’s French and English? . . .
I’m not very good at speaking “nigger”. . . . [T]axis have really
become the Third World of public transportation in Montreal. . . .
[M]y suspicion is that the exams, well, they can be bought. You can’t have such
incompetent people driving taxis, people who know so little about the city, and
think that they took actual exams. . . . Taxi drivers in Montreal
are really arrogant, especially the Arabs. They’re often rude, you can’t be
sure at all that they’re competent and their cars don’t look well maintained.
[4]
As well, Mr. Arthur tolerated and even
encouraged similar remarks made by a listener who phoned in and who said she
was a taxi driver.
[5]
The appellant, Mr. Bou Malhab, is a taxi
driver whose mother tongue is Arabic. He applied to the Superior Court for
authorization to institute a class action against the respondents.
II. Judicial History
A. Judgments on the
Application for Authorization to Institute the Class Action
[6]
Marcelin J. of the Superior Court dismissed the
application for authorization to institute the class action (SOQUIJ AZ-01021767).
Because of the large size of the group covered by Mr. Arthur’s comments, she
was of the opinion that it would be impossible to prove a causal connection
between those comments and injury sustained by each member of the group
personally. She also found that, even if the group had been small enough for
the members’ reputations to have been personally damaged, the members should
have used the procedure for joinder of actions (arts. 59 and 67 of the Code
of Civil Procedure, R.S.Q., c. C-25 (“C.C.P.”)) rather than the
class action mechanism.
[7]
The Court of Appeal set aside that decision and
authorized the appellant to institute the class action on behalf of [translation] “[e]very person who had a
taxi driver’s licence in the region of the Island of Montréal on November 17,
1998 . . . and whose mother tongue is Arabic or Creole” ([2003]
R.J.Q. 1011, at para. 8). Rayle J.A., writing for a unanimous court, first
found that there was a colour of right. While she agreed with the Superior
Court that the size of the group covered by wrongful comments might make it
difficult to establish individual injury, she found that it would be up to the
court to determine [translation]
“the extent to which the size of the group in question limits or eliminates the
individual nature of the damage to reputation, having regard to the nature of
the comments made and the circumstances in which the defamation occurred”
(para. 51). Second, she acknowledged that moral damages are difficult to
assess in a class action context, but she refused to see this as precluding
such an action at the outset and suggested that an order to pay damages to a
charity could be a way to get around this problem. The matter was referred
back to the Superior Court for a hearing on the merits.
B. Judgments on the Merits
of the Class Action
[8]
Guibault J. of the Superior Court was of the
view that Mr. Arthur’s comments were defamatory and wrongful (2006 QCCS 2124,
[2006] R.J.Q. 1145). On the issue of the injury sustained, he noted that only
a taxi driver who had heard the impugned comments could claim compensation.
The evidence showed that, at most, about 20 of the drivers concerned had listened
to the show on November 17, 1998. Guibault J. was therefore of the opinion
that the evidence did not show that each member of the group had sustained a
personal injury. However, since he considered himself bound by the Court of
Appeal’s decision on the application for authorization, he made up for this by
using the collective recovery mechanism (arts. 1028 and 1034 C.C.P.).
He allowed the class action with costs and ordered the respondents solidarily
to pay $220,000 to the Association professionnelle des chauffeurs de taxi, a
non-profit organization. He dismissed the claim for punitive damages and
refused to consider awarding damages in lieu of compensation for the
appellant’s extrajudicial fees. His judgment was appealed.
[9]
The Court of Appeal set aside the trial judgment
(2008 QCCA 1938, [2008] R.J.Q. 2356). Bich J.A., who wrote the majority’s
reasons, began by pointing out that the existence of a fault was no longer
contested and that Mr. Arthur and Diffusion Métromédia CMR inc. were instead
disputing the existence of personal injury. She noted that an action in
defamation presupposes [translation]
“injury that is individual and personal, in other words, specific and
particularized, commensurate with the attack, which is also specific and
particularized” (para. 44). The existence of such injury is determined using
an objective test, namely the ordinary person test. According to the judge,
three situations are possible where the impugned comments are made about a
group: (1) the group is large and the comments become lost in the crowd; (2) certain
members of the group are named or can easily be identified; or (3) the group is
small enough for the members to be personally affected. There is a right to
compensation only in the latter two cases. Bich J.A. found that this case was
of the first type. She found that an ordinary person would not have believed
Mr. Arthur’s comments and would have thought that the offensive accusations had
been diluted by the size of the group concerned, leaving intact the personal
reputation and dignity of the drivers in question. She noted that broadening
the concept of defamation by ignoring the need to establish the existence of a
personal injury would weaken freedom of expression in an unacceptable manner.
[10]
In dissenting reasons, Beauregard J.A. proposed
a series of factors for assessing the personal nature of the injury. Applying
them to this situation, he concluded that the drivers had sustained an injury
for which compensatory damages could be awarded. He would have dismissed the
principal appeal but would have allowed the incidental appeal and confirmed the
fee agreement between the appellant and his counsel so that those fees might be
paid out of the damages.
III. Positions of the
Parties
[11]
Mr. Bou Malhab argues that, because of the
serious nature of Mr. Arthur’s conduct, the limited size of the group and the
identification of the victims through their origins and occupation, the victims
were individualized enough for compensable injury to have resulted from Mr. Arthur’s
comments. As regards the requirement that each member of the group sustain a
personal injury, the court does not have to consider this until it determines
the compensation due to individual members, that is, after the respondents are
found liable to the group. The appellant also requests that punitive damages
be awarded and that his fee agreement be confirmed.
[12]
The respondents for their part argue that the
action can succeed only if Mr. Arthur’s comments were specially directed at
each of the drivers and if each of them sustained an injury that was direct,
personal and separate from the injury suffered by the group. The respondents
submit that these conditions are not met in this case.
IV. Issues
[13]
The appellants raise issues relating to
compensatory damages, punitive damages and the fee agreement. In light of my
answer on the first issue, it will not be necessary to deal with the other
two. The issue that is determinative of this appeal can therefore be stated as
follows:
Can racist or
discriminatory comments made about a group of individuals form the basis for an
action in damages for defamation and, if so, on what conditions?
V. Analysis
[14]
I will begin by considering the concept of
defamation in Quebec civil law. I will then look at its specific
characteristics where the allegedly defamatory comments were made about a
group. Finally, I will apply these rules to the facts of this appeal.
A. Defamation in the Civil
Law
(1) Development
of the Law of Defamation
[15]
Roman law sanctioned the use of the term injuria,
which referred to anything said or done to offend someone. That concept was
adopted by old French law, which gradually limited its scope to causing offence
through speech or writing. France subsequently chose to pass special
legislation concerning the delict of injury and distinguished it from
defamation. The latter necessarily involved an allegation or imputation of
fact interfering with honour, while the former referred to an offensive
expression, term of contempt or insult. This distinction was not retained in
Quebec, where the term defamation was chosen to refer to the injury of old
French law (T. Grellet-Dumazeau, Traité de la diffamation, de l’injure et de
l’outrage (1847), vol. 1, at pp. 1-10; C. Bissonnette, La diffamation
civile en droit québécois, mémoire de maîtrise, Université de Montréal
(1983), at pp. 11-14). In Quebec civil law, an attack on a person’s reputation
can involve allegations of fact or merely offensive and insulting comments. In
Quebec civil law, it does not matter whether the assertions are made in
writing, orally or through images or gestures or whether they attack another
person’s reputation directly or by intimation or innuendo.
[16]
The concept of defamation requires that the
right to the protection of reputation be reconciled with the right to freedom
of expression, since that which belongs to the former is generally taken away
from the latter. Several international agreements reflect this need to strike
a balance between the two rights. For example, the International Covenant
on Civil and Political Rights, Can. T.S. 1976, No. 47, Art. 19(2) and (3),
to which Canada is a party, makes the exercise of the right to freedom of
expression subject to respect for the reputation of others. Similar guarantees
are found in the American Convention on Human Rights, 1144 U.N.T.S. 123,
Arts. 11, 13(1) and (2), and the Convention for the Protection of Human
Rights and Fundamental Freedoms, 213 U.N.T.S. 221, Art. 10, both of
which have been widely ratified.
[17]
Freedom of expression is protected by the Canadian
Charter of Rights and Freedoms, s. 2 (b), and the Charter
of human rights and freedoms, R.S.Q., c. C‑12, s. 3 (“Quebec
Charter”). It is one of the pillars of modern democracy. It allows
individuals to become emancipated, creative and informed, it encourages the
circulation of new ideas, it allows for criticism of government action and it
favours the emergence of truth (Canadian Broadcasting Corp. v. Canada
(Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19). Freedom of expression
is essential in ensuring that social, economic and political decisions reflect
the aspirations of the members of society. It is broad in scope and protects
well‑prepared speech and wrath‑provoking comments alike (R. v.
Keegstra, [1990] 3 S.C.R. 697; R. v. Butler, [1992] 1 S.C.R. 452).
However, it is not absolute and can be limited by other rights in a democratic
society, including the right to protection of reputation (Hill v. Church of
Scientology of Toronto, [1995] 2 S.C.R. 1130, at paras. 102-6;
Prud’homme, at para. 43; Néron, at para. 52).
[18]
The right to the safeguard of reputation is
guaranteed by the Quebec Charter (s. 4) and the Civil Code of
Québec, S.Q. 1991, c. 64, arts. 3 and 35.
Since good reputation is related to dignity (Hill, at paras. 120-21), it
is also tied to the rights protected by the Canadian Charter .
Reputation is a fundamental feature of personality that makes it possible for
an individual to develop in society. It is therefore essential to do
everything possible to safeguard a person’s reputation, since a tarnished
reputation can seldom regain its former lustre (Hill, at para. 108).
[19]
Of course, there is no precise measuring
instrument that can determine the point at which a balance is struck between
the protection of reputation and freedom of expression. In reconciling these
two rights, the principles on which a free and democratic society is based must
be respected. The intersection point will change as society changes. What was
an acceptable limit on freedom of expression in the 19th century may no longer
be acceptable today. Indeed, particularly in recent decades, the law of
defamation has evolved to provide more adequate protection for freedom of
expression on matters of public interest. In the common law, for example, this
Court has reassessed the defence of fair comment (WIC Radio Ltd. v. Simpson,
2008 SCC 40, [2008] 2 S.C.R. 420, at paras. 49 et seq.) and recognized
the existence of a defence of responsible communication on matters of public
interest (Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640).
[20]
The Canadian approach is part of a trend that
can be observed in many democracies, including England (Reynolds v. Times
Newspapers Ltd., [2001] 2 A.C. 127 (H.L.); Jameel v. Wall Street Journal
Europe Sprl, [2006] UKHL 44, [2007] 1 A.C. 359), Australia (Theophanous
v. Herald & Weekly Times Ltd. (1994), 124 A.L.R. 1 (H.C.); Lange v.
Australian Broadcasting Corp. (1997), 189 C.L.R. 520 (H.C.)), New Zealand (Lange
v. Atkinson, [2000] 3 N.Z.L.R. 385 (C.A.)), the United States (New York
Times Co. v. Sullivan, 376 U.S. 254 (1964)) and Germany (BVerfGE 82, 272,
June 26, 1990, Stern-Strauß case; BVerfGE 93, 266, October 10, 1995, Soldiers
are murderers case). This phenomenon can also be seen in the decisions of
the European Court of Human Rights (Bladet Tromsø and Stensaas v. Norway
(GC), No. 21980/93, ECHR 1999-III; Colombani v. France, No. 51279/99,
ECHR 2002-V). In France, while freedom of expression has been protected by
passing a special penal statute, recent cases have recognized that this was a
system distinct from the system of civil liability found in the French Civil
Code (Cass. ass. plén., July 12, 2000, Bull. civ., No. 8).
[21]
What is of interest for my purposes is not so
much the specific solutions proposed by these courts, which vary depending on
the legal traditions, constitutional guarantees and social norms that exist in
each country, as the general trend that emerges from the cases. Just like
Canadian courts, including those in Quebec, all of these courts are
increasingly concerned about protecting freedom of expression. The law of
defamation is changing accordingly. This is the general context in which this
case must be considered. I will now look at the legal rules applicable to
defamation in Quebec civil law.
(2) Constituent
Elements of Defamation in Quebec Civil Law
[22]
In Quebec, there is no specific form of action
for punishing defamation. Actions in defamation come under the general system
of civil liability established in art. 1457 C.C.Q. The plaintiff is
entitled to compensation if fault, injury and a causal connection are all
present. Fault is determined by looking at the defendant’s conduct, while
injury is assessed by looking at the impact of that conduct on the victim, and
a causal link is established where the decision maker finds that a connection
exists between the fault and the injury. This is an area of law where it is
important to make a clear distinction between fault and injury. Proof of
injury is not a basis for presuming that a fault was committed. Proof that a
fault was committed does not, without more, establish the existence of a
compensable injury.
[23]
Actions in defamation also bring the Quebec Charter
into play, since, as I have already noted, they are based on interference with
the right to the safeguard of reputation guaranteed by s. 4 of that
instrument. Under s. 49 of the Quebec Charter, there is a right to
obtain compensation for the prejudice caused by unlawful interference with
human rights. However, the Quebec Charter has not created an
independent, autonomous system of civil liability that duplicates the general
system (de Montigny v. Brossard (Succession), 2010 SCC 51, [2010] 3
S.C.R. 64, at para. 44). The general principles of civil liability still serve
as a starting point for awarding compensatory damages for interference with a
right (Béliveau St-Jacques v. Fédération des employées et employés de
services publics inc., [1996] 2 S.C.R. 345, at para. 119 (per
Gonthier J.) and paras. 16 and 25 (per L’Heureux‑Dubé J.,
dissenting in part), and de Montigny). Civil liability actions that are
based on interference with a right, such as an action in defamation, are
therefore a point of intersection between the Quebec Charter and the Civil
Code. This convergence of instruments must be considered in defining the
three constituent elements of civil liability, namely fault, injury and causal
connection. I will say only a few words about fault, since it is not in
dispute here. Causal connection is not in issue either. I will instead focus
on injury, which is the main issue here.
(i) Fault
[24]
Generally speaking, fault is conduct that
departs from the standard of conduct of a reasonable person (St. Lawrence
Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392, at para. 21).
It should be noted that the concept of a reasonable person is normative in
nature rather than descriptive. It refers to the way an informed person would
behave in the circumstances. Despite the importance attached by the Quebec Charter
to the protection of individual rights, conduct that interferes with a right
guaranteed by the Charter does not necessarily constitute civil fault (Quebec
(Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand,
[1996] 3 S.C.R. 211, at para. 116; Quebec
(Commission des droits de la personne et des droits de la jeunesse) v.
Communauté urbaine de Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789 (“Larocque”)).
The interference must also violate the objective
standard of conduct of a reasonable person under art. 1457 C.C.Q., and
there must be nothing else that limits the finding on fault, for example the
existence of immunity (Larocque and Prud’homme) or the
consideration of competing rights such as freedom of expression.
[25]
In an action in defamation, the definition or
limits of fault reflect the increasing importance attached to freedom of
expression (Société Radio-Canada v. Radio Sept-Îles inc., [1994] R.J.Q.
1811 (C.A.), at p. 1818). However, defamatory conduct may result from mere
negligence. The truth of the message will be only one of the factors used to
determine whether conduct is wrongful. Even if a comment is true, it may have
been made in a wrongful manner. Scandalmongering and lies are both punished (Prud’homme,
at para. 38; Néron, at para. 59).
(ii) Injury
[26]
The type of injury that defines defamation is
damage to reputation. In our law, damage to reputation is assessed
objectively, from the perspective of an ordinary person (Néron, at para.
57; Prud’homme, at para. 34; Métromédia
C.M.R. Montréal inc. v. Johnson, 2006 QCCA 132, [2006] R.J.Q. 395, at para.
49).
[27]
This level of analysis is justified by the fact
that damage to reputation results in a decrease in the esteem and respect that
other people have for the person about whom the comments are made. Therefore,
the maker of the comments and the person about whom they are made are not the
only ones involved. A person is defamed where the image reflected back to the
person by one or more other people is inferior not only to the person’s self-image
but above all to the image the person projected to “others” in the normal
course of social interaction. In our society, every person can legitimately
expect equal legal treatment. However, damage to reputation is at a different
level. Defaming a person means damaging a reputation that has been
legitimately earned. The effect of defamation is therefore not so much to
interfere with the dignity and equal treatment recognized to each person under
the Charters as to reduce the esteem in which a person should be held as a
result of his or her interactions with society.
[28]
It is the importance of “others” in the concept
of reputation that justifies relying on the objective standard of the ordinary
person who symbolizes them. Therefore, the fact that a person alleging
defamation feels humiliated, sad or frustrated is not a sufficient basis for an
action in defamation. In such an action, injury is examined at a second level
focussed not on the actual victim but on the perceptions of other people.
Injury exists where “an ordinary person . . . believe[s] that the
remarks made, when viewed as a whole, brought discredit on the reputation” of
the victim (Prud’homme, at para. 34). However, care must be taken to
avoid shifting the analysis of injury to a third level by asking, as the
majority of the Court of Appeal seems to have done (at para. 73), whether an
ordinary person, acting as a trier of fact, would have found that the victim’s
reputation was discredited in the eyes of a public that was likely to believe
Mr. Arthur’s comments. The judge must instead focus on the ordinary person,
who is the embodiment of “others”.
[29]
There are definite advantages to relying on the
objective standard of the ordinary person. Bich J.A. described them well in
her reasons:
[translation] [This standard] has the
advantage of not making the characterization of the impugned comments, and thus
the determination of injury, dependent on the purely subjective emotions or
feelings of the person who has allegedly been defamed. If comments could be
shown to be injurious simply by referring to one’s feeling of personal upset,
humiliation, mortification, vexation, indignation or sadness or to the fact
that one’s sensibilities or feelings have been offended, hurt or even trampled
on, little would be left of freedom of opinion and expression. The very
concept of defamation would also become entirely dependent on the particular
emotions of each individual. [para. 40]
[30]
My discussion of fault demonstrates how reliance
on an objective standard is nothing new. In fact, the ordinary person is the
counterpart, for injury, of the reasonable person used to assess fault. While
both concepts are objective, they are not one and the same. The conduct of the
reasonable person establishes a standard of conduct whose violation constitutes
a fault. The ordinary person, by contrast, is the embodiment of the society
that receives the impugned comments. Injury is therefore assessed through the
eyes of this ordinary person who receives the impugned comments or gestures.
[31]
The judge responsible for assessing fault
requires the person who uttered the words to behave the way that a reasonable
person would have behaved in the circumstances. In defamation cases, the judge
takes account of that person’s right to freedom of expression, and will even
accept, in some cases, that the person has expressed exaggerated opinions. In
assessing injury, the judge also considers the fact that the ordinary person
has accepted that freedom of expression is protected and that exaggerated
comments can be made in certain circumstances. However, the judge must also
ask whether there is a decrease in the esteem that the ordinary person has for
the victim. As a result, even though the standard is an objective one in both
cases, it is preferable to use two different terms — reasonable person and
ordinary person — because they are concepts that relate to two distinct
situations: assessing the conduct and assessing the effect of that conduct
from society’s perspective. The questions asked at these two stages are
different.
[32]
The use of a standard such as the ordinary
person as a test for determining whether someone’s reputation has been damaged
has an undeniable practical advantage. Such a standard is a reference point
that is rational and objective. It makes it easier to prove injury, which can
be hard to prove. Very often, injury can be established only indirectly. One
example of this is Néron, in which the impugned remarks resulted in a
loss of business that could be related only to them. In other cases, the facts
supporting the finding that a reasonable person would not have made the remarks
in question will permit the inference that an ordinary person would hold the
victim in lower esteem as a result of those remarks. However, this is not a
legal presumption that arises from finding that a fault has been committed;
rather, it is merely an inference that a judge may draw from the facts adduced
in evidence. The practical value of the objective standard is even greater in cases
involving comments made about a group, since the injury may be similar for all
those who were affected in the same way by the same comments and who sustained
damage to the common aspects of their reputations. Nevertheless, the analysis
will always be a two-step process. First, the court has to determine whether a
reasonable person would have made the impugned remarks in the same context.
Second, if the court answers no and finds that the person who made the remarks
has committed a fault, it must ask whether the remarks have decreased the
ordinary person’s esteem for the victim. It is necessary, of course, that a
causal connection be established between fault and injury, but that issue does
not arise here.
[33]
Given the importance of the ordinary person and
reasonable person standards, we should consider what they involve.
[34]
In France, a standard of acceptable conduct is
used to assess damage to honour and reputation within the meaning of the Loi
sur la presse (N. Mallet-Poujol, “Diffamations et injures”, in B. Beignier,
B. de Lamy and E. Dreyer, eds., Traité de droit de la presse et des médias
(2009), 441, at p. 450). To assess the wrongfulness of conduct in actions
based on the general law of civil liability, the reasonable person standard is
used, as in our law. French commentators and courts have said that a
reasonable person is more than moderately prudent and informed but less than
highly prudent and informed. A reasonable person approves of average
behaviour, that is, the behaviour of the majority of people, only if it is
rational and consistent with the nature of things (P. Jourdain, “Notion de
faute: contenu commun à toutes les fautes”, Juris-Classeur Responsabilité
civile et Assurances (2002), fasc. 120-1, No. 106).
[35]
The common law also uses an objective standard,
that of the right-thinking person, to ascertain the meaning of impugned
comments and assess whether they are defamatory. This standard is taken from
English common law and is based on the famous case of Sim v. Stretch,
[1936] 2 All E.R. 1237 (H.L.), in which Lord Atkin stated the following, with
which his colleagues concurred:
The conventional
phrase exposing the plaintiff to hatred, ridicule and contempt is probably too
narrow . . . . I do not intend to ask your Lordships to lay
down a formal definition, but after collating the opinions of many authorities
I propose in the present case the test: would the words tend to lower the
plaintiff in the estimation of right‑thinking members of society
generally? [p. 1240]
[36]
Despite the reservation expressed by Lord Atkin
about the test he was proposing, it has not been forgotten. In fact, the right-thinking
person standard was subsequently adopted, including in Canadian case law (Chohan
v. Cadsky, 2009 ABCA 334, 464 A.R. 57 (C.A.); Color Your World Corp. v.
Canadian Broadcasting Corp. (1998), 38 O.R. (3d) 97 (C.A.), leave to appeal
refused, [1998] 2 S.C.R. vii; Botiuk v. Toronto Free Press Publications Ltd.,
[1995] 3 S.C.R. 3, at para. 62; Cherneskey v. Armadale Publishers Ltd.,
[1979] 1 S.C.R. 1067, at p. 1079 (per Ritchie J.) and p. 1095 (per Dickson
J., dissenting)). In Color Your World, the Ontario Court of Appeal, per
Abella J.A., outlined the right-thinking person standard as follows:
The
standard of what constitutes a reasonable or ordinary member of the public is
difficult to articulate. It should not be so low as to stifle free expression
unduly, nor so high as to imperil the ability to protect the integrity of a
person’s reputation. The impressions about the content of any broadcast — or
written statement — should be assessed from the perspective of someone
reasonable, that is, a person who is reasonably thoughtful and informed, rather
than someone with an overly fragile sensibility. A degree of common sense must
be attributed to viewers. [p. 106]
[37]
Raymond Brown conducted an extensive review of
Canadian and foreign case law and summarized the ordinary person’s perspective
as follows:
The
court will assume that the ordinary reasonable person is someone who is
thoughtful and informed, and of fair, average intelligence. They are persons
who have a common understanding of the meaning of language and who, in their
evaluation of the imputation, entertain a sense of justice and apply moral and
social standards reflecting the views of society generally. . . .
The
reasonable reader or listener makes an effort to strike a balance between the
most extreme meaning the words will bear and the most innocent meaning.
. . .
“The
ordinary reader will draw conclusions from general impressions.” He or she is
likely to read an article casually or uncritically and not give it concentrated
attention or read it a second time. . . .
(R. Brown, The Law of Defamation in
Canada, 2nd ed. (loose‑leaf), vol. 1, at pp. 5-45 to 5-57, citations
omitted.)
[38]
While these common law principles cannot be
directly transposed into Quebec civil law because of the major differences
between the two systems (Prud’homme, at paras. 54-59), they often serve
as a source of inspiration. The two legal communities have the same broad
social values. Indeed, there is a striking similarity between the civil law
and the common law approaches.
[39]
As Abella J.A. stated in Color Your World,
it is difficult to precisely articulate the parameters of the reasonable person
standard of conduct, which the ordinary person standard also incorporates.
Systematizing these models would mean taking a snapshot of our society’s
values, beliefs and attitudes, which is impossible because these components are
intrinsically fluid and vary with the context. A few characteristics can
nonetheless be emphasized.
[40]
The reasonable person acts in an ordinarily
informed and diligent manner. He or she shows concern for others and takes the
necessary precautions to avoid causing them reasonably foreseeable injury (Ouellet
v. Cloutier, [1947] S.C.R. 521, at p. 526). He or she respects fundamental
rights and therefore cannot disregard the protection established in the
charters. Since the standards maintained by the reasonable person are
consistent with Charter values, he or she is careful not to violate the rights
of others.
[41]
Although the ordinary person reacts like a
sensible person who, like the reasonable person, respects fundamental rights,
care must be taken not to idealize the ordinary person and consider him or her
to be impervious to all negligent, racist or discriminatory comments, as the
effect of this would be to sterilize the action in defamation. As the Superior
Court stated in Hervieux-Payette v. Société Saint-Jean-Baptiste de Montréal,
[1998] R.J.Q. 131 (reversed by the Court of Appeal on other grounds, 2002
CanLII 8266)), [translation]
“[t]his ordinary person is neither an encyclopedist nor an ignoramus” (p. 143).
As I have noted, in assessing injury in an action in defamation, the ordinary
person is only an expedient used to identify damage to reputation. Judges must
therefore avoid limiting themselves to an inflexible test that would prevent
them from recognizing actual damage to reputation where it occurs.
[42]
The instant case also raises the additional question
of group defamation. It presents some specific problems that need to be
considered.
B. Defamatory Nature of
Comments Made About a Group of People
(1) Need
to Prove Personal Injury
[43]
An action in defamation can succeed only if
personal injury has actually been sustained by the plaintiff or plaintiffs.
This requirement also applies where the defamatory comments are made about a
group. Three rules of Quebec law are applicable here.
[44]
First, to have the necessary interest to bring
an action, a person must have sustained personal injury. An action can be
brought only by a person who is able to be a party to an action (art. 56, para.
1 C.C.P.) and who has a sufficient interest (arts. 55 and 59 C.C.P.).
Except in cases where the legislature has intervened, a group without juridical
personality does not have the necessary capacity to be a party to an action.
This means that a group cannot bring an action based on injury it claims to
have suffered as a group without juridical personality. Moreover, a person
does not, simply as a member of a group, have a sufficient interest to bring an
action in damages for injury sustained by the group as a group. An interest
will not be sufficient unless, inter alia, it is direct and personal.
Even if the group’s attributes and those of the plaintiff are not mutually
exclusive, the plaintiff must nonetheless be able to assert a right that
belongs to the plaintiff (Jeunes Canadiens pour une civilisation chrétienne
v. Fondation du Théâtre du Nouveau-Monde, [1979] C.A. 491, at p. 494).
[45]
The requirement of proving the existence of a
personal interest is not dispensed with in the context of a class action. The
general provisions of the Code of Civil Procedure apply to class actions
to the extent that they are not excluded or inconsistent with the specific
rules governing such proceedings (art. 1051 C.C.P.). This is the case
for the provisions requiring the demonstration of a sufficient interest (Bouchard
v. Agropur Coopérative, 2006 QCCA 1342, [2006] R.J.Q. 2349 (C.A.), at para.
103). A non‑personal interest based on injury that has been sustained by
the group as a group will therefore not be sufficient to permit the institution
of a class action in defamation. (See also Cabay v. Fafard, [1986] J.Q.
no 2823 (QL) (Sup. Ct.), aff’d [1988] J.Q. no 1052 (QL)
(C.A.).)
[46]
Second, the scheme of the Quebec Charter
confirms the requirement of proof of a personal injury. The right to the
protection of reputation, which is the basis for an action in defamation, is an
individual right that is intrinsically attached to the person, whether the
person is legal or natural. A group without juridical personality does not
have a right to the safeguard of its reputation. Moreover, s. 49 of the Quebec
Charter provides that only the “victim” of interference with a right is
entitled to compensation, which confirms that only those who have suffered
personal interference may obtain compensation. As
Bernier J.A. wrote in Jeunes Canadiens pour une civilisation chrétienne,
at p. 495:
[translation]
[The Charter] is directed at the person considered individually and
makes these remedies [under s. 49] available to the person where the person’s
rights under the Charter are violated; a party can pursue these remedies
only as a person whose Charter rights have been infringed, that is, as a
“victim”.
In
defamation law, the requirement of proof of a personal injury also contributes
to maintaining the balance between freedom of expression and the right to the
protection of reputation.
[47]
Third, the rules of civil liability in the C.C.Q.
provide that injury is compensable if it is personal to the plaintiff. The
purpose of compensation is to put the victim back in the situation he or she
was in prior to the injury. The wording of arts. 1607 and 1611 C.C.Q.
confirms that the compensated injury must be personal to the creditor of the
right to compensation:
1607. The creditor is entitled to damages for bodily, moral or
material injury which is an immediate and direct consequence of the debtor’s
default.
1611. The damages due to the creditor compensate for the
amount of the loss he has sustained and the profit of which he
has been deprived.
Future
injury which is certain and able to be assessed is taken into account in
awarding damages.
[48]
It must be inferred from this that an individual
will not be entitled to compensation solely because he or she is a member of a
group about which offensive comments have been made. The member or members of
the group who bring an action must have sustained personal injury. In other
words, defamation must go behind the screen of generality of the group and
affect its members personally.
[49]
That being said, the victim does not have to be
expressly named or designated to be able to bring an action in defamation. The
attack does not have to be specific or particularized. The person who made the
impugned comments cannot avoid liability by hiding behind the fact that he or
she used general terms applying to a group. Attacks on a group may in fact
personally affect some or all of the group’s members. While the injury must be
personal, it does not have to be unique, that is, different from the injury
sustained by the other members of the group. The reputation of more than one
person may be tarnished by the same wrongful comments. While the law does not
punish the defamation of groups having no juridical personality, it does punish
multiple individual defamation (D. Buron, “Liberté d’expression et diffamation
de collectivités: quand le droit à l’égalité s’exprime” (1988), 29 C. de D.
491, at pp. 497-98). Even if the members of a group are covered by comments
that mention the group, it will be necessary, in order to establish their right
to compensation, that the members prove that they personally suffered damage to
their reputations.
[50]
Moreover, as we will see, the personal injury
requirement does not change in class action proceedings.
(2) Impact
of the Procedural Vehicle Used
[51]
Before instituting a class action, authorization
must be obtained under arts. 1002 and 1003 C.C.P. If such authorization
is granted, the parties proceed on the merits and the plaintiff must prove the
defendant’s liability. If the judge allows the action, the judge may order
collective or individual recovery. The appellant argues that the use of a
class action means that he does not have to prove personal injury at the time
the merits of the action are being examined, since the question of the personal
nature of the injury should be considered at the time of individual recovery
proceedings (Factum, at paras. 22 and 52). This argument must be rejected,
since it is based on confusion between the type of injury required to ground
civil liability, the process used to prove such injury and the assessment of
the extent of such injury.
[52]
This Court has stated on several occasions that
a class action is merely a procedural vehicle and that its use does not have
the effect of changing the substantive rules applicable to individual actions (Bisaillon
v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666, at para. 17; Dell Computer Corp. v. Union des consommateurs, 2007 SCC
34, [2007] 2 S.C.R. 801, at paras. 105-8; St.
Lawrence Cement, at para. 111). In other words, the class action mechanism
cannot be used to make up for the absence of one of the constituent elements of
the cause of action. A class action can succeed only if each claim it covers,
taken individually, could serve as a basis for court proceedings.
[53]
The law of defamation therefore applies in its
entirety in the class action context. As I mentioned above, for a class action
to be allowed, the plaintiff must establish the elements of fault, injury and
causal connection in respect of each member of the group (Hôpital St-Ferdinand,
at para. 33). Of course, the class action procedure permits the judge to draw
inferences from the evidence, but the judge must still be satisfied on a
balance of probabilities that each element is present for each member (for
injury, see Hôpital St-Ferdinand, at paras. 34-35).
[54]
However, there can be no question of requiring
each member of the group to testify to establish the injury actually
sustained. Proof of injury will usually be based on presumptions of fact, that
is, on an attempt to find “an element of damage common to everyone
. . . to be able to infer that there were serious, precise and
concordant presumptions that all the [members of the group sustained personal
injury]” (Hôpital St-Ferdinand, at para. 41, citing the opinion of
Nichols J.A.). In this regard, the plaintiff must prove an injury shared by
all members of the group so the court can infer that personal injury was
sustained by each member. Proof of injury suffered by the group itself and not
by its members will not in itself be enough to give rise to such an inference.
On the other hand, the plaintiff is not required to prove that each of the
members sustained exactly the same injury. The fact that the wrongful conduct
did not affect each member of the group in the same way or with the same
intensity does not prevent the court from finding the defendant civilly
liable. This was in fact what happened in St. Lawrence Cement. While
the injury sustained by the members of the group in question varied in
intensity, this Court confirmed that it could be inferred that each member had
sustained injury based on the similarities between them.
[55]
It is not until the existence of personal
injury sustained by each member of the group has been proved that the judge
will focus on assessing the extent of the injury and choosing the
appropriate recovery method, whether individual or collective. If personal
injury is not proved, the class action must be dismissed. Thus, contrary to
what is argued by the appellant, the possibility of ordering individual
recovery of damages does not relieve the plaintiff of the burden of first
proving that each member of the group sustained personal injury. In other
words, the recovery method cannot make up for the absence of personal injury.
[56]
The various factors used to determine whether
such injury has been sustained must now be considered.
(3) Factors
Used to Determine Whether Personal Injury Has Been Sustained
[57]
In any action in defamation, injury is proved if
the plaintiff satisfies the judge that the impugned comments are defamatory,
that is, that an ordinary person would believe that they tarnished the
plaintiff’s reputation. The same test is used where the comments apply a
priori to a group of individuals, but special attention will then have to
be paid to the personal nature of the injury. The plaintiff or plaintiffs must
prove that an ordinary person would have believed that each of them personally
sustained damage to his or her reputation.
[58]
The judge must thus analyse the impugned
comments, taking into account all the circumstances in which they were made.
Although it is impossible to draw up an exhaustive list of the criteria used to
determine whether personal injury has been sustained, a number of factors can
nevertheless help the judge in this process. Very similar factors are used for
this purpose in the countries to which Canada and Quebec look for comparative
law purposes. They have to do with the affected group, the comments made and
the circumstances extrinsic to the comments or gestures. These factors provide
guidance in determining whether one, some or all members of the group have
sustained personal injury as a result of the impugned comments or gestures.
This list is not exhaustive, however, and none of the factors it contains is
determinative on its own.
(i) Size
of the Group
[59]
The size of the group is the factor to which the
courts have attached the greatest importance in Quebec and elsewhere.
Generally speaking, it is recognized that the larger the group, the more
difficult it is to prove that personal injury has been sustained by the member
or members bringing the action.
[60]
In Quebec, the leading case on defamation
resulting from comments made about a group is Ortenberg v. Plamondon
(1915), 24 B.R. 69, 385 (C.A.). In that case, Mr. Ortenberg, a Jewish
merchant, said that he had been defamed by a speech made by Mr. Plamondon, who
had attacked Jews and their religion, called for a boycott of their businesses
and predicted that the Jews of Quebec City would commit heinous crimes.
Carroll J.A. found that, because of their small number (75 families out of a
total population of 80,000), the members of Quebec City’s Jewish community had
all come under suspicion and therefore had a cause of action.
[61]
The size of the group is a constant in the
Quebec courts’ analysis of whether an injury is personal (see, for example, Zhang
v. Chau, 2008 QCCA 961, [2008] R.R.A. 523, leave to appeal refused, [2008]
3 S.C.R. xi; Raymond v. Abel, [1946] C.S. 251).
[62]
In France, apart from certain statutory
mechanisms whose singularity limits their usefulness for comparative purposes,
the Loi sur la presse requires a personal interest and personal damage
in order to claim compensation. When comments are made about a group, these
requirements are satisfied if the group is [translation]
“small enough that each member can feel affected” (Cass. crim., January 29, 2008,
Bull. crim., No. 23, at p. 94). The Court of Cassation, for example,
has found defamation where comments were made about a medical team made up of
ten surgeons (Cass. crim., December 6, 1994, Dr. pénal 1995, comm. 93, obs. M. Véron).
It also found that four members of a political action committee had been
sufficiently covered by comments referring to the committee (Cass. crim.,
January 16, 1969, Bull. crim., No. 35). However, it dismissed an action
in defamation where the impugned comments concerned Catholic clergy in general
(Cass. crim., November 22, 1934, D.P. 1936.1.27, note M. Nast).
[63]
In the common law, the comments must have been
made “of and concerning” the plaintiff (Knupffer v. London Express Newspaper,
Ltd., [1944] A.C. 116 (H.L.), at p. 120; Butler v. Southam Inc.,
2001 NSCA 121, 197 N.S.R. (2d) 97, at para. 17; Restatement of the Law,
Second, Torts 2d (1977), vol. 3, § 564). This corresponds to the personal
nature of injury in the civil law. The size of the group is an important
consideration (Butler v. Southam, at para. 62; Bai v. Sing Tao Daily
Ltd. (2003), 226 D.L.R. (4th) 477 (Ont. C.A.), at para. 15). For example,
in Knupffer, the British House of Lords held that a member of a group of
about 2,000 Russian immigrants could not bring an action in defamation based on
an article written about the group. As well, in the United States, no cause of
action was found to arise from articles attacking a group of 27 teachers (O’Brien
v. Williamson Daily News, 735 F. Supp. 218 (E.D. Ky. 1990)), comments made
about 382 saleswomen (Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y.
1952)) or allegations made about 637 fishermen (Adams v. WFTV Inc., 24
Med. L. Rptr. 1350 (Fla. Cir. Ct. 1995), aff’d 691 So.2d 557 (Fla. Dist. Ct.
App. 1997)). On the other hand, the Alberta Court of Queen’s Bench found that
an article concerning correctional officers from the Fort Saskatchewan
Correctional Centre, of whom there were about 200, was defamatory (A.U.P.E.
v. Edmonton Sun (1986), 49 Alta. L.R. (2d) 141).
[64]
However, the size of the group is not a decisive
factor and must be balanced with other considerations. There is no maximum
size beyond which the members of a group no longer have a cause of action in
defamation. The personal nature of injury can be determined only through a
contextual analysis. In the common law, this multi‑factored approach
involves assessing the “intensity of suspicion” the comments could create in
the mind of a sensible person (Butler v. Southam, at para. 56, and Gauthier
v. Toronto Star Daily Newspapers Ltd. (2004), 188 O.A.C. 211, leave to
appeal refused, [2005] 1 S.C.R. ix), and it is used even in the United States,
where the size of the group is more important than anywhere else. (See, for
example, McCullough v. Cities Service Co., 676 P.2d 833 (Okla. 1984); Fawcett
Publications, Inc. v. Morris, 377 P.2d 42 (Okla. 1962), at pp. 51-52.)
(ii) Nature
of the Group
[65]
In general, the more strictly organized and
homogeneous the group, the easier it will be to establish that the injury is
personal to each member of the group. In Jackson v. TCN Channel 9,
[2001] NSWCA 108 (AustLII), a case which involved determining whether a
television program referring to outlaw bike gangs was defamatory, an Australian
Court of Appeal found that the group’s structure was a significant factor:
While
“all lawyers” are members of the same profession, they are not members of a
cohesive and disciplined group with a command structure such as a gang. The
statement about “all lawyers” is an obvious over‑generalisation which no
reasonable reader or listener would understand applied or was intended to apply
literally to every single member of the group.
On
the other hand outlaw bik[er] gangs of the type described in the programme would
only attract and retain members who accepted and were willing to conform to the
prevailing culture and ethos of the gang. In my judgment the statements made
in this programme are akin to statements about organised groups such as the SS,
the Ku Klux Klan or the Mafia, rather than statements such as: “all lawyers
are thieves”. It would be well open to a jury to conclude that general
statements made about groups such as those applied, and would be understood to
apply, to every member of those groups. [paras. 23-24]
[66]
Conversely, the imputing of a single
characteristic to all members of a group that is highly heterogeneous, has no
specific organization or has flexible, broadly defined admission criteria would
make an allegation of personal injury implausible. For example, the Quebec
Court of Appeal has dismissed actions in defamation based on comments made
about Scientology (Cabay) and the Falun Gong doctrine (Zhang).
[67]
Where the group’s members are identifiable or
very visible in the community, it will be easier to prove that they sustained
personal injury. In A.U.P.E., for example, the Alberta trial court
noted that correctional officers could easily be recognized by their uniforms
and, from that fact, drew an inference in favour of the plaintiffs’ position.
[68]
Finally, in certain circumstances, the fact that
a group has historically been stigmatized may mean that insults and offensive
comments made about the group will stick more easily to its members. The
vulnerability of the members of the group thus makes them targets more
susceptible to personal defamation.
(iii) Plaintiff’s
Relationship With the Group
[69]
The plaintiff’s status, duties, responsibilities
or activities in the group can make it easier to prove personal injury. For
example, in Trahan v. Imprimerie Gagné Ltée, [1987] R.J.Q. 2417
(Sup. Ct.), the Court of Québec found that the plaintiffs had been affected by
comments made about fur traders because they occupied 90 to 98 percent of the
market. Likewise, in Booth v. British Columbia Television Broadcasting
System (1982), 139 D.L.R. (3d) 88, the British Columbia Court of Appeal
held that allegations made about narcotics squad officers “that are high up —
right up on top” (p. 90) had defamed two senior detectives. Since what
distinguished the plaintiffs was their high rank, it might be more difficult
for police officers without any special responsibilities or status to prove
personal injury in similar circumstances. Indeed, in the same case, the Court
of Appeal ruled against the other nine plaintiffs, who were lower-ranking
employees of the narcotics squad.
[70]
A person who is a well‑known member of a
group is more likely to suffer damage to his or her reputation as a result of
comments made about the group. In Fawcett Publications, a football
player brought an action in defamation based on allegations that the members of
the team, which had 60 to 70 players, had used amphetamines. He was successful
on the ground, inter alia, that he was “well known and identified in
connection with the group” (p. 51). Likewise, in Trahan, the Superior
Court took note of the fact that the plaintiffs were known as fur traders in
the area in reaching the conclusion that they had been defamed by allegations
of abuse in the fur trade.
(iv) Real
Target of the Defamation
[71]
The judge must also consider the words, gestures
or images used to convey the message in order to determine the real target of
the attacks. The precision or generality of the allegations will influence the
analysis of the personal nature of the injury. The more general, evasive and
vague the allegations, the more difficult it will be to go behind the screen of
the group. For example, attacks on a doctrine, policy, opinion or religion
must be distinguished from attacks on the persons supporting it, since proving
personal injury will be complicated in the former situation. In Zhang,
the Quebec Court of Appeal explained the necessary distinction as follows:
[translation]
[W]hile it was the prerogative of the author of the articles to level
criticism, even vehement criticism, at Li Hongzhi’s doctrine and the way it was
practised by Falun Gong followers, the authors were guilty of defamation when
they accused certain persons of criminal offences and perverse acts without any
proof. [para. 13]
Similarly,
in France, the Court of Cassation held that a document challenging right-wing
extremism in general and associating it with criminal and racist purposes was
not defamatory, because it [translation]
“contained no imputation or allegation of a specific fact about a specific
natural or legal person” (Cass. crim., May 26, 1987, Bull. crim., No. 217,
at p. 597). It also held that criticism of a type of agricultural production
affected only the profession as a whole and left its members’ reputations
intact (Cass. crim., September 16, 2003, Bull. crim., No. 161).
[72]
Moreover, where allegations apply to only one
segment of a group, it will be more difficult for them to reflect personally on
all members of the group. This occurs where the comments include an expression
such as “some”, “a few”, “several”, “most” or “all but one”. Nonetheless, an
action in defamation can sometimes be brought by one, some or all members of
the group in such situations, since what is required is not certainty that the
allegation relates to each member, but a suspicion that takes root in the mind
of the ordinary person. In Farrington v. Leigh (December 4, 1987,
reported in the Times Law Report of December 10, 1987), which involved
statements made about two of the seven police officers on a team, the English
Court of Appeal found that the statements could tarnish each team member’s
reputation, because each of them might be suspected of having committed
unlawful acts. In the United States, the courts have dismissed actions in
defamation where the impugned comments concerned one of about twenty police
officers (Arcand v. Evening Call Publishing Co., 567 F.2d 1163 (1st Cir.
1977)) or less than the majority of police officers (Algarin v. Town of
Wallkill, 421 F.3d 137 (2nd Cir. 2005)), but they have allowed actions
where the allegations concerned “most” of 25 salesmen (Neiman-Marcus)
and “all save one” of 12 New York radio critics (Gross v. Cantor, 270
N.Y. 93 (1936)).
(v) Seriousness
or Extravagance of the Allegations
[73]
As the Nova Scotia Court of Appeal stated in Butler
v. Southam, “the more serious or inflammatory the allegation, the wider may
be its sting” (para. 68). In Farrell v. Triangle Publications, Inc., 159
A.2d 734 (1960), the Pennsylvania Supreme Court held that an article accusing
13 municipal commissioners and other persons of criminal behaviour was not
defamatory. Reversing that decision of the trial court, the Court of Appeal of
the same state allowed the action in defamation on the following basis:
. . . readers . . . who, prior to
the defamatory article, had not known the identity of all of the township’s
commissioners, were impelled by the scandalous nature of the charges to make
inquiry and find out who the commissioners were — a process which would almost
inevitably lead to connecting the plaintiff’s name with the alleged corruption
in office. [pp. 738-39]
[74]
In some circumstances, the seriousness of the
allegations will have the opposite effect: an ordinary person will see
exaggeration, excessive generalization or extravagance in the allegations and
will give them less credence as a result. Thus, where there is no rational
connection between an allegation and the members of a group, the statements
made will not be accepted by an ordinary person because, as Lord Atkin
explained in Knupffer, “the habit of making unfounded generalizations is
ingrained in ill‑educated or vulgar minds [and] the words are
occasionally intended to be a facetious exaggeration” (at p. 122). For
example, as Willes J. noted in Eastwood v. Holmes (1858), 1 F.
& F. 347, 175 E.R. 758, at p. 759, an extravagant statement such as “all
lawyers [are] thieves” would not generally entitle a lawyer to bring an action
in defamation unless it could be inferred from other circumstances that the
statement was directed at the lawyer in question and that he or she was
identifiable.
[75]
However, the fact that comments made by a rabble-rouser
are outrageous would not protect him or her fully from actions in damages for
defamation. As in any other case where comments are impugned, it is necessary
to ensure that all the elements needed to establish entitlement to compensation
have been proven. Indignation is not a substitute for the requirements of
civil proof or, more generally, the law of civil liability.
(vi) Plausibility
of the Comments and Tendency to Be Accepted
[76]
Generally speaking, a plausible or convincing
allegation will capture the ordinary person’s attention more and thus make it
easier for that person to connect the allegation with each or some of the
group’s members personally. Conversely, the ordinary person will quickly brush
aside implausible allegations without connecting them with the group’s members
personally.
[77]
The context of an allegation also has an impact
on its plausibility and on the likelihood of its being accepted. The fact that
a group is big, that it is heterogeneous, or that the comments are general or
exaggerated are all factors that will reduce the probability that the ordinary
person would believe the assertion.
(vii) Extrinsic
Factors
[78]
Several other factors, related to the maker or
target of the comments, the medium used and the general context, can cause
comments that appear to be general to be attached to certain persons in
particular and defame them personally. For example, in Association des
policiers de Sherbrooke v. Delorme, [1997] R.J.Q. 2826, the Superior Court
held, in light of the intended audience, the medium used and a past incident
involving the defendant and a member of the plaintiff association, that the
comments in issue, which appeared to be about police officers in general,
actually targeted police officers in the city of Sherbrooke in particular.
Moreover, the reliability of the medium used or the credibility of the person
making the comments are additional factors that can lend plausibility to an
allegation that may at first seem implausible.
[79]
Ultimately, the court must not conduct a
compartmentalized analysis or seek to find all the relevant criteria. What
must be determined is whether an ordinary person would believe that the
remarks, when viewed as a whole, brought discredit on the reputation of the
victim. The general context remains the best approach for identifying personal
attacks camouflaged behind the generality of an attack on a group.
C. Application to the Facts
of the Case at Bar
[80]
Injury is the only one of the three elements of
civil liability that is in issue in this case. The wrongful nature of Mr. Arthur’s
conduct is not in dispute. The respondents concede that, as the Court of
Appeal found, [translation] “the
impugned comments, which we are not trying to excuse by invoking some
journalistic standard of conduct, were made without regard for their potential
impact on other people even though the person making them should have known
that they were false, rude or exaggerated” (para. 27 of the reasons). The
appellant is challenging the conclusion of the majority of the Court of Appeal
that the members of the group did not sustain compensable injury. In light of
the legal principles explained above, it is my opinion that the Court of
Appeal’s conclusion must be upheld.
[81]
Mr. Arthur’s comments were directed at the
group made up of taxi drivers working in Montréal whose mother tongue is Arabic
or Creole. Therefore, what needs to be asked is whether an ordinary person
would have believed that the comments damaged the reputation of each member of
that group, with the result that each of them sustained personal injury. At
trial, to decide whether each member had been personally defamed, Guibault J.
asked whether the drivers had all listened to the impugned comments. That
approach does not apply in determining injury where the comments are made about
a group, since it uses the defamed person as a measure of defamation and
ascertains whether subjective injury has been proved by each member of the
group individually. On the contrary, the defamatory nature of comments must be
assessed objectively and, in a class action context, personal injury can be
proved through presumptions of fact on the basis of elements common to all
members. This was the test rightly applied by the majority of the Court of
Appeal (para. 69).
[82]
Mr. Arthur made accusations of uncleanliness,
arrogance, incompetence, corruption and ignorance of official languages. By
referring to Creole as speaking [translation]
“nigger”, he disparaged and expressed contempt for the language primarily used
by Haitians to communicate with one another. As well, when he called drivers
of Arab origin [translation]
“fakirs”, he made fun of and even ridiculed them. His comments were scornful
and racist, as has been found by all the courts that have had to consider
them. It is thus easy to understand why the taxi drivers who were called to
testify at the hearing said they were hurt by those comments, but this is a
subjective perception, not the perception of the ordinary person. There is no
doubt that such statements constituted civil fault. However, in this case, I
am persuaded by an analysis of the trial judgment and a review of the entire
record that an ordinary person might have been annoyed by Mr. Arthur’s comments
but could not have applied the insults, abuse and offensive accusations to each
taxi driver personally.
[83]
Admittedly, certain contextual elements work in
favour of recognizing personal injury. The members of the group have the same
job and are identifiable as taxi drivers when they are driving their vehicles.
In interacting with the public or their coworkers, their accent may sometimes
also make it possible to recognize their mother tongue. Moreover, they belong
to visible minorities.
[84]
Some of the words used by Mr. Arthur suggested
that his attacks were directed more at Montréal taxi drivers whose mother
tongue is Arabic or Creole than at the taxi industry in general. When Mr. Arthur
used words such as [translation]
“Arabs”, “Haitians”, “immigrants” or “drivers”, he seemed to be attacking more
the drivers themselves, which favours the appellant’s position. However, at
other times, the words used by Mr. Arthur gave the impression that he was
criticizing the taxi industry in Montréal generally, a topic that, according to
the trial judge, is [translation]
“of great interest to the population as a whole and to the tourist industry in
particular” (para. 84). This was the case, inter alia, where
allegations were made using the words [translation]
“taxis”, “taxis in Montréal” and “taxi issue”. As shown by Sarrazin v.
Duquette (1935), 41 R. de J. 365 (Sup. Ct.), members of an industry will
rarely be entitled to compensation on the basis of a general opinion about the
industry, even if it is expressed in virulent terms. Nonetheless, even
assuming that the words used by Mr. Arthur referred more generally to the
drivers than to the taxi industry as a whole, and even though the members of
the group may be identifiable, I must conclude based on the other contextual
elements that the drivers’ personal reputations remained intact in the eyes of
the ordinary person.
[85]
First of all, the relevant group is of
considerable size. The trial judge estimated that the group made up of
Montréal taxi drivers whose mother tongue is Arabic or Creole has about 1,100
members. That is a large number. While I am not prepared to rule out the
possibility that comments made about such a large group may in certain very
specific circumstances reflect on each of its members personally, there are
several reasons why that cannot be the case here.
[86]
It is well known that the group in question is
heterogeneous. Taxi drivers in general are not part of a structured or
formalized association. Nor is there any indication that the group of drivers
in question was organized in any special way that made it easier to recognize
each of its members. Of course, the taxi drivers in question share a language
and a job and belong to two visible minorities, but no one could reasonably
believe that their common attributes extend to their personal knowledge of
English and French, their knowledge of driving routes in the city of Montréal,
their thoughtfulness with customers, their personal hygiene and the cleanliness
of their vehicles. These are highly individual characteristics that do not readily
lend themselves to generalization. Moreover, in Canada and in Montréal in
particular, the taxi industry is open and, as in several other countries,
fortunately or unfortunately, it is a fallback position for a large number of
people whose vocational training in their country of origin is not recognized
or who for some other reason do not find other employment. In such a
heterogeneous group, it is implausible that all members would have the specific
failings imputed to them by Mr. Arthur. Certain characteristics could be
attributed to such a heterogeneous group only by extrapolation.
[87]
Furthermore, given Quebec’s French language
requirements and the origin of the drivers in question (drivers from Lebanon
and Haiti testified at the trial), Mr. Arthur’s general allegation concerning
language was unlikely to reflect on each driver. Mr. Arthur’s statements
conveyed the message that taxi drivers whose mother tongue is Arabic or Creole
should be blamed for all the problems he said existed in the taxi industry in
Montréal. There is simply nothing rational about this suggestion, as the trial
judge pointed out (para. 87).
[88]
Moreover, the impugned comments were subjective
in tone and were an extreme generalization. Apart from a single unsatisfactory
personal experience that Mr. Arthur recounted, without identifying any driver,
the assertions were general and vague. The comments often took the form of
questions and set out no specific facts. Instead, they alluded briefly to
uncleanliness, corruption, incompetence, etc. Mr. Arthur’s comments could only
stem from an intolerance of immigrants in general.
[89]
In addition, Mr. Arthur was a known polemicist
in the area where his show was broadcast. He had become known for his
distasteful and provocative language. The radio show during which the impugned
comments were broadcast had a satirical style and tried to sensationalize
things. This is not intended as a value judgment on shock jock radio, but the
context of such shows does have an impact on the real effect of comments made
on them. People cannot of course use their general tendency to speak in bad
taste as an excuse to defame others on air, but it must be acknowledged that
comments made by Mr. Arthur in such a context have very little plausibility
from the point of view of the ordinary person.
[90]
In light of these factors, I am of the opinion
that an ordinary person would have understood the extravagant nature of the
comments made. Mr. Arthur’s allegations were undoubtedly serious and
infuriating, but an ordinary person would nonetheless have recognized that they
were an excessive generalization on the part of the host, based on an
unpleasant personal experience. An ordinary person would not have believed the
offensive allegations and would not have thought that Mr. Arthur was vouching
for the validity of his racist and contemptuous insults. An ordinary person
certainly would not have associated the allegations of ignorance, incompetence,
uncleanliness, arrogance and corruption with each taxi driver whose mother tongue
is Arabic or Creole personally.
[91]
In Gauthier v. Toronto Star Daily Newspapers
Ltd. (2003), 228 D.L.R. (4th) 748, a defamation case involving an
allegation of reprehensible behaviour by members of a group — the Toronto
police — the Ontario Superior Court stated the following:
In some cases both the size of the class and
the extravagance of the allegedly defamatory statements will indicate that they
cannot have been intended — and should not be understood — to apply to each and
every member of the class. Statements such as “all lawyers are thieves” and
“all police officers are racists” would fall within this category which Lord
Atkin described as consisting of vulgar and unfounded generalizations. [para. 21]
In
my opinion, allegations that all taxi drivers whose mother tongue is Arabic or
Creole are incompetent, unclean, arrogant and corrupt also fall within that
category.
[92]
In short, having regard to all of the
circumstances, I find that the group is of considerable size and is
heterogeneous, that the characteristics attributed to the members of the group
are individual and do not lend themselves well to extrapolation, and that the
remarks are an extreme, irrational and sensationalist generalization.
Accordingly, an ordinary person, while sensitive to such excessive remarks,
would not in my view have formed a less favourable opinion of each Arab or
Haitian taxi driver, considered individually. I therefore conclude that Mr. Arthur’s
comments, while wrongful, did not damage the reputation of each Montréal taxi driver
whose mother tongue is Arabic or Creole. The plaintiff did not prove that a
personal injury was sustained by the members of the group.
[93]
Moreover, I cannot endorse the conclusion of
Guibault J., who in an attempt to make up for the absence of personal injury,
awarded a collective remedy. It was no doubt because he considered himself
bound by what Rayle J.A. had stated in her decision to authorize the bringing
of the class action that he ordered the payment of damages despite the absence
of proof of personal injury. However, the Court of Appeal’s decision to
authorize the class action did not limit his discretion as the judge
responsible for deciding the merits of the action, especially since the legal
test applicable at the stage of the application for authorization differs from
the test applicable to the merits. Thus, given the absence of proof of
personal injury, the respondents could not be found civilly liable and the
judge ought to have dismissed the class action in defamation.
VI. Conclusion
[94]
I have no doubt that racist speech can have a
pernicious effect on the opinions of members of its audience. However, it
should be noted that an action in defamation will not always be the appropriate
recourse in cases concerning racism or discrimination. In the instant case, I
am of the opinion that it is not the appropriate recourse. I would therefore
dismiss the appeal. For the reasons given by the Court of Appeal on this
question, no costs are awarded in this Court.
The following are the reasons delivered
by
[95]
Abella J. (dissenting) — Democracies cherish the right of their citizens to engage
in public debate, and to express the widest possible range of views on the
widest possible range of subjects. These views may be hugely unpopular. They
may also be hugely influential. And they may be hugely hurtful. The right to
express those views is not, however, tied to their popularity, influence, or
insensitivity. It is tied to that most complicated of barometers: the nature
and extent of their harmful impact. That is why we do not protect libellous
statements. Or those promoting violence. Or hate.
[96]
The challenge lies in how to
strike the balance between the need to provide the widest possible scope for
freedom of expression, with the need for a narrow interventionist role in those
rare circumstances when the words are so deeply harmful that they are no longer
entitled to the benefit of the freedom’s protective scope. Context and content
matter: there is a difference between yelling “fire” in a crowded theatre and
yelling “theatre” in a crowded fire station.
[97]
Canada’s strength as a
multiracial, multicultural and multireligious country flows from its ongoing
ability to develop core and transcendent values that help unify the
differences. Sometimes that means tolerating slings and arrows of
misunderstanding that will be hurtful. And sometimes it means drawing a line
because tolerating the “misunderstanding” undermines the core of our core
values.
[98]
I see the comments made by radio talk show host André
Arthur as undermining that core. He stated, in part:
[translation]
Why is it that there are so many incompetent people and that the language of
work is Creole or Arabic in a city that’s French and English? . . . I’m not
very good at speaking “nigger”. . . . [T]axis have really become the Third
World of public transportation in Montreal. . . . [M]y suspicion is that the
exams, well, they can be bought. You can’t have such incompetent people
driving taxis, people who know so little about the city, and think that they
took actual exams. . . . Taxi drivers in Montreal are really arrogant,
especially the Arabs. They’re often rude, you can’t be sure at all that
they’re competent and their cars don’t look well maintained.
[99]
As Deschamps
J. pointed out, the right to freedom of
expression in Canadian and Quebec law and in various human rights instruments
is not articulated as an absolute right. Limitations on the right to freedom
of expression, like those designed to protect reputation or to prevent harmful speech, have long been accepted in this country and internationally. Canada is a
party to the International Covenant on Civil and Political Rights, Can.
T.S. 1976, No. 47, for example, which states in Article 19 that the right to freedom of
expression may be limited if necessary to protect the rights and reputation of
others.
[100]
The law of defamation is one such limitation, as
McLachlin C.J. pointed out in Grant v. Torstar Corp., 2009 SCC 61,
[2009] 3 S.C.R. 640:
. . .
freedom of expression is not absolute. One limitation on free expression is the
law of defamation, which protects a person’s reputation from unjustified
assault. The law of defamation does not forbid people from expressing
themselves. It merely provides that if a person defames another, that person
may be required to pay damages to the other for the harm caused to the other’s
reputation. [para. 2]
(See also Prud’homme v. Prud’homme, 2002 SCC 85,
[2002] 4 S.C.R. 663, at para. 43; WIC Radio Ltd. v. Simpson, 2008 SCC
40, [2008] 2 S.C.R. 420, at para. 2, per Binnie J.; R. v. Keegstra,
[1990] 3 S.C.R. 697, per Dickson C.J.)
[101]
It is my respectful view, unlike that of
Deschamps J., that the individuals in the group at issue were defamed.
[102]
In Prud’homme, L’Heureux-Dubé and LeBel
JJ. noted that in order to prove defamation under the Civil Code of Québec,
S.Q. 1991, c. 64, it was necessary for a plaintiff to
prove that the defendant had committed a fault and that the plaintiff had
suffered an injury as a result. Defamation was defined as follows:
Generally
speaking, . . . 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” . . . . [para. 33]
[103]
In order to show fault, a plaintiff must show
that the conduct of the defendant was either malicious or negligent (Prud’homme,
at para. 35). Mr. Arthur did not contest fault before the Court of Appeal or
this Court, and causality is not in issue. The
sole issue before us, therefore, and the one that, with great respect,
separates me from the conclusion reached by Deschamps J., is whether there is
injury.
[104]
LeBel J. set out the test for injury in Gilles E. Néron Communication Marketing Inc. v. Chambre des
notaires du Québec, 2004 SCC 53, [2004] 3
S.C.R. 95, where he said:
. . . in order to prove injury the plaintiff must
convince the judge that the impugned remarks were defamatory. As noted in Prud’homme,
supra, at para. 34, this involves asking “whether an ordinary person
would believe that the remarks made, when viewed as a whole, brought discredit
on the reputation of another person”. [para. 57]
The
question is whether an ordinary person would believe that the remarks made,
when viewed as a whole, brought discredit to someone’s reputation. Once this
objective standard is met, injury is established.
[105]
At the outset, I resist, with respect, the degree of
sophisticated knowledge Bich J.A., writing for the majority in the Court of
Appeal, attributed to the “ordinary person”, whom she described as being
[translation] concerned about protecting
and preserving the freedoms of thought, belief, opinion and expression as well
as the right to safeguard one’s reputation. Finally, the ordinary citizen is
also concerned about personal dignity and is accordingly aware both of
convictions, prejudices or discriminatory practices of certain of his or her fellow
citizens and of the need not to encourage such attitudes. And the ordinary
citizen also knows that, beyond the openly discriminatory opinions or practices
of certain people, there is a systemic discrimination that, although less overt
and not necessarily intentional, is no less real.
(2008 QCCA 1938, [2008] R.J.Q. 2356, at para. 71)
This, it seems to me, inappropriately elevates the
attributed characteristics of an ordinary person to those of an ordinary
third-year law student.
[106]
In my view, an ordinary person would conclude that
the remarks made by Mr.
Arthur were defamatory of these plaintiffs and
therefore injurious. Mr. Arthur’s comments
were not about the taxi industry in general. He targeted only Arab and Haitian
taxi drivers and accused them of creating “Third World” public transportation
in Montréal, of corruption in obtaining their permits, of incompetence, and of
keeping unsanitary cars. He also said that neither Arab nor Haitian drivers
knew their way around the city and that they could not communicate in either
English or French. He denigrated Arab taxi drivers as “fakirs” and the Creole
language as [translation]
“nigger”.
[107]
These were highly
stigmatizing remarks attacking members of vulnerable communities. There is a
difference between provocation or controversy, including offensive statements,
and statements that deliberately vilify vulnerable people. The trial judge
concluded that the comments in this case were racist. When we are dealing with
hortatory language seriously uttered that is blatantly racist, we are
inherently dealing with words that diminish dignity and are an invitation to
contempt. As Dickson C.J. stated in Keegstra, “[t]he threat to the
self-dignity of target group members is . . . matched by the possibility that
prejudiced messages will gain some credence, with the attendant result of
discrimination, and perhaps even violence, against minority groups in Canadian
society” (p. 748). Deschamps J. makes a similar point in her reasons when she
notes that the fact that a group has been historically stigmatized may mean
that offensive comments about that “group will stick more easily to its
members” (para. 68).
[108]
This brings us to the
crucial fact that we are dealing with a group, and with whether the members can show that the defamatory words were such as to impugn not only
the group, but also the plaintiffs as individuals in that group.
This case was brought as a class action. Mr. Bou Malhab, the representative
plaintiff, is a taxi driver and was, at the relevant time, the President of the
Montréal Taxi League. He and ten other drivers testified at trial. In the case
of a class action “the court can draw from the evidence a presumption of fact
that the members of the group have suffered a similar injury” (St. Lawrence
Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392, at para. 108).
The requirement that each individual in the class demonstrate an injury caused
by the statements is satisfied by having the representative plaintiff
adduce evidence that the remarks made were, objectively, defamatory, and
therefore injurious, of the members of the group. As in claims of
discrimination, it is unnecessary that every member of the group testify that
he or she has been affected. As LeBel J. noted in his concurring reasons in WIC
Radio, “actual harm to reputation is not required to establish defamation”
(para. 78). If the evidence adduced at trial demonstrates that the impugned
statements are defamatory of the group members, it is unnecessary for each of
the other individual group members to testify in order to show that they too were
defamed.
[109]
I accept that the factors articulated by Deschamps J. in her reasons
are helpful. I see the following as being of particular relevance in
this case: the size and nature of the group; the “seriousness or extravagance
of the allegations”; and the plausibility of the comments. As she notes, none
of the factors is determinative and their synergetic impact will vary with each
case. I disagree, however, that consideration of
those factors leads to the conclusion that the individual group members in this
case were not defamed.
[110]
Under both the common law
and civil law regimes, the fact that comments are aimed at a group is not, in
itself, reason to deny a claim. If multiple individuals can show that they were
defamed by the comments, each has a right of action. As the reasons of
Deschamps J. make clear, the determination of whether the statements relate to
each member of the group involves a contextual analysis of both the group and
the comments. In both Prud’homme (at para. 38) and Néron (at
para. 54), this Court spoke of the need to find the appropriate balance between
the right to freedom of expression and the right to respect for one’s
reputation. That need for balance does not change when it is alleged that
individual members of a group were defamed by remarks directed at the
group.
[111]
Tort law is not normally concerned with the
number of plaintiffs who claim injury. Neither the procedural vehicle used nor
the ultimate difficulty in assessing damages in respect of multiple plaintiffs
is reason in itself to deny a claim for defamation which is otherwise well
founded. In this regard, I agree completely
with the statement of Cromwell J.A. in Butler v. Southam Inc., 2001 NSCA
121, 197 N.S.R. (2d) 97:
There are no special legal rules concerning individual claims of
defamation based on statements made about a group: see, for example, Raymond E.
Brown, The Law of Defamation in Canada (2nd ed. 1999), at pp. 324-325.
In this sort of case, as in others, the fundamental question remains whether
the statements could reasonably be found to be defamatory of the named
plaintiffs. Some authorities in some jurisdictions have attempted to define
the limit of liability by reference to the size of the group: see, for example,
Joseph Tanenhaus, “Group Libel” (1950), 35 Cornell Law Quarterly 261, at 263
and Jeffrey S. Broome, “Group Defamation: Five Guiding Factors” (1985), 64
Texas Law Review 591, at 595 ff. However, Knupffer, the leading case in
the Anglo-Canadian jurisprudence, holds that although the size of the group is
relevant, it is not a controlling factor. Lord Atkin in that case stressed that
the group aspect of the defamatory statements should not distract the court
from the real issue, namely whether the published words refer to the plaintiff.
[para. 53]
[112]
As Justice Cromwell noted in Butler, the
key common law case dealing with group defamation, is the decision of the House
of Lords in Knupffer v. London Express Newspaper, Ltd., [1944]
A.C. 116. The Law Lords made it clear that it was possible for a plaintiff to
succeed in a claim for defamation even when the defamatory comments referred to
a group. They were unanimously of the view that such an action could succeed
provided a plaintiff could show that the words referred to the plaintiff. This
principle was clearly expressed by Lord Atkin:
There can be no law that a defamatory
statement made of a firm, or trustees, or the tenants of a particular building
is not actionable, if the words would reasonably be understood as published of
each member of the firm or each trustee or each tenant. The reason why a libel
published of a large or indeterminate number of persons described by some
general name generally fails to be actionable is the difficulty of establishing
that the plaintiff was, in fact, included in the defamatory statement, for the
habit of making unfounded generalizations is ingrained in ill-educated or
vulgar minds, or the words are occasionally intended to be a facetious
exaggeration. Even in such cases words may be used which enable the plaintiff
to prove that the words complained of were intended to be published of each
member of the group, or, at any rate, of himself. [p. 122]
[113]
The position in Quebec is similar, as Ortenberg
v. Plamondon (1915), 24 B.R. 69, 385, demonstrates. In 1910,
Jacques-Édouard Plamondon had given a lecture in Quebec City during which he
made statements attacking Jews. At the time of the lecture, there were about
75 Jewish households in Quebec City out of a population of about 80,000.
Towards the end of his lecture, Mr. Plamondon invited the conference attendees
to boycott Jewish businesses. A Jewish merchant, Benjamin Ortenberg, brought an
action in defamation against Mr. Plamondon alleging that as a result of the
lecture, he had been insulted and attacked and had lost part of his business
clientele. In his defence, Mr. Plamondon argued that his statements were made
about all Jews and that he had not singled out any individual.
[114]
While the claim was initially dismissed, Mr.
Ortenberg was successful on appeal and awarded modest damages. Carroll
J. concluded that [translation] “[i]n ascribing all the crimes of the Jewish race to this
small community, the speaker was targeting them to a sufficient extent” (p. 74). According to Carroll J., “[t]his
is not a case of an insult to a community that is large enough that the insult
is lost in the crowd” (p. 75).
[115]
As Ortenberg shows,
it is not only the size of the group which is relevant, it is also the extent to which the
group is sufficiently defined or easily
identifiable such that each person in the group can be said to be affected. Or,
as Cromwell J.A. said in Butler, the question is whether the group is so
large as to be “indeterminate” (para. 72) (see
also A.U.P.E. v. Edmonton Sun (1986), 49 Alta. L.R. (2d) 141
(Q.B.)).
[116]
While the group targeted by the statements in this case was large, it
was not so diffuse as to be indeterminate. Mr. Arthur’s criticisms were
directed at Arab and Haitian taxi drivers in Montréal. This is a precisely
defined and easily identified group.
[117]
Secondly, these were serious
accusations. Mr. Arthur’s
allegations of corruption were particularly dramatic, including:
[translation]
My suspicion is that the exams, well, they can be bought. You can’t have such
incompetent people driving taxis, people who know so little about the city, and
think that they took actual exams. When I see something like this, I can only
think of corruption.
[118]
As Guibault J. found, the suggestion that Arab
and Haitian taxi drivers had obtained their taxi permits illegally along with
Mr. Arthur’s numerous other allusions to corruption in getting those permits [translation] “was particularly
insulting and hurtful” (para. 80).
[119]
Mr. Arthur’s comments were aimed at a
determinate group of individuals who were of particular racial backgrounds in a
particular industry and in a particular city, leading the trial judge to
conclude:
[translation]
The general impression conveyed by the program is that
problems with respect to taxis in Montréal are the fault of Arabs and Haitians,
that they alone are responsible for those problems and that they must bear all
the opprobrium for them. [para. 89]
The
group was defined with sufficient precision and the statements specific enough
to be harmful to the reputations of each of its members. If Mr. Arthur
had named an individual taxi driver and accused him or her of similar
corruption and incompetence, there seems to me to be little
doubt that an ordinary person would find those comments to be defamatory and
therefore injurious.
[120]
Moreover, I do not accept that his listeners
would have inevitably treated Mr. Arthur’s statements as less plausible because
of his reputation. I appreciate that Mr. Arthur was
not averse to comments of a provocative nature, and that his listeners knew
that he was given occasionally to making offensive statements. But I do not
accept that Mr. Arthur’s comments would necessarily be seen to be hyperbolic by
the ordinary person. They were made
“seriously”, not satirically or ironically.
[121]
The members of the group Mr. Arthur vilified interact with
the public on a daily basis and their livelihoods depend upon their ability to
attract customers. Mr. Arthur’s defamatory comments were, it seems to me,
analogous to those made in Ortenberg: they were made
seriously and raised, objectively, the clear possibility not only of harm to
reputation, but also of harmful economic consequences from customers who may
have decided to avoid taxis driven by members of the group, members who were
easily identified and who stood accused not only of incompetence, but of having
used corruption to become taxi drivers. In my view, those comments would palpably have been seen by an ordinary person as
being defamatory, and therefore injurious, of the plaintiffs.
[122]
I would therefore allow the appeal and restore
the award of damages made by Guibault J.
Appeal
dismissed, Abella J. dissenting.
Solicitors for the appellant: El Masri, Dugal, Montréal.
Solicitors
for the respondents: Davies Ward Phillips & Vineberg, Montréal.
Solicitors
for the intervener Conseil National des Citoyens et Citoyennes d’origine Haïtienne:
Fraser Milner Casgrain, Montréal.
Solicitors for the intervener the Canadian Broadcasting Corporation:
Borden Ladner Gervais, Montréal.
Solicitors
for the intervener the Canadian Civil Liberties Association: Fasken Martineau
DuMoulin, Montréal.
Solicitors for the
interveners the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers’
Association and the Canadian Association of Journalists: Blake, Cassels &
Graydon, Toronto.