Bou Malhab v. Diffusion Métromédia CMR inc.

Bou Malhab v. Diffusion Métromédia CMR inc.
Collection
Supreme Court Judgments
Date
2011-02-17
Neutral citation
2011 SCC 9
Report
[2011] 1 SCR 214
Case number
32931
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Quebec
Subjects
Civil procedure
Torts
Notes
SCC Case Information: 32931
Decision Content
SUPREME COURT OF CANADA
Citation: Bou Malhab v. Diffusion Métromédia CMR inc.,
2011 SCC 9, [2011] 1 S.C.R. 214
Date: 20110217
Docket: 32931
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