Prud'homme v. Prud'homme

Prud'homme v. Prud'homme
Collection
Supreme Court Judgments
Date
2002-12-20
Neutral citation
2002 SCC 85
Report
[2002] 4 SCR 663
Case number
28117
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Quebec
Subjects
Torts
Notes
SCC Case Information: 28117
Decision Content
Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85
André Prud’homme, Gilles Prud’homme, Jean‑Paul Fortin,
André Fortin and Savino Cantatore Appellants
v.
Fernand Prud’homme Respondent
and
Canadian Broadcasting Corporation, La Presse Ltée,
3834310 Canada Inc., Groupe Transcontinental G.T.C. Ltée
and Fédération professionnelle des journalistes du Québec Interveners
Indexed as: Prud’homme v. Prud’homme
Neutral citation: 2002 SCC 85.
File No.: 28117.
2002: March 13; 2002: December 20.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for quebec
Civil liability — Municipal councillor — Defamation — Rules of civil liability applicable to wrongful individual act of municipal councillor in Quebec — Civil Code of Québec, S.Q. 1991, c. 64, arts. 1376, 1457.
Civil liability — Municipal councillor — Defamation — Common law defences — Whether defence of fair comment and defence of qualified privilege applicable to Quebec rules of civil liability — Civil Code of Québec, S.Q. 1991, c. 64, art. 1457.
Civil liability — Municipal councillor — Defamation — Ratepayers suing municipal councillor for defamation for remarks made at regular meeting of municipal council that allegedly interfered with their reputation — Whether municipal councillor committed a fault — Civil Code of Québec, S.Q. 1991, c. 64, art. 1457.
A school board purchased a lot located in a part of the city of Repentigny on which to build a school. The municipal council passed a bylaw which provided that only residents of that part of the city would have to cover the cost of a loan to pay for the infrastructure work. Some ratepayers, including the appellants, brought an action to have the bylaw quashed and the action was allowed by the Superior Court. The respondent, who was then a municipal councillor, tried unsuccessfully to persuade the other councillors to appeal the judgment. He decided to criticize publicly, for 20 minutes at a regular meeting of the council, the fact that no public debate had been held as to whether the judgment should be appealed. The appellants, offended by the statement, which was, in their opinion, full of malicious insinuations about them that made them out to be bad citizens, brought an action against the respondent in damages for interfering with their reputation, honour and dignity. The Superior Court allowed the action. The Court of Appeal set the judgment aside.
Held: The appeal should be dismissed.
Elected municipal officials are, as a rule, governed by public law. Before finding that the wrongful individual act of an elected municipal official in Quebec is subject to the rules of civil liability, a rule of public law that provides for this must be identified. When the new provisions of the Civil Code of Québec, and more particularly art. 1376, came into force, they no longer allowed the use of the method laid down by Laurentide Motels, insofar as that decision imposed an obligation on the individual to identify a public common law rule that made the private law applicable to his or her action in liability against the governmental body. Article 1376 C.C.Q., which is public law, expressly provides that the rules set forth in Book Five of the Civil Code of Québec on obligations “apply to the State and its bodies, and to all other legal persons established in the public interest, subject to any other rules of law which may be applicable to them”. The civil law principles of civil liability now apply, as a rule, to wrongful acts by such bodies. It therefore belongs to the party which intends to rely on the public law in order to avoid or limit the application of the general rules of civil liability to establish, where the need arises, that there are relevant public law principles that prevail over the civil law rules. Article 1376 C.C.Q. also applies to the persons who make up a public authority or a body of that authority, where their acts are connected with public duties. In this case, the respondent was acting as a member of a public authority in the performance of important political duties. The action thus gave rise to a public liability problem, within the meaning of art. 1376 C.C.Q.
Because Quebec civil law does not provide for a specific form of action for interference with reputation, the general rules that apply to questions of civil liability as laid down in art. 1457 C.C.Q. apply. In an action of that nature, the plaintiff must establish, on a balance of probabilities, the existence of injury, of a wrongful act, and of a causal connection. To demonstrate the existence of injury, the plaintiff must convince the judge that the impugned remarks were defamatory. Words may be defamatory because of the idea they expressly convey or by the insinuations that may be inferred from them. Whether remarks are defamatory is determined by applying an objective standard. It must be asked whether an ordinary person would believe that the remarks made, when viewed as a whole, brought discredit on the reputation of another person. In defamation cases, the wrongful act may derive from two types of conduct, one malicious and the other merely negligent. Determining fault is a contextual question.
An action in defamation involves two fundamental values: freedom of expression and the right to reputation. While elected municipal officials may be quite free to discuss matters of public interest, they must act as would the reasonable person. The reasonableness of their conduct will often be demonstrated by their good faith and the prior checking they did to satisfy themselves as to the truth of their allegations.
Because the laws governing elected municipal officials in Quebec are silent as to the personal liability of those officials for their wrongful individual acts, any public law rule that deviates from the jus commune of civil liability will therefore necessarily derive from the public common law. The common law qualified privilege that protects a municipal councillor at council meetings is so intimately connected to the public nature of the duties of office performed by the councillor, and to the unique requirements of that office, that it must be recognized as a principle of the public common law that is applicable in Quebec law. However, the defence of qualified privilege that applies to defamation actions in common law is based on the existence of a presumption of malice, and therefore cannot be incorporated in that form into the civil law rules, which are based on a presumption of good faith (art. 2805 C.C.Q.), without disturbing the coherence of its application in the area of public authority liability.
The fact that fault is determined from the context and that there is a presumption of good faith enables the Quebec rules of civil liability to provide equivalent protection for an elected municipal official and to protect the societal values and interests that the qualified privilege rule which applies to elected municipal officials in common law is designed to preserve; it is therefore not necessary simply to import that qualified privilege. In Quebec civil law, the criteria for the defence of qualified privilege are circumstances that must be considered in assessing fault. The only rules that apply to an action in defamation brought against an elected municipal official in Quebec are therefore still the rules set out in the Civil Code, applied based on the context, having regard to the requirements associated with the office of an elected municipal official and the specific constraints involved in municipal government. As well, for reasons relating to the process followed by an action for defamation in the common law, the method of legal analysis that must be applied to the defence of fair comment is also incompatible with the general scheme of the law of delictual civil liability. It is not only unjustified, but pointless, to import that defence into the civil law. The rules of civil liability already provide that a defendant may rely on all the circumstances that tend to demonstrate the non‑existence of fault. Because the criteria for the defence of fair comment are precisely the circumstances to be taken into consideration in determining whether a fault has been committed, those criteria are an integral part of Quebec civil law.
The intervention by the Court of Appeal in this case, and its decision to set aside the trial judgment, were not based on a general reassessment of the evidence. The issue in this appeal is the legal characterization and effects of the events. The issue is whether the respondent’s statement, when viewed in its context and in its entirety, was defamatory in nature and constituted a fault within the meaning of the law of civil liability, having regard to the judgment of the Superior Court and the findings of fact in that judgment. The characterization of the respondent’s statements for the purpose of determining whether they were wrongful may, depending on the circumstances, be a question of mixed fact and law. In the circumstances, the Court of Appeal must accord a degree of deference to the trial judge’s decision, and, in order to review that decision, must find palpable and overriding error.
In this case, the respondent did not commit a fault. The Superior Court focused its analysis on isolated elements of the respondent’s speech instead of examining it as a whole and in context, and this vitiated its assessment of the content and legal consequences of the speech. Even assuming that this was an error on a question of mixed fact and law, it must be regarded as a palpable and overriding error. The nature and gravity of the error justified the Court of Appeal’s intervention with respect to the trial judge’s decision. The respondent spoke to let the voters of the city know that he opposed the council’s decision not to appeal the judgment quashing the bylaw. He was entitled to question the assessment of the facts done by the judge. He remained steadfast in his original position, and argued that it was not the responsibility of the entire population of the city to pay the cost of the infrastructure work. The respondent cannot be faulted for failing, in the time that he was allowed and in a speech punctuated by interruptions and calls to order, to present an exhaustive account of all of the facts of the case. In his attempt to persuade the other councillors and his audience, he was entitled to stress the facts that appeared to support an appeal. Overall, the respondent acted in good faith, with the aim of performing his duties as an elected municipal official. While his comments about the appellants were sometimes harsh, they were made in the public interest. His remarks remained within the bounds of his right of comment, opinion and expression, as a municipal official, about the affairs of his municipality that were matters of public interest. If the respondent were to be found to have committed a fault in these circumstances, the right of free discussion within the municipal political precincts would be dangerously undermined, and the vitality of democracy at the local level would be weakened.
Cases Cited
Not followed: Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705; referred to: Steenhaut v. Vigneault, [1986] R.R.A. 548; Anns v. Merton London Borough Council, [1978] A.C. 728; Doré v. Verdun (City), [1997] 2 S.C.R. 862; Houde v. Benoit, [1943] Que. K.B. 713; Société Radio‑Canada v. Radio Sept‑Îles Inc., [1994] R.J.Q. 1811; Hervieux‑Payette v. Société Saint‑Jean‑Baptiste de Montréal, [1998] R.J.Q. 131, rev’d on other grounds [2002] R.J.Q. 1669; Beaudoin v. La Presse Ltée, [1998] R.J.Q. 204; Reference re Alberta Statutes, [1938] S.C.R. 100; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; R. v. Zundel, [1992] 2 S.C.R. 731; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v. Guignard, [2002] 1 S.C.R. 472, 2002 SCC 14; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Horrocks v. Lowe, [1975] A.C. 135; Shaw v. Morgan (1888), 15 R. 865; Ward v. McBride (1911), 24 O.L.R. 555; Edwards v. Gattmann (1928), 40 B.C.R. 122; Savidant v. Day (1933), 5 M.P.R. 554, aff’d [1933] 4 D.L.R. 456; Peckham v. Mount Pearl (City) (1994), 122 Nfld. & P.E.I.R. 142; Johnson v. Jolliffe (1981), 26 B.C.L.R. 176; Lamy v. Pagé (1910), 16 R. de J. 456; Belley v. Labrecque (1910), 20 Que. K.B. 79; Montreal Light, Heat & Power Co. v. Clearihue (1911), 20 Que. K.B. 529; Pichette v. Giroux (1914), 20 R. de J. 595; Joannette v. Jasmin (1914), 21 R.L. 78; Anjou 80 v. Simard, [1987] R.R.A. 805; Revelin v. Boutin, [1991] R.R.A. 507; Rouillard v. Malacort, [1993] R.R.A. 486; 129675 Canada Inc. v. Caron, [1996] R.R.A. 1175; Adam v. Ward, [1917] A.C. 309; McLoughlin v. Kutasy, [1979] 2 S.C.R. 311; Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3; Rubis v. Gray Rocks Inn Ltd., [1982] 1 S.C.R. 452; L. v. Éditions de la Cité Inc., [1960] C.S. 485; Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067; Paquet v. Rousseau, [1996] R.R.A. 1156; Conseil de la nation huronne v. Lainé, [1998] R.R.A. 495; Drouin v. La Presse Ltée, [1999] R.R.A. 714; Société Radio‑Canada v. Guitouni, [2001] R.R.A. 67; Picard v. Gros‑Louis, [2000] R.R.A. 62; Dhawan v. Kenniff, [2001] R.R.A. 53; Maison du Parc inc. v. Chayer, [2001] Q.J. No. 2663 (QL); Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; Repentigny (Ville de) v. Domaine Ti‑Bo inc., J.E. 96‑2062; Domaine Repentigny inc. v. Repentigny (Ville de), [1998] T.A.Q. 453.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms .
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 3, 4, 5, 44, 49, 52.
Cities and Towns Act, R.S.Q., c. C‑19, s. 47.
Civil Code of Lower Canada, art. 356.
Civil Code of Québec, S.Q. 1991, c. 64, Preliminary Provision, arts. 3, 35, 300, 1376, 1457, 2805.
Municipal Code of Québec, R.S.Q., c. C‑27.1, s. 79.
Quebec Act, 1774, R.S.C. 1985, App. II, No. 2.
Authors Cited
Baudouin, Jean‑Louis, et Patrice Deslauriers. La responsabilité civile, 5e éd. Cowansville: Yvon Blais, 1998.
Bisson, Alain‑François. “La Disposition préliminaire du Code civil du Québec” (1999), 44 McGill L.J. 539.
Brown, Raymond E. The Law of Defamation in Canada, 2nd ed., vols. 1‑2. Scarborough: Carswell, 1994 (loose‑leaf updated 2002, release 2).
Colas, Émile. “Le droit à la vérité et le libelle diffamatoire” (1984), 44 R. du B. 637.
Côté, Pierre‑André. “La détermination du domaine du droit civil en matière de responsabilité civile de l’Administration québécoise — Commentaire de l’arrêt Laurentide Motels”, dans Mélanges Jean Beetz. Montréal: Thémis, 1995, 385.
David, René. English Law and French Law: A Comparison in Substance. London: Stevens & Sons, 1980.
Gaudreault‑Desbiens, Jean‑François. “Le traitement juridique de l’acte individuel fautif de l’élu municipal, source d’obligations délictuelles ou quasi délictuelles. Un essai de systématisation critique du droit positif québécois” (1993), 24 R.G.D. 469.
Hétu, Jean, Yvon Duplessis et Dennis Pakenham. Droit municipal: principes généraux et contentieux. Montréal: Hébert Denault, 1998.
Jean, Claude. “Responsabilité civile délictuelle: la chasse aux élus et aux officiers municipaux est‑elle ouverte?”, dans Développements récents en droit municipal. Cowansville: Yvon Blais, 1989, 183.
Klar, Lewis N. Tort Law, 2nd ed. Scarborough: Carswell, 1996.
Lemieux, Denis. “L’impact du Code civil du Québec en droit administratif” (1994), 15 Admin. L.R. (2d) 275.
Linden, Allen M. Canadian Tort Law, 6th ed. Toronto: Butterworths, 1997.
McLaren, John P. S. “The Defamation Action and Municipal Politics” (1980), 29 U.N.B. L.J. 123.
Pineau, Jean, et Monique Ouellette. Théorie de la responsabilité civile, 2e éd. Montréal: Thémis, 1980.
Rogers, Ian MacFee. Municipal Councillors’ Handbook, 6th ed. Scarborough: Carswell, 1993.
Rogers, Ian MacFee. The Law of Canadian Municipal Corporations, 2nd ed. Toronto: Carswell, 2001 (loose‑leaf updated 2002, release 3A).
Tremblay, Jacques. “La responsabilité de l’élu municipal et sa protection contre certaines pertes financières: récents développements”, dans Développements récents en droit municipal. Cowansville: Yvon Blais, 1998, 155.
Trudel, Pierre. “Poursuites en diffamation et censure des débats publics. Quand la participation aux débats démocratiques nous conduit en cour” (1998), 5 B.D.M. 18.
Vallières, Nicole. La presse et la diffamation. Montréal: Wilson & Lafleur, 1985.
APPEAL from a judgment of the Quebec Court of Appeal, [2000] R.R.A. 607, [2000] Q.J. No. 2070 (QL), setting aside a decision of the Superior Court. Appeal dismissed.
William J. Atkinson, for the appellants.
Jean‑Jacques Rainville and Réjean Rioux, for the respondent.
Marc‑André Blanchard and Sylvie Gadoury, for the interveners.
English version of the judgment of the Court delivered by
L’Heureux‑Dubé and LeBel JJ. —
I. Nature of the Appeal
1 The appellants have appealed from a decision of the Quebec Court of Appeal setting aside a judgment of the Superior Court ordering the respondent to pay the appellants $58,198 in damages for defamation. The remarks in issue were made at a regular meeting of the Repentigny municipal council in the course of the respondent’s performance of his duties as a municipal councillor. In this appeal, the Court is asked to determine the rules of civil liability that apply to the wrongful individual act of an elected municipal official in Quebec. At the same time, it provides an opportunity to review and clarify the rules governing defamation actions in Quebec.
II. Origin of the Case
2 The facts are relatively complex. It is not necessary, for the purposes of this appeal, to reiterate them in full. It will suffice to review the facts that are essential to a proper understanding of the remarks made by the respondent on the evening of July 7, 1997.
3 In 1988, the Commission scolaire de Le Gardeur announced plans for the building of a regional secondary school, which would serve the neighbouring municipalities of Repentigny and Saint‑Sulpice. It instructed its Director General to negotiate the purchase of a site for the school. Although the city of Saint‑Sulpice offered a lot fronting on highway 343 at $0.25 per square foot, the Director General of the Commission scolaire chose a site on the eastern outskirts of the city of Repentigny. At that time, that part of the city was zoned agricultural. Hence, it could not be developed for construction purposes and had no road access. In response to a written request by the Director General in 1989, the Mayor of Repentigny agreed to do whatever was necessary to ensure that the school be built in the desired location. That unofficial commitment was made without a study of the potential cost of the infrastructure needed for building the school in that part of the city even being ordered. After some negotiations, and subject to the approval of a change in zoning, the Commission scolaire bought a lot located in the eastern part of Repentigny, the value of which ranged from $0.42 to $0.63 per square foot, for $1.48 per square foot. The sale was finalized on December 20, 1990.
4 In the winter of 1991, plans and specifications for completing the infrastructure work were filed. The anticipated cost of that infrastructure work, which consisted primarily of extending Iberville boulevard, came to $7,748,000. At that time, the City of Repentigny was one of the most heavily indebted cities in Quebec. In March 1991, with no real development plan, and without studying the financial impact of the project for ratepayers, the municipal council passed bylaw 1055 which provided that residents of the eastern part of the city would have to cover the cost, themselves, of a loan in the amount of $7,748,000, through an increase in property taxes and a special levy, amortized over 20 years. The fiscal repercussions were staggering. For some residents, the special tax came to $200,000. The City realized its error, and tried as best it could to reduce the cost of the work. Its efforts resulted in only a very slightly lighter tax burden on ratepayers, who decided to organize in order to bring an action to have bylaw 1055 quashed. That action was commenced in 1994 by 48 ratepayers, including the appellants. In the interim, the City initiated expropriation proceedings against the appellants, who refused to convey the part of their lands to be used for extending Iberville boulevard for the sum of $1.
5 In June 1997, at the conclusion of a one‑month trial, Croteau J. of the Superior Court quashed bylaw 1055, which he found to be illegal, abusive and discriminatory. In his judgment, Croteau J. commented particularly harshly on the municipal government. He specifically criticized the City of Repentigny for refusing to amend bylaw 1055, despite the enormity of the tax burden that it had imposed on residents of the eastern part of the city. He awarded the appellants costs against the City in the amount of $100,000 to reimburse them for their extrajudicial fees.
6 Fernand Prud’homme (the respondent), who is not related to the appellants, has been a municipal councillor for the City of Repentigny since November 1993. He disagreed completely with the judgment of the Superior Court quashing bylaw 1055, and tried to persuade the other councillors to appeal the judgment. They refused to back him up, and very much preferred to put an end to the entire matter, which had undeniably been extremely embarrassing for the City a few months before a municipal election. The respondent was upset by this attitude, and decided to criticize publicly the fact that no public debate had been held as to whether the judgment should be appealed, at a regular meeting of the Council. That meeting was held on the evening of July 7, 1997, the date on which the time for appeal expired. Between 100 and 150 residents attended the meeting, which was also broadcast on the community television channel to a potential audience of 62,000 viewers. For the purposes of this case, copies of the videotape were made available to the Court.
7 In a 20‑minute statement which was repeatedly interrupted by the Mayor, who tried in vain to end it, the respondent spoke against his colleagues’ refusal to make a decision as to whether the decision of Croteau J. should be appealed. He said that he himself favoured appealing the decision, on the ground that it was based on erroneous findings of fact. In essence, the respondent explained that bylaw 1055 was not discriminatory, since the facts clearly showed that the appellants had benefited financially from the plan to build the secondary school. One of the things that he stressed was that the appellants’ land had risen in value substantially because of the zoning change in the eastern part of the city. He also noted that the appellants had received compensation in the amount of $800,000 for the expropriation, after they had refused to convey the portion of their lands needed for the extension of Iberville boulevard for the sum of $1. In addition, the respondent challenged the finding by Croteau J. that the appellants had not been aware of the legal notices concerning the passage of bylaw 1055. He alleged that they had not objected to it. Quoting what had been said by the Commission de la protection du territoire agricole du Québec (C.P.T.A.Q.), he accused the appellants of trying to have it both ways: portraying themselves as real estate speculators in respect of part of their lands, and as farmers in respect of the rest. The respondent’s final point was to complain that the appellants had refused offers to settle that he considered to be reasonable. What he did was to criticize both the appellants and the other members of the Council.
8 The appellants were offended by this statement, which was, in their opinion, full of malicious insinuations making them out to be bad citizens. They called on the respondent to retract his words, but to no avail. They were determined to obtain reparation, and applied to the Superior Court for a special order to compel the respondent to appear on a charge of contempt of court. The application was dismissed by Michel Côté J. of the Superior Court, who found that the respondent was entitled to express his disagreement with the decision of Croteau J. without this constituting contempt of court. Despite having lost in their attempt, the appellants decided to bring action against the respondent in damages for interfering with their reputation, honour and dignity. On February 18, 1999, Tellier J. of the Superior Court allowed their defamation action and awarded damages of $58,198 against the respondent. On June 26, 2000, the Quebec Court of Appeal set that judgment aside.
III. Relevant Statutory Provisions
9 Charter of Human Rights and Freedoms, R.S.Q., c. C‑12
3. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.
4. Every person has a right to the safeguard of his dignity, honour and reputation.
5. Every person has a right to respect for his private life.
44. Every person has a right to information to the extent provided by law.
49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.
In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to exemplary damages.
Civil Code of Québec, S.Q. 1991, c. 64
PRELIMINARY PROVISION
The Civil Code of Québec, in harmony with the Charter of human rights and freedoms and the general principles of law, governs persons, relations between persons, and property.
The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication. In these matters, the Code is the foundation of all other laws, although other laws may complement the Code or make exceptions to it.
BOOK ONE
PERSONS
3. Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy.
These rights are inalienable.
35. Every person has a right to the respect of his reputation and privacy.
No one may invade the privacy of a person without the consent of the person or his heirs unless authorized by law.
300. Legal persons established in the public interest are primarily governed by the special Acts by which they are constituted and by those which are applicable to them; legal persons established for a private interest are primarily governed by the Acts applicable to their particular type.
Both kinds of legal persons are also governed by this Code where the provisions of such Acts require to be complemented, particularly with regard to their status as legal persons, their property or their relations with other persons.
BOOK FIVE
OBLIGATIONS
1376. The rules set forth in this Book apply to the State and its bodies, and to all other legal persons established in the public interest, subject to any other rules of law which may be applicable to them.
1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.
Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person and is liable to reparation for the injury, whether it be bodily, moral or material in nature.
He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.
IV. Judicial History
A. Superior Court of Quebec, February 18, 1999
10 After a detailed examination of the facts, Tellier J. stated a series of findings. First, he noted that the respondent’s statement was made at a regular meeting of the municipal council barely an hour before the time for appeal expired. Second, he observed that the respondent’s remarks appeared to have been made with aforethought. Third, he found that the respondent had been acting completely alone, in that his colleagues had refused to support his request for a special meeting to be held to consider whether the judgment of Croteau J. of the Superior Court should be appealed.
11 Tellier J. went on to acknowledge that everyone is free to state the reasons why he or she disagrees with a judgment. However, no one may abuse that right in such a way as to interfere with the honour or reputation of another person. Then, analysing the statement itself, Tellier J. criticized the respondent for a number of inexcusable omissions, and for referring to certain facts which were entirely outside the scope of any alleged discussion as to whether the judgment should be appealed. He deduced from this that the respondent had intended to humiliate the appellants by making them out to be bad citizens who did not pay their taxes and who were getting rich at the community’s expense. He added that the wrongdoing was such that the qualified privilege enjoyed by municipal councillors in the performance of the duties of their office could not protect him.
12 Tellier J. moved on to the assessment of damages, and observed that while it may be difficult to assign a value to moral injury with mathematical exactitude, it is nonetheless a real injury. He therefore ordered that the respondent pay each of the appellants the sum of $5,000 in damages. Having regard to the intentional nature of the respondent’s remarks, he awarded each of the appellants an additional $3,000 as exemplary damages for interference with their fundamental rights. He also ordered that $18,198 be paid for extrajudicial fees.
B. Court of Appeal of Quebec, [2000] R.R.A. 607
13 Michaud C.J., with whom Gendreau and Mailhot JJ.A. concurred, started by pointing out that the measured, unaggressive and polite nature of the respondent’s speech could be seen on the video recording. He then said that the respondent was entitled to criticize publicly a judgment that could increase the tax burden on all the ratepayers of Repentigny. Whether the judgment should have been appealed was a matter of public interest on which it was legitimate for him to state an opinion in the performance of the duties of his office as a municipal councillor. Moreover, his statement was directed more to the Mayor and the other members of the municipal council than to the appellants. The respondent was attempting to inform the public that he personally would have advocated an appeal.
14 Michaud C.J. added, on this point, that the finding made by Tellier J. that the respondent’s remarks were made with the intention of damaging or interfering with the appellants’ reputations was not [translation] “obvious”. In his view, the statement could just as well have been made to score political points in the lead‑up to a municipal election. Although the respondent’s comments were incomplete, in the context and in the time allowed, they were not defamatory and did not interfere with the appellants’ reputations.
15 In his final ruling, reaffirming the importance of freedom of political speech in a democratic society, Michaud C.J. held that the respondent was entitled to the defence of fair comment as defined by the Court of Appeal in Steenhaut v. Vigneault, [1986] R.R.A. 548. He also found that the respondent’s remarks were protected by the qualified privilege enjoyed by municipal councillors in the performance of the duties of their office.
V. Analysis
16 Elected municipal officials are the leading players in municipal democracy. They are chosen by the residents to look after the community’s interests; they take on a variety of responsibilities, some of which are provided by law and others of which are inherent in the nature of their position. Because their office is an elected one, municipal officials are accountable primarily to their constituents if they are unable to meet the demands of their position. However, like anyone else, elected municipal officials may commit wrongful acts that cause injury to individuals in the performance of the duties of their office. Because such a wrongful act cannot be adequately remedied at the polls, an effective sanction for it can be applied only by the courts. When this happens, because of the public nature of the duties of the office of elected municipal officials, the courts are faced with the question of how to apply the ordinary rules of liability in the jus commune to the wrongful individual acts of those officials.
17 The parties did not examine the impact of the public nature of the duties of the respondent’s office on the rules that apply to this appeal, but they analysed the respondent’s actions under the rules of the civil law system of liability. The respondent, citing case law, also raised two common law defences: fair comment, and qualified privilege. The appellants argued that the criteria that the first defence requires were not met, while the second defence simply could not be made in civil law. Before addressing the central issue in this appeal, the respondent’s liability, this Court must try to resolve the difficulties associated with identifying and defining the rules that apply to a defamation action against an elected municipal official in Quebec. For that purpose, the Court must revisit what it held in Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705, having regard to the provisions of the new Civil Code of Québec (“C.C.Q.”). First, however, we should briefly outline the nature and scope of the duties of the office of elected municipal officials, since it is precisely those duties of office that define the framework within which the allegedly wrongful conduct of the municipal councillor here must be analysed.
A. What Rules of Civil Liability Apply to the Wrongful Individual Act of an Elected Municipal Official in Quebec?
(i) Legal Status and Duties of Elected Municipal Officials
18 Despite the early emergence of municipal institutions in Quebec, the rights and duties of elected municipal officials are still not stated in precise, well-organized statutory provisions. The few obligations imposed on elected municipal officials by the statutes in question plainly do not provide a complete guide to their legal status, and are rather, for the most part, particular applications of a general duty to take care of the municipality’s affairs honestly and fairly. For example, there are laws that provide that they have an obligation to vote, they are entitled to remuneration, they have an obligation to declare financial interests, they have a duty of fairness that requires that they abstain from voting when they have a conflict of interest, and so on. (See J. Tremblay, “La responsabilité de l’élu municipal et sa protection contre certaines pertes financières: récents développements”, in Développements récents en droit municipal (1998), 155, at p. 157.)
19 Faced with the difficulties created by the legislature’s silence, the courts in Quebec have tried to define the legal status of elected municipal officials in order to identify their rights and duties. For example, depending on the circumstances, elected municipal officials have been characterized as mandataries of the public, representatives, legislators, officers and trustees. They have even been described as temporary employees. (See C. Jean, “Responsabilité civile délictuelle: la chasse aux élus et aux officiers municipaux est‑elle ouverte?”, in Développements récents en droit municipal (1989), 183, at p. 210; J.‑F. Gaudreault‑Desbiens, “Le traitement juridique de l’acte individuel fautif de l’élu municipal, source d’obligations délictuelles ou quasi délictuelles. Un essai de systématisation critique du droit positif québécois” (1993), 24 R.G.D. 469, at pp. 475‑82.)
20 The ambiguous nature of the legal status of elected municipal officials is the result of their status as representatives of both the municipality and their own constituents. That dual role means that on occasion they must choose between the best interests of the municipality and the demands of their constituents (I. MacF. Rogers, Municipal Councillors’ Handbook (6th ed. 1993), at p. 3). Ultimately, the circumstances will determine which interests they must favour. Sometimes, they will be required to justify their choices, and to do that they will have to refer to their duties and, if necessary, establish a hierarchy among them, while keeping the general interest of the municipality as their overarching concern (Gaudreault‑Desbiens, supra, at p. 484).
21 Generally speaking, elected municipal officials are officials of the municipal corporation (s. 47 of the Cities and Towns Act, R.S.Q., c. C-19, and s. 79 of the Municipal Code of Québec, R.S.Q., c. C-27.1). In that capacity, their rights and duties are those of a mandatary. As well, in the course of their participation in the legislative or administrative activities of the council, they are not personally liable for the council’s acts, unless they acted fraudulently or with gross negligence amounting to gross fault. Nor are they liable for the ultra vires acts of the municipality, unless they acted maliciously or in bad faith (Jean, supra, at p. 211; I. MacF. Rogers, The Law of Canadian Municipal Corporations (2nd ed. (loose-leaf)), at p. 214.16). However, in the case of the collegial acts of the council, elected municipal officials are, as a rule, personally liable for their wrongful individual acts.
22 The courts have found elected municipal officials to be personally liable not only for violating their statutory obligations, but also for breaching the “inherent” duties of their office. For example, decisions have held that elected municipal officials had a duty to be concerned about enforcing public order, not to promote their private interests at the expense of the municipality’s interests, to ensure that municipal archives and records are supervised and secure, to superintend and inform themselves about municipal works, to inform themselves about the important details of municipal government, to select the City’s employees judiciously and to ensure the integrity of its police service. More specifically, other judgments have acknowledged the existence of a duty to disclose information that could affect the proper administration of public affairs. From a systematic standpoint, these inherent duties may all be regarded as particular applications of a general duty to protect the municipality’s interests and the proper administration of its affairs (Gaudreault‑Desbiens, supra, at pp. 484‑85).
23 It can be concluded from this brief survey, summary though it is, that the relationship between elected municipal officials and the various players on the municipal state gives those officials a hybrid legal status. They must both prom