Gilles E. Néron Communication Marketing Inc. v. Chambre des notaires du Québec

Gilles E. Néron Communication Marketing Inc. v. Chambre des notaires du Québec
Collection
Supreme Court Judgments
Date
2004-07-29
Neutral citation
2004 SCC 53
Report
[2004] 3 SCR 95
Case number
29519
Judges
McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie
On appeal from
Quebec
Subjects
Torts
Notes
SCC Case Information: 29519
Decision Content
Gilles E. Néron Communication Marketing Inc. v. Chambre des notaires du Québec, [2004] 3 S.C.R. 95, 2004 SCC 53
Canadian Broadcasting Corporation Appellant
v.
Gilles E. Néron Communication Marketing Inc. and
Gilles E. Néron Respondents
and
Chambre des notaires du Québec Intervener
Indexed as: Gilles E. Néron Communication Marketing Inc. v. Chambre des notaires du Québec
Neutral citation: 2004 SCC 53.
File No.: 29519.
2004: February 18; 2004: July 29.
Present: McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, LeBel and Deschamps JJ.
on appeal from the court of appeal for quebec
Civil liability — Defamation — Television network — Public affairs program citing only erroneous portions of letter sent by communications consultant to director of program to request right of reply — Contents of letter presented in incomplete and misleading manner — Whether broadcast legitimate given the public’s right to be informed and freedom of expression — Whether broadcast fell short of professional standards of reasonable journalist — Civil Code of Québec, S.Q. 1991, c. 64, art. 1457.
Civil liability — Defamation — Damages — Television network held liable in defamation solidarily with professional order — Damages difficult to divide between parties — Whether trial judge erred in imposing solidary liability — Whether liability in solidum should be ordered.
The French network of the Canadian Broadcasting Corporation (“CBC”) aired on the show Le Point a report on delays by the Chambre des notaires du Québec (“CNQ”) in dealing with disciplinary complaints against notaries and compensation claims made to its indemnity fund. The CNQ set out to counter the negative effects of the broadcast and the respondent N, who acted as a communications consultant for the CNQ, drafted a handwritten letter to request a meeting with the director of the show. In the letter, he lamented the prejudicial effect that the broadcast had had on the CNQ and pointed out certain errors. When contacted by a journalist of the CBC, N explained that the letter was nothing more than a request for a right of reply and that it was not meant for publication. The journalist pointed out to N two errors in the letter concerning two disgruntled complainants seen in the broadcast. N said that he was going to verify the information, which he had received from the CNQ, and respond within three days. A day before N’s requested time was to expire, Le Point broadcast a report crafted as a response to N’s letter, but quoted only the erroneous portions of the letter. Following this broadcast, a rash of letters were received from notaries who expressed indignation and dismay about the CNQ’s communication policies. In a communiqué sent to all notaries and all professional corporations, the Interprofessional Council, the media, the Office des professions and the Minister of Justice, the CNQ asserted that N had sent his letter on his own, without its authorization. Soon thereafter, the CNQ terminated contractual relations with N and his corporation. N lodged a complaint with the CBC’s ombudsman who acknowledged that one of the grievances was well‑founded in that the second broadcast seriously compromised the principle of fairness by failing to mention the five grievances that were central to N’s letter and only reporting on the two errors. N and his corporation initiated a claim for damages against the CBC and the CNQ. The Superior Court found the CBC liable in defamation, solidarily with the CNQ. The majority of the Court of Appeal dismissed the CBC’s appeal, concluding that the trial judge had correctly found fault in this case but that the CBC and CNQ were to be held liable in solidum, not solidarily. The CNQ is not a party to the appeal before this Court.
Held (Binnie J. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Iacobucci, Major, Bastarache, LeBel and Deschamps JJ.: Freedom of expression, and its corollary, freedom of the press, play an essential and invaluable role in our society. These fundamental freedoms are protected by s. 3 of the Quebec Charter of Human Rights and Freedoms and s. 2 (b) of the Canadian Charter of Rights and Freedoms . However, freedom of expression is not absolute and can be limited by the requirements imposed by other people’s right to the protection of their reputation. This right also receives protection under s. 4 of the Quebec Charter and under art. 3 C.C.Q. In an action in defamation, the two fundamental values of freedom of expression and the right to reputation must be weighed against each other to find the necessary equilibrium.
An action in defamation in Quebec is grounded in art. 1457 C.C.Q. Like any other action in civil, delictual and quasi‑delictual liability, the plaintiff must establish, on a balance of probabilities, the existence of injury, a wrongful act and a causal connection between the two. Furthermore, in order to prove injury, the plaintiff must demonstrate that the impugned remarks were defamatory. Here, the thrust of the CBC’s argument is the absence of fault. The other elements are not seriously at issue. The determination of fault in an action in defamation involves a contextual analysis of the facts and circumstances. Truth and public interest are factors to consider but they are not necessarily the determinative factors. It is insufficient in this case to focus merely on the veracity of the content of the second broadcast report. One must look globally at the tenor of the broadcast, the way it was conducted and the context surrounding it. The guiding principle of liability for defamation is that there will not be fault until it has been shown that the journalist or media outlet in question has fallen below professional standards. The conduct of the reasonable journalist becomes the all‑important guidepost.
In holding the CBC liable for defamation, the Superior Court and the Court of Appeal achieved the correct balance between freedom of expression and N’s right to respect for his reputation. Even though N’s handwritten letter cannot be considered private, in focussing only on the two errors in that letter, the second broadcast was misleading, giving the impression that the substance of N’s letter was limited to these two erroneous statements. The letter discussed other concerns relating to the image of notaries created by the broadcast. A person viewing the report in question would not be aware of these other concerns. Nor would the viewer be aware, from the structure of the report, that the letter was really just a request for a meeting and a right of reply. By leaving out vital pieces of information the CBC misrepresented N’s letter as a disingenuous attempt to mislead the CBC, and thereby the public. Moreover, the CBC intentionally and deliberately broadcast the errors in the letter before N could attempt to set things straight. The tone and tilt of the second broadcast pointed to its being more of a response to N’s criticism than an exercise in protecting the public interest. Lastly, the CBC’s own ombudsman found one of N’s complaints to be quite serious and considered the second broadcast to have the appearance of a settling of accounts. This is highly detrimental to the CBC’s case. The Ombudsman also openly implied that the journalists did not live up to proper journalistic standards, given the selective use of certain portions of the letter. These factors lead to the conclusion that the CBC intentionally defamed N and did so in a manner that fell below the professional standards of a reasonable journalist. By not respecting professional standards in this case, and given all the other surrounding circumstances, the CBC was at fault.
An order for liability in solidum is appropriate. The damages were of a global nature and it would be difficult, in practical terms, to divide the object of the global debt. Moreover, the trial judge is to be afforded significant deference in respect of his finding that the damages could not be easily divided. There has been little evidence adduced to explain how the damages could be apportioned between the CBC and CNQ in a just fashion. As such, this is the kind of case where the liability of the parties should be in solidum.
Per Binnie J. (dissenting): A legal rule that awards $673,153 in damages to N and his corporation on the basis of a broadcast which stated true facts, the publication of which was undoubtedly in the public interest, just because other lesser matters might also have been mentioned but were not, or further context might have been provided but was not, is inconsistent with s. 3 of the Quebec Charter of Human Rights and Freedoms including the public’s right to have access to true and accurate information about matters of legitimate interest and concern. In this case, despite the journalists’ boorish refusal to meet promptly with N and the poor quality of presentation evident in the second broadcast, civil fault should not be attributed to the CBC when all the relevant public interest issues are taken into account.
The first broadcast relied in part on two complainants, T and L, who agreed to be interviewed on the air. On learning about the broadcast, the CNQ (without checking its facts) leapt to the attack, alleging (erroneously) that L had lied about his complaint because the CNQ had in fact reimbursed him for a loss suffered at the hands of one of its members, and that T’s brother was the leader of a bizarre and violent cult. It was appropriate to bring these allegations to the attention of viewers, together with the journalists’ response.
First, while the second broadcast ought to have presented N’s letter in a more complete and balanced fashion, the lack of balance did not subvert the truth of the real matter of interest to the public, namely the truth of the CNQ’s allegations pertaining to the complainants. Second, although N ought to have been given time to verify the errors in the letter, the allegations against the complainants were demonstrably false whether or not N took the opportunity to verify them. Had N publicly acknowledged the falsity of the allegations, it would simply have added to the impression that the CNQ had responded impetuously to the original broadcast with a misinformed attack on the complainants, for which it should justly be called to account. Furthermore, it would not have improved N’s reputation for the CBC to report that he wanted time to find out about the truth of the CNQ’s allegations only after they were made. Third, the CBC was entitled to consider the information it had received to be public. There was no indication in N’s letter to the contrary. Fourth, the criticism of some aspects of the second broadcast by the CBC’s ombudsman cannot be equated with a finding of civil fault. He was not concerned with balancing the values of a free press and the respect for reputation. Had the other points made in N’s letter been broadcast they would not have pulled the sting, or served the public interest in any substantial way, or for that matter, have helped to save N’s reputation.
Cases Cited
By LeBel J.
Applied: Société Radio‑Canada v. Radio Sept‑Îles Inc., [1994] R.J.Q. 1811; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Prévost‑Masson v. General Trust of Canada, [2001] 3 S.C.R. 882, 2001 SCC 87; Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85; referred to: Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, 2002 SCC 18; Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421; Viel v. Entreprises immobilières du terroir ltée, [2002] R.J.Q. 1262; Aubry v. Éditions Vice‑Versa inc., [1998] 1 S.C.R. 591; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33.
By Binnie J. (dissenting)
Snyder v. Montreal Gazette Ltd., [1988] 1 S.C.R. 494; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459; Société Radio‑Canada v. Radio Sept‑Îles Inc., [1994] R.J.Q. 1811; Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85.
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, 5.
Civil Code of Québec, S.Q. 1991, c. 64, preliminary provision, arts. 3, 35, 36, 1457, 1478, 1525, 1619, 2125.
Code of Civil Procedure, R.S.Q., c. C‑25, art. 547.
Authors Cited
Baudouin, Jean‑Louis, et Patrice Deslauriers. La responsabilité civile, 6e éd. Cowansville, Qué.: Yvon Blais, 2003.
Pineau, Jean, Danielle Burman et Serge Gaudet. Théorie des obligations, 4e éd. par Jean Pineau et Serge Gaudet. Montréal: Thémis, 2001.
APPEAL from a judgment of the Quebec Court of Appeal, [2002] R.J.Q. 2639 (sub nom. Société Radio-Canada v. Gilles E. Néron Communication Marketing Inc.), [2002] Q.J. No. 4727 (QL) reversing in part a decision of the Superior Court, [2000] R.J.Q. 1787, [2000] Q.J. No. 2011 (QL). Appeal dismissed, Binnie J. dissenting.
Sylvie Gadoury and Judith Harvie, for the appellant.
Jacques Jeansonne and Alberto Martinez, for the respondents.
Michel Jetté, for the intervener.
The judgment of McLachlin C.J. and Iacobucci, Major, Bastarache, LeBel and Deschamps JJ. was delivered by
LeBel J. —
I. Introduction
1 This is an appeal from a majority judgment of the Quebec Court of Appeal dismissing the appeal of the Canadian Broadcasting Corporation (“CBC”) from the decision of Tellier J. at trial. Tellier J. found the CBC liable in defamation, solidarily with the Chambre des notaires du Québec (“CNQ”), for damages stemming from a program aired on January 12, 1995 on the CBC’s French language television network. The CNQ is not a party to this appeal. I dismiss the CBC’s appeal for the reasons that follow.
II. Background
2 In the months preceding January 12, 1995 (the date of the relevant broadcast), it appears that the CNQ was having difficulty managing certain disciplinary complaints and claims for compensation brought by the public. At the same time, starting in September 1994, the broadcasting team of the CBC’s Le Point news program undertook to produce a series of programs aimed at examining whether Quebec professional orders like the CNQ adequately protect the interests of the public. On December 15, 1994, the CBC aired a report on delays at the CNQ in dealing with disciplinary complaints against notaries and compensation claims made to the CNQ’s Indemnity Fund. A journalist from Le Point named Ms. Johanne Faucher interviewed two particularly disgruntled complainants, Mr. Yvon Thériault and Mr. Richard Lacroix.
3 It was at this point that the respondent Gilles E. Néron came into the picture. Mr. Néron is the founder of the respondent company Gilles E. Néron Communication Marketing Inc. (“GEN Communication”). Through his company, he acted as a communications consultant for public institutions, including the CNQ. On December 16, 1994, the CNQ set out immediately to counter the negative effects of the CBC broadcast. It was in this context that Mr. Néron drafted the following handwritten letter, on December 18, 1994, to request a meeting with Ms. Kateri Lescop, director of Le Point. In it, he lamented the prejudicial effect that the December 15th broadcast had on the CNQ, and points out certain errors. At this point, it would be useful to quote the handwritten letter in full:
[translation]
Kateri Lescop
Director
Le Point — CBC
Dear Ms. Lescop:
We met at the opening of the CNQ convention in Quebec City. I also helped make it possible for the CNQ, its president, Louise Bélanger, and its syndic, Mr. Mercier, to provide you with assistance in preparing your report on professional corporations. I work with the CNQ as an adviser.
I therefore watched last Thursday’s report on Le Point with interest.
I was unable to reach you Friday and would like to meet with you as soon as possible.
I invite you to read the news release and letter that I forwarded to Claude Langlois at the Journal de Montréal.
Personally, I found your report to be accurate for the most part. You referred to two cases, most regrettable ones at that, and gave two CNQ representatives the opportunity to comment.
However, I must take issue with the following:
1- The introduction, which was run repeatedly (the night before on Le Point, on the 10 o’clock news, that morning in the Journal de Montréal and again at the beginning of the report), led viewers to believe that notaries are not to be trusted and that the CNQ does not protect the public well.
2- Your conclusion that “Mr. Lacroix is considering writing to the Minister to ask him to put the CNQ under trusteeship” gave some people the impression that the chairman of the Office [des professions] was going to make this request, while others were left thinking that Le Point’s reporters came to this conclusion after their investigation.
3- In the report, the death threats made against the president are referred to as nonsense. Mr. Thériault is presented as a person who would be justified in making such threats. You failed to mention that he is the brother of the Thériault who was the Pope of the Infinite Love cult and who cut off his spouse’s arm.
4- You also failed to mention in the report that Mr. Lacroix was reimbursed by the CNQ for the money he lost.
5- I also have difficulty understanding the reference to notary Potiron, the fusty old man. I found this allusion inappropriate. The notarial profession has a 128-year history of faithful service in Quebec. There are many young notaries. They are excellent, dynamic and innovative legal professionals.
In recent years, more than 70% of all newly admitted notaries have been women.
All notaries, women and men, have been affected by your report. When you work hard and conscientiously for your clients, it is difficult to hear someone call you a thief and irresponsible.
There are people in any profession or situation who will take advantage of others, but the supervision and monitoring system established by the CNQ works. As Ms. Bélanger and Mr. Mercier explained to you, the notarial profession is, by its very nature and by the training required, a very demanding one, and this ensures a very high degree of integrity. However, if in an exceptional case a notary takes a chance, he or she will always be caught very quickly.
It is the subsequent process relating to justice and human rights that takes time.
Today, some notaries are rebuking the president for co-operating with you, but she did so in good faith, and also because it is her responsibility. When things like this take place, rationality does not always prevail.
Le Point is an important program that influences many people. There are things that must be put in perspective, and I would like to discuss them with you and Mr. Lépine if you see fit to do so.
The president, Ms. Bélanger, also hopes to have an opportunity very soon to make a comment in an upcoming broadcast of Le Point.
Ms. Lescop, for over 20 years my name has, by choice, been linked with ethics. I can attest that the last things notaries can, as a group, be accused of are failings at the level of rigour or of ethics.
I look forward to meeting with you in the next few days.
Yours sincerely,
(Signed) Gilles E. Néron,
President
(Underlining in original.)
4 Mr. Néron personally delivered this letter to the CBC’s offices. The following day, Monday, December 19th, a change of strategy occurred at the CNQ. A decision was made internally no longer to seek a right of reply. However, Mr. Néron’s letter was already in the CBC’s hands. Mr. Néron continued to attempt to contact Ms. Lescop between December 22, 1994 and January 6, 1995, leaving a few telephone messages for her. Although the CNQ had decided that it would no longer seek a right of reply, Mr. Néron still had a mandate from the CNQ to meet with Ms. Lescop and attempt to repair the negative image of notaries resulting from the December 15th broadcast. Ms. Lescop did not return any of Mr. Néron’s calls. On January 4th, however, the journalist Ms. Johanne Faucher contacted the CNQ’s internal communications adviser (Mr. Antonin Fortin) at the CNQ. In keeping with the CNQ’s decision, Mr. Fortin refused Ms. Faucher’s offer of a follow-up interview. Ms. Faucher questioned the internal communications adviser about the content of Mr. Néron’s letter to Ms. Lescop, to which he replied that the letter was a personal initiative of Mr. Néron’s.
5 In the afternoon of January 10, 1995, Ms. Faucher contacted Mr. Néron, who reiterated that the CNQ no longer sought a right of reply. He added that the December 18, 1994 letter was nothing more than a request for a right of reply. The letter was addressed to Ms. Lescop personally and was not meant for publication [translation] “or to be communicated in any form whatsoever”. Ms. Faucher pointed out two errors in the letter. She informed Mr. Néron that Mr. Thériault was not the brother of the infamous Roch Thériault (alias Moses) and that Mr. Lacroix had not yet been compensated by the CNQ. Mr. Néron’s response was that he was going to verify this information, which he had received from the CNQ, and that he would “get back to her no later than the upcoming Friday[, January 13, 1995] at the end of the day”.
6 Late in the afternoon of Thursday, January 12, 1995, Mr. Néron learned that the letter was the subject of a report to be aired that same night. This was a day before Mr. Néron’s requested time was to expire.
7 The report that night was crafted as a response to Mr. Néron’s letter of December 18th. First, significant portions of the December 15th broadcast were reproduced, in particular those parts relating to Mr. Thériault and Mr. Lacroix. The journalist then quoted the erroneous portions of the letter relating to Mr. Thériault and Mr. Lacroix. Since the content of the January 12th report is so relevant to the outcome of this appeal, I shall reproduce the same extracts that the trial judge chose to quote at pp. 1797-98 of his reasons. The segment was entitled Mise au Point:
[translation]
Achille Michaud
The CNQ was shocked and shaken by the report. It even refused to comment on it.
However, one of its communications advisers wrote to us, accusing us of having made several errors.
Tonight, we will respond to this criticism.
. . .
Johanne Faucher
The testimony of two individuals who have filed complaints with the CNQ revealed the following:
— the CNQ is slow to take action against notaries who are guilty of fraud;
— their investigations are unduly long; and
— these delays cause serious harm to the victims of fraud.
. . .
Johanne Faucher
The CNQ’s slowness to take action left him so distraught that he eventually made threats against its president.
A bodyguard keeps watch at the entrance to the CNQ’s offices. The president has received death threats.
Yvon Thériault
I scared them, but I told them. I don’t mind spending the rest of my life in jail, and it’s not certain that I won’t be spending time in prison.
I’m going to break windows. I’m going to make noise. I’m going to raise a ruckus. I’m not going to leave them alone, in other words. I’m not a murderer; I won’t kill anyone. I told them I wouldn’t kill anybody. They were the ones who thought I wanted to kill somebody. I basically let them think that. But I would have broken things. I would have made noise, that’s for sure. I would have raised hell to get my case to the top of the pile, because they told me that the president had just gotten back from vacation and that she had 200 cases.
. . .
Johanne Faucher
The CNQ didn’t like our report one bit; it, and in particular its communications adviser, Gilles E. Néron, accuses us of having tarnished the reputation of all of Quebec’s notaries. In his criticism of our report, Mr. Néron made a number of erroneous statements, and we would like to set the record straight.
Mr. Thériault is presented as a person who would be justified in making such threats. You failed to mention that he is the brother of the Thériault who was the Pope of the Infinite Love cult and who cut off his spouse’s arm. [Excerpt from Mr. Néron’s letter]
Mr. Thériault, are you the brother of Rock Thériault, also known as Moses?
Yvon Thériault
Absolutely not.
I’m not his brother and I’m not a relative of his either, not a close or distant relative. If you need proof, here’s my birth certificate, which is from New Brunswick: Drummond, New Brunswick, the son of René Thériault.
I even obtained a copy of Rock Thériault’s baptismal certificate, which doesn’t come from New Brunswick but from the parish of the Cathedral in Chicoutimi. Rock Thériault was born in Rivière du Moulin, near Chicoutimi. When he was young, his family moved to Abitibi and then moved to Thetford Mines not long after that.
I found out that the CNQ was spreading totally unverified information like this and I would suggest that they check their facts. It’s easy to get someone’s birth certificate. I was able to do it myself.
. . .
Johanne Faucher
In his criticism, the CNQ’s adviser claims that we did not tell the whole truth.
You also failed to mention in the report that Mr. Lacroix was reimbursed by the CNQ for the money he lost. [Excerpt from Mr. Néron’s letter]
In an affidavit, R. Lacroix confirms that he has never received a single penny in compensation from the CNQ. In fact, the CNQ has not yet decided if it will investigate Claude Laurier’s case. [Emphasis added by Tellier J.]
8 The effect of the January 12th broadcast was felt immediately at the CNQ, most particularly by Mr. Néron. A rash of letters were received from notaries who, after seeing the broadcast, expressed indignation and dismay about the communication policies of the CNQ. Nobody from the CNQ contacted Mr. Néron the next day, but a communiqué signed by its president was circulated to all notaries and professional corporations, the Interprofessional Council, the media, the Office des professions and the Minister of Justice. The CNQ asserted that Mr. Néron had sent his letter on his own, without its authorization:
[translation] On January 12, 1995, Le Point (CBC) quoted two specific passages from a letter written by Gilles E. Néron, an outside communications consultant, to the program’s director in response to a report that had aired on December 15, 1994, concerning the Ordre professionnel’s mission to protect the public.
We would like to state that Mr. Néron sent this letter on his own initiative, without instructions from or the prior authorization or consent of the Chambre des notaires du Québec.
Louise Bélanger,
President
9 Not long thereafter, on January 19, 1995 to be precise, at a meeting of the CNQ’s Administrative Committee, it was decided that the CNQ would immediately terminate contractual relations with Mr. Néron and his company. Mr. Néron received a letter of termination from the president that same day.
10 On January 24, 1995, another communiqué was signed by the president and sent to all notaries and professional corporations, the media, the Interprofessional Council, the Office des professions and the Minister of Justice. This communiqué made it known that the CNQ had terminated its business relationship with Mr. Néron and his company. The final two paragraphs of this communiqué read as follows:
[translation] Furthermore, the Chambre des notaires will be meeting soon with the Le Point team to correct the negative perceptions conveyed on two occasions in these programs and to explore the possibility of airing a new report that would more accurately reflect the professionalism and integrity of notaries and of the Ordre.
Also, the Chambre des notaires has ceased all business relations with the communications firm Gilles E. Néron, Communication marketing inc.
It would be six months before Mr. Néron learned of the wide distribution of this memo. The effect on him would be devastating.
11 On May 18, 1995, Mr. Néron lodged a complaint with the Conseil de presse du Québec against Ms. Lescop and Ms. Faucher, and he later included Jean Pelletier as editor-in-chief. A similar complaint was filed with the CBC’s ombudsman. The Conseil de presse decided to abandon its investigation into Mr. Néron’s complaints on December 18, 1996, stating that the affair was sub judice. On July 12, 1995, the CBC’s ombudsman, Mr. Mario Cardinal, rendered a decision concerning Mr. Néron’s complaints. He dismissed four of the grievances, but acknowledged that one of them was well founded:
[translation] You also accuse them of referring to two errors you allegedly made in your letter in order to make a story out of them. This part of your complaint is valid. Le Point decided to air a program entitled Mise au point, which it even described as a response to your criticism. Such a broadcast, like any news broadcast, must be subject to the journalistic principles of accuracy, integrity and fairness. The January 12 broadcast seriously compromised the principle of fairness by failing to mention the five grievances that are central to your letter and only reporting on the two errors. The host did say at the beginning of the program, “One of its [the CNQ’s] communications advisers wrote to us, accusing us of having made several errors. Tonight, we will respond to this criticism”. It might have been expected that the “errors” you accused them of making would be looked at one by one in the program and that the point of view you expressed would be reflected impartially, thereby treating your criticism fairly and with dignity. This was not the case. In my view, making a complaint is the same as expressing an opinion. Therefore, when a complaint is discussed on air, the person making the complaint should be accorded the same rights and respect as any other person interviewed for a program, and the excerpts from the complaint that are actually broadcast must be selected, similarly to how an interview is edited, so as to represent the essence of the complaint, without distortion.
Instead, they chose to discuss only the two errors in your letter. This gave the program the appearance of a settling of accounts, something that has no place at the CBC. . . . [Emphasis in original.]
12 On January 11, 1996, GEN Communication and Gilles E. Néron in his personal capacity initiated a claim for damages against the CBC, the CBC’s ombudsman, and the CNQ in the amounts of $1,650,000 for the company and $4,285,608 for Mr. Néron. The claims against the Ombudsman and the CNQ are not before this Court. The claim against the CBC is essentially one of extra-contractual liability under art. 1457 of the Civil Code of Québec, S.Q. 1991, c. 64 (“C.C.Q.”).
III. Decisions of the Courts Below
A. Superior Court, [2000] R.J.Q. 1787
13 On June 20, 2000, Tellier J. rendered judgment. He found the CBC and the CNQ liable and ordered them to pay damages to the plaintiffs Néron and GEN Communication.
14 The case against the CBC was grounded in art. 1457 C.C.Q. Mr. Néron and his company asserted that the CBC had defamed them in the preparation and in the content of a public information program. Only the content of the January 12th broadcast was called into question. Tellier J. found that the journalists were subject to an obligation of means (Société Radio-Canada v. Radio Sept-Îles Inc., [1994] R.J.Q. 1811 (C.A.)). According to the judge, the use in the broadcast of Mr. Néron’s handwritten letter of December 18, 1994 was problematic. The letter was an attempt to arrange a meeting and set things straight. The trial judge found that the letter was not a formal response to the December broadcast, but a set of specific concerns the CNQ had, which were listed with a view to obtaining a meeting to further discuss the matter.
15 The trial judge rejected the journalists’ contention that the letter was an official document of the CNQ. It was a handwritten letter with Mr. Néron’s letterhead and should be considered a “private letter”. The journalists should have sought the author’s permission before going public with the letter, which they did not do.
16 The trial judge conceded that the letter contained two errors. Le Point’s journalists were perfectly aware of this and let Mr. Néron know they were on January 10, 1995, two days before the broadcast. In response, Mr. Néron requested three days to verify the information. Nevertheless, the erroneous portions of the letter were broadcast only two days later. This, said the trial judge, had the effect of denying Mr. Néron the opportunity to correct his mistakes.
17 The trial judge found that the second broadcast tended to show that the journalists considered the letter to be a criticism of their work. Tellier J. was in agreement with the decision of CBC’s ombudsman. Le Point’s journalists committed errors of their own. They had a duty to deal fairly with the whole of the criticism. Instead they singled out Mr. Néron’s errors in a manner which amounted more to a settling of accounts. Although it is possible that Le Point’s journalists were subject to time constraints, this cannot justify violating a person’s right to respect for his or her reputation and privacy (arts. 3, 35 and 36 C.C.Q. and ss. 4 and 5 of the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12 (“Quebec Charter”)).
18 Tellier J.’s first step, before assessing damages, was to affirm his reprobation of the acts committed by the defendants CBC and CNQ. This he saw as necessary and proper in circumstances like these where the fundamental rights of a person have been violated.
19 The trial judge found that the damage sustained by Mr. Néron was evident and substantial. Before the events in question he had a decent standard of living and was widely respected and appreciated by his clients. At the time judgment was rendered, he had lost everything, including his partner, his co-owned property and his automobile. He was forced to cash in his retirement fund to pay for a modest two‑room apartment. In addition, he had undergone treatment to combat depression. Tellier J. noted that no one wants to place their trust in a communications counsellor who no longer has good relations with the media. The trial judge concluded as follows, at p. 1823:
[translation] Since December 1994, Néron has lost all credibility in his field. His biggest client wrongfully repudiated him and made sure everyone knew about it. For its part, the CBC aired its second report, disclosing a letter without first obtaining the author’s authorization, and committed other wrongful acts against him. The combined effect of these two events was to put an abrupt end to his career as a communications adviser with no hope of resuming it.
20 Tellier J. awarded Mr. Néron, in his personal capacity, $475,000 for loss of salary and other pecuniary benefits. The judge awarded moral damages in the amount of $300,000, based on his finding that the same elements were in play in this case as in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130. The judge then considered jurisprudence indicating that a party can request the payment of extrajudicial fees if they have resulted from the adverse party’s bad faith. The judge awarded $246,311.54 in this respect for the legal fees of lawyers past and present, the costs of expert evidence, and the time that Mr. Néron spent personally preparing his case. Having concluded that the fault of the CBC and its journalists was intentional, the learned judge granted a further $50,000 in exemplary damages, to be divided equally between Mr. Néron and his company GEN Communication. Finally, the trial judge dismissed Mr. Néron’s claims in respect of his personal debt and the loss of his RRSP. Tellier J. considered that both these items were covered by the award for lost salary. In total, Mr. Néron was personally granted damages in the order of $1,039,207. With the exception of the exemplary damages, the judge decided that the liability was solidary and that the damages (other than exemplary), with interest and an additional indemnity (art. 1619 C.C.Q.), were to be split equally (50-50) between the CBC and its journalists on the one hand and the CNQ on the other.
21 The pecuniary losses of GEN Communication were set at $200,000 for loss of sales and $25,000 for defamation, and $50,000 was awarded in exemplary damages. Here again, with the exception of the exemplary damages, the learned judge determined that the liability was solidary and, consequently, that the sum of $225,000, with interest and an additional indemnity (art. 1619 C.C.Q.), was to be shared equally between the CBC and its journalists on the one hand, and the CNQ on the other.
22 Finally, Tellier J. ordered provisional execution for payment in full of the exemplary damages, lawyer’s fees and personal preparation costs (art. 547 of the Code of Civil Procedure, R.S.Q., c. C-25). As concerns the rest of the damage award, the provisional execution order was set at 50 percent of the amount. The Quebec Court of Appeal would later reduce the amount of this provisional execution order to $200,000 while the matter was before that court.
23 The trial judge dealt with several other legal issues that are no longer relevant to the outcome of this appeal. He rejected Mr. Néron’s claim against the CBC’s ombudsman for having rebroadcast the content of the Mise au Point segment without his authorization, based on the absence of causation and on the absence of intention on the Ombudsman’s part. The judge dismissed Mr. Thériault’s action against Néron and GEN Communication, stating that any damage to Mr. Thériault’s reputation caused by the broadcast of the content of the letter was the responsibility of the CBC and of Mr. Thériault himself. As for the actions in warranty, the judge ordered the CBC and the Commerce Group to pay the costs of the actions in warranty against each of them, and also ordered the Commerce Group to pay $82,103 to Gilles E. Néron with interest and an additional indemnity starting from the time of the summons.
24 Néron and GEN Communication’s action against the CNQ is of greater relevance to this appeal because the trial judge held the CNQ and the CBC to be solidarily liable, on a 50-50 basis, for all the above-mentioned damages, with the exception of the exemplary damages. The trial judge found that the CNQ was liable in contract to Néron and his company. Under art. 2125 C.C.Q., the CNQ had the right to unilaterally end its contractual relations with Néron and GEN Communication. However, the means used to do so were indicative of bad faith on the CNQ’s part. The trial judge concluded that the CNQ had put an end to the contract for false reasons, which the CNQ intentionally circulated to a broad public. By doing so, it caused damage to Mr. Néron and his company.
B. Quebec Court of Appeal, [2002] R.J.Q. 2639
25 The CBC (including its journalists and the Ombudsman), the CNQ and Mr. Thériault all appealed. Gilles E. Néron and GEN Communication cross-appealed against the CBC and the CNQ, seeking a revision of Tellier J.’s decision not to include in his damage calculations Mr. Néron’s RRSP loss of $440,901 and personal debt of $48,500. Mr. Néron and GEN Communication also sought to vary the judgment below with respect to the liability of the Ombudsman and damages stemming from his actions, which were claimed to be in the order of $75,000 for damage to