On February 17, 2011, the Supreme Court of Canada released its highly anticipated decision in Bou Malhab v. Diffusion Métromédia CMR Inc. et al., 2011 SCC 9, the first “group defamation” case considered by the SCC.
In a 6-1 majority decision, the SCC maintained a 2008 judgment of the Québec Court of Appeal (the “QCA”) and upheld the dismissal of a defamation class action brought on behalf of a group of Montréal taxi drivers based on comments made by former radio host and current independent MP, André Arthur.
The case dates back to comments made by Arthur in 1998 (on a radio station that was then owned by Métromédia) with respect to taxi drivers in Montréal. The appellant, a Montréal taxi driver, sought permission of the Québec Superior Court (the “QSC”) to bring a class action in moral and punitive damages on behalf of the group of approximately 1,100 taxi drivers whose mother tongue was Arabic or Creole. Permission to launch the class action was denied by the QSC in 2001, but this decision was overturned by the QCA in 2003.
In a 2006 judgment on the merits, the QSC granted the class action in part. It condemned the respondents to pay moral damages in the amount of $220,000 ($200 for each member of the group), but dismissed the claim for punitive damages. In a 2008 judgment, the QCA, in a 2-1 judgment, overturned the decision of the QSC on the basis that the comments in question were directed towards a group and did not directly or indirectly name any specific individual, and that an “ordinary citizen” would not conclude that the individual reputation and personal dignity of each member of the group was infringed.
In its decision dismissing the appeal, the majority of the SCC noted that “An action in defamation can succeed only if personal injury has actually been sustained by the plaintiff or plaintiffs” and that “This requirement also applies where allegedly defamatory or offensive comments are made about a group.”
The majority further stated, “In other words, defamation must go behind the screen of generality of the group and affect its members personally.” The court also made clear that the law of defamation applies in its entirety in the context of a class action.
The majority of the SCC held that “an individual will not be entitled to compensation solely because he or she is a member of a group about which offensive comments have been made” and that to obtain compensation, a member of the group must prove that an ordinary person would have believed that he/she personally suffered damage to his/her reputation. The majority indicated that a court should analyze impugned comments taking into account the circumstances in which they were made and that the following non-exhaustive factors (none of which is determinative) provide guidance in determining whether one or more members of a group sustained personal injury: the size of the group, the nature of the group, the plaintiff's relationship with the group, the real target of the defamation, the seriousness or extravagance of the accusation, the plausibility of the comments and the tendency to be accepted, and extrinsic factors including, the maker or target of the comments, the medium used and the general context.
The majority of the SCC upheld the dismissal of the class action on the basis that the appellant had not established that a personal injury was sustained by each member of the group.
The majority noted that while it understood that the group members who testified at trial were hurt by the comments, their subjective perception was not the applicable standard for determining personal injury and the group members' personal reputations “remained intact in the eyes of an ordinary person” (i.e. according to the applicable objective standard).
The majority of the SCC held that an ordinary person, while sensitive to the excessive remarks, would not have associated the impugned allegations made by Arthur with each taxi driver whose mother tongue is Arabic or Creole personally and would not have formed a less favourable opinion of each group member considered individually.
Justice Rosalie Abella, dissenting, noted that under both the common law and the civil law regimes, the fact that comments are aimed at a group is not, in itself, reason to deny a claim and that if multiple individuals can show they were defamed, each has a right of action. Justice Abella considered that the group targeted was “defined with sufficient precision and the statements specific enough to be harmful to the reputations of each of its members” and held that the impugned comments would have been seen by an ordinary person to be defamatory, and therefore injurious, to the plaintiffs.
El Masri Dugal represented the appellant with a team comprising Jean El Masri and Éric Dugal.
Davies Ward Phillips & Vineberg LLP represented the respondents with a team including David Stolow, Nick Rodrigo and Marie-Ève Gingras.
Fraser Milner Casgrain LLP, with a team comprising Stefan Martin and Mélisa Thibault, represented the intervenor Conseil National des Citoyens et Citoyennes d'origine haïtienne.
Borden Ladner Gervais LLP, with a team comprising Guy Pratte and Jean-Pierre Michaud, represented the intervenor the Canadian Broadcasting Corporation.
Fasken Martineau DuMoulin LLP represented the intervenor the Canadian Civil Liberties Association, with a team made up of Christian Leblanc and Marc André Nadon.
Ryder Gilliland of Blake, Cassels & Graydon LLP acted for the intervenors the Canadian Newspaper Association, Ad IDEM/Canadian Media lawyers Association and the Canadian Association of Journalists.