Bou Malhab v. Diffusion Metromedia CMR inc., 2011 SCC9
In its recent judgment, the Supreme Court of Canada refused to
permit the certification of a class action by Arabic and
Creole-speaking Montréal taxi drivers, who had asserted they
had been subjected to the defamatory and discriminatory comments of
a local radio host. The Court refused to permit the class action on
the basis that the plaintiff had failed to show that each member of
the group had sustained personal injury as a result of the radio
The class action was commenced after a Montréal radio
host made disparaging comments while hosting a local radio morning
show. While commenting on the taxi industry in Montréal, the
host made comments concerning Montréal taxi drivers whose
mother tongue is Arabic or Creole, including accusations of
uncleanliness, arrogance, incompetence and corruption.
The proposed representative plaintiff, Mr. Bou Malhab, at that time a Montréal taxi driver whose mother tongue is Arabic, applied to the court for authorization to institute a class action for defamation, seeking compensation for the injury allegedly suffered by members of the targeted group of taxi drivers.
Decisions in the Courts Below
Justice Marcelin of the Quebec Superior Court dismissed the
plaintiff's application for authorization to institute the
class action. Her Honour held that because of the number of
individuals affected by the radio host's comments, it would be
impossible to prove a causal connection between those comments and
the injury sustained by each member of the group personally.
However, the Court of Appeal for Quebec set aside that decision and
authorized the appellant to institute the class action on behalf of
every person who had a taxi driver's licence in Montréal
on November 17, 1998 and whose mother tongue is Arabic or Creole.
The Court of Appeal held that even if it would be difficult to
establish individual injury, it was up to the court to determine
the extent to which the size of the group in question limits the
individual nature of the damage to reputation having regard to the
nature of the comments made. Justice Rayle, writing for a unanimous
court, acknowledged that while assessing moral damage in a class
action may be difficult, it should not preclude such an action at
the outset. Accordingly, the matter was referred back to the
Superior Court for a hearing on the merits.
The Trial on the Merits of the Claims
Justice Guibault of the Superior Court held that the radio
host's remarks were "racist, defamatory and
wrongful." Even if the evidence did not show that each member
of the group had sustained a personal injury, the trial judge held
that the collective recovery mechanism could make up for this. His
Honour therefore permitted the class action and awarded damages of
$220,000, payable to the Association professionalle de chauffeurs
de taxi, a non-profit organization representing taxi drivers.
The defendants successfully appealed to the Québec Court of Appeal which, by a majority, held that the defamatory and racist comments failed to injure any individual member of the class of taxi drivers. The Court of Appeal was of the view that the accusations had been diluted by the size of the group and that an ordinary person would not have believed the remarks made by the radio host. The plaintiff then appealed to the Supreme Court of Canada.
The plaintiff (now appellant) argued that because of the serious nature of the 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. The respondents argued that the action could not succeed as each of the taxi drivers did not sustain an injury that was direct, personal and separate from the injury suffered by the group.
Judgment at the Supreme Court of Canada
The Supreme Court of Canada, by a 6:1 majority, dismissed the
plaintiff's appeal. Writing for the majority, Justice Deschamps
noted that, under both the common law and civil law, defamation
requires that the right to the protection of reputation be
reconciled with the right to freedom of expression. She noted that,
as a general trend, courts have become increasingly concerned about
protecting freedom of expression.
Establishing that injury was the only element of civil liability at issue in this case, Justice Deschamps examined the "objective standard" used in the law of defamation to assess injury. She noted that "injury exists where an ordinary person believes that the remarks made, viewed as whole, brought discredit on the reputation of the victim." Since the right to the protection of reputation, which is the basis for an action in defamation, is an individual right, Justice Deschamps reasoned that only those who have suffered personal injury become entitled to compensation. Therefore, 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. Rather,
While noting that in any action in defamation, injury is proved
if the plaintiff satisfies the judge that the impugned comments are
defamatory, i.e. that an ordinary person would believe
they tarnished the plaintiff's reputation, Justice Deschamps
stated that, in the case of a group of individuals, special
attention must be paid to the personal nature of the injury. Where
the comments apply to a group, the plaintiffs must prove that an
ordinary person would have believed that each of them
personally sustained damage to his or her reputation.
Thus, Her Honour stated that "the judge must analyse the impugned comments, taking into account all the circumstances in which they were made." Her Honour went on to identify a non-exhaustive list of factors to be considered in determining whether one, some, or all members of a group have sustained personal injury as a result defamatory comments, including: (i) the size of the group; (ii) the nature of the group; (iii) the plaintiff's relationship with the group; (iv) the real target of the defamation; (v) the seriousness of extravagance of the allegations; (vi) the plausibility of the comments and their tendency to be accepted; and (vii) extrinsic factors.
Justice Deschamps ultimately found that the court must not conduct a compartmentalized analysis, or look to find all the relevant criteria, but rather determine whether an ordinary person would believe that the remarks, when viewed as a whole, brought discredit on the reputation of the victim. Examining the circumstances of the case, she noted that the relevant group of taxi drivers was of considerable size (1,100 members), the group was heterogeneous, the comments were subjective in tone and the radio host was a well known polemicist in the area. In light of all these factors, she concluded that an ordinary person would not have believed that the wrongful and racist comments made by the radio host damaged the reputation of each member of the group of taxi drivers working in Montréal whose mother tongue is Arabic or Creole. Although the comments were wrongful, the plaintiff's claim failed in the absence of proof that a personal injury was sustained by each of the members of the group.
Dissenting, Justice Abella concluded that an ordinary person would conclude that the remarks made were defamatory and injurious to the plaintiffs. She stated that "the remarks were blatantly racist, highly stigmatizing" and that, while the group targeted was large, it was "defined with sufficient precision and the comments were specific enough to raise, objectively, the clear possibility of harm to reputation."
The Supreme Court's judgment to dismiss the defamation class action is a significant decision, as it not only affirms that individualized personal injury is necessary for compensation to be awarded, but it also clarifies the criteria that ought to be considered in such cases, in the context of class actions.
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