Today we comment on a recent judgment of the Quebec Court of
Appeal adding to the infinite quest for a fair balance between
freedom of speech and protection of reputation. This case
reiterates the fine line between a reasonably fair and a defamatory
comment. Clients questioning the appropriateness of comments they
are about to make in the public sphere are welcome to seek our
opinion. As one of the parties in this case submitted a leave
application to the Supreme Court of Canada, this case is being
Gill v Chelin is a defamation case
which arose in the context of a labour dispute involving Ms. Annie
Chélin, a design professor. After her contract had not been
renewed by the Board of her University in 1991, her Union filed a
grievance based on a minor violation of a mandatory evaluation
Prior to the hearing the Union ceased to represent Ms.
Chélin. She then retained the services of private counsel
and, in 1993, the grievance arbitrator decided that her grievance
was well-founded. This decision was appealed and the case then took
unforeseen directions, which led to numerous Court hearings between
1993 and 2010, with Ms. Chélin losing every subsequent
hearing. Following a Superior Court decision rendered in 2007 by
Justice Riordan, a former professor who was quite involved in the
Union published magazine articles addressed to Union members about
Ms. Chélin's case.
Ms. Chélin considered the articles to be disparaging and
sued the author for an injunction and damages. The Superior Court
ordered the injunction and awarded $35,000 in damages. The Superior
Court considered that a simple reader of the article would likely
consider Ms. Chélin to be confrontational and querulant. The
Superior Court considered the author knowingly and willingly
misrepresented Justice Riordan's judgment and had the intention
to cause harm to Ms. Chélin, especially since the Union had
previously "abandoned" Ms. Chélin and because of
the author's previous involvement in the Union. The Superior
Court acknowledged, however, that the articles would not have been
disparaging had the author been an independent journalist.
Although the Court of Appeal implied that it did not approve of
the content of the article, it still overturned the Superior Court
judgment. In the view of the Court of Appeal, having recourse to
the Courts is an action in the public sphere that may reasonably
generate public interest in the matter.
The Superior Court had held the author liable while stating it
would not have done so were the author an independent journalist.
However, the Court of Appeal made it clear that the author's
previous involvement with the Union could not impose a heavier
burden that would have the effect of limiting his freedom of
speech. In addition, good faith is presumed in Quebec law and,
although the article content may have hurt Ms. Chélin,
nowhere in the evidence was it found that the author was prejudiced
This case is a good example of the fine line between defamatory
and reasonably fair comments, and the infinite quest for a fair
balance between two fundamental rights. This decision of the Quebec
Court of Appeal comes down more on the side of freedom of speech,
versus the inclination of the lower court towards protection of
reputation. Leave to appeal to the Supreme Court of Canada is
currently sought by Ms. Chélin. It will be interesting to
see if the Supreme Court will use this case to revisit this
enduring issue and expound on the extent to which an author's
background and the surrounding circumstances should be considered
in determining whether statements made were defamatory.
Prior to publishing information in the public that might be
potentially harmful to business partners or competitors, the best
practice is to ensure that facts reported are of public interest,
and presented in an accurate, fair and transparent manner. In case
of any doubt, we invite you to seek our advice.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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