Supreme Court of Canada affirms that harm is a prerequisite for liability in dismissing a defamation class action

April 20, 2011

In its recent judgment in Bou Malhab v. Diffusion Métromédia CMR inc, 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 host’s comments.

Background

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,

[i]t is not until the existence of personal injury sustained by each member of the group has been proved that the judge will focus on assessing the extent of the injury and choosing the appropriate recovery method, whether individual or collective.  If personal injury is not proved, the class action must be dismissed.  Thus, contrary to what is argued by the appellant, the possibility of ordering individual recovery of damages does not relieve the plaintiff of the burden of first proving that each member of the group sustained personal injury.  In other words, the recovery method cannot make up for the absence of personal injury.

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, “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, “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.”

Conclusion

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 which ought to be considered in such cases, in the context of class actions.

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