February 17, 2011
Bou Malhab v. Diffusion Métromédia, 2011SCC9
Requirement for personal injury by each member of the class
[46] … the scheme of the Quebec Charter confirms the requirement of proof of a personal injury. The right to the protection of reputation, which is the basis for an action in defamation, is an individual right that is intrinsically attached to the person, whether the person is legal or natural. A group without juridical personality does not have a right to the safeguard of its reputation. Moreover, s. 49 of the Quebec Charter provides that only the “victim” of interference with a right is entitled to compensation, which confirms that only those who have suffered personal interference may obtain compensation. As Bernier J.A. wrote in Jeunes Canadiens pour une civilisation chrétienne, at p. 495:
[TRANSLATION] [The Charter] is directed at the person considered individually and makes these remedies [under s. 49] available to the person where the person’s rights under the Charter are violated; a party can pursue these remedies only as a person whose Charter rights have been infringed, that is, as a “victim”.
In defamation law, the requirement of proof of a personal injury also contributes to maintaining the balance between freedom of expression and the right to the protection of reputation.
Factors in determining whether personal injuries actually suffered by members of a group.
[92] In short, having regard to all of the circumstances, I find that the group is of considerable size and is heterogeneous, that the characteristics attributed to the members of the group are individual and do not lend themselves well to extrapolation, and that the remarks are an extreme, irrational and sensationalist generalization. Accordingly, an ordinary person, while sensitive to such excessive remarks, would not in my view have formed a less favourable opinion of each Arab or Haitian taxi driver, considered individually. I therefore conclude that Mr. Arthur’s comments, while wrongful, did not damage the reputation of each Montréal taxi driver whose mother tongue is Arabic or Creole. The plaintiff did not prove that a personal injury was sustained by the members of the group.
size of the group
[85]First of all, the relevant group is of considerable size. The trial judge estimated that the group made up of Montréal taxi drivers whose mother tongue is Arabic or Creole has about 1,100 members. That is a large number. While I am not prepared to rule out the possibility that comments made about such a large group may in certain very specific circumstances reflect on each of its members personally, there are several reasons why that cannot be the case here.
nature of the group
[86] … In such a heterogeneous group, it is implausible that all members would have the specific failings imputed to them by Mr. Arthur. Certain characteristics could be attributed to such a heterogeneous group only by extrapolation. Furthermore, given Quebec’s French language requirements and the origin of the drivers in question (drivers from Lebanon and Haiti testified at the trial), Mr. Arthur’s general allegation concerning language was unlikely to reflect on each driver.
plaintiff’s relationship with the group
[89] In addition, Mr. Arthur was a known polemicist in the area where his show was broadcast. He had become known for his distasteful and provocative language. The radio show during which the impugned comments were broadcast had a satirical style and tried to sensationalize things. This is not intended as a value judgment on shock jock radio, but the context of such shows does have an impact on the real effect of comments made on them. People cannot of course use their general tendency to speak in bad taste as an excuse to defame others on air, but it must be acknowledged that comments made by Mr. Arthur in such a context have very little plausibility from the point of view of the ordinary person.
real target of the defamation
seriousness or extravagance of the allegations
[88] Moreover, the impugned comments were subjective in tone and were an extreme generalization. Apart from a single unsatisfactory personal experience that Mr. Arthur recounted, without identifying any driver, the assertions were general and vague. The comments often took the form of questions and set out no specific facts. Instead, they alluded briefly to uncleanliness, corruption, incompetence, etc. Mr. Arthur’s comments could only stem from an intolerance of immigrants in general.
plausibility of the comments and tendency to be accepted
[87] Mr. Arthur’s statements conveyed the message that taxi drivers whose mother tongue is Arabic or Creole should be blamed for all the problems he said existed in the taxi industry in Montréal. There is simply nothing rational about this suggestion, as the trial judge pointed out (at para. 87).