SCC Considers Defamation in a Group Context

On February 17, the Supreme Court of Canada released a decision that considered defamation in the context where comments had been made about a group.  The defendant, André Arthur, was a Montreal radio host known for making provocative remarks.  In a broadcast, he made quite negative, disparaging remarks aimed at Montreal taxi drivers, and especially those whose mother tongue was Arabic or Creole.  The plaintiff was a taxi driver whose mother tongue was Arabic.  He commenced a class action in defamation.

While the Supreme Court was considering defamation in the context of a claim made within Quebec civil law, the Court’s judgement contains numerous comments of general importance.  For example, the Court discussed the importance of striking a balance between freedom of expression and protection of reputation, and noted that it is a constantly shifting balance:

[19]                          Of course, there is no precise measuring instrument that can determine the point at which a balance is struck between the protection of reputation and freedom of expression.  In reconciling these two rights, the principles on which a free and democratic society is based must be respected.  The intersection point will change as society changes.  What was an acceptable limit on freedom of expression in the 19th century may no longer be acceptable today.  Indeed, particularly in recent decades, the law of defamation has evolved to provide more adequate protection for freedom of expression on matters of public interest.  In the common law, for example, this Court has reassessed the defence of fair comment (WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at paras. 49 et seq.) and recognized the existence of a defence of responsible communication on matters of public interest (Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640).

In terms of the discussion of defamation, the Court noted that three elements had to be proved:  fault (determined by looking at the defendant’s conduct through a reasonable person standard); personal injury (i.e. damage to reputation as determined from the ordinary person standard); and causality between the fault and the injury.

In the decision before the Court, the focus was on personal injury, as both fault and causality had not been disputed.  The question of personal injury was complicated both because of the procedural vehicle used to bring the action (a class action) and by the fact that the comments had been directed at a group (approximately 1,100 drivers whose mother tongues were either Arabic or Creole).  With respect to the class action, the Court reaffirmed that it was merely a procedural mechanism that did not alter the legal requirements of the underlying cause of action.

Of perhaps greatest interest is the Court’s attempt to set out factors that come into play when determining whether comments directed at a group cause personal injury sufficient to ground a claim in defamation.  Those factors are:

  1. Size of the Group – As a general principle, “the larger the group, the more difficult it is to prove that injury has been sustained by the member or members bringing the action.”
  2. Nature of the Group – “In general, the more strictly organized and homogeneous the group, the easier it will be to establish that the injury is personal to each member of the group.”
  3. Plaintiff’s Relationship with the Group – The focus here is on the plaintiff’s status, duties, responsibilities and activities within the group.  “A person who is a well-known member of a group is more likely to suffer damage to his or her reputation as a result of comments made about the group.”
  4. Real Target of the Defamation – “The judge must also consider the words, gestures or images used to convey the message…The more general, evasive and vague the allegations, the more difficult it will be to go behind the screen of the group.”
  5. Seriousness or Extravagance of the Allegations
  6. Plausibility of the Comments and Tendency to be Accepted – “Generally speaking, a plausible or convincing allegation will capture the ordinary person’s attention more and thus make it easier for that person to connect the allegation with each or some of the group’s members personally.”
  7. Extrinsic Factors – In this last category, one considers factors related to the maker of the comments, the medium used and the general context.

Weighing these factors, the majority of the Court (Abella J. dissenting) found that the plaintiff had not established injury of a personal nature.  Thus, the claim in defamation could not proceed.

Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9

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