The Québec Court of Appeal (the "QCA") released on Friday, October 17, 2008, its judgment in the case of Diffusion Métromédia CMR Inc. and André Arthur v. Farès Bou Malhab and by a majority decision overturned the judgment of the Québec Superior Court (the "QSC") which had granted the group defamation class action and ordered the appellants to pay $220,000 in moral damages.

Davies, with a team made up of David Stolow, Nick Rodrigo and Louis-Martin O'Neill, successfully represented the appellants before the QCA.

The case dates back to 1998 and comments made by André Arthur during one of his radio shows with respect to taxi drivers in Montréal. At the time, Mr. Arthur was employed by Métromédia. Mr. Bou Malhab considered these comments to be defamatory towards taxi drivers whose mother tongue was Arabic or Creole and sought permission of the QSC to bring a class action in moral and punitive damages on behalf of a group of approximately 1100 taxi drivers. Permission to launch the class action was denied by the QSC in 2001, but this decision was overturned by the QCA in 2003.

In a 2006 judgment, the QSC granted the class action on the merits and condemned the appellants to pay moral damages in the amount of $220,000 ($200 for each member of the group). At trial, on the basis of the testimony of 11 taxi drivers who formed part of the group that they were hurt and offended by the comments in question, the QSC found that the comments in question were defamatory. The QSC expressly found that there was no evidence that the other 1089 members of the group who did not testify at trial were even aware of the comments in question and that there was a total lack of evidence that these members had suffered any damage as a result of the comments. Notwithstanding this finding, the QSC held that it could not simply grant the class action for 11 individuals without “distorting” the class action and it proceeded to award moral damages to each member of the group. The QSC rejected the claim for punitive damages.

By a majority judgment of October 17, 2008, the QCA allowed the appeal. The majority of the QCA noted that the issue before it was whether each member of the group had been personally defamed by the comments in question and that under Québec law, defamation is evaluated according to an objective standard namely, whether an “ordinary citizen” would find that the comments in question, taking into account the context in which they were made, infringed the reputation of each member of the group. The majority noted that the fact that an individual felt insulted or hurt by the comments was not the applicable standard for determining whether damages were suffered. The majority held that the comments in question were more commentary and opinion than a presentation of fact and that an “ordinary citizen” would not conclude that the individual reputation and personal dignity of each member of the group was infringed.

The majority of the QCA noted that the comments in question did not name, directly or indirectly, any specific individual, but rather were directed towards a group. The majority accepted the appellants’ submissions that under Québec law, in order for an individual who is part of a group that is the target of allegedly defamatory comments to succeed in an action for defamation, he/she must establish that he/she was specifically targeted by the comments in question (which requires more than the mere allegation that a group was attacked, that the individual is a member of the group and that, therefore, he/she was personally attacked) and that he/she suffered a direct and personal damage that is independent from the “common” damage allegedly suffered by the “group” or the “collectivity” in question. In the absence of these two criteria, Québec courts do not recognize that an individual can recover damages on the sole basis of a claim of “collective defamation”. The majority of the QCA also held that to accept in this case that unpleasant or offensive comments towards a group or collectivity were defamatory to each member of that group and would give rise to a personal right of action in defamation on behalf of each group member would undermine the right to freedom of expression.

Please do not hesitate to call David Stolow (514.841.6567), Nick Rodrigo (514.841.6548), or Louis-Martin O’Neill (514.841.6547) if you would like further information on this case or to obtain a complete copy of the decision.

Davies Ward Phillips & Vineberg LLP, with over 235 lawyers, practices nationally and internationally from offices in Toronto, Montréal, New York and an affiliate in Paris and is consistently at the heart of the largest and most complex commercial and financial matters on behalf of its North American and overseas clients.

The information and comments herein are for the general information of the reader and are not intended as advice or opinions to be relied upon in relation to any particular circumstance. For particular applications of the law to specific situations, the reader should seek professional advice.