r v. PIERRE MAILLOUX, 2011 QCCA 992

Unofficial English Translation Gordon c. Mailloux 2011 QCCA 992 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-020077-095 (500-06-000386-074) DATE: May 30, 2011 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. MARIE-FRANCE BICH, J.A. PAUL VÉZINA, J.A. ERWIN GORDON APPELLANT / Petitioner v. PIERRE MAILLOUX and CANADA BROADCASTING CORPORATION and GUY-A. LEPAGE and AVANTI CINÉ VIDÉO INC. and LE GARS DE LA TÉLÉ INC. RESPONDENTS / Respondents JUDGMENT [ 1 ] The appellant appeals from a judgment dated September 16, 2009, rendered by the Superior Court, District of Montreal (the Honourable Mr.

Judge Marc de Wever), which refused to authorize the bringing of a class action following the broadcast of racist remarks made by the respondent Mailloux during a taping of Tout le monde en parle , which aired on September 25, 2005.

The appellant seeks to represent: [ translation ] Every person domiciled and residing in the Province of Quebec, who is a member of the African-Canadian community, which includes about 175,000 individuals; [1] [ 2 ] Without lending any support to Mailloux's remarks, [2] the trial judge deemed that the appellant's motion for authorization, which, in his opinion, sought to bring a class action for defamation, did not meet the requirements of paragraphs (

a) and (

b) of

article 1003 C.C.P . [ 3 ] According to the appellant, the trial judge erred in characterizing the action that he intended to bring on his own behalf and on behalf of the above group: it is not, in fact, a defamation lawsuit (a remedy targeting remarks that are detrimental to the personal reputation of the representative and the members of the group) but a remedy intending to punish a violation of their rights to equality and non-discrimination (

section 15 of the Canadian Charter of Rights and Freedoms ,

section 10 of the Charter of human rights and freedoms) [3] and the right to dignity (section 4 of the Quebec Charter ). There are also alleged violations of the Broadcasting Act and the Broadcasting Licence Fee Regulations, 1997 . This error as to the nature of the remedy, an error of law, irremediably affected the way the judge approached the dispute and justifies the intervention of the Court. * * [ 4 ] Following a detailed analysis of the allegations of the re-amended motion for authorization to bring a class action, the judge found that the remedy considered by the appellant was a defamation lawsuit, normally governed by

article 1457 C.C.Q. We share his opinion, which is supported by the recent Supreme Court judgment in Bou Malhab v. Diffusion Métromédia CMR inc. [4] [ 5 ] In that case, the Supreme Court considers that the "racist or discriminatory comments" [5] made by former radio host André

Arthur are defamatory and clearly states that such remarks, because they violate the dignity of their object, are such as to cause adecrease in the esteem and respect that other people may have for them, thereby impugning their reputation.

They are indeed defamatorycomments. [6] According to Deschamps J., writing for the majority, defamation can involve allegations of fact or merely offensive andinsulting comments.[6] Whichever type they are, defamatory remarks do indeed denigrate the person either for what they have allegedlydone or for who they are, thus violating their dignity by exposing them to disdain, lack of respect or aversion of others and sullying theirreputation, all in one fell swoop. Considered as a whole, this constitutes a violation of

section 4 of the Charter of human rights andfreedoms and of

article 3 C.C.Q. [7] The fact that the disparaging remarks are discriminatory does not prevent them from being defamatory. Such comments, whenthey bad-mouth, belittle, discredit or insult, may be considered a subset of defamatory remarks. They attack a vulnerable group that isoften the victim of pernicious stereotypes and, because of this, the remarks are particularly offensive. Beyond the moral injury that theyinflict on the persons concerned, they can perpetuate the distrust that such groups face, reinforce the prejudices of some individuals, oreven create these prejudices.

In such cases, the comments are an active attempt to discredit the reputation of the members of the group,merely because they belong to this group (though obviously, not every comment that is unpleasant to hear is necessarily contemptuous ordetrimental to reputation, and discussing delicate or polarizing subjects is not prohibited, nor should it be). [8] In the present case, the remarks of Mailloux, who asserts the intellectual inferiority of blacks, are most certainly outrageous,contemptuous, and insulting, clearly implying that these individuals are less worthy of consideration and do not deserve to be treated asequals.

Contrary to what the appellant suggests, it is not possible in this case to separate the violation of human dignity (which causesharm to the individual's inner being and integrity) and the injury to reputation (which is dependent on other people's opinion). [9] In fact, this is precisely what appears from the appellant's re-amended motion, as indicated in paragraphs 49 to 56 of the trialjudgment.

The allegations of this motion—which indivisibly intermingle personal injury (one's opinion of oneself) and injury toreputation (the opinion of others of oneself)—reflect the very idea of defamation. [10] Defamation, in Quebec civil law, is remedied through an action under

article 1457 C.C.Q. It may also be remedied through acriminal action if it exceeds a determined threshold or if a specific remedy is sought before a specialized tribunal.[7] Since the appellantin this case has chosen the ordinary courts of law, however, the usual rules of civil liability apply. The fact that this action is positionedat the intersection of the Civil Code of Québec and the Charter of human rights and freedoms does not mean that an autonomous systemof liability should be applied.

As Deschamps J. explains in Bou Malhab, supra: [22] In Quebec, there is no specific form of action for punishing defamation. Actions in defamation come under the general system ofcivil liability established in art. 1457 C.C.Q. The plaintiff is entitled to compensation if fault, injury and a causal connection are allpresent. Fault is determined by looking at the defendant’s conduct, while injury is assessed by looking at the impact of that conduct onthe victim, and a causal link is established where the decision maker finds that a connection exists between the fault and the injury.

Thisis an area of law where it is important to make a clear distinction between fault and injury. Proof of injury is not a basis for presumingthat a fault was committed. Proof that a fault was committed does not, without more, establish the existence of a compensable injury. [23] Actions in defamation also bring the Quebec Charter into play, since, as I have already noted, they are based on interferencewith the right to the safeguard of reputation guaranteed by s. 4 of that instrument.

Under s. 49 of the Quebec Charter, there is a right toobtain compensation for the prejudice caused by unlawful interference with human rights. However, the Quebec Charter has not createdan independent, autonomous system of civil liability that duplicates the general system (de Montigny v. Brossard (Succession), 2010 SCC51, [2010] 3 S.C.R. 64, at para. 44). The general principles of civil liability still serve as a starting point for awarding compensatorydamages for interference with a right (Béliveau St-Jacques v.

Fédération des employées et employés de services publics inc., (SCC), [1996] 2 S.C.R. 345, at para. 119 (per Gonthier J.) and paras. 16 and 25 (per L’Heureux-Dubé J., dissenting in part),and de Montigny). Civil liability actions that are based on interference with a right, such as an action in defamation, are therefore a pointof intersection between the Quebec Charter and the Civil Code. This convergence of instruments must be considered in defining thethree constituent elements of civil liability, namely fault, injury and causal connection. I will say only a few words about fault, since it isnot in dispute here.

Causal connection is not in issue either. I will instead focus on injury, which is the main issue here. [Emphasis added] [11] We point out in passing that this excerpt from Bou Malhab undermines the appellant's position whereby the class action suit heseeks to bring is based solely on

section 49 of the Charter of human rights and freedoms, with the underlying assistance of

section 24 ofthe Canadian Charter of Rights and Freedoms, and whereby the "punitive damages" portion of the suit can be authorized even if thecompensatory portion is not. [12] In short, and to come back to the nature of the claim, the trial judge correctly answered the question of the legal characterizationof the remedy for which the respondent seeks authorization: what he alleges before us is indeed defamation, and the action in damageshe hopes to bring is in fact a defamation lawsuit.

The fact that he is using the class action suit as a means of seeking remedy changesnothing.[8] [13] That being the case, like the trial judge, who gave his explanations in paragraphs 108 to 144 of the judgment, we must find that,unfortunately, the action is prescribed.

Article 2929 C.C.Q. states: 2929. L'action fondée sur une atteinte à laréputation se prescrit par un an, à compter dujour où la connaissance en fut acquise par lapersonne diffamée. 2929. An action for defamation is prescribedby one year from the day on which thedefamed person learned of the defamation. [14] The appellant undertook authorization procedures on February 13, 2007, over a year after learning of Mailloux's remarks, on thevery day they aired on September 25, 2005.

[ 15 ] The rule in

article 2929 C.C.Q. , as in every case of extinctive prescription, is draconian, and its application cannot be mitigated by the foolishness or stupidity of the remarks, the seriousness of the injury they will likely cause, or even the injustice that the loss of a right through the passage of time may cause. The legislature is impervious to these considerations. [ 16 ] The fact that the claim is prescribed is sufficient reason on its own to dismiss the appellant's re-amended motion. [ 17 ] Yet, there is another reason justifying the dismissal.

In Bou Malhab , supra , the majority, per Deschamps J., reiterates the following rules, which apply to all matters, including defamation: [44] First, to have the necessary interest to bring an action, a person must have sustained personal injury. An action can be brought only by a person who is able to be a party to an action (art. 56, para. 1 C.C.P .) and who has a sufficient interest (arts. 55 and 59 C.C.P .). Except in cases where the legislature has intervened, a group without juridical personality does not have the necessary capacity to be a party to an action.

This means that a group cannot bring an action based on injury it claims to have suffered as a group without juridical personality. Moreover, a person does not, simply as a member of a group, have a sufficient interest to bring an action in damages for injury sustained by the group as a group . An interest will not be sufficient unless , inter alia , it is direct and personal. Even if the group’s attributes and those of the plaintiff are not mutually exclusive, the plaintiff must nonetheless be able to assert a right that belongs to the plaintiff ( Jeunes Canadiens pour une civilisation chrétienne v.

Fondation du Théâtre du Nouveau-Monde , [1979] C.A. 491, at p. 494) . [45] The requirement of proving the existence of a personal interest is not dispensed with in the context of a class action. The general provisions of the Code of Civil Procedure apply to class actions to the extent that they are not excluded or inconsistent with the specific rules governing such proceedings (art. 1051 C.C.P .). This is the case for the provisions requiring the demonstration of a sufficient interest ( Bouchard v. Agropur Coopérative , 2006 QCCA 1342 , [2006] R.J.Q. 2349 (C.A.) , at para. 103 ).

A non-personal interest based on injury that has been sustained by the group as a group will therefore not be sufficient to permit the institution of a class action in defamation . (See also Cabay v. Fafard , [1986] J.Q. no 2823 (QL) (Sup. Ct.) , aff’d [1988] J.Q. no 1052 (QL) (C.A.) .) [Emphasis added] [ 18 ] As the trial judge pointed out, this is the case for the appellant, who is in fact attempting to bring a claim based on the injury sustained by the group as a group.

This explains the following excerpt of his judgment: [translation] [95] It bears repeating: all of the facts alleged by Gordon [translation] "which give rise to a personal claim" on his behalf (paragraph 2 of the re-amended motion), describe, above all else, an alleged attack against black people in Quebec without [translation] "being able to state that he (Gordon) sustained any injury that is special or in addition to the injury caused to all the other individuals who are in the same position as (him)." [9] [96] The Court finds that even counsel for Gordon seemed to acknowledge the situation, whether voluntarily or not, when they presented the following argument: [translation] The whole case rests on the following concept: was a fundamental right interfered with?

If so, this interference with a fundamental right is equivalent to discrimination, which constitutes a fault within the meaning of the Quebec Charter , without even needing to ask the following questions: did a black person feel injured?

If so, how? [97] The Court is of the opinion that such reasoning would require the recognition of a new type of claim, one whose legal basis does not exist in our law. [ 19 ] Indeed, although the allegations of the re-amended motion for authorization to bring a class action (which are assumed to be true for the moment) as well as the arguments presented to support the appeal ostensibly detail an injury in terms that are both personal and individualized, it is apparent that the appellant claims as his own the injury sustained by the group as a group, arguing that the class action is the only way for a community to defend itself.

In the circumstances, however, this is not possible. * * [ 20 ] Having found as it did, for reasons that are technical but nonetheless fatal, this Court will not rule on whether the remarks that the respondent Mailloux made on the evening of September 25, 2005, were acceptable (they were not) or whether the methods adopted by the other respondents to expose and denounce the racism of their guest was appropriate. Put succinctly, the remedy chosen by the appellant was not the correct one. * * [ 21 ] FOR THESE REASONS, THE COURT: [ 22 ] DISMISSES the appeal, with costs. FRANÇOIS DOYON, J.A. MARIE-FRANCE BICH, J.A.

PAUL VÉZINA, J.A. Mtre Christian Tremblay For the appellant Mtre Marc Simard Bélanger, Sauvé Mtre André Lespérance Lauzon Bélanger Lespérance inc. For the respondents Canadian Broadcasting Corporation and Guy-A. Lepage, Avanti Ciné Vidéo Inc and Le gars de la télé Inc. Date of hearing: May 20, 2011