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

SUPREME COURT OF CANADA Citation: Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214 Date: 20110217 Docket: 32931 Between: Farès Bou Malhab Appellant and Diffusion Métromédia CMR inc. and André Arthur Respondents - and - Conseil National des Citoyens et Citoyennes d’origine Haïtienne, Canadian Broadcasting Corporation, Canadian Civil Liberties Association, Canadian Newspaper Association, Ad IDEM/Canadian Media lawyers Association and Canadian Association of Journalists Interveners Official English Translation: Reasons of Deschamps J.

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ. Reasons for Judgment: (paras. 1 to 94) Dissenting Reasons: (paras. 95 to 122) Deschamps J. (McLachlin C.J. and Binnie, LeBel, Charron and Rothstein JJ. concurring) Abella J. Bou Malhab v. Diffusion Métromédia CMR inc. , 2011 SCC 9, [2011] 1 S.C.R. 214

Farès Bou Malhab Appellant v. Diffusion Métromédia CMR inc. and André Arthur Respondents and Conseil National des Citoyens et Citoyennes d'origine Haïtienne, Canadian Broadcasting Corporation, Canadian Civil Liberties Association, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers’ Association and Canadian Association of Journalists Interveners Indexed as: Bou Malhab v. Diffusion Métromédia CMR inc. 2011 SCC 9 File No.: 32931. 2009: December 15; 2011: February 17.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ. on appeal from the court of appeal for quebec Civil procedure — Class actions — Defamation — Action in defamation on behalf of group following racist comments made during radio show — Whether representative plaintiff must prove that each group member suffered personal injury — Civil Code of Québec, S.Q. 1991, c. 64, art. 1457 .

Civil liability — Defamation — Injury — Objective standard of “ordinary person” — Action in defamation on behalf of group following racist comments made during radio show — Whether ordinary person would have found that the group members had sustained personal injury — Civil Code of Québec, S.Q. 1991, c. 64, art. 1457 . Through a class action, M sought compensation for the injury allegedly suffered by the members of the group he represents as a result of racist comments made by A — a radio host known for his provocative remarks — concerning Montréal taxi drivers whose mother tongue is Arabic or Creole.

While commenting on the taxi industry in Montréal, A made accusations of uncleanliness, arrogance, incompetence, corruption and ignorance of official languages. The Superior Court allowed the class action and ordered that $220,000 be paid to a non-profit organization. The judge was of the view that the comments were defamatory and wrongful, and that even if the evidence did not show that each member of the group had sustained a personal injury, the collective recovery mechanism could make up for this.

A majority of the Court of Appeal set aside the judgment, finding that an ordinary person would not have believed the comments and would have thought that the offensive accusations had been diluted by the size of the group concerned. Held (Abella J. dissenting) : The appeal should be dismissed. Per McLachlin C.J. and Binnie, LeBel, Deschamps, Charron and Rothstein JJ.: The concept of defamation requires that the right to the protection of reputation be reconciled with the right to freedom of expression.

In reconciling these two rights, the principles on which a free and democratic society is based must be respected, and the intersection point will change as society changes. In Quebec, actions in defamation are governed by the general principles of civil liability. An attack on a person’s reputation can involve allegations of fact or merely offensive and insulting comments. The plaintiff is entitled to compensation if fault, injury and a causal connection are all present.

Fault is determined by looking at the defendant’s conduct, while injury is assessed by looking at the impact of that conduct on the victim, and a causal link is established where the decision maker finds that a connection exists between the fault and the injury. Here, injury is the only question in issue. The type of injury that defines defamation is damage to reputation, which is assessed from the perspective of an ordinary person. Injury exists where an ordinary person believes that the remarks made, when viewed as a whole, brought discredit on the reputation of the victim.

The ordinary person is the counterpart, for injury, of the reasonable person used to assess fault. While both concepts are objective, they are not one and the same. The conduct of the reasonable person establishes a standard of conduct whose violation constitutes a fault. The ordinary person, by contrast, is the embodiment of the society that receives the impugned comments.

Although the ordinary person reacts like a sensible person who, like the reasonable person, respects fundamental rights, care must be taken not to idealize the ordinary person and consider him or her to be impervious to all negligent, racist or discriminatory comments, as the effect of this would be to sterilize the action in defamation. In assessing injury, the judge considers the fact that the ordinary person has accepted that freedom of expression is protected and that exaggerated comments can be made in certain circumstances.

However, the judge must also ask whether there is a decrease in the esteem that the ordinary person has for the victim. Since 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, only those who have suffered personal injury become entitled to compensation. The requirement of

proof of a personal injury contributes to maintaining the balance between freedom of expression and the right to the protection of reputation, and also applies where the defamatory comments are made about a group. However, 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. The member or members of the group who bring an action must have sustained personal injury.

Even if the members of a group are indirectly covered by comments that mention the group, it will be necessary, in order to establish their right to compensation, that the members prove that they personally suffered damage to their reputations. The requirement of proving the existence of the elements of fault, injury and causal connection in respect of each member of the group is not dispensed with in the context of a class action. The plaintiff must prove an injury shared by all members of the group so the court can infer that personal injury was sustained by each member.

Proof of injury suffered by the group itself and not by its members will not in itself be enough to give rise to such an inference, but the plaintiff is not required to prove that each of the members sustained exactly the same injury. He or she must prove that an ordinary person would have believed that each of the persons personally sustained damage to his or her reputation.

It 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. To determine whether personal injury has been sustained, the judge must analyse the impugned comments, taking into account all the circumstances in which they were made. The following non-exhaustive criteria may be relevant. Generally speaking, the larger the group, the more difficult it is to prove that personal injury has been sustained by its members.

The more strictly organized and homogeneous the group, the easier it will be to establish that the injury is personal to each member. The imputing of a single characteristic to all members of a group that is highly heterogeneous would make an allegation of personal injury implausible. Where the group’s members are identifiable or very visible in the community, it will be easier to prove that they sustained personal injury. The same is true where the offensive comments are made about a group that has historically been stigmatized.

The plaintiff’s status, duties, responsibilities or activities in the group can also make it easier to prove personal injury. The precision or generality of the allegations will also influence the analysis. The more general the allegations, the more difficult it will be to go behind the screen of the group. Similarly, where allegations apply to only one segment of a group, it will be more difficult for them to reflect personally on all members of the group.

The seriousness of the comments can help prove personal injury, but in some circumstances, this will have the opposite effect: an ordinary person will see exaggeration or excessive generalization in the allegations and will give them less credence as a result. 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.

Finally, several other factors, related to the maker or target of the comments, the medium used and the general context, can cause comments that appear to be general to be attached to certain persons in particular and defame them personally. Here, an ordinary person would not have believed that the wrongful, scornful and racist comments made by A damaged the reputation of each member of the group of taxi drivers working in Montréal whose mother tongue is Arabic or Creole. First of all, the relevant group is of considerable size (1,100 members).

Furthermore, while the drivers share a language and a job and belong to two visible minorities, no one could reasonably believe that their common attributes extend to their personal knowledge of English and French, their knowledge of driving routes in the city of Montréal, their thoughtfulness with customers, their personal hygiene or the cleanliness of their vehicles. These characteristics could be attributed to such a heterogeneous group only by extrapolation and could only stem from an intolerance of immigrants in general.

Finally, there is simply nothing rational about the suggestion that the drivers should be blamed for all the problems A said existed in the taxi industry in Montréal. The impugned comments were an extreme generalization by a known polemicist in the area where the show was broadcast, and had very little plausibility from the point of view of the ordinary person, who would have recognized that they were a generalization on the part of A, based on an unpleasant personal experience.

This ordinary person would not have associated the allegations of ignorance, incompetence, uncleanliness, arrogance and corruption with each taxi driver whose mother tongue is Arabic or Creole personally. In the absence of proof that a personal injury was sustained by the members of the group, the Superior Court should have dismissed the class action. Per Abella J. (dissenting): To prove defamation under the Civil Code of Québec , a plaintiff must prove that the defendant committed a fault and that the plaintiff suffered an injury as a result.

To prove injury, the plaintiff must show that the remarks are defamatory. The question is whether an ordinary person would believe that the remarks, when viewed as a whole, brought discredit to someone’s reputation. Once this objective standard is met, injury is established. The fact that comments are aimed at a group is not, in itself, reason to deny a claim. If the members of the group can show that the defamatory words were such as to impugn not only the group, but also the plaintiffs as individuals in that group, the claim can succeed.

It is not only the size of the group which is relevant, it is also the extent to which the group is sufficiently defined or identified such that each person in the group can be said to be harmed. Here, an ordinary person would conclude that the remarks were defamatory of the plaintiffs and therefore injurious. The talk show host accused Arab and Haitian taxi drivers of creating “Third World” public transportation in Montréal, of corruption, of incompetence and of keeping unsanitary cars.

He said that neither Arab nor Haitian drivers knew their way around the city and that they could not communicate in either English or French. He denigrated Arab drivers as “fakirs” and the Creole language as “nigger”. The remarks were blatantly racist, highly stigmatizing, and vilified members of vulnerable communities. While the group targeted was large, it was not so diffuse as to be indeterminate. The comments were aimed at a group of individuals who were of particular racial backgrounds in a particular industry and in a particular city.

The group was defined with sufficient precision and the comments were specific enough to raise, objectively, the clear possibility not only of harm to reputation, but also of harmful economic consequences from customers. Cases Cited By Deschamps J. Applied: Prud’homme v. Prud’homme , 2002 SCC 85 , [2002] 4 S.C.R. 663; Gilles E. Néron Communication Marketing Inc. v. Chambre des notaires du Québec , 2004 SCC 53 , [2004] 3 S.C.R. 95; referred to: Canadian Broadcasting Corp. v. Canada (Attorney

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Nast; Knupffer v. London Express Newspaper, Ltd., [1944] A.C. 116; Butler v. Southam Inc., 2001NSCA 121, 197 N.S.R. (2d) 97; Bai v. Sing Tao Daily Ltd. (2003), (ON CA), 226 D.L.R. (4th) 477; O’Brien v.Williamson Daily News, 735 F. Supp. 218 (1990); Neiman-Marcus v. Lait, 13 F.R.D. 311 (1952); Adams v. WFTV Inc., 24 Med. L. Rptr.1350 (1995), aff’d 691 So.2d 557 (1997); A.U.P.E. v. Edmonton Sun (1986), (AB KB), 49 Alta. L.R. (2d) 141;Gauthier v. Toronto Star Daily Newspapers Ltd. (2004), (ON CA), 188 O.A.C. 211, leave to appeal refused, [2005]1 S.C.R. ix; McCullough v.

Cities Service Co., 676 P.2d 833 (1984); Fawcett Publications, Inc. v. Morris, 377 P.2d 42 (1962); Jackson v.TCN Channel 9, [2001] NSWCA 108 (AustLII); Trahan v. Imprimerie Gagné Ltée, [1987] R.J.Q. 2417; Booth v. British ColumbiaTelevision Broadcasting System (1982), (BC CA), 139 D.L.R. (3d) 88; Cass. crim., May 26, 1987, Bull. crim., No. 217;Cass. crim., September 16, 2003, Bull. crim., No. 161; Farrington v. Leigh, Times Law Report, December 10, 1987; Arcand v. EveningCall Publishing Co., 567 F.2d 1163 (1977); Algarin v. Town of Wallkill, 421 F.3d 137 (2005); Gross v. Cantor, 270 N.Y. 93 (1936);Farrell v.

Triangle Publications, Inc., 159 A.2d 734 (1960); Eastwood v. Holmes (1858), 1 F. & F. 347, 175 E.R. 758; Association despoliciers de Sherbrooke v. Delorme, (QC CS), [1997] R.J.Q. 2826; Sarrazin v. Duquette (1935), 41 R. de J. 365;Gauthier v. Toronto Star Daily Newspapers Ltd. (2003), (ON SC), 228 D.L.R. (4th) 748. By Abella J. (dissenting) Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; Prud’homme v. Prud’homme, 2002 SCC 85, [2002] 4 S.C.R.663; WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420; R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697; GillesE. Néron Communication Marketing Inc. v.

Chambre des notaires du Québec, 2004 SCC 53, [2004] 3 S.C.R. 95; St. Lawrence CementInc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392; Butler v. Southam Inc., 2001 NSCA 121, 197 N.S.R. (2d) 97; Knupffer v. LondonExpress Newspaper, Ltd., [1944] A.C. 116; Ortenberg v. Plamondon (1915), 24 B.R. 69, 385; A.U.P.E. v. Edmonton Sun (1986), (AB KB), 49 Alta. L.R. (2d) 141. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, s. 2(b). Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 3, 4, 49. Civil Code (France). Civil Code of Québec, S.Q. 1991, c. 64, arts. 3, 35, 1457, 1607, 1611.

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Mallet-Poujol, Nathalie. “Diffamations et injures”, dans Bernard Beignier, Bertrand de Lamy et Emmanuel Dreyer, dir., Traité de droit de la presse et des médias. Paris: Litec, 2009, 441. APPEAL from a judgment of the Quebec Court of Appeal (Beauregard, Morissette and Bich JJ.A.), 2008 QCCA 1938 , [2008] R.J.Q. 2356, 60 C.C.L.T. (3d) 58, [2008] J.Q. n o 10048 (QL), 2008 CarswellQue 10002, allowing an appeal from a decision of Guibault J., 2006 QCCS 2124 , [2006] R.J.Q. 1145, [2006] R.R.A. 435, 41 C.C.L.T. (3d) 190, [2006] Q.J. No. 3598 (QL), 2006 CarswellQue 14102. Appeal dismissed, Abella J. dissenting.

Jean El Masri and Éric Dugal , for the appellant. David Stolow , Nicholas Rodrigo and Marie-Ève Gingras , for the respondents. Stefan Martin and Mélisa Thibault , for the intervener Conseil National des Citoyens et Citoyennes d’origine Haïtienne. Guy J. Pratte and Jean-Pierre Michaud , for the intervener the Canadian Broadcasting Corporation. Christian Leblanc et Marc-André Nadon , for the intervener the Canadian Civil Liberties Association. Ryder Gilliland , for the interveners the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers’ Association and the Canadian Association of Journalists.

English version of the judgment of McLachlin C.J. and Binnie, LeBel, Deschamps, Charron and Rothstein JJ. delivered by [ 1 ] Deschamps J. — The law of defamation is a tool for protecting personal reputations. The law keeps pace with changes in society and with the importance attached by society to freedom of expression. In Quebec, actions in defamation are governed by the general principles of civil liability. The flexibility of those principles makes it possible to address society’s growing concerns about freedom of expression.

In two recent cases, this Court considered the impact of freedom of expression on the element of “fault” in civil liability: Prud’homme v. Prud’homme , 2002 SCC 85 , [2002] 4 S.C.R. 663, at paras. 38-45 ; Gilles E. Néron Communication Marketing Inc. v. Chambre des notaires du Québec , 2004 SCC 53 , [2004] 3 S.C.R. 95, at paras. 48-51 and 54-55 . In this appeal, it is the element of “injury” that must be examined in light of freedom of expression.

The Court must examine the factors to consider when determining whether racist comments made about a group can cause a compensable injury. [ 2 ] Through a class action, the appellant sought compensation for the injury allegedly suffered by the members of the group as a result of racist comments made by a radio host concerning Montréal taxi drivers whose mother tongue is Arabic or Creole. The respondents argued, successfully in the Court of Appeal, that the members had not been personally affected and cannot be compensated.

I find that there was no personal injury in this case and that the rules of civil liability accordingly do not authorize compensation. I would therefore dismiss the appeal. I. Facts [ 3 ] On November 17, 1998, André Arthur — a host known for his provocative remarks — was hosting the morning show on the CKVL radio station, which is operated by the respondent Diffusion Métromédia CMR inc. One topic during the show was whether Quebeckers were satisfied with restaurants and hotels, particularly in Montréal. While his co-host was getting ready to present the results of a survey on that topic, Mr.

Arthur made, inter alia , the following comments about the taxi industry in Montréal: [ translation ] Why is it that there are so many incompetent people and that the language of work is Creole or Arabic in a city that’s French and English? . . . I’m not very good at speaking “nigger”. . . . [T]axis have really become the Third World of public transportation in Montreal. . . . [M]y suspicion is that the exams, well, they can be bought. You can’t have such incompetent people driving taxis, people who know so little about the city, and think that they took actual exams. . . .

Taxi drivers in Montreal are really arrogant, especially the Arabs. They’re often rude, you can’t be sure at all that they’re competent and their cars don’t look well maintained. [ 4 ] As well, Mr. Arthur tolerated and even encouraged similar remarks made by a listener who phoned in and who said she was a taxi driver. [ 5 ] The appellant, Mr. Bou Malhab, is a taxi driver whose mother tongue is Arabic. He applied to the Superior Court for authorization to institute a class action against the respondents. II. Judicial History

A. Judgments on the Application for Authorization to Institutethe Class Action [6] Marcelin J. of the Superior Court dismissed the application for authorization to institute the class action (SOQUIJAZ-01021767). Because of the large size of the group covered by Mr. Arthur’s comments, she was of the opinion that it would beimpossible to prove a causal connection between those comments and injury sustained by each member of the group personally.

She alsofound that, even if the group had been small enough for the members’ reputations to have been personally damaged, the members shouldhave used the procedure for joinder of actions (arts. 59 and 67 of the Code of Civil Procedure, R.S.Q., c.

C-25 (“C.C.P.”)) rather than theclass action mechanism. [7] The Court of Appeal set aside that decision and authorized the appellant to institute the class action on behalf of[translation] “[e]very person who had a taxi driver’s licence in the region of the Island of Montréal on November 17, 1998 . . . and whosemother tongue is Arabic or Creole” ( (QC CA), [2003] R.J.Q. 1011, at para. 8). Rayle J.A., writing for a unanimouscourt, first found that there was a colour of right.

While she agreed with the Superior Court that the size of the group covered bywrongful comments might make it difficult to establish individual injury, she found that it would be up to the court to determine[translation] “the extent to which the size of the group in question limits or eliminates the individual nature of the damage to reputation,having regard to the nature of the comments made and the circumstances in which the defamation occurred” (para. 51).

Second, sheacknowledged that moral damages are difficult to assess in a class action context, but she refused to see this as precluding such an actionat the outset and suggested that an order to pay damages to a charity could be a way to get around this problem. The matter was referredback to the Superior Court for a hearing on the merits. B. Judgments on the Merits of the Class Action [8] Guibault J. of the Superior Court was of the view that Mr. Arthur’s comments were defamatory and wrongful (2006QCCS 2124, [2006] R.J.Q. 1145).

On the issue of the injury sustained, he noted that only a taxi driver who had heard the impugnedcomments could claim compensation. The evidence showed that, at most, about 20 of the drivers concerned had listened to the show onNovember 17, 1998. Guibault J. was therefore of the opinion that the evidence did not show that each member of the group hadsustained a personal injury. However, since he considered himself bound by the Court of Appeal’s decision on the application forauthorization, he made up for this by using the collective recovery mechanism (arts. 1028 and 1034 C.C.P.).

He allowed the class actionwith costs and ordered the respondents solidarily to pay $220,000 to the Association professionnelle des chauffeurs de taxi, a non-profitorganization. He dismissed the claim for punitive damages and refused to consider awarding damages in lieu of compensation for theappellant’s extrajudicial fees. His judgment was appealed. [9] The Court of Appeal set aside the trial judgment (2008 QCCA 1938, [2008] R.J.Q. 2356). Bich J.A., who wrote themajority’s reasons, began by pointing out that the existence of a fault was no longer contested and that Mr.

Arthur and DiffusionMétromédia CMR inc. were instead disputing the existence of personal injury. She noted that an action in defamation presupposes[translation] “injury that is individual and personal, in other words, specific and particularized, commensurate with the attack, which isalso specific and particularized” (para. 44). The existence of such injury is determined using an objective test, namely the ordinaryperson test.

According to the judge, three situations are possible where the impugned comments are made about a group: (1) the groupis large and the comments become lost in the crowd; (2) certain members of the group are named or can easily be identified; or (3) thegroup is small enough for the members to be personally affected. There is a right to compensation only in the latter two cases. Bich J.A.found that this case was of the first type. She found that an ordinary person would not have believed Mr.

Arthur’s comments and wouldhave thought that the offensive accusations had been diluted by the size of the group concerned, leaving intact the personal reputationand dignity of the drivers in question. She noted that broadening the concept of defamation by ignoring the need to establish theexistence of a personal injury would weaken freedom of expression in an unacceptable manner. [10] In dissenting reasons, Beauregard J.A. proposed a series of factors for assessing the personal nature of the injury.

Applying them to this situation, he concluded that the drivers had sustained an injury for which compensatory damages could beawarded. He would have dismissed the principal appeal but would have allowed the incidental appeal and confirmed the fee agreementbetween the appellant and his counsel so that those fees might be paid out of the damages. III. Positions of the Parties [11] Mr. Bou Malhab argues that, because of the serious nature of Mr.

Arthur’s conduct, the limited size of the group andthe identification of the victims through their origins and occupation, the victims were individualized enough for compensable injury tohave resulted from Mr. Arthur’s comments. As regards the requirement that each member of the group sustain a personal injury, thecourt does not have to consider this until it determines the compensation due to individual members, that is, after the respondents arefound liable to the group.

The appellant also requests that punitive damages be awarded and that his fee agreement be confirmed. [12] The respondents for their part argue that the action can succeed only if Mr. Arthur’s comments were speciallydirected at each of the drivers and if each of them sustained an injury that was direct, personal and separate from the injury suffered bythe group. The respondents submit that these conditions are not met in this case. IV. Issues [13] The appellants raise issues relating to compensatory damages, punitive damages and the fee agreement. In light of

my answer on the first issue, it will not be necessary to deal with the other two. The issue that is determinative of this appeal cantherefore be stated as follows: Can racist or discriminatory comments made about a group of individuals form the basis for an action in damages for defamation and, ifso, on what conditions? V. Analysis [14] I will begin by considering the concept of defamation in Quebec civil law. I will then look at its specificcharacteristics where the allegedly defamatory comments were made about a group. Finally, I will apply these rules to the facts of thisappeal. A. Defamation in the Civil Law

(1) Development of the Law of Defamation [15] Roman law sanctioned the use of the term injuria, which referred to anything said or done to offend someone. Thatconcept was adopted by old French law, which gradually limited its scope to causing offence through speech or writing. Francesubsequently chose to pass special legislation concerning the delict of injury and distinguished it from defamation. The latter necessarilyinvolved an allegation or imputation of fact interfering with honour, while the former referred to an offensive expression, term ofcontempt or insult.

This distinction was not retained in Quebec, where the term defamation was chosen to refer to the injury of oldFrench law (T. Grellet-Dumazeau, Traité de la diffamation, de l’injure et de l’outrage (1847), vol. 1, at pp. 1-10; C. Bissonnette, Ladiffamation civile en droit québécois, mémoire de maîtrise, Université de Montréal (1983), at pp. 11-14). In Quebec civil law, an attackon a person’s reputation can involve allegations of fact or merely offensive and insulting comments.

In Quebec civil law, it does notmatter whether the assertions are made in writing, orally or through images or gestures or whether they attack another person’sreputation directly or by intimation or innuendo. [16] The concept of defamation requires that the right to the protection of reputation be reconciled with the right tofreedom of expression, since that which belongs to the former is generally taken away from the latter. Several international agreementsreflect this need to strike a balance between the two rights.

For example, the International Covenant on Civil and Political Rights, Can.T.S. 1976, No. 47, Art. 19(2) and (3), to which Canada is a party, makes the exercise of the right to freedom of expression subject torespect for the reputation of others.

Similar guarantees are found in the American Convention on Human Rights, 1144 U.N.T.S. 123,Arts. 11, 13(1) and (2), and the Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, Art. 10,both of which have been widely ratified. [17] Freedom of expression is protected by the Canadian Charter of Rights and Freedoms, s. 2(b), and the Charter ofhuman rights and freedoms, R.S.Q., c. C-12, s. 3 (“Quebec Charter”). It is one of the pillars of modern democracy.

It allows individualsto become emancipated, creative and informed, it encourages the circulation of new ideas, it allows for criticism of government actionand it favours the emergence of truth (Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19).Freedom of expression is essential in ensuring that social, economic and political decisions reflect the aspirations of the members ofsociety. It is broad in scope and protects well-prepared speech and wrath-provoking comments alike (R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697; R. v. Butler, (SCC), [1992] 1 S.C.R. 452).

However, it is not absolute and can be limitedby other rights in a democratic society, including the right to protection of reputation (Hill v. Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130, at paras. 102-6; Prud’homme, at para. 43; Néron, at para. 52). [18] The right to the safeguard of reputation is guaranteed by the Quebec Charter (s. 4) and the Civil Code of Québec,S.Q. 1991, c. 64, arts. 3 and 35. Since good reputation is related to dignity (Hill, at paras. 120-21), it is also tied to the rights protected bythe Canadian Charter.

Reputation is a fundamental feature of personality that makes it possible for an individual to develop in society. It is therefore essential to do everything possible to safeguard a person’s reputation, since a tarnished reputation can seldom regain itsformer lustre (Hill, at para. 108). [19] Of course, there is no precise measuring instrument that can determine the point at which a balance is struckbetween the protection of reputation and freedom of expression. In reconciling these two rights, the principles on which a free anddemocratic society is based must be respected.

The intersection point will change as society changes. What was an acceptable limit onfreedom of expression in the 19th century may no longer be acceptable today. Indeed, particularly in recent decades, the law ofdefamation 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, atparas. 49 et seq.) and recognized the existence of a defence of responsible communication on matters of public interest (Grant v.

TorstarCorp., 2009 SCC 61, [2009] 3 S.C.R. 640). [20] The Canadian approach is part of a trend that can be observed in many democracies, including England (Reynolds v.Times Newspapers Ltd., [2001] 2 A.C. 127 (H.L.); Jameel v. Wall Street Journal Europe Sprl, [2006] UKHL 44, [2007] 1 A.C. 359),Australia (Theophanous v. Herald & Weekly Times Ltd. (1994), 124 A.L.R. 1 (H.C.); Lange v. Australian Broadcasting Corp. (1997),189 C.L.R. 520 (H.C.)), New Zealand (Lange v.

Atkinson, [2000] 3 N.Z.L.R. 385 (C.A.)), the United States (New York Times Co. v.Sullivan, 376 U.S. 254 (1964)) and Germany (BVerfGE 82, 272, June 26, 1990, Stern-Strauß case; BVerfGE 93, 266, October 10, 1995,Soldiers are murderers case). This phenomenon can also be seen in the decisions of the European Court of Human Rights (BladetTromsø and Stensaas v. Norway (GC), No. 21980/93, ECHR 1999-III; Colombani v. France, No. 51279/99, ECHR 2002-V).

In France,while freedom of expression has been protected by passing a special penal statute, recent cases have recognized that this was a systemdistinct from the system of civil liability found in the French Civil Code (Cass. ass. plén., July 12, 2000, Bull. civ., No. 8).

[21] What is of interest for my purposes is not so much the specific solutions proposed by these courts, which varydepending on the legal traditions, constitutional guarantees and social norms that exist in each country, as the general trend that emergesfrom the cases. Just like Canadian courts, including those in Quebec, all of these courts are increasingly concerned about protectingfreedom of expression. The law of defamation is changing accordingly. This is the general context in which this case must beconsidered. I will now look at the legal rules applicable to defamation in Quebec civil law.

(2) Constituent Elements of Defamation in QuebecCivil Law [22] In Quebec, there is no specific form of action for punishing defamation. Actions in defamation come under thegeneral system of civil liability established in art. 1457 C.C.Q. The plaintiff is entitled to compensation if fault, injury and a causalconnection are all present. Fault is determined by looking at the defendant’s conduct, while injury is assessed by looking at the impactof that conduct on the victim, and a causal link is established where the decision maker finds that a connection exists between the faultand the injury.

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

Under s. 49 of the Quebec Charter, thereis a right to obtain compensation for the prejudice caused by unlawful interference with human rights. However, the Quebec Charter hasnot created an independent, autonomous system of civil liability that duplicates the general system (de Montigny v. Brossard(Succession), 2010 SCC 51, [2010] 3 S.C.R. 64, at para. 44). The general principles of civil liability still serve as a starting point forawarding compensatory damages for interference with a right (Béliveau St-Jacques v.

Fédération des employées et employés de servicespublics 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 point of intersection between the Quebec Charter and the Civil Code. This convergence of instruments must beconsidered in defining the three constituent elements of civil liability, namely fault, injury and causal connection. I will say only a fewwords about fault, since it is not in dispute here.

Causal connection is not in issue either. I will instead focus on injury, which is themain issue here. (

i) Fault [24] Generally speaking, fault is conduct that departs from the standard of conduct of a reasonable person (St. LawrenceCement Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392, at para. 21). It should be noted that the concept of a reasonable person isnormative in nature rather than descriptive. It refers to the way an informed person would behave in the circumstances. Despite theimportance attached by the Quebec Charter to the protection of individual rights, conduct that interferes with a right guaranteed by theCharter does not necessarily constitute civil fault (Quebec (Public Curator) v.

Syndicat national des employés de l’hôpital St-Ferdinand, (SCC), [1996] 3 S.C.R. 211, at para. 116; Quebec (Commission des droits de la personne et des droits de la jeunesse) v.Communauté urbaine de Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789 (“Larocque”)).

The interference must also violate the objectivestandard of conduct of a reasonable person under art. 1457 C.C.Q., and there must be nothing else that limits the finding on fault, forexample the existence of immunity (Larocque and Prud’homme) or the consideration of competing rights such as freedom of expression. [25] In an action in defamation, the definition or limits of fault reflect the increasing importance attached to freedom ofexpression (Société Radio-Canada v. Radio Sept-Îles inc., (QC CA), [1994] R.J.Q. 1811 (C.A.), at p. 1818). However, defamatory conduct may result from mere negligence.

The truth of the message will be only one of the factors used todetermine whether conduct is wrongful. Even if a comment is true, it may have been made in a wrongful manner. Scandalmongeringand lies are both punished (Prud’homme, at para. 38; Néron, at para. 59). (ii) Injury [26] The type of injury that defines defamation is damage to reputation. In our law, damage to reputation is assessedobjectively, from the perspective of an ordinary person (Néron, at para. 57; Prud’homme, at para. 34; Métromédia C.M.R. Montréal inc.v.

Johnson, 2006 QCCA 132, [2006] R.J.Q. 395, at para. 49). [27] This level of analysis is justified by the fact that damage to reputation results in a decrease in the esteem and respectthat other people have for the person about whom the comments are made. Therefore, the maker of the comments and the person aboutwhom they are made are not the only ones involved. A person is defamed where the image reflected back to the person by one or moreother people is inferior not only to the person’s self-image but above all to the image the person projected to “others” in the normalcourse of social interaction.

In our society, every person can legitimately expect equal legal treatment. However, damage to reputationis at a different level. Defaming a person means damaging a reputation that has been legitimately earned.

The effect of defamation istherefore not so much to interfere with the dignity and equal treatment recognized to each person under the Charters as to reduce theesteem in which a person should be held as a result of his or her interactions with society. [28] It is the importance of “others” in the concept of reputation that justifies relying on the objective standard of theordinary person who symbolizes them. Therefore, the fact that a person alleging defamation feels humiliated, sad or frustrated is not asufficient basis for an action in defamation.

In such an action, injury is examined at a second level focussed not on the actual victim buton the perceptions of other people. Injury exists where “an ordinary person . . . believe[s] that the remarks made, when viewed as a

whole, brought discredit on the reputation” of the victim (Prud’homme, at para. 34). However, care must be taken to avoid shifting theanalysis of injury to a third level by asking, as the majority of the Court of Appeal seems to have done (at para. 73), whether an ordinaryperson, acting as a trier of fact, would have found that the victim’s reputation was discredited in the eyes of a public that was likely tobelieve Mr. Arthur’s comments.

The judge must instead focus on the ordinary person, who is the embodiment of “others”. [29] There are definite advantages to relying on the objective standard of the ordinary person. Bich J.A. described themwell in her reasons: [translation] [This standard] has the advantage of not making the characterization of the impugned comments, and thus thedetermination of injury, dependent on the purely subjective emotions or feelings of the person who has allegedly been defamed.

Ifcomments could be shown to be injurious simply by referring to one’s feeling of personal upset, humiliation, mortification, vexation,indignation or sadness or to the fact that one’s sensibilities or feelings have been offended, hurt or even trampled on, little would be leftof freedom of opinion and expression. The very concept of defamation would also become entirely dependent on the particular emotionsof each individual. [para. 40] [30] My discussion of fault demonstrates how reliance on an objective standard is nothing new.

In fact, the ordinaryperson is the counterpart, for injury, of the reasonable person used to assess fault. While both concepts are objective, they are not oneand the same. The conduct of the reasonable person establishes a standard of conduct whose violation constitutes a fault. The ordinaryperson, by contrast, is the embodiment of the society that receives the impugned comments.

Injury is therefore assessed through theeyes of this ordinary person who receives the impugned comments or gestures. [31] The judge responsible for assessing fault requires the person who uttered the words to behave the way that areasonable person would have behaved in the circumstances. In defamation cases, the judge takes account of that person’s right tofreedom of expression, and will even accept, in some cases, that the person has expressed exaggerated opinions.

In assessing injury, thejudge also considers the fact that the ordinary person has accepted that freedom of expression is protected and that exaggeratedcomments can be made in certain circumstances. However, the judge must also ask whether there is a decrease in the esteem that theordinary person has for the victim.

As a result, even though the standard is an objective one in both cases, it is preferable to use twodifferent terms — reasonable person and ordinary person — because they are concepts that relate to two distinct situations: assessingthe conduct and assessing the effect of that conduct from society’s perspective. The questions asked at these two stages are different. [32] The use of a standard such as the ordinary person as a test for determining whether someone’s reputation has beendamaged has an undeniable practical advantage. Such a standard is a reference point that is rational and objective.

It makes it easier toprove injury, which can be hard to prove. Very often, injury can be established only indirectly. One example of this is Néron, in whichthe impugned remarks resulted in a loss of business that could be related only to them. In other cases, the facts supporting the findingthat a reasonable person would not have made the remarks in question will permit the inference that an ordinary person would hold thevictim in lower esteem as a result of those remarks.

However, this is not a legal presumption that arises from finding that a fault has beencommitted; rather, it is merely an inference that a judge may draw from the facts adduced in evidence. The practical value of theobjective standard is even greater in cases involving comments made about a group, since the injury may be similar for all those whowere affected in the same way by the same comments and who sustained damage to the common aspects of their reputations. Nevertheless, the analysis will always be a two-step process.

First, the court has to determine whether a reasonable person would havemade the impugned remarks in the same context. Second, if the court answers no and finds that the person who made the remarks hascommitted a fault, it must ask whether the remarks have decreased the ordinary person’s esteem for the victim.

It is necessary, of course,that a causal connection be established between fault and injury, but that issue does not arise here. [33] Given the importance of the ordinary person and reasonable person standards, we should consider what they involve. [34] In France, a standard of acceptable conduct is used to assess damage to honour and reputation within the meaning ofthe

Loi sur la presse (N. Mallet-Poujol, “Diffamations et injures”, in B. Beignier, B. de Lamy and E. Dreyer, eds., Traité de droit de lapresse et des médias (2009), 441, at p. 450). To assess the wrongfulness of conduct in actions based on the general law of civil liability,the reasonable person standard is used, as in our law. French commentators and courts have said that a reasonable person is more thanmoderately prudent and informed but less than highly prudent and informed.

A reasonable person approves of average behaviour, thatis, the behaviour of the majority of people, only if it is rational and consistent with the nature of things (P. Jourdain, “Notion de faute: contenu commun à toutes les fautes”, Juris-Classeur Responsabilité civile et Assurances (2002), fasc. 120-1, No. 106). [35] The common law also uses an objective standard, that of the right-thinking person, to ascertain the meaning ofimpugned comments and assess whether they are defamatory. This standard is taken from English common law and is based on thefamous case of Sim v.

Stretch, [1936] 2 All E.R. 1237 (H.L.), in which Lord Atkin stated the following, with which his colleaguesconcurred: The conventional phrase exposing the plaintiff to hatred, ridicule and contempt is probably too narrow . . . .

I do not intend to ask yourLordships to lay down a formal definition, but after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally? [p. 1240] [36] Despite the reservation expressed by Lord Atkin about the test he was proposing, it has not been forgotten. In fact,the right-thinking person standard was subsequently adopted, including in Canadian case law (Chohan v. Cadsky, 2009 ABCA 334, 464A.R. 57 (C.A.); Color Your World Corp. v.

Canadian Broadcasting Corp. (1998), (ON CA), 38 O.R. (3d) 97 (C.A.),leave to appeal refused, [1998] 2 S.C.R. vii; Botiuk v. Toronto Free Press Publications Ltd., (SCC), [1995] 3 S.C.R. 3,at para. 62; Cherneskey v. Armadale Publishers Ltd., (SCC), [1979] 1 S.C.R. 1067, at p. 1079 (per Ritchie J.) and p.1095 (per Dickson J., dissenting)). In Color Your World, the Ontario Court of Appeal, per Abella J.A., outlined the right-thinking personstandard as follows: The standard of what constitutes a reasonable or ordinary member of the public is difficult to articulate.

It should not be so low as tostifle free expression unduly, nor so high as to imperil the ability to protect the integrity of a person’s reputation. The impressions about

the content of any broadcast — or written statement — should be assessed from the perspective of someone reasonable, that is, a personwho is reasonably thoughtful and informed, rather than someone with an overly fragile sensibility. A degree of common sense must beattributed to viewers. [p. 106] [37] Raymond Brown conducted an extensive review of Canadian and foreign case law and summarized the ordinaryperson’s perspective as follows: The court will assume that the ordinary reasonable person is someone who is thoughtful and informed, and of fair, averageintelligence.

They are persons who have a common understanding of the meaning of language and who, in their evaluation of theimputation, entertain a sense of justice and apply moral and social standards reflecting the views of society generally. . . . The reasonable reader or listener makes an effort to strike a balance between the most extreme meaning the words will bear and themost innocent meaning. . . . “The ordinary reader will draw conclusions from general impressions.” He or she is likely to read an

article casually or uncriticallyand not give it concentrated attention or read it a second time. . . . (R. Brown, The Law of Defamation in Canada, 2nd ed. (loose-leaf), vol. 1, at pp. 5-45 to 5-57, citations omitted.) [38] While these common law principles cannot be directly transposed into Quebec civil law because of the majordifferences between the two systems (Prud’homme, at paras. 54-59), they often serve as a source of inspiration. The two legalcommunities have the same broad social values.

Indeed, there is a striking similarity between the civil law and the common lawapproaches. [39] As Abella J.A. stated in Color Your World, it is difficult to precisely articulate the parameters of the reasonableperson standard of conduct, which the ordinary person standard also incorporates. Systematizing these models would mean taking asnapshot of our society’s values, beliefs and attitudes, which is impossible because these components are intrinsically fluid and vary withthe context.

A few characteristics can nonetheless be emphasized. [40] The reasonable person acts in an ordinarily informed and diligent manner. He or she shows concern for others andtakes the necessary precautions to avoid causing them reasonably foreseeable injury (Ouellet v. Cloutier, (SCC), [1947]S.C.R. 521, at p. 526). He or she respects fundamental rights and therefore cannot disregard the protection established in the charters.

Since the standards maintained by the reasonable person are consistent with Charter values, he or she is careful not to violate the rights ofothers. [41] Although the ordinary person reacts like a sensible person who, like the reasonable person, respects fundamentalrights, care must be taken not to idealize the ordinary person and consider him or her to be impervious to all negligent, racist ordiscriminatory comments, as the effect of this would be to sterilize the action in defamation. As the Superior Court stated in Hervieux-Payette v.

Société Saint-Jean-Baptiste de Montréal, (QC CS), [1998] R.J.Q. 131 (reversed by the Court of Appeal onother grounds, )), [translation] “[t]his ordinary person is neither an encyclopedist nor an ignoramus” (p. 143). As Ihave noted, in assessing injury in an action in defamation, the ordinary person is only an expedient used to identify damage toreputation. Judges must therefore avoid limiting themselves to an inflexible test that would prevent them from recognizing actualdamage to reputation where it occurs. [42] The instant case also raises the additional question of group defamation.

It presents some specific problems thatneed to be considered. B. Defamatory Nature of Comments Made About a Group ofPeople

(1) Need to Prove Personal Injury [43] An action in defamation can succeed only if personal injury has actually been sustained by the plaintiff or plaintiffs. This requirement also applies where the defamatory comments are made about a group. Three rules of Quebec law are applicable here. [44] First, to have the necessary interest to bring an action, a person must have sustained personal injury. An action canbe 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 and59 C.C.P.).

Except in cases where the legislature has intervened, a group without juridical personality does not have the necessarycapacity 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 groupwithout juridical personality. Moreover, a person does not, simply as a member of a group, have a sufficient interest to bring an action indamages for injury sustained by the group as a group. An interest will not be sufficient unless, inter alia, it is direct and personal.

Evenif the group’s attributes and those of the plaintiff are not mutually exclusive, the plaintiff must nonetheless be able to assert a right thatbelongs 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. n o 2823 (QL) (Sup. Ct.) , aff’d [1988] J.Q. n o 1052 (QL) (C.A.) .) [ 46 ] Second, 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. [ 47 ] Third, the rules of civil liability in the C.C.Q. provide that injury is compensable if it is personal to the plaintiff. The purpose of compensation is to put the victim back in the situation he or she was in prior to the injury. The wording of arts. 1607 and 1611 C.C.Q. confirms that the compensated injury must be personal to the creditor of the right to compensation: 1607.

The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor’s default. 1611. The damages due to the creditor compensate for the amount of the loss he has sustained and the profit of which he has been deprived. Future injury which is certain and able to be assessed is taken into account in awarding damages. [ 48 ] It must be inferred from this that 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.

The member or members of the group who bring an action must have sustained personal injury. In other words, defamation must go behind the screen of generality of the group and affect its members personally. [ 49 ] That being said, the victim does not have to be expressly named or designated to be able to bring an action in defamation. The attack does not have to be specific or particularized. The person who made the impugned comments cannot avoid liability by hiding behind the fact that he or she used general terms applying to a group.

Attacks on a group may in fact personally affect some or all of the group’s members. While the injury must be personal, it does not have to be unique, that is, different from the injury sustained by the other members of the group. The reputation of more than one person may be tarnished by the same wrongful comments. While the law does not punish the defamation of groups having no juridical personality, it does punish multiple individual defamation (D. Buron, “Liberté d’expression et diffamation de collectivités: quand le droit à l’égalité s’exprime” (1988), 29 C. de D. 491, at pp. 497-98).

Even if the members of a group are covered by comments that mention the group, it will be necessary, in order to establish their right to compensation, that the members prove that they personally suffered damage to their reputations. [ 50 ] Moreover, as we will see, the personal injury requirement does not change in class action proceedings.

(2) Impact of the Procedural Vehicle Used [ 51 ] Before instituting a class action, authorization must be obtained under arts. 1002 and 1003 C.C.P. If such authorization is granted, the parties proceed on the merits and the plaintiff must prove the defendant’s liability. If the judge allows the action, the judge may order collective or individual recovery.

The appellant argues that the use of a class action means that he does not have to prove personal injury at the time the merits of the action are being examined, since the question of the personal nature of the injury should be considered at the time of individual recovery proceedings (Factum, at paras. 22 and 52).

This argument must be rejected, since it is based on confusion between the type of injury required to ground civil liability, the process used to prove such injury and the assessment of the extent of such injury. [ 52 ] This Court has stated on several occasions that a class action is merely a procedural vehicle and that its use does not have the effect of changing the substantive rules applicable to individual actions ( Bisaillon v. Concordia University , 2006 SCC 19 , [2006] 1 S.C.R. 666, at para. 17 ; Dell Computer Corp. v. Union des consommateurs , 2007 SCC 34 , [2007] 2 S.C.R. 801, at paras. 105-8 ; St.

Lawrence Cement , at para. 111). In other words, the class action mechanism cannot be used to make up for the absence of one of the constituent elements of the cause of action. A class action can succeed only if each claim it covers, taken individually, could serve as a basis for court proceedings. [ 53 ] The law of defamation therefore applies in its entirety in the class action context. As I mentioned above, for a class

action to be allowed, the plaintiff must establish the elements of fault, injury and causal connection in respect of each member of thegroup (Hôpital St-Ferdinand, at para. 33). Of course, the class action procedure permits the judge to draw inferences from the evidence,but the judge must still be satisfied on a balance of probabilities that each element is present for each member (for injury, see Hôpital St-Ferdinand, at paras. 34-35). [54] However, there can be no question of requiring each member of the group to testify to establish the injury actuallysustained.

Proof of injury will usually be based on presumptions of fact, that is, on an attempt to find “an element of damage common toeveryone . . . to be able to infer that there were serious, precise and concordant presumptions that all the [members of the group sustainedpersonal injury]” (Hôpital St-Ferdinand, at para. 41, citing the opinion of Nichols J.A.). In this regard, the plaintiff must prove an injuryshared by all members of the group so the court can infer that personal injury was sustained by each member.

Proof of injury suffered bythe group itself and not by its members will not in itself be enough to give rise to such an inference. On the other hand, the plaintiff isnot required to prove that each of the members sustained exactly the same injury. The fact that the wrongful conduct did not affect eachmember of the group in the same way or with the same intensity does not prevent the court from finding the defendant civilly liable. This was in fact what happened in St. Lawrence Cement.

While the injury sustained by the members of the group in question varied inintensity, this Court confirmed that it could be inferred that each member had sustained injury based on the similarities between them. [55] It is not until the existence of personal injury sustained by each member of the group has been proved that the judgewill focus on assessing the extent of the injury and choosing the appropriate recovery method, whether individual or collective. Ifpersonal injury is not proved, the class action must be dismissed.

Thus, contrary to what is argued by the appellant, the possibility ofordering individual recovery of damages does not relieve the plaintiff of the burden of first proving that each member of the groupsustained personal injury. In other words, the recovery method cannot make up for the absence of personal injury. [56] The various factors used to determine whether such injury has been sustained must now be considered.

(3) Factors Used to Determine Whether PersonalInjury Has Been Sustained [57] In any action in defamation, injury is proved if the plaintiff satisfies the judge that the impugned comments aredefamatory, that is, that an ordinary person would believe that they tarnished the plaintiff’s reputation. The same test is used where thecomments apply a priori to a group of individuals, but special attention will then have to be paid to the personal nature of the injury.

Theplaintiff or plaintiffs must prove that an ordinary person would have believed that each of them personally sustained damage to his or herreputation. [58] The judge must thus analyse the impugned comments, taking into account all the circumstances in which they weremade. Although it is impossible to draw up an exhaustive list of the criteria used to determine whether personal injury has beensustained, a number of factors can nevertheless help the judge in this process. Very similar factors are used for this purpose in thecountries to which Canada and Quebec look for comparative law purposes.

They have to do with the affected group, the comments madeand the circumstances extrinsic to the comments or gestures. These factors provide guidance in determining whether one, some or allmembers of the group have sustained personal injury as a result of the impugned comments or gestures. This list is not exhaustive,however, and none of the factors it contains is determinative on its own. (

i) Size of the Group [59] The size of the group is the factor to which the courts have attached the greatest importance in Quebec andelsewhere. Generally speaking, it is recognized that the larger the group, the more difficult it is to prove that personal injury has beensustained by the member or members bringing the action. [60] In Quebec, the leading case on defamation resulting from comments made about a group is Ortenberg v. Plamondon(1915), 24 B.R. 69, 385 (C.A.). In that case, Mr.

Ortenberg, a Jewish merchant, said that he had been defamed by a speech made by Mr.Plamondon, who had attacked Jews and their religion, called for a boycott of their businesses and predicted that the Jews of Quebec Citywould commit heinous crimes. Carroll J.A. found that, because of their small number (75 families out of a total population of 80,000),the members of Quebec City’s Jewish community had all come under suspicion and therefore had a cause of action. [61] The size of the group is a constant in the Quebec courts’ analysis of whether an injury is personal (see, for example,Zhang v.

Chau, 2008 QCCA 961, [2008] R.R.A. 523, leave to appeal refused, [2008] 3 S.C.R. xi; Raymond v. Abel, [1946] C.S. 251). [62] In France, apart from certain statutory mechanisms whose singularity limits their usefulness for comparativepurposes, the

Loi sur la presse requires a personal interest and personal damage in order to claim compensation. When comments aremade about a group, these requirements are satisfied if the group is [translation] “small enough that each member can feel affected”(Cass. crim., January 29, 2008, Bull. crim., No. 23, at p. 94). The Court of Cassation, for example, has found defamation wherecomments were made about a medical team made up of ten surgeons (Cass. crim., December 6, 1994, Dr. pénal 1995, comm. 93, obs.M. Véron).

It also found that four members of a political action committee had been sufficiently covered by comments referring to thecommittee (Cass. crim., January 16, 1969, Bull. crim., No. 35). However, it dismissed an action in defamation where the impugnedcomments concerned Catholic clergy in general (Cass. crim., November 22, 1934, D.P. 1936.1.27, note M. Nast). [63] In the common law, the comments must have been made “of and concerning” the plaintiff (Knupffer v. LondonExpress Newspaper, Ltd., [1944] A.C. 116 (H.L.), at p. 120; Butler v.

Southam Inc., 2001 NSCA 121, 197 N.S.R. (2d) 97, at para. 17;Restatement of the Law, Second, Torts 2d (1977), vol. 3, § 564). This corresponds to the personal nature of injury in the civil law. Thesize of the group is an important consideration (Butler v. Southam, at para. 62; Bai v. Sing Tao Daily Ltd. (2003),

(ON CA), 226 D.L.R. (4th) 477 (Ont. C.A.), at para. 15). For example, in Knupffer, the British House of Lords held that a member of agroup of about 2,000 Russian immigrants could not bring an action in defamation based on an

article written about the group. As well,in the United States, no cause of action was found to arise from articles attacking a group of 27 teachers (O’Brien v. Williamson DailyNews, 735 F. Supp. 218 (E.D. Ky. 1990)), comments made about 382 saleswomen (Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y.1952)) or allegations made about 637 fishermen (Adams v. WFTV Inc., 24 Med. L. Rptr. 1350 (Fla. Cir. Ct. 1995), aff’d 691 So.2d 557(Fla. Dist. Ct. App. 1997)). On the other hand, the Alberta Court of Queen’s Bench found that an

article concerning correctional officersfrom the Fort Saskatchewan Correctional Centre, of whom there were about 200, was defamatory (A.U.P.E. v. Edmonton Sun (1986), (AB KB), 49 Alta. L.R. (2d) 141). [64] However, the size of the group is not a decisive factor and must be balanced with other considerations. There is nomaximum size beyond which the members of a group no longer have a cause of action in defamation. The personal nature of injury canbe determined only through a contextual analysis.

In the common law, this multi-factored approach involves assessing the “intensity ofsuspicion” the comments could create in the mind of a sensible person (Butler v. Southam, at para. 56, and Gauthier v. Toronto StarDaily Newspapers Ltd. (2004), (ON CA), 188 O.A.C. 211, leave to appeal refused, [2005] 1 S.C.R. ix), and it is usedeven in the United States, where the size of the group is more important than anywhere else. (See, for example, McCullough v. CitiesService Co., 676 P.2d 833 (Okla. 1984); Fawcett Publications, Inc. v.

Morris, 377 P.2d 42 (Okla. 1962), at pp. 51-52.) (ii) Nature of the Group [65] In general, the more strictly organized and homogeneous the group, the easier it will be to establish that the injury ispersonal to each member of the group. In Jackson v.

TCN Channel 9, [2001] NSWCA 108 (AustLII), a case which involved determiningwhether a television program referring to outlaw bike gangs was defamatory, an Australian Court of Appeal found that the group’sstructure was a significant factor: While “all lawyers” are members of the same profession, they are not members of a cohesive and disciplined group with acommand structure such as a gang. The statement about “all lawyers” is an obvious over-generalisation which no reasonable reader orlistener would understand applied or was intended to apply literally to every single member of the group.

On the other hand outlaw bik[er] gangs of the type described in the programme would only attract and retain members whoaccepted and were willing to conform to the prevailing culture and ethos of the gang. In my judgment the statements made in thisprogramme are akin to statements about organised groups such as the SS, the Ku Klux Klan or the Mafia, rather than statements such as: “all lawyers are thieves”.

It would be well open to a jury to conclude that general statements made about groups such as those applied,and would be understood to apply, to every member of those groups. [paras. 23-24] [66] Conversely, the imputing of a single characteristic to all members of a group that is highly heterogeneous, has nospecific organization or has flexible, broadly defined admission criteria would make an allegation of personal injury implausible.

Forexample, the Quebec Court of Appeal has dismissed actions in defamation based on comments made about Scientology (Cabay) and theFalun Gong doctrine (Zhang). [67] Where the group’s members are identifiable or very visible in the community, it will be easier to prove that theysustained personal injury.

In A.U.P.E., for example, the Alberta trial court noted that correctional officers could easily be recognized bytheir uniforms and, from that fact, drew an inference in favour of the plaintiffs’ position. [68] Finally, in certain circumstances, the fact that a group has historically been stigmatized may mean that insults andoffensive comments made about the group will stick more easily to its members.

The vulnerability of the members of the group thusmakes them targets more susceptible to personal defamation. (iii) Plaintiff’s Relationship With the Group [69] The plaintiff’s status, duties, responsibilities or activities in the group can make it easier to prove personal injury. For example, in Trahan v. Imprimerie Gagné Ltée, [1987] R.J.Q. 2417 (Sup. Ct.), the Court of Québec found that the plaintiffs had beenaffected by comments made about fur traders because they occupied 90 to 98 percent of the market. Likewise, in Booth v.

BritishColumbia Television Broadcasting System (1982), (BC CA), 139 D.L.R. (3d) 88, the British Columbia Court of Appealheld that allegations made about narcotics squad officers “that are high up — right up on top” (p. 90) had defamed two senior detectives. Since what distinguished the plaintiffs was their high rank, it might be more difficult for police officers without any specialresponsibilities or status to prove personal injury in similar circumstances.

Indeed, in the same case, the Court of Appeal ruled againstthe other nine plaintiffs, who were lower-ranking employees of the narcotics squad. [70] A person who is a well-known member of a group is more likely to suffer damage to his or her reputation as a resultof comments made about the group. In Fawcett Publications, a football player brought an action in defamation based on allegations thatthe members of the team, which had 60 to 70 players, had used amphetamines. He was successful on the ground, inter alia, that he was“well known and identified in connection with the group” (p. 51).

Likewise, in Trahan, the Superior Court took note of the fact that theplaintiffs were known as fur traders in the area in reaching the conclusion that they had been defamed by allegations of abuse in the furtrade. (iv) Real Target of the Defamation

[ 71 ] The judge must also consider the words, gestures or images used to convey the message in order to determine the real target of the attacks. The precision or generality of the allegations will influence the analysis of the personal nature of the injury. The more general, evasive and vague the allegations, the more difficult it will be to go behind the screen of the group. For example, attacks on a doctrine, policy, opinion or religion must be distinguished from attacks on the persons supporting it, since proving personal injury will be complicated in the former situation.

In Zhang , the Quebec Court of Appeal explained the necessary distinction as follows: [ translation ] [W]hile it was the prerogative of the author of the articles to level criticism, even vehement criticism, at Li Hongzhi’s doctrine and the way it was practised by Falun Gong followers, the authors were guilty of defamation when they accused certain persons of criminal offences and perverse acts without any proof. [para. 13] Similarly, in France, the Court of Cassation held that a document challenging right-wing extremism in general and associating it with criminal and racist purposes was not defamatory, because it [ translation ] “contained no imputation or allegation of a specific fact about a specific natural or legal person” (Cass. crim., May 26, 1987, Bull. crim. , No. 217, at p. 597).

It also held that criticism of a type of agricultural production affected only the profession as a whole and left its members’ reputations intact (Cass. crim., September 16, 2003, Bull. crim. , No. 161). [ 72 ] Moreover, where allegations apply to only one segment of a group, it will be more difficult for them to reflect personally on all members of the group. This occurs where the comments include an expression such as “some”, “a few”, “several”, “most” or “all but one”.

Nonetheless, an action in defamation can sometimes be brought by one, some or all members of the group in such situations, since what is required is not certainty that the allegation relates to each member, but a suspicion that takes root in the mind of the ordinary person. In Farrington v.

Leigh (December 4, 1987, reported in the Times Law Report of December 10, 1987), which involved statements made about two of the seven police officers on a team, the English Court of Appeal found that the statements could tarnish each team member’s reputation, because each of them might be suspected of having committed unlawful acts. In the United States, the courts have dismissed actions in defamation where the impugned comments concerned one of about twenty police officers ( Arcand v. Evening Call Publishing Co. , 567 F.2d 1163 (1st Cir. 1977)) or less than the majority of police officers ( Algarin v.

Town of Wallkill , 421 F.3d 137 (2nd Cir. 2005)), but they have allowed actions where the allegations concerned “most” of 25 salesmen ( Neiman-Marcus ) and “all save one” of 12 New York radio critics ( Gross v. Cantor , 270 N.Y. 93 (1936)). (

v) Seriousness or Extravagance of the Allegations [ 73 ] As the Nova Scotia Court of Appeal stated in Butler v. Southam , “the more serious or inflammatory the allegation, the wider may be its sting” (para. 68). In Farrell v. Triangle Publications, Inc. , 159 A.2d 734 (1960), the Pennsylvania Supreme Court held that an

article accusing 13 municipal commissioners and other persons of criminal behaviour was not defamatory.

Reversing that decision of the trial court, the Court of Appeal of the same state allowed the action in defamation on the following basis: . . . readers . . . who, prior to the defamatory article, had not known the identity of all of the township’s commissioners, were impelled by the scandalous nature of the charges to make inquiry and find out who the commissioners were — a process which would almost inevitably lead to connecting the plaintiff’s name with the alleged corruption in office. [pp. 738-39] [ 74 ] In some circumstances, the seriousness of the allegations will have the opposite effect: an ordinary person will see exaggeration, excessive generalization or extravagance in the allegations and will give them less credence as a result.

Thus, where there is no rational connection between an allegation and the members of a group, the statements made will not be accep

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