The Supreme Court of Canada (the "SCC") released
yesterday its highly anticipated decision in the case of Bou
Malhab vs. Diffusion Métromédia CMR Inc. et.
al. By a 6:1 majority decision, the SCC maintained a
2008 judgment of the Québec Court of Appeal (the
"QCA") and upheld the dismissal of a group defamation
class action brought on behalf of 1,100 Montréal taxi
drivers whose mother tongue was Arabic and Creole based on comments
made in 1998 by former radio host André Arthur.
Davies litigators David Stolow, Nick Rodrigo and Marie-Ève
Gingras represented the respondents before the SCC.
In its decision of February 17, 2011, the majority of the SCC held
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" and that, to obtain
compensation, a member of the group must prove that an ordinary
person would have believed that he/she personally suffered
damage to their reputation. The majority concluded that this
was not the case here.
The case dates back to comments made by André Arthur in 1998
(at which time he was employed by Métromédia) with
respect to taxi drivers in Montréal. The appellant, a
Montréal taxi driver, sought permission of the Québec
Superior Court (the "QSC") to bring a class action in
moral and punitive damages on behalf of a group of approximately
1,100 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 on the merits, the QSC granted the class action
in part. It condemned the respondents to pay moral damages in the
amount of $220,000 ($200 for each member of the group), but
dismissed the claim for punitive damages. In a 2008, 2:1 judgment,
the QCA overturned the decision of the QSC on the basis that the
comments in question did not directly or indirectly name any
specific individual, but rather were directed towards a group and
that an "ordinary citizen" would not conclude
that the individual reputation and personal dignity of each member
of a group were being infringed upon.
The judgment can be found here.
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