CLASS ACTION AND DEFAMATION: HAITIAN AND ARAB TAXI DRIVERS
AUTHORIZED TO INSTITUTE CLASS ACTION AGAINST
RADIO HOST ANDRÉ ARTHUR
André Arthur, a well-known Québec radio show host, accused Montreal Haitian or Arab taxi
drivers of being incompetent and ignorant on his call-in talk show, which airs on CKVL. He
claimed that their cars are dirty and in bad repair.
He described Arabs as “fakirs” and said Haitians speak “ti-nègre”, a disparaging term used in
Québec to refer to the Creole language.
He made these comments in 1998.
There are approximately 1,000 Haitian or Arab taxi drivers in Montreal.
One taxi driver, Farès Bou Malhab, asked the Superior Court for authorization (certification) to
institute a class action on behalf of taxi permit holders and taxi-driver permit holders whose
mother tongue is Arab or Creole.
The Superior Court dismissed Farès Bou Malhab’s motion in 2001.
Mr. Malhab turned to the Court of Appeal, which quashed the trial court’s decision and
authorized the class action in part, authorizing the recourse for taxi drivers only: taxi permit
holders who are not taxi drivers are not authorized to participate in the action.
Authorization Criteria
The rules governing authorization to institute a class action are set out in Article 1003 of the
Code of Civil Procedure of Québec:
“1003. The court authorizes the bringing of the class action and ascribes the status of
representative to the member it designates if of opinion that:
(a)
fact;
(b)
the recourses of the members raise identical, similar or related questions of law or
the facts alleged seem to justify the conclusions sought;
(c) the composition of the group makes the application of article 59 or 67 difficult or
impracticable; and
(d) the member to whom the court intends to ascribe the status of representative is in a
position to represent the members adequately.”
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The Superior Court had refused to authorize the class action because it believed the conditions
set out in Paragraphs (b) and (c) were not met.
An apparent cause of action
Paragraph 1003(b) of the Code of Civil Procedure does not establish a particularly stringent
burden on the plaintiff, which need only establish that his arguments “seem” justified.
But the debate gets much more complicated when dealing with the delicate issue of group libel.
Remember that civil law in Québec does not provide for any special recourse against libel.
However, the Civic Code of Québec does contain a provision in Article 3 protecting reputation:
“Every person is the holder of personality rights, such as the right to life, the right to the
inviolability and integrity of his person, and the right to the respect of his name,
reputation and privacy.”
Section 4 of the Québec Charter of Human Rights and Freedoms, takes this right to reputation
and lifts it to the status of a fundamental right:
“4. Every person has a right to the safeguard of his dignity, honour and reputation.”
The importance of this section becomes clear upon reading Section 49 of the Charter, which
allows a person who is the victim of any unlawful and intentional interference with a
fundamental right to claim punitive damages.
Under the rule of Québec civil law, a person who believes himself or herself the victim of
defamatory utterances may assert his or her rights in accordance with the general rules of civil
liability.
However, Québec jurisprudence does admit that, in certain cases, a group can be victim of libel.
The Court of Appeal cited a case dating back to 1915 in which a lecturer verbally attacked Jews
from Québec City at a time when only 75 Jewish families lived in that town.
In another case dating back to 1946, an individual called all Raymonds living in the same parish
bastards. Very few people in the parish bore that name.
But the larger the group, the more the defamation is spread thin, eventually disappearing and
leaving members of the group without entitlement to compensation.
In this case, the Court narrowed the group of 2,000 down to 1,000 persons, by excluding taxi
permit holders who are not taxi drivers.
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Without adjudicating on the merits, the Court of Appeal did confirm that it falls within the trial
court’s purview to determine whether a concept that usually applies to individuals – injury to
reputation – can be stretched beyond this narrow limit and apply to the group in question, all the
while taking into account the nature of the comments made and the circumstances under which
the libel occurred.
Libel and Class Action
André Arthur and Metromedia CMR Montreal Inc. claimed that class actions and actions for
libel are incompatible.
They cited in support of this claim a case heard before the Court of Appeal for Ontario, Kenora
(Town) Police Services Board v. Savino. In that decision the court had refused to authorize the
class action filed by Kenora police against persons who had stated that “some members of the
police department” had exhibited a racist attitude.
The Court of Appeal for Ontario ruled that these comments could not be interpreted to mean that
all members of the police department had acted that way.
The Court of Appeal of Québec believes this case to be different in that André Arthur made no
such nuances. He attacked Arab or Haitian drivers not for what they had done, but for what they
were.
But what of the argument that class actions are incompatible with actions for libel? The Court of
Appeal responded that class action law is procedural, not substantive.
This means there can be no incompatibility between class action law and defamation law.
This being said, the Court of Appeal does concede that this procedural vehicle, which draws its
origins from a community-centered philosophy, cannot be readily adapted to actions for libel
which are personal by nature.
Despite this, even if the injury suffered is moral and difficult to define, it is no less important
than material loss or bodily injury.
It is up to the trial judge to make that distinction. He must weigh André Arthur’s right to freedom
of expression against the taxi drivers’ right to protect their reputation.
If the trial judge believes that André Arthur slandered the taxi drivers, he or she will then have to
decide if pecuniary compensation is the only possible remedy. He or she may choose to order
payment of exemplary damages to charitable organizations.
Note that Farès Bou Malhab is asking for $750 in moral damages and $200 in exemplary
damages for each member of the group.
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It will be interesting to see whether this case will have a domino effect, inspiring others to
imitate Farès Bou Malhab and file suit against the hosts of call-in talk shows.
And now, let us examine this case from a common law perspective.
A Common Law Perspective
In the common law, it has long been settled that allegedly defamatory words must refer to the
plaintiff individually if the plaintiff is to succeed. It is for this reason that defamation is referred
to as a personal tort, or as conferring a personal cause of action only.1 A defamatory reference to
a group of persons does not, as a general rule, result in a person having a cause of action solely
because the person is a member of the group referred to.2 This is because of the difficulty in
establishing that the plaintiff was in fact specifically defamed by the statement.3 A broad
allegation that “all lawyers are thieves”, for example, does not confer a cause of action because it
an unfounded generalization approaching vulgar abuse, and does not convey a sufficient sting to
the individual character of members of the profession.4 The common law concept of defamation
as an individual tort, and the consequent requirement that the words complained of refer to the
plaintiff individually, has result in the common law courts being reluctant to allow libel cases to
proceed as class actions.5
This is not to say that a reference to a group may never give rise to an individual cause of action
at common law, however. Where the plaintiff is not referred to by name and the reference
complained of is expressly to a group or class, the plaintiff bears the onus of proving that the
words refer to the plaintiff.6 In some cases, a reference to a group may be found to include a
reference to an individual plaintiff sufficient to give rise to a cause of action. A reference to an
individual plaintiff may be found where there is a reference to a narrowly defined group whose
members are either known or likely to be readily identified. The essential question is whether in
all the circumstances, including such matters as the size of the class, the generality of the words,
1
2
See, for example, Aiken et al. v. Harris (1999), 45 O.R. (3d) 266, at p. 272, per J. Macdonald J. (S.C.J.)
Aiken et al. v. Harris (1999), 45 O.R. (3d) 266 (S.C.J.)
3
Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116, at p. 122, per Lord Atkin (H.L.)
4
Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116, at p. 122, per Lord Atkin (H.L.)
5
Kenora Police Services Board v. Savino (1996), 3 C.P.C. (4th) 159 (O.C.J. (Gen. Div.); McCann v. The Ottawa
Sun et al. (1993), 16 O.R. (3d) 672 (O.C. (Gen. Div.) Chilcott J.; Seafarers International Union of Canada et
al. v. Lawrence (1979), 24 O.R. (2d) 257 (C.A.)
Elliott et al. v. Canadian Broadcasting Corporation et al. (1995), 25 O.R. (3d) 302, at p. 305, per Abella J.A.
(concurring) (C.A.) See also Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 at p. 118, per
Viscount Simon L.C. (H.L.); Grant v. Cormier-Grant, Ontario Court of Appeal, October 3, 2001, per Borins
J.A.; Aiken et al. v. Harris (1999), 45 O.R. (3d) 266 (S.C.J.)
6
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and the extravagance of the charge, the plaintiff is personally pointed to by the words.7 A
defamatory statement referring to the members of a particular firm, a particular board of trustees,
or the tenants of a particular building may furnish an instance of defamation of each of the
individuals in the group.8 Each case must be considered on its own facts. The larger the group
and the more general the reference, the less likely it is that the words will be found to have
referred to a particular plaintiff. In recent years, for example, it has been held that a reference to
“the teachers’ unions” and “the union bosses” is insufficiently specific.9
It is therefore possible to imagine a fact situation in which a class action in defamation could
succeed at common law. Since the issue may call for nice judgement on the facts of any
particular case, it may be argued that the Québec Court of Appeal was correct in declining to
dismiss the taxi drivers’ case on a preliminary basis. In Elliott v. Canadian Broadcasting
Corporation et al., for example, Justice Abella of the Ontario Court of Appeal, in a sole
concurrence, left open the question whether in certain circumstances a cause of action in libel
could be successfully asserted on behalf of a very large group.10 Even if the Québec taxi drivers
could establish a sufficient reference to each of them as individuals in the common law courts,
they would face an additional hurdle. Common law courts have consistently declined to allow
libel cases to proceed as class actions on the ground that the damages of each member of the
plaintiff class are likely to be different, and that different defences may apply to the claims of
different class members.11 On both points, the common law would suggest that the taxi drivers
would be marching uphill.
7
Elliott v. Canadian Broadcasting Corp. (1995), 38 C.P.C. (3d) 332 (Ont. C.A.) See also Campbell et al. v.
Toronto Star Newspapers Ltd. (1990), 73 D.L.R. (4th) 190 (O.C. (Gen.Div.), (Div.Ct.)
8
Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116, at p. 123, per Lord Russell, and at p. 119, per
Viscount Simon (H.L.)
9
Lennon et al. v. Harris et al. (1999), 45 O.R. (3d) 84 (S.C.J.)
10
(1995), 25 O.R. (3d) 302, at p. 305, per Abella J.A. (concurring) (C.A.) The majority in Elliott expressly limited
its decision to the ground that the material complained of was not defamatory of the plaintiffs.
11
Seafarers International Union of Canada et al. v. Lawrence (1979), 24 O.R. (2d) 257 (C.A.); Campbell et al. v.
Toronto Star Newspapers Ltd. (1990), 73 D.L.R. (4th) 190 (O.C.(Gen.Div.), Div.Ct.); Kenora Police Services
Board v. Savino (1996), 3 C.P.C. (4th) 159 (O.C.J. (Gen. Div.)
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