Bou Malhab v. Diffusion Métromédia: SCC Finds “No Ordinary Person” Would Believe Reputation of “Nigger”-Speaking Arab and Haitian Taxi Drivers Was Damaged. Who is the ordinary person?

by Alysia Lau · March 2, 2011

The past year has been quite the roller coaster for libel and defamation cases here at TheCourt.ca. Our Senior Contributing Editor, Tiffany Wong, covered two crucial UK cases here and here, as well as the titillating “Officer Bubbles” story here. Just over a year ago, the Supreme Court of Canada (“SCC”) also released the landmark judgment of Grant v. Torstar Corp., 2009 SCC 61, consolidating the “defence of responsible communication” on matters of public interest. You can find TheCourt.ca‘s survey of the decision here. And interested readers should keep their eyes peeled for Black v. Breeden, 2010 ONCA 547, Conrad Black’s personal libel actions against ten foreign defendants that will be heard by our Supreme Court judges on March 22.

What links these cases together is the fact that they were brought by one riled plaintiff. Indeed, most defamation cases are brought by one plaintiff. But what happens if a defamation suit is brought as a class action? Success gets a whole lot harder – was the message sent by the SCC in Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, released February 17. In a 6-1 judgment (Justice Abella dissenting), the Court dismissed the plaintiff’s action for damages, holding that he had failed to show that each member of the group had sustained personal injury from inflammatory comments made by a radio show host.

“Polemicist” radio show host adds last straw

The facts of the case are as follows. In November 1998, André Arthur, the provocative morning show host of Montreal’s CKVL radio station, made some controversial comments during a discussion on restaurants and hotels in the city. This was the excerpt included in the SCC judgment:

[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.

Farès Bou Malhab, a taxi driver whose mother tongue was Arabic, heard Mr. Arthur’s comments and launched a class action suit of defamation against Diffusion Métromédia, which operates CKVL. Justice Guibault of the Superior Court of Quebec held that (unofficial English translation here) Mr. Arthur’s statements were wrongful and awarded damages to those taxi drivers who had heard them. The majority of the Quebec Court of Appeal overturned the trial judge (French only), holding that personal injury had not been established, as the group targeted by Mr. Arthur’s comments was large enough to dilute the accusations.

SCC re-visits the establishment of “injury” in defamation

In her reasons for the majority, Justice Deschamps first took some time to clarify the principles of civil liability for defamation. She outlined a three-step analysis in awarding compensation for defamation:

Fault – Whether a reasonable person would have made the impugned remarks in the same context;
Injury – Whether an ordinary person would have believed that the comments damaged the reputation of each member of that group, with the result that each of them sustained personal injury; and
Causal connection between the fault and injury.

With respect to Step 2, Justice Deschamps wrote that “the plaintiff must prove an injury shared by all members of the group.” More importantly, she introduced a non-exhaustive list of factors to consider in establishing personal injury. They are:

Size of the group (the larger the group, the more difficult it is to prove each member sustained personal injury)

Nature of the group (homogeneity, history of stigmatization)

Plaintiff’s relationship with the group

“Real target” of the defamation (precision or generality of the allegations)

Seriousness or extravagance of the allegations

Plausibility of the comments and tendency to be accepted

Extrinsic factors (e.g. characteristics of the maker or target of the allegations, the medium used, general context)

Cab drivers fail to measure up to Supreme Court’s meter

In examining the factors she laid out, Justice Deschamps concluded that Mr. Bou Malhab had not proven that each member of the group had sustained personal injury from Mr. Arthur’s accusations. She found that,

the group is of considerable size and is heterogeneous, that the characteristics attributed to the members of the group are individual and do not lend themselves well to extrapolation, and that the remarks are an extreme, irrational and sensationalist generalization.

She accordingly dismissed Mr. Bou Malhab’s action.

Justice Abella, on the other hand, raised a few salient points in her dissent. First, she challenged the definition of the “ordinary person” the majority had adopted as one which would embody characteristics such as an awareness of prejudices and discriminatory practices and knowledge of systemic discrimination. She likened such a description to that of “an ordinary third-year law student.” Furthermore, although she agreed with Justice Deschamps’ list of personal injury factors, in applying them to this case, Justice Abella reached a different result. She found that Mr. Arthur had made some serious allegations which distinguished an identifiable and vulnerable group that interacted with the public on a daily basis. In her opinion, it was clear that this group of taxi drivers could suffer harm both to their reputation and to their business.

Freedom of speech driven too far?

Both the majority and the dissent set this case up as a balance between freedom of expression and the importance of restricting harmful speech. Justice Deschamps opened her set of reasons with some substantial rhetoric on the importance of free speech and a survey of Western courts that are granting that freedom increasing scope and flexibility. It was certainly a vigorous attempt to justify the majority’s decision when freedom of speech did not play into the legal analysis nor reappear in the rest of the judgment at all. The repercussions of Mr. Arthur’s comments on Arab and Haitian taxi drivers, however, did.

In her description of the “ordinary person,” Justice Deschamps emphasized the perspective of “others.” The ordinary person was “the embodiment of the society that receives the impugned comments.” However, in its legal analysis, the majority of the SCC did not come close to describing who Mr. Arthur’s audience – which might already hold existing, unfavourable notions about the ethnic groups targeted – was. I agree with Justice Abella that the targets of Mr. Arthur’s allegations were members of highly vulnerable and stigmatized social groups. Mr. Arthur had made very serious accusations, which were not intended to be ironic or satirical, against groups that were already marginalized. In fact, as Justice Abella pointed out, the trial judge had even concluded that the comments were racist. An “ordinary person” who had heard Mr. Arthur’s serious allegations might very well have a lower esteem of Arab and Haitian cab drivers. In fact, Justice Deschamps mentioned that another taxi driver who had heard Mr. Arthur’s comments phoned into the radio show to make similar remarks.

In closing, Justice Deschamps noted that defamation suits were not always the appropriate means of legal recourse in discrimination cases. In this case, however, it is difficult to imagine what else Mr. Bou Malhab could have done. There was no contractual relationship between him and Diffusion Métromédia, an intentional tort would have been almost impossible to prove, and Mr. Arthur is certainly not a government actor. Yet his radio comments may have had a far-reaching audience… and far-reaching consequences as well.