In last week’s judgment in the case of Bou Malhab v Diffusion Métromedia CMR Inc (2011 SCC 9) the Supreme Court of Canada refused to permit a “class action” for libel by Arabic and Creole speaking Montreal taxi drivers who had been subjected to racist and abusive coments by Andre Arthur, a “shock jock” (turned MP)(pictured right) in the course of a radio broadcast.
The Court considered some general issues arising out the balance between the right to freedom of expression and the right to reputation. In particular, in deciding that a class action was not maintainable, the Court took into account the increasing concern of courts round the world about protecting freedom of expression in a defamation context.
The facts of the case are striking – and the length of time taken to resolve it. It goes back to 17 November 1998 when André Arthur was hosting a morning show on CKVL radio. He discussed criticism of Montreal tax drivers saying (in French)
“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” … taxis have really become the Third World of public transportation in Montreal. . . . my 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. When I see something like this, I can only think of corruption. 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“
Mr Bou Malhab, a taxi driver whose mother tongue is Arabic, applied to the court for authorization to institute a class action for defamation. There were about 1,100 taxi drivers of Arabic or Haitian origin in Montreal, 20 of whom had heard the broadcast. After an appeal Mr Malhab was granted permission to bring such an action. The trial judge found that the words were racist, defamatory and wrongful. He found that the suggestion that Arab and Haitian taxi drivers had obtained their taxi permits illegally was insulting and hurtful. Damages of Can$200,000 were awarded, payable to the Association professionnelle des chauffeurs de taxi, a non-profit organization representing taxi drivers. The defendants successfully appealed to the Quebec Court of Appeal which, by a majority, held that the defamatory and racist comments did not damage any individual member of the class of taxi drivers (2008 QCCA 1938). The plaintiff appealed to the Supreme Court which, by a 6:1 majority dismissed his appeal.
The reasons of the majority were given by Justice Marie Deschamps. After dealing briefly with the facts and the judicial history she then summarised the principles applicable to “defamation in the civil law” (the case being an appeal from Quebec Court of Appeal which applies principles derived from old French law). She noted that under both the civil law and the common law
“The concept of defamation requires that the right to the protection of reputation be reconciled with the right to freedom of expression, since that which belongs to the former is generally taken away from the latter. Several international agreements reflect this need to strike a balance between the two rights” 
However, there is no “precise measuring instrument” which can determine where the balance is struck between these two rights.
“In reconciling these two rights, the principles on which a free and democratic society is based must be respected. The intersection point will change as society changes. What was an acceptable limit on freedom of expression in the 19th century may no longer be acceptable today. Indeed, particularly in recent decades, the law of defamation has evolved to provide more adequate protection for freedom of expression on matters of public interest”. 
She discerned a general trend towards revising the law of defamation to provide more protection for freedom of expression which could be observed in England, Australia, New Zealand, United States, Germany and the European Court of Human Rights:
“What is of interest for my purposes is not so much the specific solutions proposed by these courts, which vary depending on the legal traditions, constitutional guarantees and social norms that exist in each country, as the general trend that emerges from the cases. Just like Canadian courts, including those in Quebec, all of these courts are increasingly concerned about protecting freedom of expression. The law of defamation is changing accordingly.” .
After looking at the “objective standard” used in the law of defamation to assess injury – in both the civil and common law systems, Deschamps J then went on to consider the principles applying to defamatory comments made about groups of people. She identified six factors to be used to determine whether injury to reputation has been sustained:
- the size of the group – noting that, at common law, the defamatory statements have to be made “of and concerning the” the claimant  but that the size of the group is not decisive and must be balanced with other factors;
- the nature of the group – the more organized and homogeneous the group, the easier it is to establish an injury personal to each member;
- the plaintiff’s relationship with the group – it is easier to establish a claim the person has duties and responsibilities within the group;
- the real target of the defamation;
- the seriousness or extravagance of the allegations;
- the plausibility of the statements and their tendency to be accepted;
- extrinsic factors.
She summed the position up as follows:
“Ultimately, the court must not conduct a compartmentalized analysis or seek to find all the relevant criteria. What must be determined is whether an ordinary person would believe that the remarks, when viewed as a whole, brought discredit on the reputation of the victim. The general context remains the best approach for identifying personal attacks camouflaged behind the generality of an attack on a group” .
Applying these principles to the facts, Deschamps J noted that the relevant group of taxi drivers was about 1,100 strong, the group was heterogeneous, the remarks were subjective in tone and Mr Arthur was a well known polemicist. She concluded that
“In light of these factors, … an ordinary person would have understood the extravagant nature of the comments made. Mr. Arthur’s allegations were undoubtedly serious and infuriating, but an ordinary person would nonetheless have recognized that they were an excessive generalization on the part of the host, based on an unpleasant personal experience. An ordinary person would not have believed the offensive allegations and would not have thought that Mr. Arthur was vouching for the validity of his racist and contemptuous insults. An ordinary person certainly 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” 
As a result, while the comments were wrongful they did not damage the reputation of each Montreal taxi driver whose mother tongue is Arabic or Creole and the claim failed. Her overall conclusion was that
“I have no doubt that racist speech can have a pernicious effect on the opinions of members of its audience. However, it should be noted that an action in defamation will not always be the appropriate recourse in cases concerning racism or discrimination. In the instant case, I am of the opinion that it is not the appropriate recourse.” 
McLachlin CJ, Binnie, LeBel, Charron and Rothstein JJ agreed with this judgment.
Justice Rosalie Abella dissented, concluding that an ordinary person would conclude that the remarks were defamatory of the plaintiffs and injurious. The remarks were “blatantly racist”, diminished dignity and were an invitation to contempt . Although the group was large, it was not indeterminate. The remarks raised, objectively, the clear possibility of harm to reputation and harmful economic consequences.
Despite the manifestly unpleasant nature of the broadcast comments and Abella J’s powerful dissent, the decision of the majority accords with conventional common law principles in relation to group libels. In the oft quoted words of Willes J in East v Holmes ((1858) 1 F&F 347, 349),
“If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to the particular individual“
In the leading English case of Knupffer v Express Newspapers ( AC 116) the “Daily Express” published an article referring to
“The quislings on whom Hitler flatters himself he can build a pro-German movement within the Soviet Union are an emigre group called Mlado Russ or Young Russia. They are a minute body professing a pure Fascist ideology who have long sought a suitable fuehrer“
There were twenty four members of “Mlado Russ” in England and the plaintiff was the head of the British branch. The House of Lords held that the words were not capable of referring to him.
The decision of the Supreme Court was welcomed by Sebastien Grammond, the dean of civil law at the University of Ottawa, was quoted was saying that if the court had awarded damages:
“It might (have been) used by religious groups to silence discourse that is disrespectful of a particular religion. If we recognized group defamation, then a Muslim group could bring a class action on behalf of Muslims in general and argue that (remarks) against a particular religion is defamatory and then gives rise to compensation.“
Nevertheless, despite the common law principles and the general policy considerations mentioned by Mr Grammond, it is difficult to not to sympathise with Mr Malhab’s position. The Montreal Gazette reported that he had said that the comments stirred up an insulting reaction from clients who got into cabs of Haitian and Arab drivers. As a matter of common sense, widely broadcast comments of the type in issue obviously reflected adversely on the relatively small group of taxi drivers involved.
It may be that the policy of the law – and the increasing respect given to freedom of expression – meant that the Montreal tax drivers should be denied a remedy in damages but the broadcast of comments of this kind should not be without adverse consequence. Public authorities in both Canada and England are under a positive obligation to protect the dignity of vulnerablle minorities such as the taxi drivers targeted by Mr Arthur. As other commentators have pointed out, the proper way to deal with comments of this kind was perhaps via the broadcasting regulator or, in extreme cases, the criminal law. The law of defamation is too blunt and imperfect an instrument to use in this kind of situation.
Hugh Tomlinson QC is a member of Matrix Chambers and of the Inforrm Committee.