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Flash: Supreme Court of Canada Upholds Dismissal of Group Defamation Class Action

February 18, 2011

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 1100 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 1100 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.

Authored by: David Stolow and Nick Rodrigo of our Montréal Office.

Davies Ward Phillips & Vineberg LLP, with over 240 lawyers, practises nationally and internationally from offices in Toronto, Montréal and New York and is consistently at the heart of the largest and most complex commercial and financial matters on behalf of its North American and international clients.

The information and comments herein are for the general information of the reader and are not intended as advice or opinions to be relied upon in relation to any particular circumstance. For particular applications of the law to specific situations, the reader should seek professional advice.

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