Case Summary and Outcome

Farès Bou Malhab (“appellant”) sued a radio station for one of its shows making defamatory remarks about immigrant taxi-drivers. The lowest court fined the radio station, the appeals court revoked the fine, and the Supreme Court of Canada dismissed the appeal from the appellant to reinstate the fine.

Facts

André Arthur is a host on the CKVL radio station (which is operated by the respondent Diffusion Métromédia CMR inc.) who is known for making controversial remarks. On November 17, 1998, the show’s featured topic was whether Quebeckers were satisfied with restaurants and hotels (notably in Montréal). Before Arthur’s co-host revealed the results of the survey, Arthur commented on the taxi industry in Montréal. Arthur stated,”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 “the n-word”. . . . [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.” [para.3] [1]

Arthur continued to encourage similar remarks that were made by a taxi driver who called into the show.The appellant, Bou Malhab, is a taxi driver who’s first language is Arabic, and he asked the Superior Court for permission to pursue a class action lawsuit against the respondents.

[1] The quotation was translated from French to English

Decision Overview

The Superior Court concluded that the comments were wrong and defamatory and that the collective recover mechanism could make up for the potential that the evidence did not show that each member of the group had experienced a personal injury. The superior Court allowed the class action lawsuit and ordered the respondent to pay 220,000 dollars to a non-profit organization. The Court of Appeal found that an ordinary person would not believe the comments and ruled against the judgement of the Superior Court. The Supreme court held that the appeal should be dismissed because the appellant did not successfully prove that every individual in the class action lawsuit had been personally injured by the radio show host’s comments.

The Supreme Court stated a three-step analysis that courts should use in cases that involve compensating individuals for being defamed.The three-step analysis is:

1. Fault: Would a sensible person have made the controversial, offensive comments in the same context?
2. Injury: Would an average member of society would have agreed that te controversial, offensive comments ruined the reputation of every individual in that group and resulted in every individual of that group being personally injured? The Supreme Court also noted that the injury that the  plaintiff  is trying to show must affect every individual in the class action.
3. Causal connection: Is there a causal connection between fault and injury?

The Supreme Court also presented an incomplete list of other things that the court should consider when they are establishing personal injury. The list included:

• Size of the group: It will be more difficult to prove that each member of a larger group was injured personally than with a smaller group. )
• Nature of the group: This includes the history of oppression that the group has faced.
• How the plaintiff is related to the group
• How precise were the defamatory comments?Where they meant to precisely target someone?
• How serious were the allegations?
• Did the comments tend to be believed by a reasonable person?
• Extrinsic factors

While applying this three-step analysis the Supreme Court did not rule in favor of the appellant. The Supreme Court ruled the way it did because the group was large, made of different kinds of people ( it was not a homogeneous group),  the group members individual  characteristics do not do well with hypothesis, and that the defamatory remarks were general, extreme, and lacked sense. Finally, the Supreme Court stated in conclusion that defamation suits were not always the best way for a victim to seek justice in a discrimination case.