Néron (Gilles E.) Communication Marketing Inc. et al. v. Société Radio-Canada et al., (2004) 324 N.R. 98 (SCC)

• Judge: McLachlin, C.J.C., Iacobucci, Major, Bastarache, Binnie, LeBel and Deschamps, JJ.
• Court: Supreme Court (Canada)
• Case Date: July 29, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 324 N.R. 98 (SCC);2004 SCC 53;JE 2004-1534;324 NR 98;241 DLR (4th) 577;AZ-50264380;[2004] RRA 715;[2004] 3 SCR 95

Néron Com. v. Soc. Radio-Can. (2004), 324 N.R. 98 (SCC)

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Temp. Cite: [2004] N.R. TBEd. JL.020

Canadian Broadcasting Corporation (appellant) v. Gilles E. Néron Communication Marketing Inc. and Gilles E. Néron (respondents) and Chambre des notaires du Quebec (intervener)

(29519; 2004 SCC 53; 2004 CSC 53)

Indexed As: Néron (Gilles E.) Communication Marketing Inc. et al. v. Société Radio-Canada et al.

Supreme Court of Canada

McLachlin, C.J.C., Iacobucci, Major, Bastarache, Binnie, LeBel and Deschamps, JJ.

July 29, 2004.

Summary:

The CBC broadcast a public affairs pro­gram critical of the Chambre des notaires du Québec (CNQ). The CNQ's communications consultant (an individual acting through his corporation, both hereafter referred to as "the plaintiff") wrote the CBC seeking a meeting with the program's director and a right of reply. The letter took issue with five items mentioned in the program. The plaintiff was mistaken on two of them. The CBC called the plaintiff, pointing out the two errors. By that time, the CNQ no longer sought a right of reply. The plaintiff asked for three days to verify his information. On the second day, the CBC broadcast a program "responding" to the plaintiff's "criticism". The CNQ ended business relations with the plaintiff. The plaintiff's career as a communications ad­visor came to an end. The plaintiff sued the CBC for defamation and the CNQ for wrong­ful repudiation of contract. The plain­tiff also sued the CBC ombudsman.

The Quebec Superior Court, in a decision reported [2000] R.J.Q. 1787; [2000] R.R.A. 811, allowed the action against the CBC and the CNQ. The court granted the individual plaintiff $1,039,207 in damages, which in­cluded $475,000 for loss of salary and other pecuniary benefits, $300,000 in moral dam­ages for defamation, $246,311.54 for extra­judicial fees and $50,000 in exemplary dam­ages. The court awarded the corporate plain­tiff $200,000 for loss of sales, $25,000 in moral damages for defamation and $50,000 in exemplary damages. The court held the CBC and the CNQ, solidarily liable on a 50/50 basis for loss of salary and other pecuniary benefits, loss of sales and moral damages but not for exemplary damages. The action against the CBC ombudsman was dismissed. The CBC and the CNQ appealed.

The Quebec Court of Appeal, Otis, J.A., dissenting, in a decision reported [2002] R.J.Q. 2639; [2002] R.R.A. 1130, dismissed the appeal. With respect to the individual plaintiff, the court set aside the $246,311.54 award for extrajudicial fees except for $8,153 for expert fees. The court reduced the award of moral damages from $300,000 to $150,000 and reduced the exemplary dam­ages from $50,000 to $15,000 each against the CBC and the CNQ. With respect to the corporate plaintiff, the court set aside the awards for moral and exemplary damages and reduced the award for loss of sales to $25,000. The court imposed liability in solidum against the CBC and the CNQ where the CBC's fault was extracontractual and the CNQ's fault contractual. The CBC appealed. The CNQ chose not to appeal.

The Supreme Court of Canada, Binnie, J., dissenting, dismissed the appeal.

Quebec Responsibility - Topic 4602

Particular examples - Defamation - General principles - What constitutes defamation - The CBC broadcast a public affairs pro­gram critical of CNQ - CNQ's communi­ca­tions consultant (the plaintiff) wrote the CBC seeking a meeting with the program's director and a right of reply - The letter took issue with five items mentioned in the program - The plaintiff was mistaken on two of them - The CBC called the plain­tiff, pointing out the two errors - The plaintiff asked for three days to verify his information - On the second day, the CBC broadcast a program "responding" to the plaintiff's "criticism" - The Supreme Court of Canada ruled that the CBC committed fault where: (1) it broadcast the plaintiff's letter in an incomplete and misleading man­ner; (2) it refused to allow the plaintiff time to verify his errors; (3) it refused to mention that the plaintiff sought this time; (4) the plaintiff never wanted the content of the letter broadcast; and (5) the CBC ombudsman, upon a complaint by the plaintiff, had made a conclusion adverse to the CBC - The CBC intentionally defamed the plaintiff, and it did so in a manner that fell below the professional standards of a reasonable journalist - See paragraphs 1 to 73.

Quebec Responsibility - Topic 4602

Particular examples - Defamation - General principles - What constitutes defamation - The CBC was sued for defamation for an al­legedly improper broadcast - The Su­preme Court of Canada discussed the im­por­tance of the freedom of the press, of the right to respect for one's reputation and of finding an equilibrium between the two rights in the Quebec law of civil liability for defamation - The court stated that fault could still exist in a case where the infor­mation broadcast might be true, at least in part, it could have been in the public inter­est to broadcast the information, but the whole of the broadcast quite simply did not measure up to professional standards - See paragraphs 48 to 55.

Cases Noticed:

Radio Sept-Iles Inc., Bergeron et autres c. Société Radio-Canada et Durand, [1994] R.J.Q. 1811 (C.A.); 18 Q.A.C. 79, refd to. [paras. 14, 97].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 20].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 25].

Société Radio-Canada v. Lessard (juge), Quebec (Procureur général) et autres, [1991] 3 S.C.R. 421; 130 N.R. 321; 43 Q.A.C. 161; 67 C.C.C.(3d) 517, refd to. [para. 26].

Canadian Broadcasting Corp. v. Lessard - see Société Radio-Canada v. Lessard (juge), Quebec (Procureur général) et autres.

Viel v. Entreprises Immobilières du Terroir Ltée, [2002] R.J.Q. 1262 (C.A.), refd to. [para. 33].

Prévost-Masson v. Trust Général du Canada et al., [2001] 3 S.C.R. 882; 278 N.R. 368; 2001 SCC 87, refd to. [para. 38].

Aubry v. Editions Vice-Versa Inc. et al., [1998] 1 S.C.R. 591; 224 N.R. 321, refd to. [para. 39].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, consd. [paras. 48, 96].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, consd. [paras. 49, 96].

Société Radio-Canada v. Nouveau-Bruns­wick (Procureur général) et autres, [1991] 3 S.C.R. 459; 130 N.R. 362; 119 N.B.R.(2d) 271; 300 A.P.R. 271; 85 D.L.R.(4th) 57, consd. [paras. 50, 96].

Prud'homme v. Prud'homme, [2002] 4 S.C.R. 663; 297 N.R. 331; 2002 SCC 85, consd. [paras. 51, 98].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 74].

Snyder v. Montreal Gazette Ltd., [1988] 1 S.C.R. 494; 82 N.R. 371; 12 Q.A.C. 83, consd. [para. 95].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 2(b) [para. 46].

Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12, sect. 3, sect. 4, sect. 5 [para. 46].

Civil Code of Québec, S.Q. 1991, c. 64, art. 3, art. 35, art. 36, art. 1457, art. 1478, art. 1525 [para. 46].

Authors and Works Noticed:

Baudouin, Jean-Louis and Deslauriers, Patrice, La responsabilité civile (6th Ed. 2003), pp. 193 [para. 56]; 207 [para. 61].

Pineau, Jean, Burman, Danielle and Gau­det, Serge, Théorie des obligations (4th Ed. 2001), pp. 676, 677 [para. 79].

Counsel:

Sylvie Gadoury and Judith Harvie, for the appellant;

Jacques Jeansonne and Alberto Martinez, for the respondents;

Michel Jetté, for the intervener.

Solicitors of Record:

Canadian Broadcasting Corp., Montreal, Quebec, for the appellant;

Deslauriers Jeansonne, Montréal, Quebec, for the respondents;

Joli-Coeur, Lacasse, Geoffrion, Jetté, St-Pierre, Montréal, Quebec, for the inter­vener.

This appeal was heard on February 18, 2004, by McLachlin, C.J., Iacobucci, Major, Bastarache, Binnie, LeBel and Deschamps, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court of Can­ada, was delivered in both official lan­guages on July 29, 2004, and the following reasons were filed:

LeBel, J. (McLachlin, C.J., Iacobucci, Major, Bastarache and Deschamps, JJ., concurring) - see paragraphs 1 to 81;

Binnie, J., dissenting - see paragraphs 82 to 112.