Supreme Court Judgments

Gilles E. Néron Communication Marketing Inc. v. Chambre des notaires du Québec, [2004] 3 S.C.R. 95, 2004 SCC 53

Canadian Broadcasting Corporation                                                               Appellant

v.

Gilles E. Néron Communication Marketing Inc. and                                                   

Gilles E. Néron                                                                                            Respondents

and

Chambre des notaires du Québec                                                                  Intervener

Indexed as:  Gilles E. Néron Communication Marketing Inc. v. Chambre des notaires du Québec

Neutral citation:  2004 SCC 53.

File No.:  29519.

2004:  February 18; 2004:  July 29.

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

on appeal from the court of appeal for quebec

Civil liability — Defamation — Television network — Public affairs program citing only erroneous portions of letter sent by communications consultant to director of program to request right of reply — Contents of letter presented in incomplete and misleading manner — Whether broadcast legitimate given the public’s right to be informed and freedom of expression — Whether broadcast fell short of professional standards of reasonable journalist — Civil Code of Québec, S.Q. 1991, c. 64, art. 1457.

Civil liability — Defamation — Damages — Television network held liable in defamation solidarily with professional order — Damages difficult to divide between parties — Whether trial judge erred in imposing solidary liability — Whether liability in solidum should be ordered.

The French network of the Canadian Broadcasting Corporation (“CBC”)  aired on the show Le Point a report on delays by the Chambre des notaires du Québec (“CNQ”) in dealing with disciplinary complaints against notaries and compensation claims made to its indemnity fund.  The CNQ set out to counter the negative effects of the broadcast and the respondent N, who acted as a communications consultant for the CNQ, drafted a handwritten letter to request a meeting with the director of the show.  In the letter, he lamented the prejudicial effect that the broadcast had had on the CNQ and pointed out certain errors.  When contacted by a journalist of the CBC, N explained that the letter was nothing more than a request for a right of reply and that it was not meant for publication.  The journalist pointed out to N two errors in the letter concerning two disgruntled complainants seen in the broadcast.  N said that he was going to verify the information, which he had received from the CNQ, and respond within three days.  A day before N’s requested time was to expire, Le Point broadcast a report crafted as a response to N’s letter, but quoted only the erroneous portions of the letter.  Following this broadcast, a rash of letters were received from notaries who expressed indignation and dismay about the CNQ’s communication policies. In a communiqué sent to all notaries and all professional corporations, the Interprofessional Council, the media, the Office des professions and the Minister of Justice, the CNQ asserted that N had sent his letter on his own, without its authorization.  Soon thereafter, the CNQ terminated contractual relations with N and his corporation.  N lodged a complaint with the CBC’s ombudsman who acknowledged that one of the grievances was well‑founded in that the second broadcast seriously compromised the principle of fairness by failing to mention the five grievances that were central to N’s letter and only reporting on the two errors.  N and his corporation initiated a claim for damages against the CBC and the CNQ.  The Superior Court found the CBC liable in defamation, solidarily with the CNQ.  The majority of the Court of Appeal dismissed the CBC’s appeal, concluding that the trial judge had correctly found fault in this case but that the CBC and CNQ were to be held liable in solidum, not solidarily.  The CNQ is not a party to the appeal before this Court.

Held (Binnie J. dissenting):  The appeal should be dismissed.

Per McLachlin C.J. and Iacobucci, Major, Bastarache, LeBel and Deschamps JJ.:  Freedom of expression, and its corollary, freedom of the press, play an essential and invaluable role in our society.  These fundamental freedoms are protected by s. 3 of the Quebec Charter of Human Rights and Freedoms and s. 2( b )  of the Canadian Charter of Rights and Freedoms .  However, freedom of expression is not absolute and can be limited by the requirements imposed by other people’s right to the protection of their reputation.  This right also receives protection under s. 4 of the Quebec Charter and under art. 3 C.C.Q. In an action in defamation, the two fundamental values of freedom of expression and the right to reputation must be weighed against each other to find the necessary equilibrium.

An action in defamation in Quebec is grounded in art. 1457 C.C.Q. Like any other action in civil, delictual and quasi‑delictual liability, the plaintiff must establish, on a balance of probabilities, the existence of injury, a wrongful act and a causal connection between the two.  Furthermore, in order to prove injury, the plaintiff must demonstrate that the impugned remarks were defamatory.  Here, the thrust of the CBC’s argument is the absence of fault.  The other elements are not seriously at issue. The determination of fault in an action in defamation involves a contextual analysis of the facts and circumstances.  Truth and public interest are factors to consider but they are not necessarily the determinative factors.  It is insufficient in this case to focus merely on the veracity of the content of the second broadcast report.  One must look globally at the tenor of the broadcast, the way it was conducted and the context surrounding it.  The guiding principle of liability for defamation is that there will not be fault until it has been shown that the journalist or media outlet in question has fallen below professional standards.  The conduct of the reasonable journalist becomes the all‑important guidepost.

In holding the CBC liable for defamation, the Superior Court and the Court of Appeal achieved the correct balance between freedom of expression and N’s right to respect for his reputation.  Even though N’s handwritten letter cannot be considered private, in focussing only on the two errors in that letter, the second broadcast was misleading, giving the impression that the substance of N’s letter was limited to these two erroneous statements.  The letter discussed other concerns relating to the image of notaries created by the broadcast.  A person viewing the report in question would not be aware of these other concerns.  Nor would the viewer be aware, from the structure of the report, that the letter was really just a request for a meeting and a right of reply. By leaving out vital pieces of information the CBC misrepresented N’s letter as a disingenuous attempt to mislead the CBC, and thereby the public.  Moreover, the CBC intentionally and deliberately broadcast the errors in the letter before N could attempt to set things straight.  The tone and tilt of the second broadcast pointed to its being more of a response to N’s criticism than an exercise in protecting the public interest. Lastly, the CBC’s own ombudsman found one of N’s complaints to be quite serious and considered the second broadcast to have the appearance of a settling of accounts. This is highly detrimental to the CBC’s case.  The Ombudsman also openly implied that the journalists did not live up to proper journalistic standards, given the selective use of certain portions of the letter.  These factors lead to the conclusion that the CBC intentionally defamed N and did so in a manner that fell below the professional standards of a reasonable journalist.  By not respecting professional standards in this case, and given all the other surrounding circumstances, the CBC was at fault.

An order for liability in solidum is appropriate.  The damages were of a global nature and it would be difficult, in practical terms, to divide the object of the global debt.  Moreover, the trial judge is to be afforded significant deference in respect of his finding that the damages could not be easily divided.  There has been little evidence adduced to explain how the damages could be apportioned between the CBC and CNQ in a just fashion.  As such, this is the kind of case where the liability of the parties should be in solidum.

Per Binnie J. (dissenting):  A legal rule that awards $673,153 in damages to N and his corporation on the basis of a broadcast which stated true facts, the publication of which was undoubtedly in the public interest, just because other lesser matters might also have been mentioned but were not, or further context might have been provided but was not, is inconsistent with s. 3 of the Quebec Charter of Human Rights and Freedoms including the public’s right to have access to true and accurate information about matters of legitimate interest and concern. In this case, despite the journalists’ boorish refusal to meet promptly with N and the poor quality of presentation evident in the second broadcast, civil fault should not be attributed to the CBC when all the relevant public interest issues are taken into account.

The first broadcast relied in part on two complainants, T and L, who agreed to be interviewed on the air.  On learning about the broadcast, the CNQ (without checking its facts) leapt to the attack, alleging (erroneously) that L had lied about his complaint because the CNQ had in fact reimbursed him for a loss suffered at the hands of one of its members, and that T’s brother was the leader of a bizarre and violent cult.  It was appropriate to bring these allegations to the attention of viewers, together with the journalists’ response.

First, while the second broadcast ought to have presented N’s letter in a more complete and balanced fashion, the lack of balance did not subvert the truth of the real matter of interest to the public, namely the truth of the CNQ’s allegations pertaining to the complainants.  Second, although N ought to have been given time to verify the errors in the letter, the allegations against the complainants were demonstrably false whether or not N took the opportunity to verify them.  Had N publicly acknowledged the falsity of the allegations, it would simply have added to the impression that the CNQ had responded impetuously to the original broadcast with a misinformed attack on the complainants, for which it should justly be called to account.  Furthermore, it would not have improved N’s reputation for the CBC to report that he wanted time to find out about the truth of the CNQ’s allegations only after they were made.  Third, the CBC was entitled to consider the information it had received to be public.  There was no indication in N’s letter to the contrary. Fourth, the criticism of some aspects of the second broadcast by the CBC’s ombudsman cannot be equated with a finding of civil fault.  He was not concerned with balancing the values of a free press and the respect for reputation.  Had the other points made in N’s letter been broadcast they would not have pulled the sting, or served the public interest in any substantial way, or for that matter, have helped to save N’s reputation.

Cases Cited

By LeBel J.

Applied:  Société Radio‑Canada v. Radio Sept‑Îles Inc., [1994] R.J.Q. 1811; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Prévost‑Masson v. General Trust of Canada, [2001] 3 S.C.R. 882, 2001 SCC 87; Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85; referred to:  Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, 2002 SCC 18; Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421; Viel v. Entreprises immobilières du terroir ltée, [2002] R.J.Q. 1262; Aubry v. Éditions Vice‑Versa inc., [1998] 1 S.C.R. 591; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33.

By Binnie J. (dissenting)

Snyder v. Montreal Gazette Ltd., [1988] 1 S.C.R. 494; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459; Société Radio‑Canada v. Radio Sept‑Îles Inc., [1994] R.J.Q. 1811; Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , s. 2 ( b ) .

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 3, 4, 5.

Civil Code of Québec, S.Q. 1991, c. 64, preliminary provision, arts. 3, 35, 36, 1457, 1478, 1525, 1619, 2125.

Code of Civil Procedure, R.S.Q., c. C‑25, art. 547.

Authors Cited

Baudouin, Jean‑Louis, et Patrice Deslauriers.  La responsabilité civile, 6^e éd.  Cowansville, Qué.:  Yvon Blais, 2003.

Pineau, Jean, Danielle Burman et Serge Gaudet.  Théorie des obligations, 4^e éd. par Jean Pineau et Serge Gaudet.  Montréal:  Thémis, 2001.

APPEAL from a judgment of the Quebec Court of Appeal, [2002] R.J.Q. 2639 (sub nom. Société Radio-Canada v. Gilles E. Néron Communication Marketing Inc.), [2002] Q.J. No. 4727 (QL) reversing in part a decision of the Superior Court, [2000] R.J.Q. 1787, [2000] Q.J. No. 2011 (QL).  Appeal dismissed, Binnie J. dissenting.

Sylvie Gadoury and Judith Harvie, for the appellant.

Jacques Jeansonne and Alberto Martinez, for the respondents.

Michel Jetté, for the intervener.

The judgment of McLachlin C.J. and Iacobucci, Major, Bastarache, LeBel and Deschamps JJ. was delivered by

LeBel J. —

I.       Introduction

1                                   This is an appeal from a majority judgment of the Quebec Court of Appeal dismissing the appeal of the Canadian Broadcasting Corporation (“CBC”) from the decision of Tellier J. at trial.  Tellier J. found the CBC liable in defamation, solidarily with the Chambre des notaires du Québec (“CNQ”), for damages stemming from a program aired on January 12, 1995 on the CBC’s French language television network.  The CNQ is not a party to this appeal.  I dismiss the CBC’s appeal for the reasons that follow. 

II.      Background

2                                   In the months preceding January 12, 1995 (the date of the relevant broadcast), it appears that the CNQ was having difficulty managing certain disciplinary complaints and claims for compensation brought by the public.  At the same time, starting in September 1994, the broadcasting team of the CBC’s Le Point news program undertook to produce a series of programs aimed at examining whether Quebec professional orders like the CNQ adequately protect the interests of the public.  On December 15, 1994, the CBC aired a report on delays at the CNQ in dealing with disciplinary complaints against notaries and compensation claims made to the CNQ’s Indemnity Fund.  A journalist from Le Point named Ms. Johanne Faucher interviewed two particularly disgruntled complainants, Mr. Yvon Thériault and Mr. Richard Lacroix.

3                                   It was at this point that the respondent Gilles E. Néron came into the picture.  Mr. Néron is the founder of the respondent company Gilles E. Néron Communication Marketing Inc. (“GEN Communication”).  Through his company, he acted as a communications consultant for public institutions, including the CNQ.  On December 16, 1994, the CNQ set out immediately to counter the negative effects of the CBC broadcast.  It was in this context that Mr. Néron drafted the following handwritten letter, on December 18, 1994, to request a meeting with Ms. Kateri Lescop, director of Le Point.  In it, he lamented the prejudicial effect that the December 15th broadcast had on the CNQ, and points out certain errors.  At this point, it would be useful to quote the handwritten letter in full:

[translation]

Kateri Lescop

Director

Le Point — CBC

Dear Ms. Lescop:

We met at the opening of the CNQ convention in Quebec City.  I also helped make it possible for the CNQ, its president, Louise Bélanger, and its syndic, Mr. Mercier, to provide you with assistance in preparing your report on professional corporations.  I work with the CNQ as an adviser.

I therefore watched last Thursday’s report on Le Point with interest.

I was unable to reach you Friday and would like to meet with you as soon as possible.

I invite you to read the news release and letter that I forwarded to Claude Langlois at the Journal de Montréal.

Personally, I found your report to be accurate for the most part.  You referred to two cases, most regrettable ones at that, and gave two CNQ representatives the opportunity to comment.

However, I must take issue with the following:

1-  The introduction, which was run repeatedly (the night before on Le Point, on the 10 o’clock news, that morning in the Journal de Montréal and again at the beginning of the report), led viewers to believe that notaries are not to be trusted and that the CNQ does not protect the public well.

2-  Your conclusion that “Mr. Lacroix is considering writing to the Minister to ask him to put the CNQ under trusteeship” gave some people the impression that the chairman of the Office [des professions] was going to make this request, while others were left thinking that Le Point’s reporters came to this conclusion after their investigation.

3-  In the report, the death threats made against the president are referred to as nonsense.  Mr. Thériault is presented as a person who would be justified in making such threats.  You failed to mention that he is the brother of the Thériault who was the Pope of the Infinite Love cult and who cut off his spouse’s arm.

4-  You also failed to mention in the report that Mr. Lacroix was reimbursed by the CNQ for the money he lost.

5-  I also have difficulty understanding the reference to notary Potiron, the fusty old man.  I found this allusion inappropriate.  The notarial profession has a 128-year history of faithful service in Quebec.  There are many young notaries.  They are excellent, dynamic and innovative legal professionals.

In recent years, more than 70% of all newly admitted notaries have been women.

All notaries, women and men, have been affected by your report.  When you work hard and conscientiously for your clients, it is difficult to hear someone call you a thief and irresponsible.

There are people in any profession or situation who will take advantage of others, but the supervision and monitoring system established by the CNQ works.  As Ms. Bélanger and Mr. Mercier explained to you, the notarial profession is, by its very nature and by the training required, a very demanding one, and this ensures a very high degree of integrity.  However, if in an exceptional case a notary takes a chance, he or she will always be caught very quickly.

It is the subsequent process relating to justice and human rights that takes time.

Today, some notaries are rebuking the president for co-operating with you, but she did so in good faith, and also because it is her responsibility.  When things like this take place, rationality does not always prevail.

Le Point is an important program that influences many people.  There are things that must be put in perspective, and I would like to discuss them with you and Mr. Lépine if you see fit to do so. 

The president, Ms. Bélanger, also hopes to have an opportunity very soon to make a comment in an upcoming broadcast of Le Point.

Ms. Lescop, for over 20 years my name has, by choice, been linked with ethics.  I can attest that the last things notaries can, as a group, be accused of are failings at the level of rigour or of ethics.

I look forward to meeting with you in the next few days.

Yours sincerely,

(Signed) Gilles E. Néron,

President

(Underlining in original.)

4                                   Mr. Néron personally delivered this letter to the CBC’s offices.  The following day, Monday, December 19th, a change of strategy occurred at the CNQ.  A decision was made internally no longer to seek a right of reply.  However, Mr. Néron’s letter was already in the CBC’s hands.  Mr. Néron continued to attempt to contact Ms. Lescop between December 22, 1994 and January 6, 1995, leaving a few telephone messages for her.  Although the CNQ had decided that it would no longer seek a right of reply, Mr. Néron still had a mandate from the CNQ to meet with Ms. Lescop and attempt to repair the negative image of notaries resulting from the December 15th broadcast.  Ms. Lescop did not return any of Mr. Néron’s calls.  On January 4th, however, the journalist Ms. Johanne Faucher contacted the CNQ’s internal communications adviser (Mr. Antonin Fortin) at the CNQ.  In keeping with the CNQ’s decision, Mr. Fortin refused Ms. Faucher’s offer of a follow-up interview.  Ms. Faucher questioned the internal communications adviser about the content of Mr. Néron’s letter to Ms. Lescop, to which he replied that the letter was a personal initiative of Mr. Néron’s.

5                                   In the afternoon of January 10, 1995, Ms. Faucher contacted Mr. Néron, who reiterated that the CNQ no longer sought a right of reply.  He added that the December 18, 1994 letter was nothing more than a request for a right of reply.  The letter was addressed to Ms. Lescop personally and was not meant for publication [translation] “or to be communicated in any form whatsoever”.  Ms. Faucher pointed out two errors in the letter.  She informed Mr. Néron that Mr. Thériault was not the brother of the infamous Roch Thériault (alias Moses) and that Mr. Lacroix had not yet been compensated by the CNQ.  Mr. Néron’s response was that he was going to verify this information, which he had received from the CNQ, and that he would “get back to her no later than the upcoming Friday[, January 13, 1995] at the end of the day”.

6                                   Late in the afternoon of Thursday, January 12, 1995, Mr. Néron learned that the letter was the subject of a report to be aired that same night.  This was a day before Mr. Néron’s requested time was to expire. 

7                                   The report that night was crafted as a response to Mr. Néron’s letter of December 18th.  First, significant portions of the December 15th broadcast were reproduced, in particular those parts relating to Mr. Thériault and Mr. Lacroix.  The journalist then quoted the erroneous portions of the letter relating to Mr. Thériault and Mr. Lacroix.  Since the content of the January 12th report is so relevant to the outcome of this appeal, I shall reproduce the same extracts that the trial judge chose to quote at pp. 1797-98 of his reasons.  The segment was entitled Mise au Point:

[translation]

Achille Michaud

The CNQ was shocked and shaken by the report. It even refused to comment on it.

However, one of its communications advisers wrote to us, accusing us of having made several errors.

Tonight, we will respond to this criticism.

. . .

Johanne Faucher

The testimony of two individuals who have filed complaints with the CNQ revealed the following:

— the CNQ is slow to take action against notaries who are guilty of fraud;

— their investigations are unduly long; and

— these delays cause serious harm to the victims of fraud.

. . .

Johanne Faucher

The CNQ’s slowness to take action left him so distraught that he eventually made threats against its president.

A bodyguard keeps watch at the entrance to the CNQ’s offices.  The president has received death threats.

Yvon Thériault

I scared them, but I told them.  I don’t mind spending the rest of my life in jail, and it’s not certain that I won’t be spending time in prison.

I’m going to break windows.  I’m going to make noise.  I’m going to raise a ruckus.  I’m not going to leave them alone, in other words.  I’m not a murderer; I won’t kill anyone.  I told them I wouldn’t kill anybody.  They were the ones who thought I wanted to kill somebody.  I basically let them think that.  But I would have broken things.  I would have made noise, that’s for sure.  I would have raised hell to get my case to the top of the pile, because they told me that the president had just gotten back from vacation and that she had 200 cases.

. . .

Johanne Faucher

The CNQ didn’t like our report one bit; it, and in particular its communications adviser, Gilles E. Néron, accuses us of having tarnished the reputation of all of Quebec’s notaries.  In his criticism of our report, Mr. Néron made a number of erroneous statements, and we would like to set the record straight.

Mr. Thériault is presented as a person who would be justified in making such threats.  You failed to mention that he is the brother of the Thériault who was the Pope of the Infinite Love cult and who cut off his spouse’s arm.  [Excerpt from Mr. Néron’s letter]

Mr. Thériault, are you the brother of Rock Thériault, also known as Moses?

Yvon Thériault

Absolutely not.

I’m not his brother and I’m not a relative of his either, not a close or distant relative.  If you need proof, here’s my birth certificate, which is from New Brunswick: Drummond, New Brunswick, the son of René Thériault.

I even obtained a copy of Rock Thériault’s baptismal certificate, which doesn’t come from New Brunswick but from the parish of the Cathedral in Chicoutimi.  Rock Thériault was born in Rivière du Moulin, near Chicoutimi.  When he was young, his family moved to Abitibi and then moved to Thetford Mines not long after that.

I found out that the CNQ was spreading totally unverified information like this and I would suggest that they check their facts.  It’s easy to get someone’s birth certificate.  I was able to do it myself.

. . .

Johanne Faucher

In his criticism, the CNQ’s adviser claims that we did not tell the whole truth.

You also failed to mention in the report that Mr. Lacroix was reimbursed by the CNQ for the money he lost.  [Excerpt from Mr. Néron’s letter]

In an affidavit, R. Lacroix confirms that he has never received a single penny in compensation from the CNQ.  In fact, the CNQ has not yet decided if it will investigate Claude Laurier’s case. [Emphasis added by Tellier J.]

8                                   The effect of the January 12th broadcast was felt immediately at the CNQ, most particularly by Mr. Néron.  A rash of letters were received from notaries who, after seeing the broadcast, expressed indignation and dismay about the communication policies of the CNQ.  Nobody from the CNQ contacted Mr. Néron the next day, but a communiqué signed by its president was circulated to all notaries and professional corporations, the Interprofessional Council, the media, the Office des professions and the Minister of Justice.  The CNQ asserted that Mr. Néron had sent his letter on his own, without its authorization:

[translation]  On January 12, 1995, Le Point (CBC) quoted two specific passages from a letter written by Gilles E. Néron, an outside communications consultant, to the program’s director in response to a report that had aired on December 15, 1994, concerning the Ordre professionnel’s mission to protect the public.

We would like to state that Mr. Néron sent this letter on his own initiative, without instructions from or the prior authorization or consent of the Chambre des notaires du Québec.

Louise Bélanger,

President

9                                   Not long thereafter, on January 19, 1995 to be precise, at a meeting of the CNQ’s Administrative Committee, it was decided that the CNQ would immediately terminate contractual relations with Mr. Néron and his company.  Mr. Néron received a letter of termination from the president that same day.

10                               On January 24, 1995, another communiqué was signed by the president and sent to all notaries and professional corporations, the media, the Interprofessional Council, the Office des professions and the Minister of Justice.  This communiqué made it known that the CNQ had terminated its business relationship with Mr. Néron and his company.  The final two paragraphs of this communiqué read as follows:

[translation]  Furthermore, the Chambre des notaires will be meeting soon with the Le Point team to correct the negative perceptions conveyed on two occasions in these programs and to explore the possibility of airing a new report that would more accurately reflect the professionalism and integrity of notaries and of the Ordre.

Also, the Chambre des notaires has ceased all business relations with the communications firm Gilles E. Néron, Communication marketing inc.

It would be six months before Mr. Néron learned of the wide distribution of this memo.  The effect on him would be devastating.

11                               On May 18, 1995, Mr. Néron lodged a complaint with the Conseil de presse du Québec against Ms. Lescop and Ms. Faucher, and he later included Jean Pelletier as editor-in-chief.  A similar complaint was filed with the CBC’s ombudsman.  The Conseil de presse decided to abandon its investigation into Mr. Néron’s complaints on December 18, 1996, stating that the affair was sub judice.  On July 12, 1995, the CBC’s ombudsman, Mr. Mario Cardinal, rendered a decision concerning Mr. Néron’s complaints.  He dismissed four of the grievances, but acknowledged that one of them was well founded:

[translation]  You also accuse them of referring to two errors you allegedly made in your letter in order to make a story out of them.  This part of your complaint is valid.  Le Point decided to air a program entitled Mise au point, which it even described as a response to your criticism.  Such a broadcast, like any news broadcast, must be subject to the journalistic principles of accuracy, integrity and fairness.  The January 12 broadcast seriously compromised the principle of fairness by failing to mention the five grievances that are central to your letter and only reporting on the two errors.  The host did say at the beginning of the program, “One of its [the CNQ’s] communications advisers wrote to us, accusing us of having made several errors.  Tonight, we will respond to this criticism”.  It might have been expected that the “errors” you accused them of making would be looked at one by one in the program and that the point of view you expressed would be reflected impartially, thereby treating your criticism fairly and with dignity.  This was not the case.  In my view, making a complaint is the same as expressing an opinion.  Therefore, when a complaint is discussed on air, the person making the complaint should be accorded the same rights and respect as any other person interviewed for a program, and the excerpts from the complaint that are actually broadcast must be selected, similarly to how an interview is edited, so as to represent the essence of the complaint, without distortion.

Instead, they chose to discuss only the two errors in your letter.  This gave the program the appearance of a settling of accounts, something that has no place at the CBC. . . . [Emphasis in original.]

12                               On January 11, 1996, GEN Communication and Gilles E. Néron in his personal capacity initiated a claim for damages against the CBC, the CBC’s ombudsman, and the CNQ in the amounts of $1,650,000 for the company and $4,285,608 for Mr. Néron.  The claims against the Ombudsman and the CNQ are not before this Court.  The claim against the CBC is essentially one of extra-contractual liability under art. 1457 of the Civil Code of Québec, S.Q. 1991, c. 64 (“C.C.Q.”).

III.   Decisions of the Courts Below

A.    Superior Court, [2000] R.J.Q. 1787

13                               On June 20, 2000, Tellier J. rendered judgment. He found the CBC and the CNQ liable and ordered them to pay damages to the plaintiffs Néron and GEN Communication. 

14                               The case against the CBC was grounded in art. 1457 C.C.Q.  Mr. Néron and his company asserted that the CBC had defamed them in the preparation and in the content of a public information program.  Only the content of the January 12th broadcast was called into question.  Tellier J. found that the journalists were subject to an obligation of means (Société Radio-Canada v. Radio Sept-Îles Inc., [1994] R.J.Q. 1811 (C.A.)).  According to the judge, the use in the broadcast of Mr. Néron’s handwritten letter of December 18, 1994 was problematic.  The letter was an attempt to arrange a meeting and set things straight.  The trial judge found that the letter was not a formal response to the December broadcast, but a set of specific concerns the CNQ had, which were listed with a view to obtaining a meeting to further discuss the matter.

15                               The trial judge rejected the journalists’ contention that the letter was an official document of the CNQ.  It was a handwritten letter with Mr. Néron’s letterhead and should be considered a “private letter”.  The journalists should have sought the author’s permission before going public with the letter, which they did not do.

16                               The trial judge conceded that the letter contained two errors.  Le Point’s journalists were perfectly aware of this and let Mr. Néron know they were on January 10, 1995, two days before the broadcast.  In response, Mr. Néron requested three days to verify the information.  Nevertheless, the erroneous portions of the letter were broadcast only two days later.  This, said the trial judge, had the effect of denying Mr. Néron the opportunity to correct his mistakes.

17                               The trial judge found that the second broadcast tended to show that the journalists considered the letter to be a criticism of their work.  Tellier J. was in agreement with the decision of CBC’s ombudsman.  Le Point’s journalists committed errors of their own.  They had a duty to deal fairly with the whole of the criticism.  Instead they singled out Mr. Néron’s errors in a manner which amounted more to a settling of accounts.  Although it is possible that Le Point’s journalists were subject to time constraints, this cannot justify violating a person’s right to respect for his or her reputation and privacy (arts. 3, 35 and 36 C.C.Q. and ss. 4 and 5 of the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12 (“Quebec Charter”)).

18                               Tellier J.’s first step, before assessing damages, was to affirm his reprobation of the acts committed by the defendants CBC and CNQ.  This he saw as necessary and proper in circumstances like these where the fundamental rights of a person have been violated.

19                               The trial judge found that the damage sustained by Mr. Néron was evident and substantial.  Before the events in question he had a decent standard of living and was widely respected and appreciated by his clients.  At the time judgment was rendered, he had lost everything, including his partner, his co-owned property and his automobile.  He was forced to cash in his retirement fund to pay for a modest two‑room apartment.  In addition, he had undergone treatment to combat depression.  Tellier J. noted that no one wants to place their trust in a communications counsellor who no longer has good relations with the media.  The trial judge concluded as follows, at p. 1823:

[translation]  Since December 1994, Néron has lost all credibility in his field.  His biggest client wrongfully repudiated him and made sure everyone knew about it.  For its part, the CBC aired its second report, disclosing a letter without first obtaining the author’s authorization, and committed other wrongful acts against him.  The combined effect of these two events was to put an abrupt end to his career as a communications adviser with no hope of resuming it.

20                               Tellier J. awarded Mr. Néron, in his personal capacity, $475,000 for loss of salary and other pecuniary benefits.  The judge awarded moral damages in the amount of $300,000, based on his finding that the same elements were in play in this case as in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.  The judge then considered jurisprudence indicating that a party can request the payment of extrajudicial fees if they have resulted from the adverse party’s bad faith.  The judge awarded $246,311.54 in this respect for the legal fees of lawyers past and present, the costs of expert evidence, and the time that Mr. Néron spent personally preparing his case.  Having concluded that the fault of the CBC and its journalists was intentional, the learned judge granted a further $50,000 in exemplary damages, to be divided equally between Mr. Néron and  his company GEN Communication.  Finally, the trial judge dismissed Mr. Néron’s claims in respect of his personal debt and the loss of his RRSP.  Tellier J. considered that both these items were covered by the award for lost salary.  In total, Mr. Néron was personally granted damages in the order of $1,039,207.  With the exception of the exemplary damages, the judge decided that the liability was solidary and that the damages (other than exemplary), with interest and an additional indemnity (art. 1619 C.C.Q.), were to be split equally (50-50) between the CBC and its journalists on the one hand and the CNQ on the other.

21                               The pecuniary losses of GEN Communication were set at $200,000 for loss of sales and $25,000 for defamation, and $50,000 was awarded in exemplary damages.  Here again, with the exception of the exemplary damages, the learned judge determined that the liability was solidary and, consequently, that the sum of $225,000, with interest and an additional indemnity (art. 1619 C.C.Q.), was to be shared equally between the CBC and its journalists on the one hand, and the CNQ on the other.

22                               Finally, Tellier J. ordered provisional execution for payment in full of the exemplary damages, lawyer’s fees and personal preparation costs (art. 547 of the Code of Civil Procedure, R.S.Q., c. C-25).  As concerns the rest of the damage award, the provisional execution order was set at 50 percent of the amount.  The Quebec Court of Appeal would later reduce the amount of this provisional execution order to $200,000 while the matter was before that court.

23                               The trial judge dealt with several other legal issues that are no longer relevant to the outcome of this appeal.  He rejected Mr. Néron’s claim against the CBC’s ombudsman for having rebroadcast the content of the Mise au Point segment without his authorization, based on the absence of causation and on the absence of intention on the Ombudsman’s part.  The judge dismissed Mr. Thériault’s action against Néron and GEN Communication, stating that any damage to Mr. Thériault’s reputation caused by the broadcast of the content of the letter was the responsibility of the CBC and of Mr. Thériault himself.  As for the actions in warranty, the judge ordered the CBC and the Commerce Group to pay the costs of the actions in warranty against each of them, and also ordered the Commerce Group to pay $82,103 to Gilles E. Néron with interest and an additional indemnity starting from the time of the summons.

24                               Néron and GEN Communication’s action against the CNQ is of greater relevance to this appeal because the trial judge held the CNQ and the CBC to be solidarily liable, on a 50-50 basis, for all the above-mentioned damages, with the exception of the exemplary damages.  The trial judge found that the CNQ was liable in contract to Néron and his company.  Under art. 2125 C.C.Q., the CNQ had the right to unilaterally end its contractual relations with Néron and GEN Communication.  However, the means used to do so were indicative of bad faith on the CNQ’s part.  The trial judge concluded that the CNQ had put an end to the contract for false reasons, which the CNQ intentionally circulated to a broad public.  By doing so, it caused damage to Mr. Néron and his company.

B.   Quebec Court of Appeal, [2002] R.J.Q. 2639

25                            The CBC (including its journalists and the Ombudsman), the CNQ and Mr. Thériault all appealed.  Gilles E. Néron and GEN Communication cross-appealed against the CBC and the CNQ, seeking a revision of Tellier J.’s decision not to include in his damage calculations Mr. Néron’s RRSP loss of $440,901 and personal debt of $48,500.  Mr. Néron and GEN Communication also sought to vary the judgment below with respect to the liability of the Ombudsman and damages stemming from his actions, which were claimed to be in the order of $75,000 for damage to reputation and $200,000 ($100,000 H 2) in exemplary damages.  Mr. Néron and GEN Communication further sought authorization to amend their claim for exemplary damages against the CBC by raising it to $500,000 for each appellant, or $1,000,000 in total, based on Hill, supra, and Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, 2002 SCC 18.

(1)     Majority Judgment of Mailhot and Fish JJ.A.

(a)     Mailhot J.A.

26                            Dealing with the appeal of the CBC and its journalists, Mailhot J.A. considered the trial judge’s ruling that Mr. Néron’s handwritten letter was a private letter to be wrong.  The letter could not be considered private, as it was addressed to a media organization with a clear public role, and to a person who was the director of a television program.  Without some contrary indication, it would be difficult to conclude that the letter was private.  Mailhot J.A. noted that this Court had held in Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421, that a media outlet that receives information can presume that it has consent to broadcast it, absent any indications to the contrary.  Here, the letter was written by someone with a mandate from the CNQ, which points to its being more public in nature.  Furthermore, Mr. Néron’s actions indicated that he understood that the content of the letter could be broadcast once he had had time to verify the purported errors.  It could not be said that it was a private letter.

27                            Mailhot J.A. found, however, that Mr. Néron had clearly not given his consent to the publication of the letter and had indeed asked that the letter not be aired before he had had time to verify the two errors.  Clearly the object of the letter was to arrange a meeting.  For these reasons, the CBC had an obligation to at least afford Mr. Néron the time he had requested before broadcasting the content of the letter.  Mailhot J.A. agreed with the trial judge that the CBC’s actions looked more like a settling of accounts.  The CBC knew that the information in the letter about Mr. Thériault and Mr. Lacroix was false but chose to point the errors out on television even though it knew that Mr. Néron was taking the time to look into them.  Mailhot J.A. quoted with approval, at para. 73, the following passage from the reasons of the learned trial judge:

[translation]  Similarly, the evidence shows that on January 10, 1995, Faucher contacted  Néron to tell him that the letter of December 18 contained two inaccurate statements.  Faucher acknowledges that Néron’s reaction was one of surprise and that he asked her for a few days to check the accuracy of his statements.  Néron says that he asked her for three days.  This conversation took place on January 10, and the program aired on January 12, before Néron was even able to get back to her with his version.

Thus, the following question must be asked: Why was there such a rush to air the second report, which contained information known to be false, without giving Néron the opportunity to check and correct the statements that turned out to be inaccurate?  Can it not be assumed that, if Néron had been able to give his side of the story and correct the inaccuracies, the content of the report would have been different?  This haste is attributable not only to the journalist, but to the entire team.

Pelletier, the editor-in-chief, admitted to the Court that he was aware of the telephone conversation that took place between Faucher and Néron on January 10, 1995.  He knew that Néron had asked for a short period of time to check the information himself.  He knew that the Chambre [des notaires] had refused to comment on the letter and, consequently, on its content.  The team nevertheless decided to broadcast the report anyway, which leads one to believe that the decision was deliberate and intentional.

28                            Mailhot J.A. also agreed with the trial judge that the content of the letter was portrayed in a misleading and incomplete fashion.  Instead of an accurate synopsis of the content of the letter, Le Point’s journalists engaged in a [translation] “wrongful pruning”, selectively choosing to highlight only the two errors, and not Mr. Néron’s other concerns.  Mailhot J.A. agreed with the trial judge that Le Point’s journalists took the letter as a criticism of their work [translation] “and that they had to show the person who wrote it that you do not attack journalists like that” (para. 81), even if the letter’s sole purpose was to arrange a meeting.  The apparent purpose of the first broadcast was to look into whether professional bodies like the CNQ were fulfilling their mandate to the public.  In the opinion of Mailhot J.A., however, the second broadcast no longer had this as its purpose, but was instead a response to Mr. Néron’s criticism of their work.  This was evidenced by the fact that in the report Le Point used language such as “the CNQ accuses us” (para. 74 (italics in original)), even though the CNQ had already disassociated itself from the content of the letter.

29                            Mailhot J.A. found further evidence that Le Point was more interested in responding to this criticism than protecting the public interest in the following excerpt from a letter written by the editor-in-chief, Mr. Pelletier, to the Conseil de presse du Québec (at para. 75):

[translation]  The lawsuit that public relations specialist Gilles E. Néron has brought against us results from his decision to send us, on December 18, 1994, a letter critical of our December 15, 1994 report on his client, the Chambre des notaires du Québec.

This letter, of which he sent a copy to the Chambre des notaires du Québec on the same day he sent it to us, contained very serious accusations levelled not only against Le Point, but also against citizens who had for some time been accusing the Chambre of treating them unfairly and who were interviewed as part of our December 15 report on the CNQ.

30                            Mailhot J.A. went on to note that, although it was true that Mr. Lacroix had not been reimbursed by the CNQ, he had been at least partially reimbursed by a third party.  This attenuated somewhat the gravity of the error with respect to Mr. Lacroix.  She did agree that circulating the unverified rumour that Mr. Thériault was the brother of Roch Thériault could justifiably be considered reprehensible by the journalist, if it was done intentionally.  Mailhot J.A. went on to rule that even if it could be said that the CBC had an obligation to inform the public that the CNQ was circulating false information and had a negative attitude towards the people it was supposed to protect, the CBC first had to ensure that the false information was in fact endorsed by the professional order.  It is also important to transmit all the information to the public, that is to say, the content of the letter as a whole.  It was not sufficient to simply verify that Mr. Néron had a general mandate from the CNQ at the time the letter was written, especially since Le Point’s journalists knew about the rumours as far back as November 1994, when they were preparing for the first broadcast.

31                            In short, Mailhot J.A. agreed with the trial judge that Le Point’s journalists had entrapped Mr. Néron and used him to get back at the CNQ.  She stated the following at para. 82:

[translation]  There is no doubt that a news organization may publish information contained in a communication when the information is of public interest.  However, if the organization knows that the information is incorrect and that the sender of the communication is unaware of the error and has even asked for a short period of time to check it, if the organization rushes to release the information after first subjecting it to a wrongful pruning, and if what appears on the screen seems to attribute the letter to the author, then, in those circumstances, the organization has maliciously abused its position. 

Mailhot J.A. referred to the decision of the Quebec Court of Appeal in Radio Sept-Îles, supra, at p. 1818.  She adopted the definition of civil liability for defamation established in that case and concluded that the trial judge had correctly found fault in the case at bar.

32                            Mailhot J.A. then turned to a consideration of damages.  She upheld the trial judge’s award for pecuniary and moral damages.  The appeal judge did, however, decide that the award for punitive damages was too low.  She raised the amount owed by the CBC to Mr. Néron and his company to $100,000 each from the $50,000 awarded by the trial judge and stated that the CBC’s liability for this amount was not solidary.  Mailhot J.A. further clarified that it was the CBC that was to be held liable, and not its employees in any direct sense.

33                            Mailhot J.A. adopted the reasons of Fish J.A. (as he then was) who, as shall be noted below, varied the trial judge’s decision to find the CNQ and the CBC solidarily liable, ruling instead that the two were to be held liable in solidum.  Based on a recent decision of the Quebec Court of Appeal in Viel v. Entreprises immobilières du terroir ltée, [2002] R.J.Q. 1262, Mailhot J.A. ruled that the trial judge’s award of extrajudicial fees should be set aside.  She adopted the reasons of Fish J.A. on this point as well, with the exception that she upheld the trial judge’s award of $8,153 for expert fees, which she did not view as extrajudicial fees.

(b)     Fish J.A.

34                            Fish J.A. found that the trial judge committed a palpable error in concluding that the factors in this case were essentially the same as in Hill, supra.  He reduced the trial judge’s award of moral damages to $150,000 from the $300,000 awarded at trial.  He also set aside entirely the moral damages awarded by the trial judge to GEN Communication ($25,000).  He found that the interposition of GEN Communication between the CNQ and Néron provided no legal or logical justification for awarding GEN Communication any moral damages at all.  Fish J.A. further reduced, for the same reason, the award of pecuniary damages in favour of GEN Communication to $25,000 from $200,000. 

35                            Fish J.A. otherwise agreed with Mailhot J.A. that the CBC’s Mise au Point segment was defamatory.  It damaged Mr. Néron’s reputation by misrepresenting his letter to Ms. Lescop as a disingenuous attempt to mislead the CBC and, through it, the public that is its audience.  Neither of the CBC’s defences to this established defamation could stand.  Its claim that Mr. Néron consented to the January 12th broadcast is contradicted by the evidence that the letter was aimed at arranging a meeting with Ms. Lescop and by Mr. Néron’s evidence that he had repeatedly stressed that the letter was not intended for publication.  The CBC’s argument that the mere delivery of the letter constituted consent flies in the face of these facts, and of the trial judge’s finding that it was evident from both the form and content of the letter that it was not meant for publication.

36                            Fish J.A. then responded to the CBC’s second defence, namely that its constitutionally enshrined freedom of expression and freedom of the press obviated the need for consent.  Freedom of expression and freedom of the press do not grant the right to broadcast or publish with impunity letters, telephone calls, faxes and e-mail messages received by electronic or print media that are not sent to them for broadcast or publication.  Such communications are “private”, in the sense that the senders are entitled to expect that their words will not, without their consent, be made public.  Nor can it be said that freedom of expression and freedom of the press carry with them a licence to defame.  In purporting to exercise these freedoms, no one may unjustifiably damage another person’s reputation.

37                            Finally, Fish J.A. dealt with the CBC’s argument that a publisher of defamatory matter can escape condemnation by demonstrating that the impugned publication was carried out in good faith and in the public interest.  He held that such a defence cannot stand where, as here, the defamatory material was published “in an incomplete, tendentious or unfair manner” (para. 259).  Fish J.A. agreed with the trial judge, and the CBC’s ombudsman, that the broadcast had the appearance of a settling of accounts.  “It certainly had that tilt, tone and texture” (para. 264).  Moreover, he found no reason to disturb the trial judge’s determination that the two errors in Néron’s letter were not matters of public importance (see para. 272).  As such, Fish J.A. found that the broadcast was not a legitimate exercise in freedom of expression, “but rather an abuse by the CBC and its employees of their vast power to influence public perception and to shape public opinion” (para. 272).

38                            Fish J.A. found, as mentioned above, that the trial judge erred in condemning the CNQ and the CBC solidarily.  The CBC’s fault was extra-contractual and juridically independent of the contractual fault attributed by the trial judge to the CNQ.  Solidarity between debtors exists, as art. 1525 C.C.Q. makes clear, “only where it is expressly stipulated by the parties or imposed by law”.  Fish J.A. concluded that neither condition was met in the case at bar.  However, although the faults imputed to the CBC and the CNQ are from different sources, they are factually related, reasonably contemporaneous and cumulative in their impact on Mr. Néron and his company.  It would be difficult, in these circumstances, to divide the global debt owed to Mr. Néron by the CBC and the CNQ.  So Fish J.A. relied on this Court’s decision in Prévost-Masson v. General Trust of Canada, [2001] 3 S.C.R. 882, 2001 SCC 87, and concluded that “[i]t seems preferable by far to hold them responsible in solidum” (para. 281).  Then, based on the findings of the trial judge he held them equally responsible as regards one another.

39                            Fish J.A. agreed with Mailhot J.A. that this was not a case for an award of extrajudicial fees, or solicitor-client costs, relying on the decision of this Court in Aubry v. Éditions Vice-Versa inc., [1998] 1 S.C.R. 591.  He further ruled that taking into account all the circumstances, especially the very substantial and generous damages awarded by the trial judge under other heads, he would reduce the award of punitive damages against the CBC and the CNQ to $15,000 each, payable to Néron alone.

(2)     Minority Judgment of Otis J.A.

40                            Otis J.A. agreed with Mailhot J.A.’s assessment of damages, with the exception that she would have awarded solicitor-client costs against the CNQ.  Otis J.A. concluded, though, that the CBC and its journalists were not at fault with respect to Mr. Néron and GEN Communication.  She noted the trial judge’s finding that [translation] “[t]he two errors Néron may have unintentionally made originated with the CNQ, which conveyed unfounded rumours” (para. 323).  She also focussed on the fact that, in the months following the January 12th broadcast, the Office des professions du Québec had intervened to demand that the CNQ institute a remedial plan, and in the absence of this, threatened to place the CNQ under administrative trusteeship in order to properly assure the protection of the public.  The committee formed to address the problems at the CNQ produced a report in November 1995.  The trial judge considered this report and noted: [translation] “This report is especially critical of the president, the director general and the syndic’s office.  It recommends a series of measures that are indicative of a deplorable internal situation” (para. 326).  Moreover, at about the same time the president, director general and syndic all offered to resign.  The two notaries mentioned in the broadcasts were struck off the roll, one of them for life and the other for a period of 32 years.  In short, Otis J.A. chose to highlight the positive effects that the January 12th broadcast may have had on protection of the public, and on turning things around at the CNQ.

41                            From a legal perspective, Otis J.A. ruled that the CBC had not committed any fault.  The public’s right to information is embodied in freedom of expression and freedom of the press.  She stated that such fundamental liberties are essential to our democratic institutions.  They are the foundation for the dissemination of ideas, opinion and knowledge, inspiring critical thinking and ensuring that the moral and intellectual character of our political and social stakeholders is put to the test. 

42                            Otis J.A. ruled that the December 18th letter could not receive privacy protection under s. 5 of the Quebec Charter and arts. 35 and 36 C.C.Q.  It could not be said that the information communicated was confidential, or that the author of the information viewed it as essentially a private exchange.

43                            Otis J.A. further held that the trial judge erred in denying the CBC the right to  broadcast information that was true and in the public interest.  In her opinion, this error stemmed from the trial judge’s earlier error of characterizing the letter as a private letter.  It was in the public’s interest to know that the CNQ was circulating false information about the complainants, who were people the CNQ had a legal mission to protect.  The essence of the January 12th report was not to tarnish the reputation of the CNQ’s agent, Mr. Néron, but to alert public opinion.

44                            Nor was it a civil fault that not all elements of the letter were revealed.  The letter was not private, or protected by confidentiality.  Otis J.A. then stated, at para. 356:

[translation]  It would certainly have been desirable, in keeping with journalistic standards, to cover all aspects of the letter in the report.  However, this lack of fairness does not constitute civil fault.  Neither the nature nor the purpose of the report would have changed in any way had the public known that the CNQ was unhappy (1) that the December 15, 1994 broadcast of the first report was repeatedly advertised in advance, (2) that viewers may have been left with the impression that the chairman of the Office des professions was going to ask that the CNQ be placed under trusteeship, or (3) that an inappropriate reference had been made to the notary Potiron.  None of these three minor points would have justified the January 12, 1995 update.  The complaint of the CNQ and Gilles E. Néron is that the CBC did not allow them to retract their erroneous statements gracefully.  In fact, the public interest made it imperative that this conduct be brought to light in order to contribute to the CBC’s mission to keep the public informed.  [Emphasis in original.]

For these reasons, Otis J.A. concluded that the CBC was not at fault for the broadcast of the December 18, 1994 letter.

C.    The Granting of Leave to Appeal to This Court

45                            On June 19, 2003, the CBC was granted leave to appeal to this Court.  The CNQ chose not to appeal from the decision against it by the Quebec Court of Appeal.  Consequently, the CNQ has already paid the sum of $783,153 in compensatory damages and $100,000 in exemplary damages, plus interest and an additional indemnity.  The CBC, given the condemnation in solidum, has also paid the CNQ the portion of the damages imputed to it, as well as $15,000 in exemplary damages to Mr. Néron, all with interest and an additional indemnity. 

IV.    Relevant Legislative Provisions

46                            Civil Code of Québec, S.Q. 1991, c. 64

3.      Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy.

These rights are inalienable.

35.    Every person has a right to the respect of his reputation and privacy.

No one may invade the privacy of a person without the consent of the person or his heirs unless authorized by law.

36.    The following acts, in particular, may be considered as invasions of the privacy of a person:

(1)  entering or taking anything in his dwelling;

(2)  intentionally intercepting or using his private communications;

(3)  appropriating or using his image or voice while he is in private premises;

(4)  keeping his private life under observation by any means;

(5)  using his name, image, likeness or voice for a purpose other than the legitimate information of the public;

(6) using his correspondence, manuscripts or other personal documents.

1457.  Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.

He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.

1478.  Where an injury has been caused by several persons, liability is shared by them in proportion to the seriousness of the fault of each.

The victim is included in the apportionment when the injury is partly the effect of his own fault.

1525.  Solidarity between debtors is not presumed; it exists only where it is expressly stipulated by the parties or imposed by law.

Solidarity between debtors is presumed, however, where an obligation is contracted for the service or carrying on of an enterprise.

The carrying on by one or more persons of an organized economic activity, whether or not it is commercial in nature, consisting of producing, administering or alienating property, or providing a service, constitutes the carrying on of an enterprise.

Charter of Human Rights and Freedoms, R.S.Q., c. C-12

3.      Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.

4.      Every person has a right to the safeguard of his dignity, honour and reputation.

5.      Every person has a right to respect for his private life.

Canadian Charter of Rights and Freedoms 

2.      Everyone has the following fundamental freedoms:

. . .

(b)  freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

V.     Analysis

A.     Statement of Issues and Positions of the Parties

47                            The legal issue is whether the CBC committed a fault giving rise to civil liability.  The CBC argues that it is not at fault.  The broadcast of January 12, 1995 was legitimate given the public’s right to be informed and the right to freedom of expression with respect to issues of public interest.  The trial judge was wrong in his characterization of the facts.  He and the majority of the Quebec Court of Appeal further erred in holding the CNQ and the CBC liable in solidum.  The respondents Néron and GEN Communication, on the other hand, argue that the CBC committed a grave and intentional fault, going so far as to indicate malice.  The finding of liability in the courts below was justified.  The respondents are asking that costs be awarded on a solicitor-client basis.

B.      The Importance of Freedom of the Press

48                            It is beyond doubt that freedom of expression, and its corollary freedom of the press, play an essential and invaluable role in our society.  These fundamental freedoms are protected by s. 3 of the Quebec Charter and s. 2( b )  of the Canadian Charter of Rights and Freedoms .  In fact, freedom of expression was protected even before the Quebec and Canadian Charters.  Consider the following comment from McIntyre J. in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, at p. 583:

Freedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.

49                            The importance of freedom of expression and freedom of the press has been affirmed by this Court on numerous other occasions.  Cory J. wrote in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at p. 1336:

It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression.  Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions.  The concept of free and uninhibited speech permeates all truly democratic societies and institutions.  The vital importance of the concept cannot be over-emphasized.  No doubt that was the reason why the framers of the Charter set forth s. 2(b) in absolute terms which distinguishes it, for example, from s. 8 of the Charter which guarantees the qualified right to be secure from unreasonable search.  It seems that the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances.

50                            On the same note, Cory J. made the following comment in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459, at p. 475:

The media have a vitally important role to play in a democratic society.  It is the media that, by gathering and disseminating news, enable members of our society to make an informed assessment of the issues which may significantly affect their lives and well-being.

51                            This Court spoke of the importance of freedom of expression quite recently in Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85.  The Court’s comments in that case are of particular relevance to the case at bar because the context was one of defamation.  At para. 38, L’Heureux-Dubé J. and myself stated that:

. . . it is important to note that an action in defamation involves two fundamental values: freedom of expression and the right to reputation.  This Court has long recognized the importance of the first of those values in a democratic society.

C.     The Importance of the Right to Respect for One’s Reputation

52                            Despite its undoubted importance, freedom of expression is not absolute.  As this Court noted in Prud’homme, supra, at para. 43, freedom of expression can be limited by the requirements imposed by other people’s right to the protection of their reputation.  Cory J. observed in Hill, supra, at para. 108, that reputation, as an aspect of personality, is equally worthy of protection in a democratic society concerned about respect for the individual:

Democracy has always recognized and cherished the fundamental importance of an individual.  That importance must, in turn, be based upon the good repute of a person.  It is that good repute which enhances an individual’s sense of worth and value.  False allegations can so very quickly and completely destroy a good reputation.  A reputation tarnished by libel can seldom regain its former lustre.  A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited. [Emphasis added.]

53                            The right to reputation also receives protection in Quebec under s. 4 of the Quebec Charter, and under art. 3 C.C.Q.  This Court further stated in Prud’homme, supra, at para. 44, that “although it is not specifically mentioned in the Canadian Charter , the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Canadian Charter  rights (Hill, supra, at para. 120)”.

D.     The Importance of Finding an Equilibrium Between the Two Rights in the Law of Civil Liability for Defamation

54                            In Prud’homme, supra, at para. 38, I stated, along with my then-colleague L’Heureux-Dubé J., that determining fault in a defamation case “is a contextual question of fact and circumstances”.  In an action in defamation the two fundamental values of freedom of expression and the right to respect for one’s reputation must be weighed against each other to find the necessary equilibrium or, as I put it in the judgment of the Quebec Court of Appeal in Radio Sept‑Îles, supra, at p. 1818:

[translation]  This area of the law of civil liability also requires a particular sensitivity to values that at times conflict with each other, such as the public’s right to information and the freedom of the media to disseminate it, on the one hand, and, on the other, the right to respect for one’s private life and the protection of some of its core components, namely anonymity and privacy.

55                            In Prud’homme, the balance to be struck was that between the need for free and open speech in municipal democracy on the one hand, and the right of those impugned by the municipal councillor’s statements to respect for their reputations on the other.  Similarly, a balance had to be struck in Radio Sept-Îles, between the right to broadcast information that was true and in the public interest on the one hand, and the right of those mentioned in the broadcast to respect for their reputations on the other.  In Radio Sept-Îles, as in the case at bar, I noted that even where the information being broadcast is true, it is still not certain that civil liability is precluded.  It is all the more important in such circumstances — where the information being broadcast is true, but could still potentially attract delictual liability — to strike the correct balance.  I made the following comment at p. 1821:  [translation] “[t]he right to information sometimes clashes here with the right to respect for one’s private life, and in particular with its basic components of anonymity and the privacy of the individual.”  I went on to note that it might be appropriate to consider whether the information is in the public interest when assessing the facts and circumstances and determining whether there is fault.  This case, however, highlights a different circumstance, one where the information broadcast may have been true — at least in part (to be discussed below) — and it may have been in the public interest to broadcast it, but the whole of the broadcast quite simply did not measure up to professional standards.  In such a case, fault can still exist.  I turn now to an analysis of the law of defamation, and of the establishment of fault under art. 1457 C.C.Q.

E.      Jurisprudential Principles — The Prud’homme and Radio Sept-Îles Judgments

56                            This Court recently tackled the Quebec law of civil liability for defamation in Prud’homme.  The Court began its analysis of the civil law rules of liability in this domain by noting that Quebec civil law does not provide for a specific form of action for interference with one’s reputation.  An action in defamation is grounded in art. 1457 C.C.Q.  Like any other action in civil, delictual and quasi‑delictual liability, the plaintiff must establish, on a balance of probabilities, the existence of injury, a wrongful act and a causal connection between the two.  The starting point is not the common law but the Civil Code of Quebec, which is the basic general law in Quebec, as provided for in the preliminary provision of the Civil Code.  Courts should avoid needlessly importing or applying common law rules in a matter which, subject to the principles of Charter law, is governed by the procedure, methods and principles of the civil law.  This point was made, in the context of the law of defamation, by J.‑L. Baudouin and P. Deslauriers in La responsabilité civile (6th ed. 2003), at p. 193:

[translation]  It can be seen from the leading cases how often the Quebec courts have, when dealing with defamation and verbal abuse, borrowed from common law concepts (good faith and justification, qualified privilege), from decisions of English or Canadian courts or from common law commentators, such as Odgers.  Borrowing from the common law in this manner is totally unnecessary and unwarranted . . . and it has the effect of greatly complicating a subject that, when examined in light of the Civil Code and the general principles of civil law, has the merit of being relatively straightforward.

57                            The existence of an injury is not at issue in this appeal, but suffice it to say that in order to prove injury the plaintiff must convince the judge that the impugned remarks were defamatory.  As noted in Prud’homme, supra, at para. 34, this involves asking “whether an ordinary person would believe that the remarks made, when viewed as a whole, brought discredit on the reputation of another person”.  The CBC does not argue that Mr. Néron’s reputation was not defamed and that he did not suffer injury as a result of the January 12th broadcast.

58                            Nor is the causal connection portion of the art. 1457 test for liability seriously at issue in this case.  I shall discuss this further below, when I deal with the solidarity issue, but the causal link between the January 12th broadcast and all that subsequently befell Mr. Néron has not been effectively challenged by the CBC.  The thrust of the CBC’s argument is instead the absence of fault, as determined in an action in defamation in Quebec.

59                            The determination of fault in an action in defamation involves a contextual analysis of the facts and circumstances.  As noted in Prud’homme, supra, at para. 83, “it is important to note that the respondents’ statement must be considered in context and in its entirety.  The general impression that it conveys must govern in determining whether a fault was committed” (emphasis added).  Thus, it is insufficient for the determination of fault to focus merely on the veracity of the content of the January 12th report.  One must look globally at the tenor of the broadcast, the way it was conducted and the context surrounding it.

60                            This is not to say that it is irrelevant that the defamatory remarks are true, nor is it irrelevant that they were made in the public interest.  Truth and public interest are merely factors to consider in the overall contextual analysis of fault in an action in defamation under the Civil Code of Québec.  Truth and public interest are relevant pieces of the puzzle, but are still only pieces of the puzzle and not necessarily the determinative factors, as can be seen in the comments of this Court, at para. 37 of Prud’homme, supra:

. . . in Quebec civil law, communicating false information is not necessarily a wrongful act.  On the other hand, conveying true information may sometimes be a wrongful act.  This is an important difference between the civil law and the common law, in which the falsity of the things said is an element of the tort of defamation.  However, even in the civil law, the truth of what is said may be a way of proving that no wrongful act was committed, in circumstances in which the public interest is in issue.

61                            The determinative factor, or guiding principle, of liability for defamation is to be found in the Quebec Court of Appeal decision in Radio Sept-Îles, supra.  For journalists and the media, there will not be fault until it has been shown that the journalist or media outlet in question has fallen below professional standards.  As Baudouin and Deslauriers note in their text, at p. 207:

[translation]  Compliance with journalistic standards — Journalists who are subject to liability comparable to that of professionals must comply with the standards of the profession and attempt, to the extent possible, to disseminate accurate and complete information resulting from a serious investigation.

Thus, I added the following at p. 1820 of Radio Sept-Îles:

[translation]  The liability at issue here is much more like professional liability.  The function of the media is to gather, process and disseminate information.  Their role also includes commentary and interpretation.  When gathering information, the media’s liability seems to be essentially professional in nature and to be based on a test of fault.  This of course requires that the courts apply the test of the reasonable person working in the news sector. . . .

                                                                   . . .

Fault cannot be reduced to the mere publication of false information.  Rather, it is linked to the failure to discharge an obligation of diligence or means, as frequently occurs in cases of professional liability.  [Emphasis added.]

In sum, the existence of a fault is the general and fundamental requirement in the law of defamation and fault is measured against professional journalistic standards.  A journalist is not held to a standard of absolute perfection; he or she has an obligation of means.  On the one hand, if a journalist disseminates erroneous information, this will not be determinative of fault.  On the other hand, a journalist will not necessarily be exonerated simply because the information he or she disseminated is true and in the public interest.  If, for other reasons, the journalist has fallen below the standard of the reasonable journalist, it is still open to the courts to find fault.  Viewed this way, civil liability for defamation continues to fit nicely within the general framework of art. 1457 C.C.Q.

62                            As such, the conduct of the reasonable journalist becomes the all important guidepost.  It is the tool which allows us to assess what conduct is reasonable within the context of art. 1457 C.C.Q.  It is the ultimate standard against which fault is determined, and the framework through which other important considerations such as truth, falsity and the public interest are filtered.  The question to be answered in this case thus becomes whether Le Point’s journalists lived up to the professional standards of a reasonable journalist when they broadcast the January 12th report.

F.      The Element of Fault in This Case

63                            It is my conclusion that the courts below, in holding the CBC liable for defamation, achieved the correct balance between freedom of expression and Mr. Néron’s right to respect for his reputation.  For several reasons, I find serious fault in the manner in which the CBC prepared for and broadcast the January 12th report.  I make this finding even though Mr. Néron’s handwritten letter cannot be considered private.  Taking into consideration all the factors discussed below, it is my conclusion that the January 12th report falls short of the professional standards of the reasonable journalist.

(1)     The Broadcast Contained Incomplete Information About the Content of the Letter

64                            In many ways, the January 12th broadcast was misleading.  The report focussed in on the two errors.  Why did it refer only to the errors?  Doing so gave the impression that the substance of Mr. Néron’s letter was limited to these two erroneous statements about Mr. Thériault and Mr. Lacroix.  In truth, the letter discussed other concerns relating to the image of notaries created by the broadcast.  For example, Mr. Néron noted in the letter that 70 percent of recent promotions to the profession were women, so it was misleading that the CBC portrayed notaries as being “fusty old men”.  Mr. Néron also expressed concern about certain things that could be insinuated from the report, such as the idea that the CNQ should be put under trusteeship.  In short, there was more to the letter than the two erroneous comments about Mr. Thériault and Mr. Lacroix.  Having viewed the report in question, I am not at all convinced that the viewer would ever be aware of these other concerns.

65                            Nor could the viewer be aware, from the structure of the report, that the letter was really just a request for a meeting and a right of reply.  One has the impression that Mr. Néron and the CNQ wanted the content of the letter to be broadcast, that this was a criticism of the CBC’s work that was meant to be aired.  The context surrounding the receipt of the letter is entirely absent, if not falsely portrayed by the CBC.  Thus, the CBC report starts off with the following words:

[translation] . . . one of its communications advisers wrote to us, accusing us of having made several errors.

Tonight, we will respond to this criticism.

The CBC then goes on to highlight the portions of the letter relating to Mr. Thériault and Mr. Lacroix.  The viewer is led to believe that the full content of the letter is being addressed, which is not the case.  Furthermore, the impression left of Mr. Néron is quite unflattering.  The broadcast suggests that he wrote a letter criticizing the CBC and that the entire content of the letter was erroneous.

66                            In a further sense, the viewer was provided with incomplete information about the letter and its content with respect to Mr. Lacroix.  True, he was not reimbursed by the CNQ, but he was reimbursed by a third party.  This was not mentioned.  If it had been, it might have made the errors seem somewhat less egregious and Mr. Néron might not have been cast in such a negative light.

67                            In sum, I agree with Fish J.A. of the Quebec Court of Appeal that, by leaving out vital pieces of information, the CBC misrepresented Mr. Néron’s letter as a disingenuous attempt to mislead the CBC, and thereby the public.

(2)     Refusal to Allow Mr. Néron Time to Check up on His Errors

68                            I am also troubled by the haste with which the CBC set out to broadcast the errors in the letter.  It does indeed seem that Mr. Néron was entrapped.  Ms. Faucher contacted Mr. Néron to inform him of the errors.  Mr. Néron made it very clear that the letter was merely a request for a right of reply and was not meant for publication, [translation] “or to be communicated in any form whatsoever”.  Furthermore, Mr. Néron requested three days to verify the information about Mr. Thériault and Mr. Lacroix.  The CBC ignored this request.  Moreover, it made no mention of Mr. Néron’s request for time in the January 12th report.  All in all, I agree with the following finding of the trial judge, at p. 1809:

[translation]  Thus, the following question must be asked:  Why was there such a rush to air the second report, which contained information known to be false, without giving Néron the opportunity to check and correct the statements that turned out to be inaccurate?  Can it not be assumed that, if Néron had been able to give his side of the story and correct the inaccuracies, the content of the report would have been different?  This haste is attributable not only to the journalist, but to the entire team.

Pelletier, the editor-in-chief, admitted to the Court that he was aware of the telephone conversation that took place between Faucher and Néron on January 10, 1995.  He knew that Néron had asked for a short period of time to check the information himself.  He knew that the Chambre [des notaires] had refused to comment on the letter and, consequently, on its content.  The team nevertheless decided to broadcast the report anyway, which leads one to believe that the decision was deliberate and intentional. [Emphasis added.]

The trial judge’s conclusion makes sense.  The CBC intentionally and deliberately broadcast the errors in the letter before Mr. Néron could attempt to set things straight.

69                            I further agree with Mailhot J.A. that the tone and tilt of the January 12th broadcast pointed to it being more of a response to Mr. Néron’s criticism than an exercise in protecting the public interest.  It might indeed be concluded that it is in the public interest to know that false rumours were circulating at the CNQ about Mr. Thériault, whom the CNQ had a mandate to protect.  Unfortunately, this matter of public interest seems to have been lost in a broadcast aimed more at settling accounts for what the CBC likely saw as unjustified criticism.  In the end, it may be said that the appellant broadcast information that was partly true about a question of public interest, but that was presented in an incomplete and misleading manner designed to have a maximum impact on the reputation of the claimant.

(3)     The Report of the CBC’s Ombudsman

70                            Finally, it is in my opinion of great relevance that the CBC’s own ombudsman found Mr. Néron’s complaint to be quite serious.  I will recite the relevant portion of the Ombudsman’s report:

[translation]  You also accuse them of referring to two errors you allegedly made in your letter in order to make a story out of them.  This part of your complaint is valid.  Le Point decided to air a program entitled Mise au point, which it even described as a response to your criticism.  Such a broadcast, like any news broadcast, must be subject to the journalistic principles of accuracy, integrity and fairness.  The January 12 broadcast seriously compromised the principle of fairness by failing to mention the five grievances that are central to your letter and only reporting on the two errors.  The host did say at the beginning of the program, “One of its [the CNQ’s] communications advisers wrote to us, accusing us of having made several errors.  Tonight, we will respond to this criticism”.  It might have been expected that the “errors” you accused them of making would be looked at one by one in the program and that the point of view you expressed would be reflected impartially, thereby treating your criticism fairly and with dignity.  This was not the case.  In my view, making a complaint is the same as expressing an opinion.  Therefore, when a complaint is discussed on air, the person making the complaint should be accorded the same rights and respect as any other person interviewed for a program, and the excerpts from the complaint that are actually broadcast must be selected, similarly to how an interview is edited, so as to represent the essence of the complaint without distortion.

Instead, they chose to discuss only the two errors in your letter.  This gave the program the appearance of a settling of accounts, something that has no place at the CBC. . . . [Emphasis in original.]

71                            The CBC’s ombudsman considered the broadcast to have the appearance of a settling of accounts.  This is highly detrimental to the CBC’s case.  The Ombudsman also openly implied that Le Point’s journalists did not live up to proper journalistic standards, given the “wrongful pruning”, that is, the selective use of certain portions of the letter.

72                            Even Otis J.A., in dissent in the Quebec Court of Appeal, seemed to recognize that, by selectively quoting the letter, the broadcast fell below professional standards for journalists: [translation] “[i]t would certainly have been desirable, in keeping with journalistic standards, to cover all aspects of the letter in the report.  However, this lack of fairness does not constitute civil fault” (para. 356).  With respect, by not respecting professional standards in this case, and given all the other surrounding circumstances, the CBC was at fault.

(4)     Conclusion With Respect to Establishing Fault

73                            In conclusion, several factors in combination lead me to conclude that the CBC was at fault:  the incomplete and misleading manner in which the content of the letter was broadcast, the refusal to allow Mr. Néron time to verify his errors, the refusal to mention that he sought this time, the fact that Mr. Néron never wanted the content of the letter to be broadcast and the adverse conclusion of the CBC’s ombudsman.  The CBC intentionally defamed Mr. Néron, and it did so in a manner that fell below the professional standards of a reasonable journalist. 

G.     Appropriate Deference to the Trial Judge’s Findings

74                            In keeping with this Court’s recent decision in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, I have come to the conclusion that the trial judge committed no palpable and overriding errors in his determination of the facts.  Likewise, I cannot conclude that the trial judge committed a palpable and overriding error in his determination that the CBC was at fault.  The trial judge did not err with respect to the proper legal test.  He properly grounded his test for liability in art. 1457 C.C.Q. and referred to Radio Sept-Îles, supra, and he correctly noted that journalists are subject to an obligation of means.  Based on his strong findings of fact, the trial judge was correct in determining that the CBC’s journalists had failed to meet their professional obligations.

H.     Condemnation In Solidum

75                            The trial judge found the CBC and the CNQ solidarily liable for the damages awarded as a result of their separate faults.  On appeal, Fish J.A. held that it was wrong to impose solidary liability since the basis of the CBC’s fault was extra-contractual and juridically independent of the contractual fault attributed by the trial judge to the CNQ.  Solidarity between debtors exists, as art. 1525 C.C.Q. provides, “only where it is expressly stipulated by the parties or imposed by law”.  Fish J.A. concluded that neither condition was met in the case at bar.  Instead, he found that in light of this Court’s decision in Prévost-Masson, supra, the CBC and the CNQ should be held responsible in solidum for Mr. Néron’s damages.

76                            The CBC submits that the Quebec Court of Appeal erred in finding it liable in solidum with the CNQ since solidarity is available only in cases where the wrongful acts caused a single injury or prejudice.  The CBC also briefly suggests that Mailhot J.A. erred in concluding that there was a causal link between the news broadcast and the damages suffered by Mr. Néron.  As an alternative to the order for liability in solidum, the CBC argues that the majority of the Court of Appeal should have ordered liability according to a “fair apportionment of the legal responsibilities of each party” (see Prévost-Masson, supra, at para. 21, and art. 1478 C.C.Q.).

77                            The respondents note that, in challenging the finding of causation, the CBC has failed, in its very brief submission, to show that the trial judge committed a palpable and overriding error.  The respondents also contend that the CBC has failed to adduce any evidence as to how the damages should be apportioned and that, in these circumstances, the order of liability in solidum is well founded. 

78                            It is my view that, based on this Court’s recent decision in Prévost-Masson, the order for liability in solidum was appropriate.  In Prévost-Masson, this Court settled the doctrinal debate in Quebec, concluding that the concept of an obligation in solidum did exist in civil law.  In Prévost-Masson, the respondent had a right to the same sum of money from two different debtors: from one as a debt for contractual liability and from the other as the balance of the selling price.  The Quebec Court of Appeal had held that the debts were indivisible but this Court explained that since the debt was a sum of money, it was clearly susceptible to division.  The Court also decided that the concept of “passive joint and several liability” was not applicable (see Prévost‑Masson, supra, at para. 25).  Instead, the Court concluded that the concept of obligation in solidum, which had been developed to deal with the problems that arise where the object of the debt is not susceptible to division but there is more than one debt for the whole amount, was most appropriately applicable to this situation.

79                            J. Pineau, D. Burman and S. Gaudet have indicated that liability in solidum should be applied in situations such as this where two parties are responsible for an injury and one of them is liable extra-contractually while the other is liable contractually (see Théorie des obligations (4th ed. 2001), at pp. 676-77).  In this case, the courts below concluded that, although the faults of the CBC and the CNQ were distinct in that one was based on extra-contractual liability and the other on contractual liability, the faults were “factually related, reasonably contemporaneous and cumulative in their prejudicial impact on Néron and GEN [Communication]” (see Court of Appeal judgment, at para. 280, and see also the trial judgment, at p. 1832). The damages, however, were of a global nature and, as Fish J.A. explained, it would be difficult, in practical terms, to divide the object of the global debt.  Moreover, the learned trial judge is to be afforded significant deference in respect of his finding that the damages could not be easily divided.  As the respondents indicate, there has been little evidence adduced to explain how the damages could be apportioned between the parties in a just fashion.  As such, this is the kind of case, like Prévost-Masson, where the liability of the parties should be in solidum.  I would thus dismiss the CBC’s appeal on this ground.

I.    Costs

80                            I see no reason to depart from the usual rules with respect to costs.

VI.    Conclusion

81                            As a result, I would dismiss the appeal with costs. 

The following are the reasons delivered by

82                            Binnie J. (dissenting) — I cannot subscribe to the proposition of my colleague LeBel J. that civil liability should be imposed on the Canadian Broadcasting Corporation (“CBC”) to pay $673,153 in damages because, as he puts it (at para. 55):

. . . the information broadcast may have been true _ at least in part (to be discussed below) _ and it may have been in the public interest to broadcast it, but the whole of the broadcast quite simply did not measure up to professional standards.

83                            The information that was published was perfectly true, but my colleague’s concern seems to be that the “truth” could have been put in a different light if additional matters had been included in the broadcast (para. 68).  I do not agree that in this case what was not broadcast made what was broadcast any the less true.  My deeper concern is that in balancing press freedom against the respondents’ interest in the protection of their reputation, my colleague puts insufficient weight on the constitutional right of members of the Quebec public to have access to true and accurate information about matters of legitimate interest and concern.  An award of this size built on such a thin foundation can only discourage the fulfilment by the media of their mandate in a free and democratic society to afflict the comfortable and to comfort the afflicted, to quote Joseph Pulitzer, a mandate now protected by s. 2( b )  of the Canadian Charter of Rights and Freedoms  and s. 3 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12.

84                            I agree with Otis J.A. of the Quebec Court of Appeal ([2002] R.J.Q. 2639) that the real culprit in this case is the Chambre des notaires du Québec (“CNQ”).  For many of the same reasons that she has given, I would allow the appeal of the CBC.  The effect of such a disposition would be to leave the liability for the payment of the respondents’ damages with the CNQ, where it belongs.

I.       Facts

85                               The relevant circumstances are fully set out by my colleague LeBel J. and I will therefore limit myself to the facts needed to explain my legal conclusion.

86                               The original broadcast on Le Point on December 15, 1994 dealt with the CNQ as an important public institution exercising self-government responsibilities over the notarial profession.  It was strongly critical.  One of its allegations was that the CNQ had manifested a high-handed and unprofessional approach to people who made legitimate complaints about the work of its members.  The broadcast detailed a number of instances where complainants had been ignored or abused.  The message was that the CNQ, in its dealings with the public, was dysfunctional.  At the time, this seems to have been true.  It was certainly in the public interest to draw attention to such a deplorable state of affairs.

87                               The broadcast relied in part on two complainants, Messrs. Yvon Thériault and Richard Lacroix, who agreed to be interviewed on the air.  On learning about the broadcast, the CNQ (without checking its facts) leapt to the attack, alleging (erroneously) that Mr. Lacroix had lied about his complaint because the CNQ had in fact reimbursed him for a loss suffered at the hands of one of its members, and that Mr. Thériault’s brother was the leader of a bizarre and violent cult.  The CNQ instructed their communications consultant, Mr. Gilles Néron, to write to the CBC.   This instruction was carried out by Mr. Néron in a letter to the director at Le Point dated December 18, 1994, the contents of which are set out in full by my colleague  LeBel J. at para. 3.

88                               After introducing himself as spokesperson for the CNQ and requesting a meeting with the CBC to pursue an on-air reply, Mr. Néron’s letter went on to confirm, albeit inadvertently, more or less what the CBC had said about the CNQ in its December 15 broadcast; namely that by launching an attack on Messrs. Thériault and Lacroix the CNQ showed again that it could not get its facts straight and that its response to legitimate criticism was ill-informed, ill-considered and unworthy of a professional governing body.

89                               Specifically, the false allegations made by the CNQ and repeated by Mr. Néron in his December 18 letter were as follows:

[translation]

3-    In the report, the death threats made against the president are referred to as nonsense.  Mr. Thériault is presented as a person who would be justified in making such threats.  You failed to mention that he is the brother of the Thériault who was the Pope of the Infinite Love cult and who cut off his spouse’s arm. [Emphasis deleted.]

It is now accepted that the allegation about Mr. Thériault’s brother was totally unfounded.  With respect to Mr. Lacroix, the CNQ, through Mr. Néron, categorically stated that his complaint about non-reimbursement by the CNQ was false:

[translation]

4-    You also failed to mention in the report that Mr. Lacroix was  reimbursed by the CNQ for the money he lost.

. . .

2-    Your conclusion that “Mr. Lacroix is considering writing to the Minister to ask him to put the CNQ under trusteeship” gave some people the impression that the chairman of the Office [des professions] was going to make this request, while others were left thinking that Le Point’s reporters came to this conclusion after their investigation. [Emphasis added; emphasis in original deleted.]

In fact, Mr. Lacroix had been reimbursed, but not by the CNQ.  The CNQ was therefore wrong to claim the credit.  Mr. Néron’s added complaint about the “impression” attributed to some unidentified people added nothing of substance.

90                               The other purported clarification by the CNQ, through Mr. Néron, was flattering to the CNQ but simply argumentative:

[translation]

5-    I also have difficulty understanding the reference to notary Potiron, the fusty old man.  I found this allusion inappropriate.  The notarial profession has a 128-year history of faithful service in Quebec.  There are many young notaries.  They are excellent, dynamic and innovative legal professionals.

91                               The subsequent behaviour of the CBC’s journalists in avoiding contact with Mr. Néron was boorish, but boorishness without more is not actionable. Eventually, on January 4, 1995, the CBC offered the CNQ a follow-up interview, as it ought to have done more promptly.  However at that point, the CNQ, after undergoing a reversal of position, refused the offer.  In the result, the journalists were simply left with a potential story about the impetuous and ill-founded allegations contained in Mr. Néron’s letter of December 18th. 

92                               Mr. Néron, as well as the CNQ, attempted in their different ways to extricate themselves from the untenable position into which the CNQ blunders had led them.  Belatedly, Mr. Néron asked for time to check the truth of the CNQ’s allegations.  The CNQ, for its part, having withdrawn its request for a reply, proceeded to disclaim responsibility for Mr. Néron’s original request for a reply interview, and attempted to make Mr. Néron the scapegoat for its own series of errors.  Thereafter, it completed the assault on Mr. Néron’s professional reputation by circulating misleading statements about Mr. Néron to the entire CNQ membership.

93                               The CBC’s own ombudsman, as LeBel J. explains, found that the CBC’s follow-up broadcast on January 12th showed selectivity and a lack of balance.  He found that the focus on the CNQ’s misinformation gave the broadcast [translation] “the appearance of a settling of accounts”.  However, he did not conclude that the public was misinformed or that the broadcast was not in the public interest.  In fact, on this second point he concluded that the public interest was well-served by calling attention to the CNQ’s continuing parade of errors.

94                               Journalism inevitably involves selectivity.  What was broadcast on January 12th was true.  With all due respect for the contrary position, my view is that despite the journalists’ boorish treatment of Mr. Néron prior to January 12th and the selectivity evident in the January 12th broadcast (which no doubt demonstrated elements of “gotcha” journalism), civil fault should nevertheless not be attributed to the CBC when all the relevant public interest issues are taken into account, a matter to which I will now turn.

II.      The Absence of Civil Fault

95                               Article 1457 of the Civil Code of Québec, S.Q. 1991, c. 64 (“C.C.Q.”), which delineates the relevant principles of civil fault, is to be interpreted in light of the Code’s preliminary provision:

The Civil Code of Québec, in harmony with the Charter of human rights and freedoms and the general principles of law, governs persons, relations between persons, and property. [Emphasis added.]

The public’s right to a society where free expression can flourish is guaranteed by s. 3 of the Quebec Charter.  Thus, the proper legal framework within which to consider the present appeal is not simply a bilateral dispute between the CBC and the respondents, but a multilateral dispute involving not only the disputants but the broader Quebec public which had a serious ongoing stake in the proper functioning of the CNQ as a vitally important public institution.  Lamer J. (as he then was) commented in Snyder v. Montreal Gazette Ltd., [1988] 1 S.C.R. 494, in speaking of the assessment of non-pecuniary damages for defamation under the Civil Code of Québec, at p. 510:

In coming to the rescue of a defamation victim, the courts must not overlook the fact that the written and spoken press is indispensable and is an essential component of a free and democratic society.

96                               Despite the reference by my colleague LeBel J. at paras. 48 and following to some of the leading decisions of this Court upholding the importance of freedom of expression, including RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, and Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459, I do not believe that his proposed disposition of this appeal gives proper weight to that aspect of the public interest.

97                               I accept, as does LeBel J., that it is appropriate to anchor the discussion in the Quebec Court of Appeal’s decision in Société Radio-Canada v. Radio Sept-Îles Inc., [1994] R.J.Q. 1811.  That decision, interpreting civil responsibility in matters of defamation under art. 1053 of the Civil Code of Lower Canada, held that, unlike the situation in the common law jurisdictions, [translation] “there are situations in which a person who communicates information may be civilly liable even if the information is true” (pp. 1818-19).  Thus: 

[translation]

(a)  A person commits a fault by “saying” unpleasant or unfavourable things about another that he or she knows to be false.

                                                                   . . .

(b)  A person commits a fault by “saying” unpleasant or unfavourable things about another that he or she ought to know to be false.

                                                                   . . .

(c)  A person commits a fault by making unfavourable comments about another, even if they are true, if he or she makes them without valid reason.  [Italics deleted; underlining added.]

(Page 1819, citing J. Pineau and M. Ouellette, Théorie de la responsabilité civile (2nd ed. 1980), at pp. 63-64.)

98                               In Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85, this Court confirmed this same approach for the purposes of art. 1457 C.C.Q. noting, with respect to the third branch, that “even in the civil law, the truth of what is said may be a way of proving that no wrongful act was committed, in circumstances in which the public interest is in issue” (para. 37 (emphasis added)).

99                               This is not to say that the media are unconstrained by the usual principles of civil fault.  The media are bound by the same law as everybody else.  It is the function of free expression that is protected, and the media organizations derive their protection from what they do rather than who they are.

100                           Counsel for the CBC submitted with some indignation at the oral hearing:

[translation]  If I may sum up the comments of Madam Justice Mailhot, she accuses my clients of having discovered the truth and having spoken it.

This is an oversimplification of a complex issue.  To agree to work professionally with the media, as Mr. Néron did, is not to agree to dance with wolves.  There are proper limits to the protection that ought to be extended to the media even in the exercise of their constitutionally protected function.  The question is whether those limits have been breached in this case.

101                           My colleague LeBel J., at para. 73,  mentions five factors which lead him to conclude that a finding of civil fault should be made against the CBC, namely

the incomplete and misleading manner in which the content of the letter was broadcast, the refusal to allow Mr. Néron time to verify his errors, the refusal to mention that he sought this time, the fact that Mr. Néron never wanted the content of the letter to be broadcast and the adverse conclusion of the CBC’s ombudsman.

102                           In my view, with respect, none of these factors (whether taken individually or cumulatively) are sufficient to support a finding of civil responsibility.  In so stating, I give very limited weight to the trial judge’s criticism of the second broadcast.  The trial judge got off on the wrong foot in characterizing Mr. Néron’s letter of December 18, 1994 as a private communication.  This mischaracterization coloured the rest of his analysis.

A.     The Allegedly Incomplete and Misleading Manner in Which the Content of the Letter Was Broadcast

103                           I do not, with respect, accept my colleague’s characterization of the December 18th letter as “really just a request for a meeting and right of reply” (para. 65).  As is evident from a reading of the text set out at para. 3, the letter is approximately two pages in length, with only part of the first page devoted to the request for a right of reply.  The letter alleges errors in the original broadcast in relation to the on-air complainants Messrs. Lacroix and Thériault, and it was appropriate to bring these allegations to the attention of viewers, together with the journalists’ response.

104                           Like Otis J.A., I accept as correct the finding of the Ombudsman that according to desirable journalistic practice, the January 12th broadcast ought to have  presented Mr. Néron’s letter in a more complete and balanced fashion.  However, the real sting of the broadcast was that the CNQ was continuing to act in an impetuous and unprofessional manner.  It documented why the allegations contained in Mr. Néron’s December 18th letter were erroneous and pointed out the ease with which these errors were verified by the journalists, and ought to have been known to the CNQ.  Had the other points made in Mr. Néron’s letter been broadcast they would not (as discussed below) have pulled the sting, or served the public interest in any substantial way, or, for that matter, have helped to protect Mr. Néron’s reputation.  The selectivity and lack of balance found by the Ombudsman did not subvert the truth of the real matter of interest to the public, namely the truth of the CNQ’s allegations pertaining to Messrs. Thériault and Lacroix. 

B.      The CBC’s Refusal to Allow Mr. Néron Time to Verify His Errors 

105                           Again, while this courtesy ought properly have been extended to Mr. Néron, the allegations against Messrs. Thériault and Lacroix were demonstrably false whether or not Mr. Néron belatedly took the opportunity to verify them.  Had Mr. Néron publicly acknowledged their falsity, it would simply have added to the impression on viewers that the CNQ had responded to the original broadcast with a misinformed  attack on Messrs. Thériault and Lacroix, for which the CNQ could justly be called to account. 

C.     The CBC’s Refusal to Mention That Mr. Néron Sought a Delay

106                           An accuser is supposed to know whereof he speaks before an attack is launched.  It would not have improved Mr. Néron’s reputation to report that he wanted time to find out about the truth of the CNQ allegations only after they were made.

D.     The Fact That Mr. Néron Never Wanted the Contents of the Letter Broadcast

107                           This is a variation of the trial judge’s original ruling that the letter of December 18 was somehow “private”.  I agree with Mailhot and Otis JJ.A. that the CBC was entitled to consider the information it had received to be public.  There was no indication in Mr. Néron’s letter to the contrary.  In this respect, I adopt the reasoning of Otis J.A. (at para. 345):

[translation]  Finally, no statement, either implied or express, of confidentiality was made in the letter of December 18, 1994.  Nor was any promise of confidentiality obtained from the CBC at the time of sending of the letter, which as of that time became information that the television broadcasting media were entitled to take note of and disseminate.

To send a letter to the press alleging errors in a broadcast and launching a personal attack against news sources without first verifying the foundation for these allegations is to invite trouble.  Of course, once Mr. Néron recognized that he might be on thin ice, he quite naturally sought a graceful exit.  However, by that time the CNQ allegations were like missiles that once launched are beyond recall.

E.      The Adverse Conclusions of the CBC’s Ombudsman

108                           The CBC’s ombudsman criticised aspects of the January 12th broadcast.  However the effort of media organizations to improve their standards of performance should not be discouraged by equating valid journalistic criticism with a finding of civil fault.  The Ombudsman was not concerned with balancing the values of a free press and the respect for reputation.  Nor was it within the Ombudsman’s mandate to determine whether Mr. Néron’s reputation would have fared better or worse had a higher standard of journalism been observed, given that the damaging sting would have remained even in a more balanced presentation, albeit more appropriately packaged.  Rather, the Ombudsman was examining the second broadcast in light of the [translation]  “journalistic principles of accuracy, integrity and fairness”.  No doubt these principles are all relevant in the determination of reasonableness under art. 1457 C.C.Q., but they are not the only relevant principles.   

109                           Our Court in Prud’homme, at para. 72, concluded with respect to the allegation of defamation in that case that “[i]t would of course have been wiser to mention” (emphasis added) some omitted information, but that “having regard to the circumstances” these deficiencies of presentation did not engage civil responsibility.  And so it is in this case.  I concur with Otis J.A. that (at para. 356)

[translation]  this lack of fairness does not constitute civil fault.  Neither the nature nor the purpose of the report would have changed in any way had the public known that the CNQ was unhappy (1) that the December 15, 1994 broadcast of the first report was repeatedly advertised in advance, (2) that viewers may have been left with the impression that the chairman of the Office des professions was going to ask that the CNQ be placed under trusteeship, or (3) that an inappropriate reference had been made to the notary Potiron.  None of these three minor points would have justified the January 12, 1995 update.  [Italics deleted; underlining added.]

110                           What sets this case apart from the usual action in delict is its constitutional dimension, and the public’s right to know, and the role of the press in discovering and getting the facts out into the public domain even though on occasion, as here, the presentation of the facts leaves something to be desired.

III.    Disposition

111                           In my view, a legal rule that awards $673,153 in damages to Mr. Néron and his personal company on the basis of a broadcast which stated true facts, the publication of which was undoubtedly in the public interest, just because other lesser matters might also have been mentioned but were not, or further context might have been provided but was not, is simply not consistent with the public’s right to know.  The position adopted by the majority in this case goes well beyond what was decided in Radio Sept-Îles and Prud’homme and, with respect, will result in an unnecessary chill on the free flow of information which ought to be characteristic of a free and democratic society.  The reputation of Mr. Néron and his company have undoubtedly suffered, but the real cause of their suffering was the conduct of their erstwhile client, the CNQ, which has already been held liable for the respondents’ loss, and which did not appeal the question of its own liability to this Court.

112                           For these reasons, I would allow the appeal with costs.

Appeal dismissed with costs, Binnie J. dissenting.

Solicitor for the appellant:  Canadian Broadcasting Corporation, Montréal.

Solicitors for the respondents:  Deslauriers Jeansonne, Montréal.

Solicitors for the intervener:  Joli‑Coeur, Lacasse, Geoffrion, Jetté, St‑Pierre, Montréal.