The Supreme Court of Canada has rejected a defamation class-action lawsuit launched by a group of Haitian and Arab taxi drivers stung by disparaging remarks made by a Montreal talk-show host-turned politician.
In an 8-1 ruling Thursday morning, the court said "shock jock" André Arthur's right to vent his spleen and use racial epithets trumped an attempt to gain compensation by 1,110 cab drivers who were humiliated by his diatribe.
While Mr. Arthur - who is now an Independent MP in the riding of Portneuf-Jacques Cartier - had gone over the top by holding an entire group up to ridicule, the court said, any reasonable person would recognize that he was expressing a personal view that could not sensibly apply to each cab driver.
"An ordinary person, while sensitive to such excessive remarks, would not in my view have formed a less favourable opinion of each Arab or Haitian taxi driver, considered individually," Madam Justice Marie Deschamps wrote for the majority. "I therefore conclude that Mr. Arthur's comments, while wrongful, did not damage the reputation of each Montreal taxi driver whose mother tongue is Arabic or Creole."
The dissenting judge, Madam Justice Rosalie Abella, argued that society cannot turn a blind eye to calculated, group defamations, and that the drivers suffered a compensable injury.
"These were highly stigmatizing remarks attacking members of vulnerable communities," Judge Abella said. "There is a difference between provocation or controversy, including offensive statements, and statements that deliberately vilify vulnerable people.
"The group was defined with sufficient precision and the statements specific enough to be harmful to the reputations of each of its members," she said. "The members of the group Mr. Arthur vilified interact with the public on a daily basis and their livelihoods depend upon their ability to attract customers."
Mr. Arthur made his comments on a morning show on Nov. 17, 1998, on CKVL radio station, which is operated by Diffusion Métromédia CMR Inc. The topic for the show was whether Quebeckers were satisfied with restaurants and hotels, particularly in Montreal.
Mr. Arthur's diatribe, delivered in French, included racial slurs against Haitians and Arabs: "Why is it that there are so many incompetent people and that the language of work is Creole or Arabic in a city that's French and English? … Taxis have really become the Third World of public transportation in Montreal. … My suspicion is that the exams, well, they can be bought. You can't have such incompetent people driving taxis, people who know so little about the city, and think that they took actual exams."
A Quebec Superior Court judge earlier awarded the drivers $220,000 for defamation; however, the Quebec Court of Appeal reversed the decision.
The Supreme Court majority made no apology this morning for Mr. Arthur's allegations that Creole and Arab cab-drivers were ruining the reputation of Montreal's taxi fleet.
"Mr. Arthur made accusations of uncleanliness, arrogance, incompetence, corruption and ignorance of official languages," Judge Deschamps said. "By referring to Creole as speaking 'nigger,' he disparaged and expressed contempt for the language primarily used by Haitians to communicate with one another. … As well, when he called drivers of Arab origin 'fakirs', he made fun of and even ridiculed them."
Canadian society, Judge Deschamps said, has expanded its view of what individuals are free to state, and an ordinary person listening to the show would have recognized that they were excessive, irrational generalizations based on a single, unpleasant experience Mr. Arthur had had.
"An ordinary person would not have believed the offensive allegations and would not have thought that Mr. Arthur was vouching for the validity of his racist and contemptuous insults," Judge Deschamps said. "An ordinary person certainly would not have associated the allegations of ignorance, incompetence, uncleanliness, arrogance and corruption with each taxi driver whose mother tongue is Arabic or Creole personally. … The drivers' personal reputations remained intact in the eyes of the ordinary person."
She also reasoned that Mr. Arthur's reputation as an intolerant polemicist was a factor.
"Mr. Arthur was a known polemicist in the area where his show was broadcast," Judge Deschamps said. "He had become known for his distasteful and provocative language. The radio show during which the impugned comments were broadcast had a satirical style and tried to sensationalize things.
"This is not intended as a value judgment on shock-jock radio, but the context of such shows does have an impact on the real effect of comments made on them," the continued. "People cannot of course use their general tendency to speak in bad taste as an excuse to defame others on air, but it must be acknowledged that comments made by Mr. Arthur in such a context have very little plausibility from the point of view of the ordinary person."
Judge Abella disagreed strongly, saying Mr. Arthur should not get a free ride simply because he is habitually mean-spirited and intolerant.
"I do not accept that his listeners would have inevitably treated Mr. Arthur's statements as less plausible because of his reputation," she said. "I appreciate that Mr. Arthur was not averse to comments of a provocative nature, and that his listeners knew that he was given occasionally to making offensive statements. But I do not accept that Mr. Arthur's comments would necessarily be seen to be hyperbolic by the ordinary person. They were made 'seriously,' not satirically or ironically."