Today we comment on a recent judgment of the Quebec Court of Appeal adding to the infinite quest for a fair balance between freedom of speech and protection of reputation. This case reiterates the fine line between a reasonably fair and a defamatory comment. Clients questioning the appropriateness of comments they are about to make in the public sphere are welcome to seek our opinion. As one of the parties in this case submitted a leave application to the Supreme Court of Canada, this case is being closely monitored.
Gill v Chelin is a defamation case which arose in the context of a labour dispute involving Ms. Annie Chélin, a design professor. After her contract had not been renewed by the Board of her University in 1991, her Union filed a grievance based on a minor violation of a mandatory evaluation procedure.
Prior to the hearing the Union ceased to represent Ms. Chélin. She then retained the services of private counsel and, in 1993, the grievance arbitrator decided that her grievance was well-founded. This decision was appealed and the case then took unforeseen directions, which led to numerous Court hearings between 1993 and 2010, with Ms. Chélin losing every subsequent hearing. Following a Superior Court decision rendered in 2007 by Justice Riordan, a former professor who was quite involved in the Union published magazine articles addressed to Union members about Ms. Chélin’s case.
Ms. Chélin considered the articles to be disparaging and sued the author for an injunction and damages. The Superior Court ordered the injunction and awarded $35,000 in damages. The Superior Court considered that a simple reader of the article would likely consider Ms. Chélin to be confrontational and querulant. The Superior Court considered the author knowingly and willingly misrepresented Justice Riordan’s judgment and had the intention to cause harm to Ms. Chélin, especially since the Union had previously “abandoned” Ms. Chélin and because of the author’s previous involvement in the Union. The Superior Court acknowledged, however, that the articles would not have been disparaging had the author been an independent journalist.
Although the Court of Appeal implied that it did not approve of the content of the article, it still overturned the Superior Court judgment. In the view of the Court of Appeal, having recourse to the Courts is an action in the public sphere that may reasonably generate public interest in the matter.
The Superior Court had held the author liable while stating it would not have done so were the author an independent journalist. However, the Court of Appeal made it clear that the author’s previous involvement with the Union could not impose a heavier burden that would have the effect of limiting his freedom of speech. In addition, good faith is presumed in Quebec law and, although the article content may have hurt Ms. Chélin, nowhere in the evidence was it found that the author was prejudiced against her.
This case is a good example of the fine line between defamatory and reasonably fair comments, and the infinite quest for a fair balance between two fundamental rights. This decision of the Quebec Court of Appeal comes down more on the side of freedom of speech, versus the inclination of the lower court towards protection of reputation. Leave to appeal to the Supreme Court of Canada is currently sought by Ms. Chélin. It will be interesting to see if the Supreme Court will use this case to revisit this enduring issue and expound on the extent to which an author’s background and the surrounding circumstances should be considered in determining whether statements made were defamatory.
Prior to publishing information in the public that might be potentially harmful to business partners or competitors, the best practice is to ensure that facts reported are of public interest, and presented in an accurate, fair and transparent manner. In case of any doubt, we invite you to seek our advice.
Gill v. Chélin, 2015 QCCA 1280
Date of Decision: August 4, 2015