Neron v. Chambre des notaires du Quebec
From Ad IDEM / CMLA
July 29, 2004 (2004 SCC 53)
Radio-Canada's Le Point broadcast a program on the plight of complainants against the Chambre des notaires du Quebec. Two of them appeared in the program telling their stories. A few days later, Mr. Neron personally delivered the program the following letter, which was at the centre of the ensuing litigation:
Le Point -- Radio-Canada
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.
(Signed) Gilles E. Néron,
[Emphasis appeared as underlining in original.]
Shortly after, the CNQ decided to change its strategy and not seek a right of reply. Mr. Neron tried unsuccessfully to reach the recipient between December 22, 1994 and January 6, 1995, leaving a few telephone messages. His mandate was to try to repair the image of the notaires. His calls were not directly returned. Instead, a journalist with the program contacted the CNQ on January 4 seeking a follow-up interview, which was declined. The CNQ told the journalist that the letter from Mr. Neron was his personal initiative. On January 10, the journalist contacted Mr. Neron directly, who took the position that his letter was personal, and was not meant for publication "or to be communicated in any form whatsoever". The journalist pointed out two errors in the letter in paragraphs 4 and 5: i.e. Mr. Theriault was not the brother of the infamous Roch Theriault and Mr. Lacroix had not yet been fully compensated by the CNQ. He asked for three days to verify this.
On the second day, late in the afternoon, he learned that the program would respond to his letter on air. The segment, which became the focus of the case, corrected the two errors in the letter, but did not refer to the rest of its contents. The majority judgments at both appeal levels agreed with the CBC Ombudsman that by selecting these errors for response, the program's actions amounted more to a "settling of accounts" rather than conveying information. The dissenters, of which there was only one in each appellate court, did not agree. Justice Binnie in the Supreme Court did an excellent job of putting the discussion of the two errors into their own context. In his view, they were the only significant matters in the letter to be addressed by the program. Furthermore, he added, in the context of the original program's focus on the treatment of complainants by the CNQ, the attention paid to the two errors in the second broadcast was appropriate.
There was considerable judicial discussion of whether or not the letter, sent as it was to the head of a broadcast program, was private. In the end, all Supreme Court judges agreed that the letter was not. Nevertheless, the majority (6:1) held that the fact that Mr. Neron did not want the letter published was a factor to be considered in assessing whether Radio-Canada journalists met the appropriate professional standard:
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 notes in his 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, supra:[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.
The majority then proceeded to analyze fault in the case, and found it in the following:
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.
All of this seemed to turn on the first factor... that the report was misleading. How?
64 ... 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:
. . . 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.
If one accepts that the report was misleading, the rest of the "fault" follows naturally. As noted earlier, however, Justice Binnie eloquently expressed major reservations about this finding. He began as follows:
I cannot subscribe to the proposition of my colleague LeBel J. that civil liability should be imposed on the Canadian Broadcasting Corporation (the "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 quite simply, the whole of the broadcast did not live 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 ("Quebec Charter").
He noted that Mr. Neron's letter was perfectly consistent with Radio-Canada's original criticism of the CNQ's approach in attacking complainants:
namely that by launching an attack on Messrs. Thériault and Lacroix the CNQ showed again that it couldn't get its facts straight and that its response to legitimate criticism was ill-informed, ill-considered and unworthy of a professional governing body.
Justice Binnie noted that these were the two essential criticisms of the original program by Mr. Neron. From his perspective, Mr. Neron's additional concerns, which were not dealt with in the second program, did not have to be in the program:
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.
He noted that the other purported clarification by the CNQ, through Mr. Néron, about the reference to the "fusty old man", was "flattering to the CNQ but simply argumentative".
He then put the Ombudsman's perspective into its proper context, and concluded there was no civil fault:
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...
As for Radio-Canada's refusal to accord Mr. Neron the extra day to verify his information or to accede to his wish not to publish his letter, Justice Binnie made the following observations:
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 Refusal of the CBC 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 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):
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.
In the end, he expressed an ominous warning about the impact of the majority judgment on free expression, with which we completely concur:
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.