Judgement against Eric Messier for deffamation and permanent injunction
Wednesday, February 12th, 2014Chayer c . Messier
2014 QCCS 357
SUPERIOR COURT
CANADA
PROVINCE OF QUEBEC
DISTRICT
MONTREAL
No. :
500-17-060774-109
DATE:
On February 5, 2014
______________________________________________________________________
IN THE CHAIR :
THE HONOURABLE
MARC DE Wever , J.C.S.
______________________________________________________________________
ROGER -LUC CHAYER
Applicant / Respondent counterclaimed
c .
ERIC Messier
Respondent / Applicant counterclaim
______________________________________________________________________
JUDGMENT
______________________________________________________________________
[1 ] The applicant , saying the victim of libel written by the defendant and propagated on websites , request orders to force them to withdraw and stop their publication. He also claimed $ 85,000 in moral damages, punitive damages and attorney’s fees.
[2] Invoking his right to freedom of expression, the defendant denies the merits of the plaintiff’s motion and cross demand calls for $ 90,000 in moral and punitive damages.
THE FACTS
[3 ] The applicant describes both as a musician and journalist.
[4] In 1983 he entered the Conservatoire de Nice music and gets a degree equivalent to a Master in the Québec education system. It has several scholarships and played in various orchestras in France .
[5] In 1992, back in Canada , he wrote hundreds of cultural features in the journal RG .
[ 6] The applicant states that essentially work as a journalist from the years 1998 to 1999 as a contributor to the TVA television network and the magazine Le Point.
[7] In 2002 , he acquired the magazine Le Point which becomes Gay Media Club / Gay Club Magazine. Meanwhile, he developed a website for the roundtables and film screenings .
[8] Finally, he organized his own production company called Tempo records , the last record date of December 2012 .
[9] In November 2012 , he received the Golden Jubilee Medal of Queen for his musical and journalistic careers.
[10 ] The applicant says he met for the first time from 1995 to 1996 to the defendant while the two work together to review RG . Thereafter, they cross a few times.
[11] In 1997 , the plaintiff discovered that the defendant imagine the events he describes in the journal then RG . He decides to denounce this fact to the Press Council.
[12 ] The applicant submits that from 1999 to September 2009 he has no contact with the defendant.
[13] On 12 September 2009 , the defendant, under the pseudonym Spiritos22 , saves on YouTube commented: ” Oh, okay , ” Before ” the National Assembly, I see! Heaven what clown. “(Exhibit P -4).
[14 ] The plaintiff says that the defendant wants to ridicule referring to his performance before the National Assembly, the ” Marseillaise ” on the occasion of the Celebration of the 400th anniversary of Quebec City .
[15] The next day, September 13, 2009 , he becomes aware of a document (Exhibit P- 3, pages 6-10 ) entitled ” folder Roger -Luc Chayer : a nuisance to society and justice” put online by the defendant on its website .
[16] It should be reproduced verbatim this document marks the beginning of this legal debate :
” FILE ROGER -LUC CHAYER : A NUISANCE TO THE COMPANY AND JUSTICE – TERMINATION OF THE COUNCIL PRESS ² ² GAI QUEBEC AND ROGER -LUC CHAYER :
This denunciation is to serve the public interest against Roger -Luc Chayer ( Bourbonnière Street , Montreal ) , a self-proclaimed journalist , repeatedly blamed by his peers and is recognized for having abused the justice system Quebec to pursue a large number of people and organizations .
The justice system in Quebec has decided there is some time to take measures to curb abuse of this individual , but without complete success.
Whereas the ” Council of Quebec gay press ” is neither legitimate nor representative of lesbians and gay communities in that it consists of a few individuals who have declared themselves members of the “Council” without consultation or participation of these communities or the middle of the press;
Whereas the “Council” , for those few people , seized itself of most of the complaints and has thereafter;
Whereas the “Council” does not follow the basic rules of ethics AND THAT “Council” tarnishes the image of lesbians and gay communities;
Whereas the Press Council of Quebec, the recognized ethical issues in journalistic material Authority condemned twice the writings of Roger -Luc Chayer (decisions D199603 -020 , a decision upheld on appeal , and decision – d199908 08 ) ;
Whereas the ” Conseil de presse du Québec gay ” is intimately and essentially related to two media, The National and The Point, thus violating the basic rules of impartiality and objectivity ;
Whereas Roger -Luc Chayer is the architect of the “National” and ” gay Press Council of Quebec,” and editor of the magazine Le Point ;
Whereas Roger -Luc Chayer creates and maintains unnecessarily and artificially so tendentious polemic against groups and individuals who work in gay and lesbians communities;
THEREFORE
We do not recognize the decisions of the ” Council of Quebec gay press ” because we do not recognize its legitimacy. We disagree writings and opinions of the “Council” Site ” The National” and Roger -Luc Chayer, and the magazine ” Le Point” as Roger -Luc Chayer will be the editor .
For more information , visit the Legal Defense Committee
SEE LIST OF GROUPS AND INDIVIDUALS
Who denounced JOURNALIST SELF- PROCLAIMED ROGER CHAYER -LUC ,
HIS ALLEGED MEDIA AND PRESS COUNCIL EXPECTED ² ² GAI
29 GROUPS THAT HAVE SIGNED THE TERMINATION
…
48 INDIVIDUALS WHO HAVE SIGNED THE TERMINATION ( alphabetically )
…
Committee on Legal LGBT communities
ROGER -LUC CHAYER publicly denounced
FAILED ATTEMPT TO ROGER -LUC CHAYER muzzle the press
( Other link on this attempt failed )
Launch of the Legal Defense Fund of lesbians and gay communities in Quebec
RELEASE: ( TRUE ) PRESS COUNCIL SLAMS THE ALLEGED JOURNALIST ROGER -LUC CHAYER
National media is not the meaning of cyberjournalism , but rather the personal web Roger -Luc Chayer site.
The Press Council of Quebec concluded a major malpractice on the part of Mr. Roger -Luc Chayer and upholds the complaint , which applies jointly to the written and electronic media for The Point endorsed such a state of affairs .
Details on the website of the Table (Documents section)
Decisions ( only real ) PRESS COUNCIL OF QUEBEC about Roger -Luc Chayer
Be noted that it is surprising that the CPQ is concerned Chayer since the latter is by no professional group ” recognized journalist “, that is to say, only by itself.
But to fully appreciate the degree of nuisance Roger -Luc Chayer to society should be consulted countless lawsuits, some of which considered ridiculous by the judges themselves, since it has taken 10 to 20 years against Pierre- Jean Jacques -
to SMALL CLAIMS COURT OF QUEBEC
the SUPERIOR COURT OF QUEBEC
and COURT OF QUEBEC, among others.
Vaudeville ! ”
[17 ] However, the applicant notes that this document is almost completely identical to a statement issued in 2000 by the Association of lesbians and gays on the internet ( ALGI ) (Exhibit P- 3, pages 11-15 ) . Following this release , then take proceedings against the association and some of the signatories of the statement. These procedures result in a declaration of reciprocal waivers and out of court settlement approved by the Court November 6, 2007 (P-1 and P-2 parts ) .
[18 ] The applicant states that among the links that appear in the document ( at the bottom of page 8 , Exhibit P -3), there are leading to a judgment (Exhibit P -6) made in proceedings against ALGI , judgment dismissing an application for non- publication in the proceeding and a comment about the ruling.
[19] In response to the publication by the defendant of the document relating to him (Exhibit P -3 ), the applicant sends the defendant a notice (Exhibit P -8) asking him to withdraw the document since it contains serious and false information.
[20] The defendant does not run , but instead brings several occasions changes to the original document ( Exhibits P -9 and P-10) .
[21] In December 2009, the applicant finds that the defendant continues to put on its website the document found three months earlier , and again , with additions (Exhibit P -15).
[22] Thus , in reviewing the curriculum vitae of the defendant (Exhibit P -17, page 71) , he notes that there is always a link to the document to which he objected (Exhibit P -17, page 72 and following) , as modified and additional links (Exhibit P -18) release.
[23] In the version of document end of December 2009 (Exhibit P -19 ), the applicant notes that the defendant even inserts his address and home telephone number (Exhibit P -19, page 80) . In addition, the defendant now has an English version of the document (Exhibit P-19 , page 80) .
[24 ] The applicant then instructs its counsel to deliver to the defendant a notice (Exhibit P- 16).
[25] On 5 January 2010, the defendant responds to the plaintiff as follows : “For what reason? ‘ll Surely you can find two to three forcing you , right? Maybe I ‘m just bored. Or maybe it was for the truth , you who love both the truth. Or to ” go where no one else will “? “(Exhibit P-20 , page 85).
[26] Also in January , the defendant changes the document to include other information , such as ” Court decisions that involved Chayer ” (Exhibit P-21, page 102).
[27 ] On January 10, 2010, the defendant inserted the photograph of the applicant on its site with several links (Exhibit P -23, page 107) .
[28] On 20 January 2010 , the defendant makes a statement entitled ” journalist Eric Messier launches media monitoring where he talks , including his most” recent case “about ” gay journalist and Montreal , Roger -Luc Chayer, repeatedly condemned by the Quebec Press Council , the highest body of journalistic ethics “(Exhibit P -24, page 109).
[29 ] The respondent sees transmit this communiqué on a European site called Categorynet .
[30] On 26 January 2010, the defendant added to his paper entitled: ” plants fake diplomas ” (Exhibit P -27, page 125) always with a link related to the applicant.
[31] After further additions or changes (Exhibit P -31), February 15, 2010 , the defendant, in a section called “records” , juxtaposes the headings ” United States : a business scam ” ” Quebec : Ville- Marie Academy created by Roger -Luc Chayer is denounced by the Ministry of Education. “(Exhibit P-32, page 148).
[32] Throughout February and March 2010 , the defendant continues to publish on its website the document relating to Chayer, and with or without modifications.
[33 ] On March 21, 2010, the defendant using the site ” red or blue pill ? ” Place a picture of a monkey next to a text that begins with the words:” Roger -Luc Chayer delirium March … “(Exhibit P-44 , page 207).
[34 ] The applicant demonstrates that seeing this photograph of a monkey added to his name he feels great humiliation.
[35 ] A few days later, the defendant still on the site ” red pill – blue pill ” , connects the caller’s name to the words “false , harassment , criminal charges … fascism. “(Exhibit P- 55, page 305) .
[36] On 3 May 2010, the applicant appealed to another attorney to deliver to the respondent a second letter (Exhibit P -57) that remains unanswered .
[37 ] On June 7, 2010, the defendant again transmits the document about the applicant again with variations.
[38] Meanwhile , the applicant wrote to several site managers to try to halt the spread of the document since it is found even in China.
[39] In September , the plaintiff instituted the present proceedings against the defendant .
[40] Nevertheless, the defendant not only did not withdraw the document, but it adds the same to say about the musical career of the applicant.
[41] On 11 February 2011, the Tribunal issued an order to safeguard the parties’ consent , which reads in part :
” ORDERS the parties to withdraw within twenty- four (24 ) hours all articles published on the websites under their control, on the other, to include the TAGS ² ² and other reference links to other sites or engines research ;
ORDERS the parties not to publish an article on the other party by June 10, 2011 , on any medium whatsoever , computer or other . ”
[42 ] The applicant notes that, despite this safeguard order multiple items on a website controlled by the defendant remain accessible ( Exhibits P -82 to P -89) .
[43 ] On June 9, 2011, the Tribunal shall act in the defendant’s acquiescence to the conclusions of the motion for interlocutory injunction.
[44] However , the applicant finds that the defendant , despite the judgment , does not remove websites all documents about it (Exhibit P -91 package ) .
[45] Finally, the applicant explains that many of the applications initiating proceedings (Exhibit D -1 ) to which the defendant refers concern only actions on account for services rendered by him or his companies.
[46] For his part, the defendant says he has three trades over the years.
[47] From 1989 to 2011 , as a journalist, he wrote some 3,000 items both in newspapers and on the Internet .
[48 ] Second, from 1993 to present , he teaches communication skills . Moreover, he holds a bachelor’s degree in psycho- sociology of communication and school and social adjustment
[49] Finally, as a Masters in International Relations , during those years , he acted as a consultant in international communication .
[50] He met the plaintiff in 1995 when he wants to write for the magazine RG .
[51] Four years later , the applicant shall publish a critical article against him in the journal The National. He decided to lodge a complaint against the applicant in the Quebec Press Council (Exhibit D- 7), which retains only a part of the complaint for a single inaccuracy in the article.
[52] The defendant has no contact with the applicant until 2009.
[53] In September 2009, as a citizen and not a journalist, he decided to publish on its website a record (Exhibit P-3) about the applicant.
[54] He took this decision in response to the actions of the applicant who, according to him, multiply court proceedings, clog the judicial system and causes stress to many defendants.
[55] It takes the trouble to insert comments (Exhibit P-3, page 7) , add the word “real” to distinguish the Press Council of Quebec Press Council of Quebec gay (Exhibit P -3 , page 8). When he speaks of denunciation, it refers to the decisions of the Quebec Press Council (Exhibit P-3, page 8). It inserts “street Bourbonnière ” (Exhibit P-3, page 7) to decide any other individual with the same name as the applicant.
[56 ] The record refers to the declaration of reciprocal waivers and out of court settlement in the case ALGI (Exhibit P -1) because the plaintiff carries this procedure to some people on the pretext that this regulation is binding .
[57] He therefore wants to explain to these people that it is not.
[58] Also in this case, the defendant speaks of ” failed attempt Roger -Luc Chayer muzzle the press ” (Exhibit P-3, page 8) and , rather than put a link to the judgment in question (Exhibit P -6) , it creates a link to an article on this subject published in the magazine Fugues (Exhibit P- 7, page 29).
[59] For him , the reader will better understand the content of the article in Fugues that the judgment itself.
[60] With regard to his comment about the applicant interpreting the Marseillaise (Exhibit P -4 ), the defendant states that it is a joke because it is funny that the applicant is placed before the National Assembly to interpret the national anthem.
[61 ] The respondent submits that a website requires updates, hence the many changes to the original document (Exhibit P -3).
[62 ] In this context , he decided to add the street address of the applicant (Exhibit P10, page 39) found in a public telephone directory.
[63] In the version of 17 December 2009 ( Exhibit P -15, page 65) , he juxtaposes the applicant’s name , the family name ” Lacelle ” because it asks about some identities used by the applicant.
[ 64] For the defendant , his goal is always to protect the public interest.
[65] Eleven days later, he added a link titled ” Chayer tribute to André Gagnon ” (Exhibit P-17 , page 73) because the applicant is then dispute with André Gagnon.
[66] Also in this version, he wrote: ” Chayer attack a community organization ( ALGI ) but dropped out after six years ” (Exhibit P-17 , page 74) .
[67] According to his information, the applicant is proposing that the withdrawal of where the word ” abandon “. However , it does not control the information.
[68] On 5 January 2010, the defendant wrote: “As for your bipolar condition , this is actually something that belongs to you … ” (Exhibit P-20 , page 89) . It does not check the existence of such a diagnosis and can not give a reason for reference.
[69] In the version of January 21, 2010 (Exhibit P-25 ), the defendant explained that he speaks of ” continuing gag ” (Exhibit P-25 , page 113) because the applicant pursues small claims after complaint Press Council of Quebec.
[70] In this document, the following page (Exhibit P -25, page 114) , the defendant, after the title ” He plays ” before the National Assembly “( sic) , it’s interesting ! “Writes that” … (the applicant) was charged there a few years ago to use the logo fraudulently UIPF … “(Exhibit P-25 , page 114) . In this regard, it states that it has no reliable source , but based on hearsay .
[71 ] About the use of the picture of a monkey (Exhibit P -44, page 207 ), the defendant asserts that its purpose is to illustrate the comical aspect of the situation then exists between the applicant and itself rather than comparing the applicant for this animal.
[72 ] On March 26, 2010, the defendant as ” Roger -Luc Chayer discusses his collaborators suspected liars ” (Exhibit P- 55, page 305) . He maintains that he uses the word ” collaborators” in the meaning of ” employee ” and not in the pejorative sense often associated with the word “collaborator “.
[ 73] For this article, it does not contact the applicant to obtain his version because he has no confidence in him. He added that he understood that if the text came from a journalist , not a private citizen , he would have a duty to contact the applicant . Indeed, a journalist should check his sources .
[74] In addition , the file is on a web site, it sees no need to use or check the version of the applicant, as he is a specialist in communications including the use of the internet.
[75 ] The respondent acknowledges that the author of the three comments that appear in the document (Exhibit P- 64, pages 455 and 456). He argues that they reflect the truth.
[76] While it is located in Senegal , his attorney advised the safeguard order of 11 February 2011 . He tries this faraway place to withdraw the texts internet order order him to do.
[77] For him, it puts the file on the internet about the applicant amounts to an anthology.
[78] He reiterated his contention that any reader must understand that this issue is not the work of a journalist , and this , especially since it ends up on its website .
[79] He reiterated that his goal in 2009 , inserting on its website document regarding withdrawals and out of court settlement in the case ALGI is to warn the public about the fact that , according to him , the applicant is used wrongly and without reserve this document to intimidate some people.
[80] In the version of January 5th 2010 document (Exhibit P -20, page 87) , the words “media file ” refer to the file on its website since September 2009.
[81] He is the author of the document ” news -news ” (Exhibit P-36 , page 171). This document , within its editorial discretion , includes texts that are not necessarily him.
ISSUES
[82] The applicant submits that the document published by the defendant , both in its original form or in amended versions , is defamatory and caused him great harm .
[83 ] The respondent , citing freedom of expression , says the document placed on its website this fair and reasonable comments, is in no way defamatory and is only intended to protect the public interest .
[84] The issues can be summarized as follows:
1) A document issued by the defendant is it defamatory ?
2 ) If yes, the defendant commits a foul that it undermines the reputation of the plaintiff ? Is it willful misconduct ?
3 ) Is there a causal link between the fault and the damages claimed ?
4 ) If yes , what are the damages ?
LAW
[85 ] Sections 4 and 5 of the Quebec Charter of Rights and Freedoms protects the right to reputation :
” 4 . Everyone has the right to the safeguard of his dignity , honor and reputation .
5 . Everyone has the right to respect for his private life. ”
[86 ] Sections 3, 7 and 35 C.C.Q. enact that :
” 3 . Everyone is entitled to rights of personality, such as the right to life, the inviolability and integrity of his person, in respect of his name , reputation and privacy.
These rights are inalienable
7 . No rights can be exercised for injuring another or in an excessive and unreasonable manner which is contrary to the requirements of good faith.
35 . Everyone has the right to respect for his reputation and privacy.
No prejudice can not be brought to the privacy of a person without the latter ‘s consent or without the law allows. ”
[87] On the other hand , the Quebec Charter of Rights and Freedoms states that freedom of expression is inserted among the fundamental freedoms:
” 3 . Every person has fundamental freedoms , including freedom of conscience, freedom of religion , freedom of opinion , freedom of expression, freedom of peaceful assembly and freedom of association. ”
[88] Thus , the Court must balance these two rights, the right to reputation and the right to freedom of expression.
[89] On this subject , the Supreme Court wrote:
( iii) The civil liability regime
“The Quebec civil law does not provide specific remedies for damage to reputation . The basis of an action for defamation in Quebec is art . 1457 C.C.Q. laying down general rules on liability . Thus, in an action for defamation, the plaintiff must prove , on a balance of probabilities, the existence of damage , a fault and causation , as in the case of any other civil action , delict or quasi-delict .
To prove the first element of civil liability, the existence of an injury, the plaintiff must convince the judge that the impugned remarks were defamatory. The concept of defamation has been defined in several ways over the years. In general , it is recognized that defamation “consists in the communication of spoken or written that are losing respect or consideration for someone or that or that prompt him unfavorable or unpleasant feelings .”
The defamatory nature is determined by applying an objective standard. It must , in other words , whether an ordinary person would believe that the words , taken as a whole , brought discredit on the reputation of another person . In this regard, it should be noted that the words may be defamatory by the idea that they explicitly or by innuendo that emerge express . In Beaudoin c . Press Ltd. , [1998] R.J.Q. 204 ( C.S. ) , p. 211, the judge Hallman summarizes the steps to follow to determine whether particular remarks are defamatory :
“The form of expression of libel matter , which is the result in the reader’s mind that creates the offense .” The allegation or imputation defamatory may be direct, or it may be indirect ” through simple allusion , insinuation or irony, or occur in a conditional form, doubtful , hypothetical .” Often the allegation or imputation “is conveyed to the reader through a simple insinuation of an interrogative sentence , the reference to a rumor , the reference information that has leaked to the public, juxtaposition of unrelated facts together have a semblance of relationship between them.
The words must also be interpreted in context. Thus, ” it is not possible to isolate a passage from a text to complain if all sheds a different light on this passage .” Conversely, ” it does not matter that its components are true if all of the text that is contrary to reality message.” It may actually distort the truth or reality by half- truths, misleading , omissions , etc. . “We must consider a newspaper or a radio program as a whole , phrases and words must be interpreted in relation to each other .
However, comments deemed defamatory need not be civilly liable for them . It will , moreover, that the applicant demonstrates that the author of the remarks made a mistake . In their treaty Liability (5th ed. 1998) , J.-L. Baudouin and P. Deslauriers point , to p. 301-302 , that the blame for defamation may result from two types of pipes, the malicious , the other merely negligent :
The first is that the defendant knowingly , in bad faith, with malicious intent to attack the reputation of the victim and tries to ridicule , humiliate , expose to hatred or contempt public or group . The second result of behavior which will harm is absent, but the defendant has nevertheless undermined the reputation of the victim by his recklessness, negligence , or carelessness his impertinence . The two lines are a civil fault are entitled to compensation , unless there is no difference between them in terms of law. In other words , it should refer to the ordinary rules of civil liability and resolutely abandon the misconception that defamation is only the result of an act of bad faith where there was intent to harm .
From the description of these two types of conduct, it is possible to identify three situations may engage the responsibility of the author of defamatory words . The first occurs when a person makes unpleasant remarks about with respect to third while knowing the wrong. Such statements can not be made maliciously , with the intent to harm others . The second situation occurs when a person spreads unpleasant things about others when it should know wrong. A reasonable person will generally refrain from giving unfavorable information about others if it has reason to doubt their veracity. Finally, the third, often overlooked , is the person who keeps slanderous , without cause unfavorable , but truthful statement , in respect of a third party.
Thus, in Quebec civil law , the provision of false information is not necessarily at fault. In contrast , the transmission of truthful information can sometimes be a challenge . Here we find a significant difference between civil law and common law where the falsity of the defamation involved ( tort of defamation ) . However, even in civil law, the truth of what can be a way of proving the absence of fault in circumstances where the public interest is at stake
In all cases , the assessment of fault is a contextual question of facts and circumstances. In this regard, it is important to remember that the 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 these values in a democratic society. “[1]
[90 ] The Supreme Court added :
“The defense of qualified privilege is not exclusive to municipal officials . It applies whenever a person who provides information has an interest or a legal , social or moral obligation to pass on to another person who has a mutual interest in receiving them. This is particularly the case when an employer or teacher gives references to an employee or student or when a journalist published in the public interest defamatory information he honestly believes true. “[2]
[91 ] Moreover , the Court agrees with the opinion of Ms. Blondin judge to the effect that the definition of defamation does not change from one medium to another
” [40] The definition of the term” defamation ” does not change, regardless of the medium used. Thus, courts have recognized that online defamation should be treated as any other form of defamation , it is done through newspapers , radio or television :
[248 ] The words are powerful tools of communication: they destroy a reputation in a short time while sometimes it took years to build. The Internet is a powerful tool Released: communication has almost no boundaries. Freedom of expression is a core value of primary importance but respect for the dignity and reputation of the person is equally important. Those who speak or write and those who spread on the Internet should realize . “[3]
(Emphasis added)
ANALYSIS
The document published by the defendant is it defamatory ?
[92] To answer this question, the Court must consider whether an ordinary person would believe that the document published by the defendant , as a whole , discredits the plaintiff’s reputation .
[93] Before answering this question, remember the words of our colleague , Mr. Senecal judge :
“The form of expression of libel matter , which is the result in the reader’s mind that creates the offense .” The allegation or imputation defamatory may be direct, or it may be indirect ” through simple allusion , insinuation or irony, or occur in a conditional form, doubtful , hypothetical .” Often the allegation or imputation “is conveyed to the reader through a simple insinuation of an interrogative sentence , the reference to a rumor , the reference information that has leaked to the public, juxtaposition of unrelated facts together have a semblance of relationship between them. “[4]
[ 94] The Tribunal is of the opinion that the document prepared and published by the defendant about the plaintiff, taken in its entirety and analyzed in the context of its dissemination by the defendant, is defamatory .
[95 ] What is the context ?
[96] In July 2001, a denunciation (Exhibit P- 3, pages 11 and following ) against the applicant was born.
[97] This replica instituting proceedings against ALGI and some of the persons signing the denunciation.
[98] Although the defendant is a signatory , it is not listed as a defendant in proceedings brought by the applicant. In November 2007, operates out of court settlement (Exhibit P -1) approved by the Superior Court (Exhibit P -2).
[99 ] Almost two years later, in September 2009, the defendant puts on his website that he calls ” folder Roger -Luc Chayer ” (Exhibit P-3, page 6 et seq.)
[100 ] The respondent structure document as follows: under the title already mentioned , it writes : ” a nuisance to society and justice.”
[101] Then, before quoting the text of the denunciation of July 2001 , it inserts in bold , the following two comments of his own:
“This termination is to serve the public interest against Roger -Luc Chayer ( Bourbonnière Street , Montreal ) , a self-proclaimed journalist , repeatedly blamed by his peers and is recognized for having abused the justice system Quebec to pursue a large number of people and organizations .
The justice system in Quebec has decided there is some time to take measures to curb abuse of this individual , but without complete success. ”
[102] After these two comments, follows the original text of the denunciation.
[103] Then the defendant , after the list of signatories of the information, makes with other comments, always his own, grouped under the sub-heading ” Committee on Legal LGBT communities : ROGER -LUC CHAYER publicly denounced , attempt roger -luc chayer to muzzle the press. ” (emphasis added)
[104] Finally, the defendant includes links which , more often than not, are empty. Moreover, it fails to present links to a reader to read the judgments themselves.
[105] The Court finds that reading the document , it is very difficult, if not impossible, to differentiate between the original text of the termination in July 2001 and additions by the defendant in September 2009.
[106] One thing is certain : the organization and presentation of the document suggest to readers that the courts qualify , in fact, the applicant nuisance, but they can not stop .
[107] On 14 September 2009 , after the premiere of the document, the applicant in writing by registered mail to the defendant to withdraw the document containing false information mail.
[108] then start life put online by the defendant amended versions of the document, each version adding comments such as: “heavy folder on Roger -Luc Chayer ” (Exhibit P-10, page 38 ), ” It plays to the national Assembly ” , too funny ! (Exhibit P-10, page 39), ” Chayer is attacking the body ALGI support, he withdraws after eroded bone for six years ” (Exhibit P-10, page 39), without forgetting the juxtaposition of the defendant to a picture of a monkey (Exhibit P -44, page 207) , and the association of the name of the applicant to the regime of Iraqi dictator Saddam Hussein (Exhibit P -28, page133 ) .
[109] These are just a few examples of how the defendant creates and launches what he calls the applicant’s file.
[110 ] The respondent submits that it is in the public interest .
[111] The Tribunal is of the opinion that it is not. Rather, it is a plan of attack against the applicant for the reader sees in him an aggressive person , constantly at war against other individuals or groups , monopolizing court time by its legal sagas.
[112] Not only the titles and phrases used by the defendant are they derogatory , but , again, their arrangements are biased .
[113] In sum, with catchy headlines , innuendo or malicious juxtapositions , summaries or incomplete citations of court decisions involving the claimant without the reader can , of itself, read in full the decisions themselves , references to SLAPP lawsuits alleged the defendant creates in the reader a belief that the applicant is a querulous , quarrelsome and a surplus is not a clown.
[114] It is clear that the document assembled by the defendant has the effect of losing the esteem and consideration of readers to the plaintiff and to encourage him against adverse or unpleasant feelings.
[115] In sum, the Tribunal has no doubt that ” ordinary person would believe that the record made by the defendant, as a whole , discredits the plaintiff’s reputation .”
Are there fault of the defendant ? If yes , is it intentional ?
[116] The plaintiff has the burden to prove fault on the part of the defendant.
[117] As mentioned , the authors Baudouin and Deslauriers write such a fault can result from malicious or simply negligent driving , causing the Supreme Court in the judgment cited Prud’homme , identify three situations engage the responsibility of the author of the libel . Repeat these words of the Supreme Court :
“From the description of these two types of driving , it is possible to identify three situations may engage the responsibility of the author of defamatory words . The first occurs when a person makes unpleasant remarks about with respect to third while knowing the wrong. Such statements can not be made maliciously , with the intent to harm others . The second situation occurs when a person spreads unpleasant things about others when it should know wrong. A reasonable person will generally refrain from giving unfavorable information about others if it has reason to doubt their veracity. Finally, the third, often overlooked , is the person who keeps slanderous , without cause unfavorable , but truthful statement , in respect of a third party. “[5]
[118] The Tribunal is of the opinion that the preponderance of the evidence is to the effect that the defendant knowingly wants to tackle the plaintiff’s reputation and certainly ridicule and humiliate to the readers of his website.
[119] Thus, the defendant is the first to admit that intends to put an end to what he called bullying by the applicant with regard to several people that , according to the applicant , is in the public interest .
[120 ] However, the defendant shall submit to the Court any evidence of similar intimidation experienced by a person either nor does it put in evidence that the applicant uses the declaration of reciprocal waivers and out of court settlement (Exhibit P -1 ) duly approved (Exhibit P -2 ) to attempt to silence anyone .
[121 ] Counsel for the defendant is , moreover, the first to recognize argument.
[122 ] The evidence , overall , found that the defendant , on the basis of real and true elements , such as the statement out of court settlement (Exhibit P -1) or the various decisions of the Press Council of Quebec ( Exhibits D -7 to D-10) , is used as a starting point for the paper , but make sure to submit all unfavorably, slanderous even the plaintiff .
[123] The Court finds that the defendant did not merely distort the truth in reference to judicial decisions, which stem from the professional activities of the applicant as a journalist, but also speaks of the field of music , other occupation the applicant still there trying to ridicule and humiliate .
[124 ] The Tribunal sees no link between the defendant claims to the effect that the applicant is trying to intimidate and silence some people and its decision to refer to the fact that the applicant interprets the Marseillaise before the National Assembly . The gesture itself is public, but the defendant presents to attack the reputation of the plaintiff .
[125 ] The respondent can pretend it ‘s just a joke , as the association monkey, it remains that all fits into the whole document consisting defendant against the plaintiff .
[126 ] The Tribunal is of the opinion that, in the overall context of the facts in evidence , the plaintiff ‘s right to claim to be a victim of wrongful conduct by the defendant.
[127 ] The respondent submits that merely exercising his right to freedom of expression and the comments in the document are intended to be fair and honest.
[128 ] The Tribunal did not accept this contention.
[129] The Tribunal does not find this objectivity is necessary in terms of fair comment . Instead, by combining , for example , as a dictator Saddam Hussein to the applicant , the defendant ignored this objectivity.
[130] In addition, since there is no evidence of intimidation or attempted gagging by the applicant for some people it is, the Court can not conclude that the document assembled by the defendant may interest people in general or specific individuals .
[131] Also in relation to the argument of freedom of expression, the Court observes that Justice Cory of the Supreme Court wrote in Hill :
” Democracy has always recognized and cherished the fundamental importance of the individual. That importance must , in turn , based on the good reputation. This good repute which enhances the sense of value and dignity of a person , can also be quickly and completely destroyed by false allegations. And tarnished by libel can seldom regain its former luster. A democratic society has a vested interest in ensuring that its members can enjoy a good reputation and protect it as long as they are worthy. “[6]
[132] In seeking to act as a judge , the defendant invests a mission supposedly for the benefit of the public interest and enjoying the freedom of expression. However, the entire testimony of the defendant expressed his bias against the applicant which he describes as a character abusing the judicial system and wanting to silence any opponent .
[133] The Tribunal must conclude malicious intent on the part of the defendant to the plaintiff .
[134] It is therefore an intentional foul .
Causation fault – damage
[135] The foregoing amply demonstrates the causal link between the willful misconduct and the damages claimed .
DAMAGE
[136] In assessing damages, the Court must consider the following:
- The severity of the remarks in the document built by the defendant;
- The dissemination of the document as a quantitative and qualitative point of view;
- The applicant’s identity , in other words , social status and occupation;
- The identity of the defendant;
- The conduct of the defendant after the institution of proceedings.
[137] Any defamation is of a serious nature itself.
[138] At Instance although applicant documents establish that circulates until China by against omits establish even approximately, numbers and kind people accessing that sites Respondent .
[139] The applicant states that he lives difficult these attacks against him by the defendant and by trying many ways to stop the spread . By cons , it has no other evidence to prove a violation of his social status, an obstacle to the exercise of his profession.
[140] In sum , the evidence for damage is rather general .
[141] Thus, although the plaintiff claims to moral damages the sum of $ 25,000 , the Court awarded him this title $ 5000 .
[142] He also asked in punitive damages , $ 15,000 for violations , in particular, Articles 4 and 5 of the Quebec Charter of Rights and Freedoms , plus an additional $ 30,000 for violation of safeguard Order of 11 February 2011 and pursuant to Article 131 of the Charter.
[143 ] Section 1621 C.C.Q. states that:
” 1621. Where the law provides for the granting of punitive damages , they may not exceed , in value , which is sufficient to fulfill their preventive function.
They enjoy taking account of all relevant circumstances, including the gravity of the debtor’s fault , his patrimonial situation, the extent of the relief to which he is already liable to the creditor and , if necessary, because the support of the repair is payment , in whole or in part , performed by a third party. ”
[144 ] With respect to punitive damages , our colleague , Judge Blondin wrote :
[93] The unlawful recognized by the Charter entitles the victim reached not only the right to ” the cessation of the infringement ” and ” repair the damage” suffered , but also in case of ” intentional interference ” , the right to claim from the infringer ” of punitive damages ”
49 . Unlawful interference with a right or recognized by this Charter freedom gives the victim the right to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.
In case of unlawful and intentional interference, the court may also order the person responsible for punitive damages .
[94] There are three conditions under this provision :
§ action for punitive damages can not be incidental to a principal action seeking condemnation of moral or material prejudice, meaning , there must be identification of a constitutive behavior fault liability ;
§ must be a breach recognized by the Quebec Charter right ;
§ such interference must be unlawful and intentional . ”
…
[97 ] The Supreme Court defines what is meant by unlawful and intentional interference in the leading case of Quebec (Public Curator) c . National Union of Employees of the St. Ferdinand hospital:
“Accordingly, it will be unlawful and intentional within the meaning of the second paragraph of art reached. 49 of the Charter when the perpetrator of intentional interference has a state of mind that implies a desire or intent to cause the consequences of his misconduct or if he acts with full knowledge of the consequences , immediate and natural or at least extremely probable that the conduct will cause . This test is not as strict as specific intent, but exceeds , however, the mere negligence.
[98] Baudouin and Jobin and summarize the state of the law on the question:
” [T] he Supreme Court reiterated the principle that the result of the wrongful conduct must have been intended for the infringement to be characterized as intentional . However, she interpreted this condition as may include simple knowledge of the immediate and natural consequences , or at least extremely probable that the misconduct will result in a test which goes far beyond mere negligence but falls short of the intent to cause damage , and is applied flexibly by other courts “. [ 7]
(Emphasis added)
[145] The Court does not hesitate to say that these three conditions exist in this case.
[146] Need I remind you that the defendant , as a communications specialist , must know that his misconduct disseminating the document both in its original form with additions, will be “immediate and natural consequences , or at least extremely probable ” to the plaintiff .
[147 ] Judge Blondin added on the portion of the punitive damages :
” [110] To fix the quantum , the court will consider the following criteria:
Ø The preventive aspect , punitive or deterrent of such damages ;
Ø The conduct of the offender and the seriousness of the offense ;
Ø The injury ;
Ø The benefits to the offender ;
Ø The ability to pay of the offender or his assets ;
Ø The quantum of compensatory damages or the extent of the relief to which he is already liable to the creditor;
Ø The unequal power relationship , including resources , between the victim and the wrongdoer ;
Ø The fact that the support payment of the damages is wholly or partly assumed by a third party . “[8]
[148 ] In this instance , the severity of the defendant’s fault is obvious.
[149] Before the Court, the defendant continues to assert that it is in the public interest and as a private citizen , not as a journalist, he wants to prevent the applicant from silence or intimidate others. However, as mentioned, it has no concrete evidence of such actions by the applicant.
[150 ] Moreover, the evidence regarding the financial situation of the defendant is minimal.
[151] This being so, the Tribunal is of opinion that it is appropriate to allocate a sum of $ 5,000 in punitive damages for violation of Articles 4 and 5 of the Quebec Charter.
[152] For cons , the Tribunal does not accept the application under Article 131 of the Charter.
[153] Indeed, even if after the issuance of the order to safeguard the defendant did not fully eliminate the paper ‘s website , the evidence is to the effect that tries to run , but some problems because he is then in Africa.
[154] Finally, the applicant sought reimbursement of its legal fees totaling more than $ 20,000 since the beginning of the proceedings.
[155 ] Counsel for the plaintiff insists that the defendant, at the last minute, agrees to submit to the request for a safeguard order scheduled for two days of trial.
[156 ] In light of the remarks of Mr. Dalphond JA in Genex [9] , the Court considers that nothing could force the defendant to confess judgment and, in addition , a debate on the nature and severity of the fault, the extent of the damage was needed.
[157 ] In the circumstances , the Tribunal rejects the application for reimbursement of court fees.
APPLICATION FOR PERMANENT INJUNCTION
[158 ] The respondent argues that the Court can not grant the request for two main reasons : first , the delay by the applicant to submit the application and secondly, according to the theory of “clean hands” , the applicant itself responds not this criterion.
[159] Regarding the delay, the Court did not accept this ground.
[160] Indeed, even if the defendant puts the document on its website in September 2009, the applicant shall bring its procedures a year later , it remains that during those twelve months, applicant first attempts by itself to convince the defendant to withdraw any website then before its failure, its mandate prosecutors to obtain the same result, unfortunately without success.
[161] With regard to the criterion of “clean hands” , the defendant claims that the press (Exhibit D -2 package ) issued by the applicant in reply to the document, demonstrate the merits of this argument.
[162 ] The Tribunal does not endorse this second ground .
[163] Nothing can prevent the emission of these provided by the applicant , communiqués , according to the Court , are not defamatory and do not exceed the ” very reasonable and measured ” in the words of the defendant himself even in its counterclaim.
[164] Thus , the Court will host the permanent injunction the plaintiff.
FOR THESE REASONS , THE COURT:
[165] GRANTS the motion to institute proceedings ;
[166] ORDERS the defendant , Eric Messier remove, within thirty -five (35 ) days of the date of this judgment , all the defamatory articles ( Parts P-3, P-4, P-9 , P – 10 , P-17 , P -19, P-21, P-22 , P -23, P-24 , P -25, P-26 , P -27 , P -28, P-29, P-30, P- 31 , P -32 , P -34 , P -35 , P -36 , P -42 , P -43 , P -44 , P -53 , P -54 , P -55 , P -58 , P -62 , P -64 , P -66 , P -68 , P -69 , P -70 , P -71 , P -72, P-82 , P -83 , P- 84, P-85 , P -86 , P- 87 , P -88 , P -89 and P -91 ) in relation to the applicant , Roger -Luc Chayer published on some websites or some media whatsoever;
[167] ORDERS the defendant , Eric Messier, cease to express or publish on some medium whatsoever , comments , articles or identical to those already issued (Exhibits P-3 , P-4 defamatory , P- 9, P-10, P-17 , P -19, P-21, P-22 , P -23, P-24 , P -25, P-26 , P -27 , P -28, P-29, P-30 , P -31 , P -32 , P -34 , P -35 , P -36 , P -42 , P -43 , P -44 , P -53 , P -54 , P -55 , P – 58, P -62 , P -64 , P -66 , P -68 , P -69 , P -70 , P -71 , P -72, P-82 , P -83 , P -84 , P- 85 P -86 , P -87 , P -88 , P -89 and P -91 ) in relation to the applicant , Roger -Luc Chayer ;
[168] ORDERS the defendant to pay the plaintiff the sum of $ 10,000 with interest and the additional indemnity under Article 1619 of the CCQ a sum of $ 5,000 from the congregation and from the judgment sum of $ 5,000 ;
[169] WITH COSTS ;
[170] DISCLAIMS toll counterclaim .
__________________________________
MARC DE Wever , J.C.S.
Claude Chamberland
Asselin Chamberland Lawyers
Solicitors for the plaintiff
I Jérôme Dupont- Rachiele
Ferland Marois Lanctot sn
Solicitors for the defendant
Hearing dates:
21, 22 , 23 and 24 May 2013
[1] Prud’homme c . Prud’homme, [ 2002] 4 R.C.S. 663 , p. 683-686 .
[2] Id. 691 .
[3] Corriveau c . Canoe inc. and Martineau , 2010 QCCS 3396 , p. 8 to 30 .
[4] Beaudoin c . Press Ltd. , [1998] R.J.Q. 204 , p. 211 .
[5 ] Id Note 1 , p. 685 .
[6] Hill c . Church of Scientology of Toronto, [ 1995] 2 SCR 1130 , para. 108.
[7] Cited in footnote 3, p. 15 and 16 to 30 .
[8] Id. 17 and 18 to 30 .
[9] Genex Communications inc. c . Quebec association of the music industry , entertainment and video, 2009 QCCA 2201 , p. 61 and 62 to 63 .
