Price v. Chicoutimi Pulp Co.

RN.

March APPEAL THE ( OURT KING'S BENCH, APPEAL .

SIDE, PROVINCE QUEBEC.

Duff J.-The publication complained of was capable of being read as charging the company with having used political influence for the purpose of procuring legislation giving it possession of property in derogation what, to its knowledge. were the fendant's rights, and this was an imputation calculated to jure the commercial corporation in its business.

.-That the directions the trial judge as to the defences justification and fair comment were erroneous and misleading. *PRESENT:-Davies. Idington, Dull. Anglin and Brodeur JJ. APPEAL and CROSS-APPEAL from the judgment of the Court of King's Bench, appeal side (1), setting aside the judgment entered in the Superior Court, District of Quebec, on the findings of the jury, by which the plaintiffs' action was dismissed with costs, and ordering a new trial without costs.

The trial took place before His Lordship Mr. Justice Dorion and a jury and, in answer to questions submitted to them, the jury found that the allegations in the letters published by the defendant, as mentioned in the head-note, were substantially true, that the matter therein referred to was one of public interest, that the defendant had made the publications in the interest of the public and in good faith, and that no damage had been thereby caused to the plaintiffs.

From this judgment the defendant appealed to the Supreme Court of Canada, asking to have the judgment in the Superior Court restored, and the defendants cross-appealed on the ground that the Court of King's Bench erred in refusing to allow them their costs on the appeal to that court.

J. (dissenting). - This was an action brought by the respondents, an incorporated company, against the appellant for an alleged libel contained in a letter published by him in the public newspapers charging the company with having pVomoted the passage of a bill through the Legislature of the Province of Quebec transferring to them certain property which the plaintiff claimed as his, and characterizing it as an act of spoliation and theft. The alleged libel charged and, after saying he was advised that though the intention of the promoters was clear, it was doubtful whether the object had been obtained, he goes on to say:- The trial of the action took place before Mr. Justice Dorion and resulted in certain findings of the jury in answer to questions submitted to them upon which findings the trial judge directed judgmiient to be entered for the defendant.

The Court of King's Bench set aside this juidgient and directed a new trial to be had on the ground that J. the trial judge had iisdirected the jury. With great respect, however, I think that they were wrong and that their error arose from the fact which seeis to have entirely escaped their attention that the proceedings of the legislature and its Private Bills Comninittee with respect to which the alleged libel was written was. at any rate so far as defendant was concerned whose legal rights as claimed by him were being dealt with, what is known as an occasion of qualified privilege. Such an occasion is one on which public coninent and observation might properly be made in the absence of malice such comment being such as a jury would find to be fair and reasonable.

The letter complained of sets out the text of the clause proposed and added to the bill introduced in the Legislative Assembly for amending the plaintiff company's charter the latter words of which clause contain the words of enactment which the defendant so bitterly complained of, namely,

"The said lands" included those to which the plaintiff claimed title and which lie declared were by this legislative enactment sought to be transferred and vested in the company.

The letter also sets out the amnendment proposed by the Attorney-(eneral when the bill reached th Private Bills Committee of the Legislative Conncil and accepted by that committee, which amendinent omitted the objectionable words above qnoted. The letter also states the proceedings in the council, when the bill was reported to then, restoring the clause with the objectionable wovrds which had been elided by the comlittee and giving the names of those who voted pro and con.

The alleged libellous comment upon this action of the legislature and upon the company and such of its officers as were members of the legislature I have already given.

The (uestions for submission to the jnry were accordance with the practice of the Province of Quel:er decided on and fixed by one of the udges after issule had been joined on the plendings and before the action went down to trial.

Two important questions there were, it seems to which directly arose out of tle action and oi the determination of which it shoild le disposed of; one Was whether the occnsion was one of qnalified privilege and the other whthtier defendant's coumments fair and legitiniate criticism ipon the facts.

The first question was for the trial jidge to determine in ily opinion, he did correctly when held the omaioni one of qualified privilege.

In the (ase of Stuairt v. Iell(1 ), at page 315, Lindley L.J. says:- Ever since the case of Walter (2) was (1) 2 decided it has been held that fair reports of proceedilgs in Parliament, although disparaging to the character of individuals, have a common law immunity similar to reports of proceedings in courts of justice. Whether or not the subject matter of the comment or criticismn is a matter of public interest is a question of law for the judge, but the matter defended as comment must be comment and not mere assertion of fact. A iman cannot, under the pretence that what he is publishing is comment only, misrepresent the facts. But whether he has or has not misrepresented them comes within the province of the jury to determine and not the judge.

The other question, whether the comment was fair or not, it is much to be regretted, was not specifically submitted to the jury to answer.

As to what is fair and reasonable comment, I quote the opinion of Bowen L.J. in Mericale Carson(1), at page 283:fair, this is because the judges have always preferred to leave the question what is "fair" to the jury.

In the case above referred to of W1ason v. Walter (1), Lord Chief Justice Cockburn delivering the judg- PULP ment of the Court of Queen's Bench after holding the

Davies J. publication of the reports of Parliamentary privilege as coming within the rules applicable to occasions of qualified privileges went on to say, at page 96:- The publication of the debate having justifiable. the jury were told was, for the reasons have already adverted to. pre-en:inentl' public interest and, therefore, one which public comment and observation might properly made.

and that. consequently, the occasion was privileged in the absence malice.

As to the latter, the jury were told that they must satisthat the article was an honest and fair comment on the facts other words. that, in the first place, they must satisfied that the comments had been made with an honest belief in their justice, but that this was not enough. inasmuch as such belief might originate in the blindness of party zeal, or in personal or political aversion: that a person taking upon himself publicly to criticize and to condemn the conduct or motives of another, must bring to the task, not only honest sense justice. but also reasonable degree of judgment and moderation, that the result may what a jury shall criticism

The charge of the learned judge was very lengthy and was signed and fyled by him in the records of the court, as required by the procedure in Quebec.

We had the original record with this charge before us and

I must say that, taken as a whole, it is a correct explanation of the law and a fair and clear charge and direction to the jury as to what they should find iN order to bring in a verdict one way or the other.

TIeir answers to the questions which had been settled and which were put to them (neither party asking for an additional question) must be read in the light of this charge.

L.R.

uns

Dealing with the question of fair comment, the learned trial judge said:- The law gives every citizen the right to atfairs short, country constitutional the question that aries is one of public order, that is, whether it is right that the legislative power should invade the judicial power. But these comments when made must fair; they must not vond the limits of fair and reasonable criticism the facts, whether true or false. The comment has considered separately fact.

report facts and-the fair.

true without may unfair.

The must ported facts, which are not true, without unjustly commenting them, and where has commented unfairly facts reported. if true.

the other hand. if has reported without malice what true justithe facts as reported must exonerated, however severe may have his comments, however damaging may have the publication of the facts and comments.

No doubt sentences may be found inl different parts of the charge which, divorced from their context, may he said( niot to corrertlv state the whole law. But taken as a whole, alld that is the on1ly way a jldge's chargt shoild he passed uponi, I think this ciatrge is not open to the objections respondents make.

lIratwell L.J., in Clark v. Molyicu r(1), says. at paw- 243

I certainly think that a up is not to rigorouly critiright jury because the course of long and elaborate l) the judge hts fair the jury must (1) 3 Q.B.D. 237.

The jury found amongst other things that the y article complained of was "substantially true," that "it dealt with (Itistions which interest the public," that "it was published in the publiesinterest and in good faith" and that "it did not cause anv damage .. to the plaintiff."

Now these findings could not have beiT made unless, as the judge charged them, the jury reached the conclusion that the comments of the defendant upon the qualified privileged occasioni were fair, legitilmate and reasonable.

There does not seem to be any doubt that the president and vice-president of the company who were enimbers of the legislature, and who respectively moved, in the assembly and in the council, the clause complained of, acted in good faith in promoting and carrying it because they believed that the defend tnt was party to an all 1roulnld understalding or agreemient made Ibetween the two litigants and represItatives of the Provinicial Government whereh A- defendant was to rel'nu(llish hi" claim- to the lands in dispute for other INds he was to from the On the other hand, the defendan t front the first Ibtterly denied being a party to or consentin-g to any such agreement and much of the evidence taken at the trial had reference to these two divergent claims. The charge went very fully into this evidence and submitted it fairly to the jury as an important factor for themi to consider in determining whether the defendaint was or was not gufilty of malice.

The contention on the part of the respondent-,, defendants, ay I understood it, was that the absence of any reference in his letter to this contention of the respondent company shewed malice on his part. It was not perhaps an unfair argument to present and it was urged with force not only here but before the court and jury that tried the case.

But it could not be denied that it was purely a question for the jury, one of the factors which they had to consider in deciding upon the answers they gave to the questions asked them and, therefore, not one with which the courts ought to interfere if there was any evidence on which the jury could find as they did. That there was ample evidence for the jury so to find I think is clear.

On the whole, I have reached the conclusion that the appeal should be allowed with costs here and in the Court of King's Bench and that the judgment of the trial judge should be restored.

Having reached this conclusion, it is perhaps not necessary for me to express an opinion upon another important question which might well have arisen but which does not seem to have been discussed at the trial or in the Court of King's Bench, namely, whether an action by an incorporated company, such as the plaintiff, will lie at all for snch an alleged libel as the one in question or whether it must be brought by the iiidividuals acting for the company or composing it. The question was considered in the case of the South Hetton Coal Company v. North-Eastern News Association(1), by the Court of Appeal in England, where it was held that an action of libel will lie at the suit of an incorporated trading company in respect a libel calculated to injure its reputation in the way of its business.

In that case, Lord Esher, at pages 138-139, says:

u91 Although the law is the same with regard to libel on a firm or a. company as with regard to libel on person, the conditions under which the particular statement can libellous may not exist with regard to them.

There are other statements which would have the Davie J. same effect, whether they were made with regard to a person, or a firm, or a company; as, for instance, statements with regard to conduct of business.

It may published of a man in business that conducts his business in a manner which shews him to a foolish or incapable man of business. That would libel on him in the way of his business, as it is called that is to say, with regard to his conduct of his business.

If what stated relates to the goods in which he deals, the jury would have to consider whether the statement is such as to import statement as to his conduct business.

On the same page he says that while an exhaustive rule cannot be laid down as to what would be a libel on a company, statements may made with regard to their mode of carrying business, such as to lead people ordinary sense to the opinion that they conduct their business badly and inefficiently.

At page 141, Lopes L.J. says:- With regard to the first point I am opinion that, although a corporation cannot maintain an action for libel in respect of any thing reflecting upon them personally, yet they can maintain action for a libel reflecting the management their trade business, and this without alleging or proving special damage.

The words complained of, in order to entitle corporation or company to sue for libel or slander, must injuriously affect the corporation company as distinct from the individuals who compose it.

corporation or company could not sue in regard of charge- murder.

incest, or adultery, because it could not commit these crimes.

Nor could it sue in respect of charge of corruption or of an assault, because a corporation cannot guilty of corruption or an assault, although the individuals composing it may

The words plained of must attack the corporation or company in the method conducting its affairs, must accuse it of fraud or mismanagement, or must attack its financial position.

He then adopts the limits of a corporation's rights suggested by Pollock C.B. in Metropolitan Saloon Omnibus Co. Ha-wkins(1), at page 90, where he says

~maintain Kay L.J. gives judgment to same effect.

In the case before us, while in the view I take of the facts, the qualified privileged occasion, the trial judge's charge and the findings of the jury, it is not necessary for me to decide whether this action would lie at all, I may say that I entertain very grave doubts whether, under the authorities, it would, and my inclination is towards the view that it would not. prefer, however, to base my judgment upon the grounds previously stated that the occasion was one of qualified privilege and that the findings of the jury read in connection with the judge's charge really mean that the language complained of was fair and legitimate criticism.

J.-This is an action of libel brought by the respondent against the appellant founded upon the publication by the latter in three newspapers published in the Province of Quebec of a letter written by him.

There was a private bill pending before the Legislature of Quebec promoted by the Town of Chicoutimi. This bill was aliellded as to incorporate therein a deClaration confirming the respondent's title to soi grant illade by the Crown.

CIcornTIM Co. The appellant in said letter reeited the proceedings in the legislature -which I need not dwell upon at Idington J. len gth.

In the coirsi of his statements therein referring to this antendient he said:- Now portion the lands lescribed in this paragraph never has the propertY of the Chicoutimi Pulp Company, but is my property.

And then lie proceeded to state the history of the amendment and com111ented thereupoln as follows:- The intention (if the promoters was to obtain legislative title to property which the ( hicoutimi Pulp Company pretended to but its title to which was manifetly insulicient that it was afraid to submit it to the test of a legal decision.

think the public must conclude that the Chicoutimi Pulp Company had no confidence in their pretended title, otherwise the unheard reeorse to declaratory law with respect to private property would have been unnecessary.

While the value of the land at issue may not very great the principle involved in legislation of this character is supreme portance to the public; not alone to those persons whose property the Chicoutimi Pulp Company may covet, but to all people whose property may coveted by others having sufficient influence to obtain legislation this kind.

may, however, add that am advised that though the intention the promoters is clear, it is doubtful whether the object has attained. and propose forthwith to test the question and if necessary carry it to the Privy Council: should find that my property really has been transferred to the Chicoutimi Pulp Company, shall back to the legislature and ask that body to undo the injustice done and return the property stolen.

suggest for the consideration the public whether legislation this character is not calculated to prove injurious to Canadian enterprise seeking capital on the English or foreign money markets. If companies can promote and carry legislation transferring to them other people's property, they can also promote and carry legislation which creditors will deprived of their security. or. if desired, their recourse against their debtors.

Is it reasonable under these circunstances to expect that capitalists will invest money in this province.

The respondent's action is founded upon the letter PULP Co. as a whole, but must rest upon these quotations. Idington J.

Amongst many other things pleaded in defence the appellant alleged as follows:- The letter published under his signature in the Chronicle, the Montreal Star, and the Gazette, was written and signed him and was published at his request.

The statements of fact contained in the said letter are true in substance and in fact.

This amendment was introduced without notice any kind to the defendant or to the public and contrary to all Parliamentary rules, regulations and usages concerning private bills, and the persons who introduced it intended thereby and the object of such amendment was to endeavour to obtain a statutory or legislative title to certain lands which did not belong to the plaintiff, but belong to the defendant and which were in question at that time and with respect to which litigation was threatened.

The defendant's letter was a fair statement of true facts referring to matter public interest and was fair and bond fide comment, not only with respect to matters which the defendant had a right and an interest to make public, but a fair and comment on matters of public interest.

On the issues so joined the respondent as plaintiff was entitled to have the jury pass.

It is claimed, and I think with reason, that the learned trial judge so misdirected the jury that the verdict obtained ought not to stand.

The court of appeal has set aside the verdict and directed a new trial. From that judgment this appeal is taken.

I am, with great respect, afraid that there was much misconception of law involved in the charge of the learned trial judge on the trial of this simple issue and hence that the complaint of misdirection which has been pressed is well founded.

not propose enter detail upon the fold issues presented and the various misdirections of the learned trial judge.

J Speaking generally thereof, however, he seems to me, I submit with great respect, to have confused the issues which ought to have been presented to the jury and has thus been led into error.

If any doubt existed as to the defamatory character of these statements a further question should have been submitted to the jury whose province it is to pass thereon.

Then if the issues presented by the pleadings justifying as true the parts which I have quoted of the letter complained of, and assumed to be defamatory, had been well and truly tried out and the truth or falsity thereof, or of material statements therein, first ascertained, matters would have been very much simplified.

The action was launched some ten years ago and the pleadings I quote from filed shortly thereafter. The appellant instituted, as threatened in said letter, proceedings to establish his title and followed same to the Privy Council and in these proceedings he failed entirely to establish the title he asserted. The trial of this action seems to have stood over awaiting the result of that litigation.

It surprises one to find, in face of such a result (unless something new turned up afterwards which does not appear), the pleading of the defence of justification which I quote, still adhered to, instead of that assertion of title being withdrawn.

A defence of justification involving the truth in substance and in fact of on alleged libel is often a perilous sort of proceed

The appellant no where in his long pleading sets up specifically a claim of privilege but in law contends J. that what lie does set up constitutes a privilege of kind.

So far as reporting what actually transpired in the legislature or before its committees is concerne( that clearly is privileged. And so far as a fair and reasonable comment thereon is concerned that also was permissible; for to speak the thought we will is the very life blood of our freedom and free institutions. In doing so, however, no one has the right to invent statement of fact and present it for truth. Nor has he the right in his comment to put forward what others may have invented, and publish that or aught else as fact which is false. No belief, on the part of one publishing any such comiment, in such falsehood can justify its publication as part of his comment.

The reasoning used may be grossly fallacious and thus, in effect, a falsehood in itself, but of that the law will take no notice.

In thus appealing to mankind they are supposed to be able to discriminate the true from the false if only the fundamental facts upon which the comment proceeds are shewn to be true. It has been said by high authority that this right to comment should not be called a privilege.

And as a matter of expediency it may be as well when we see how confused people get over the meaning of the term "privileged" to bear that observation in mind. The comment must be fair, but much latitude has in practice been permitted, for wise men treat with silent contempt that which fair minded men can, when nothing buit facts are presented, adjust and correct for themselves.

And thus the appellant, in dealing with natter he had in hand, might have gone very C1ircoUnir far in his strictures upon private legislation of the character of that lie was assailing. But he was bound in doing so to adhere to the truth so that such fair minded muen as he was appealing to might not be led astray.

He couild have presented to the public just exactly the nature of the claim lie put before the legislative coinmm ittee with answer made thereto and asked his teaders to decide relative to his appeal.

Such, as I have tried to set forth, I conceive was the law that ought to have been observed. Instead of it seems to have been thought and, indeed, is uredl before us that it mattered not in such circumstances whether what was stated was true or not, so long as it was honestly believed by appellant, and publislied by him in good faith.

I am unable to hold that view of the law.

There are urnY situations in the comnerce of mankind when it becomes the legal, social, or moral, (utv to speak, and in doing so to give honest utterance to that which when it comes to be investigated may prove absolutely false, and in many cases he so speaking is privileged and protected unless can he sheuyn to have been actuated by malice.

But this is not such a case. And to confuse it with that class of eases in their various shades of absolute and qualified privilege is to mislead, and, doing so in charging a j ury, is to misdirect them.

The law is so well expounded by Lord Blackbrmn and others in the case of Campbell v. Spottiswoodc (1), and many cases following it, that I may refer those concerned to said exposition, and to otlier cases P collected in Fraser on Libel and Slander, pp. 90-95. J.

For the purpose, therefore, of furnishing a bar to the action the investigation of the belief or good faith of appellant is of no avail.

As, however, in many other libel actions, there is in this an aspect of it which gives rise to the consideration of the question of the appellant's good faith and his reason for believing that he had a right to assert that he had a title to the lands he claimed as his. And that, if he thinks it worth while, he has a right to insist on the court and jury hearing him in mitigation of damages.

It cannot form in itself in such a case as this a defence barring the action.

I can imagine a man, wishing to justify himself before the public, using thi-s right as means thereof even if only nominal damages asked at the opening of the trial, though I should doubt its expediency in a ten year old case.

In dealing with such investigation as was made the trial relative to this question of the good faith and belief of the appellant there seems also to have been much confusion of thought.

And that was carried into the charge of the learned trial judge to the jury. He seems to have treated the matter as if it were necessary to prove a contract in writing and to have held that, as there was no commencement of proof in writing, what was adduced of an oral character must fall to the ground. I submit, with deference, that it was the conduct of the appellant for years preceding his letter in relation to these matters alleged against him so far as shewn to be inconsistent with an honest belief in his assertions of a title possessed by him that bore upon the issues relative to such belief and good faith. From that course of conduct inducing, as it was alleged, reciprocal conduct on the part of those he assails, even an agreement or understanding might have been inferred or submitted as a fair ground for an inference which forbade his honestly asserting such title as he set up.

I am by no means to be taken as asserting that such is the fair inference or conclusion to be reached. That was and is for the jury to consider. And it was for the learned judge trying the case to have directed their minds to a fair consideration of such evidence of any kind shewing his conduct in its bearing upon this subsidiary question of the good faith of the appellant. Again I may point out that the last paragraph of the defence, being also the last of the three which I have quoted, couples together two or three matters which ought to be kept for consideration in the first place, quite independent of each other. The first part of the paragraph is apparently a repetition of paragraph fifteen, which must stand or fall by itself; and if it fall, then in my view of the law which governs the case, that defence fails; and if that fails there cannot be maintained the further proposition of a defence fair comment.

also took the objection, which not set the statement of defence, that the respondent heing a corporation cannot maintain such action as this, nder the existing circumstances attendant thereon, and resting upon such basis as the appellan t's letter furnishes.

I do not think there is anithing in any of the decisions in the cases to which he has referred which can held to maintain the objection.

And I may frankly say that some obiter dicta I have observed therein do not seem to me maintainable.

would le short-sighted policy to try and mould the law as needlessly to restrict the right corporations to bring an action for libel.

In these days when corporations engage so uiich of the business activities of mankind and are dail assailed in the press, I think any one of them so attacked ought to have the power to assure the public on whom it relies for business that its conduct has beeu that imputed in any such attack as this, for ple.

Bringing an action for libel and putting him defaming any such entity to the proof its only of defence. To deprive any one of then of such would sure to tend to make their conduct instead of better.

the public's highest interest have as much publicity given to corporate lealin-s with the public as possibly can le brought about. I think this appeal should be dismissed with c1sts. As to the cross-appeal I think to allow it, even if ground of complaint, which I do not find, would he to infringe on the settled jurisprudence of this court relative to mere questions of costs.

The cross-appeal should also be dismissed with nmCOUTDI costs to be set oft against the other costs of the appeal ington herein.

DUFF .J.-Inl this case I regret to say that I see no escape front the conclusion that there must he a new trial.

I regret it because all the facts were before the to enable thei to pass upon the issues raised by the action and the imistrial arises only because in tain vital iatters they were not properly instruct ed by the learned trial judge. The defeices were justification, privilege and fair colutient.

It was not dispited oil the argulent that in an action for libl where, as here, the ptublication coinplained of deals with matters adnittedly of puiblic interest the rules of law appliable in the Province of Quebec do not sensihly differ front the rules of the law of England except ill so far as they he affected by statute, there is Io questioni of the application of any statute ii this case.

In etreet, the learned trial judge directed the jury that the defenuce of justification would he established if they were satisfied that the defamatory statement ts of fact were iiade with holiest belief in their truth, even though in fact uinitrue.

He further directed that if the publication was an holest itself, would be suflicient estahlish the defenice of fair comntinct .

As the learied judges of the Court of Kintg's Bench have pointted i their judgieits these directions were erroneous. The defence of justification fails unless the defenldant justities ever' ijurious inputation which the jury find to be conveyed the publication.

The defence of fair comment fails unless the jury find that the imputation, although defamatory and not proved to be true, was made fairly and bon fide as the honest expression of the opinion held by the defendant and is in the opinion of the jury warranted by the facts in the sense that a fair-minded man might, on those facts, hold that opinion.

It is also essential to this defence (as regards imputations which the defendant fails to prove to be warranted in fact) that he must have stated them not as facts but as inferences from other facts.

As there is to be a new trial I think it is undesirable to enter upon any discussion of the facts. But I think it is important to say this: The plaintiff is only entitled to succeed if the publication in question could convey to the mind of a reasonable person imputations calculated to damage the plaintiffs in their business. I think the publication is capable of such a meaning, that is to say, I think it is capable of being read as charging the plaintiffs with making use their political influence in the legislature to procure the passing of legislation with the object of depriving the appellant of rights which they either knew to be vested in him, or believed might be vested in him, in respect of property which they desired to get for themselves; in other words, that they were unscrupulous enough to make use of their political influence to benefit themselves at the expense of the appellant's rights, or what, if his recourse to the courts were not taken from him, might prove to be his rights. I think that would be an imputation calculated to damage them in their business.

But it is a question for the jury whether or not the publication in fact bears that interpretation in the sense that that is the meaning which a reasonable person would attribute to it. There is one further observation arising out of the course of the argument in this court which it seems J. right to make and that is that the defendant is only bound to justify the publication (as regards his defence of justification) or support the publication as fair comment (as regards his defence of fair comient) in the sense in which the publication would be actionable; that is to say, in the sense in which it would conver an imputation prejudicially affecting the plaintiffs in their business. Failure to prove, for example, as a fact that the defendant was the owner the property, while relevant, no doubt, could not be conclusive as regards either defence. Even assuming the jury should construe the publication as declaring absolutely that the appellant was the owner of the property, the gist of the imputation in the only sense in which it is actionable is that the plaintiffs oppressively or dishonestly made use of their political influence with the legislature to deprive the appellant rights which they knew to be his, or his title to which, at all events, they did not think it safe to leave to the judgment of the courts. If the appellant fails to justify that imputation in fact there is still open the defence of fair comment, the coifficients of which I have indicated above. But first of all, it is a condition the plaintiffs' success that it should appear that the publication contains actionable imputations, that is, I repeat, imputations calculated to prejudice the plaintiffs in their business.

(dissenting).-Upon the verdict of the jury judgment was entered dismissing this action. of misdirection by the learned trial judge in instructing the jury that what matters is not the truth of the facts but that they should be reported without malice, theyi reote.iaie

J. or wicked intent, and that, if the defendant believed what he had written to be true and published it without malice or evil intent, they should find that what he had said was substantially true.

The defences were justification, privilege and fair coulment.

No doubt, as applied to the plea of justification, the passages of the charge above referred to would indefensible under English law.

They are at least equally so under Quebec law, whether the truth of the alleged libel should be regarded as in itself a complete defence ( Leduc Gr(aham (1)), or, as would seem to be the better opinion, should be deemedi a defence only if the publication is also alleged and proved to have been made in the public interest and concern ing matters of public uonient ( Trade (d'Imprimeri et de Publiution Canad((2) and then be sliewn only in m1iitigationl of damages.

( G(ra:ctte PrintinU ('o. v. Whallowr(3), at page 343; Trdt(ell v. Beemer(4).)

In its bearing on the defence of fair commuent the direction condenied byi the court of appeal is equally erroneous.

learned judge indicated that it hore on this defence when he said:understand that in the Province of Quebec lish law governs defences to actions for libel in iewspapers founded on privilege or fair comment. cotte Holduc(1).

As I read his charge the learned judge did not intend to submit to the jury the defence of (lualified privilege in the strict sense as understood by English lawyers, but rather the defeice of fair conuent in the public interest upon a report of proceedings in the legislature sometimes called privilege in a broader sesp. The duty of eoinunication to or interest in the persons to whom Ile alleged libel was published necessary to support a plea of qualified ;rivilege the strict sense was probably lacking.

Upon the defence of fair conmtent the at- 1e11ion of the jury was scarcely sufficiently directed to the all-ilnportant distinction between statements or necustions of fuct, the truth of which must be proven, aid statements by way of inference or expressions of opinion, upon which the issue is their reasonableness and fairness.

The only direction given to the burden of proof in regard to malice was that it lay with ite phlintity-a Ioper direction whieni the jidge has ruled that the occasion is oe of qualified privilege inl the strict sense, but incorrect where the defence is fair conment.

The eighfith question (whether the article dealt with matters of public interest) was properly left to the juiry.

That is a qnestion of law for the judge. But this error was pro)ably innocnous as the learned judge distinctly charged that the question- was one of public order and properly a subject of fair public discussion and criticism within reasonable limits.

Although in most respects an able presentment of a difficult and complicated case, the charge contains several errors so vital in their character that I fear the order for a new trial could not properly be set aside, if to do so it were necessary to find that there J had been no misdire< tion or that the case falls within the saving grace of article 500-C.P.Q.

But I have reached the conclusion that a commercial corporation, such as the plaintiff company is, cannot maintain an action for libel, without proof special damage, for the publication of a letter such as that before us, which, as I read it, reflects rather upon members or officers of the corporation than upon the corporate -body itself, and, in so far as it may impute misconduct, charges something of which the corporation itself could not be guilty. Metropolitan Saloon and Omnibus Co. v. Hawkins(1) ; South Hetton Coal Co. v. North Eastern News Association (2) ; Mayor of Manchester v. Williains(3) ; 18 Halsbury's Laws of England, 612.

It was suggested to us that the rights of a corporation under Quebec law differ in this respect from those which it would have under English law, and we were referred to articles 352 and 358 of the Civil Code. find nothing in these articles warranting the suggestion made, and I can conceive of no sound reason support of it.

The only authority to which we were referred was L'Institut Canadien Le Nouveau Monde (4), in which the plaintiff was not a commercial corporation. Whatever may be thought of the judgment in that case, the libel there before the court directly affected the carrying on of an important part of the work of the institute.

I think a judge could not properly rule or a reasonably find that the defendant's letter was calculated to injure the property of the plaintiff, or its J. business reputation or character, as distinguished from the personal reputations or characters of its officers or members. In the absence of proof of special damage such a finding was essential to the plaintiff. The questions submitted did not cover this issue, nor did the charge present it to the jury. No objection was taken on this ground nor was any request made that a question should be put to elicit such a finding. Under these circumstances article 499 C.P.Q. appears to disentitle the plaintiff to a new trial.

On the whole I think it is in the interests of justice that this litigation, regrettable from every point view, should be brought to an end, especially in view of the obvious fact that the plaintiff company has sustained no substantial injury.

I would allow this appeal with costs and restore the judgment of the learned trial judge dismissing the action.

J.-Nous avons a considerer dans cette cause-ci si la bonne foi du d6fendeur appelant peut justifier les propos diftfamatoires qu'il a tenus sur le conipte de la demanderesse intimde.

La 16gislature de Quebec, a sa session de 1904, avait, a la demande de 1'intimbe, dbclar6 qu'un certain terrain, qui avait 6t6 concd A cette dernibre par la Couronne 6tait la proprift6 indiscutable de F'intim6e. L'appellant, Price, avait combattu ce projet de loi, en allguant que ce terrain lui appartenait: mais la I1fgislatire confirna le titre donub par la Couronne i l'intinn e

L'appelant juged a propos alors d'6crire dans les journaux Ue lettre oi non-seuleaent ii critiquait Ia J. demande de Ia compagnie i li gislature mais ii all(guait que l'intim6 l'avait spoli6 de son terrain et qu'il allait instituer des proeddures devant les tribunaux pour arriver ih se faire remetter en possession de terrain vol4 (return the property stolen).

Poursuivi pour libelle, le defendeur appelant a vroulu se justifier en disant que de fait il avait; depuis la publication de sa lettre, pris une poursuite (levant les tribunaux pour revendiquer ses droits au terrain en litige et il plaida la v6rit6 des accusations qu'il avait porties et la justesse des comnentaires qu'il avait fait.

Voici d'ailleurs le texte iuCiue des paragraphes 15 et 47 de la d6fense il affirme ces deux inovens de dfeiise

La pr6sente cause est resthe en suspens pendant plusieurs anmes afin de perniettre 6videmrnent au deinandeiir de faire dbeider P'action p~titoire qu'il avait institu& et .I laquelle ii r~f(rait dans sa d~fense. ('ette action ptitoire est allce jusqu'au Conseil Priv4 et a kt dcid6 que le dernandeur n'a pas prouid qu'il 6tait propritaire du terrain en litige.

On a ensuite proed6 sur la pr~sente poursuite et par jury eut lieu.

Lhionorable juge qui prbsidiit Iroes a Wlr N;) A difftrente, reprimes an oirs de son adresse aux jures (ite le dtIfendeur nY'tait pas de prouver ]a v6ritP cevnsation qu'il avait portes, mais d'tablir silquil cro)yait fond# ce (1u'il avait dit. j En ('autres temies, il a dclare que Ia honne foi dfenldeur pounvait 1'exelipter de toite respolnsahilite (ivile pour toutes les injur1es contennit sa leti re.

Le verdict di jur6 a t en faver de l'appelait, Innis la cour d'appel, saisie de In cause, a ordonuie un noutveau proces.

J'en suis velil

'I it conclusioni ie le jugeient (I ql) doit etre

Je sis d'opinion que In d~fendeur devait prouver verite de son aousation et que critique qu'il a faite de conduite de demanleresse

' Ytait pas judicieise ( unfair comment).

Je suis d'opinlioll egaleinent que les paroles injurieuses dont il s'est servi ie pourraient liii periettre rclamer I'immunite reconmne ell faveur des coninunicationls privil~gibes (qulalified privilege).

La preve de li verite des propos diiffaniatoires est permise dans le droit anglais quelgune soit la condition des parties intbressMes, suit qu'il s'agisse de partivnliers onrIs publics, oit qu'ils aient kt profkr6s au sujet d'une affaire iiSe on d'une affaire publique. Daus notre droit an contraire caloimnie et In m~disance dounent lieu dans li rapports ordinaires de In vie des recours en domages.

Que les propros diffamatoires soient vrais ou faux, celui les a tenus engage sa responsabilite.

Sons le droit roinain on disait qu'il n'etait ni juste ni 6quitable que celui qui a diffain6 un coupable fut condarnn6 pour ce fait, car il est utile et n6cessaire que les fautes des coupables soient connues.

Cette 16gislation fut implante en France dans les pays de droit 6crit. Mais dans les pays de coutume on adopta la jurisprudence canonique qui avait pour rHgle: "Veritas convicii von excusat" (Grellet Demazeau, vol. ler, p. 340 et 345).

Dareau, qui est le guide le plus sfir que nous puissions suivre quant aux injures entre particuliers, nous dit (vol. ler, p. 60), qu'il y a un surcroit d'injure d'offrir la preuve de la v6rit6 du mal que Pon dit, parce que

Cette doctrine de 1'ancien droit frangais a pass6 dans le droit moderne frangais (Fuzier Herman, Vo. Diffamation, No. 59) et a t6 adopt6e par notre jurisprudence dans Qu6bec. Trudel v. Beemer, cour d'appel(1) ; Moquin v. Brassard(2).

Cette dernidre cause a 6t6 d6cid6e par la cour d'appel compos~e de jurisconsultes de grande distinction, comme Sir Antoine-Aimn6 Dorion et les honorables juges Monk, Taschereau, Ramsay et Sanborn le jug6 a 6t6:- Cette jurisprudence fait loi dans la province. On faisait exception dans l'ancien droit an cas on des accusations 6taient consign6es dans les requites envoyves aux ministres pour faire cesser des d~sordres, ou aux procureurs-gndraux pour faire punir des d61its. Dans ces cas, la v6rit6 de Pimputation pouvait excuser. (Dareau, vol. 2, pp. 402-403.)

Il est done bien important en discutant la responsabilit6 rCsultant des injures de ne pas oublier cette diff~rence entre notre droit et le droit anglais sur ce point.

La question en la pr~sente cause n'offrirait done pas de difficult6 si nous nous trouvions en pr~sence d'un particulier qui en aurait diffamu6 nn autre. Mais les paroles injurieuses profrdes contre la compagnie intinie 'ont t6 an sujet d'une lgislation qu'elle a sollicit~e et alors ses actes perdent de leur caractre prive et sont susceptibles k'tre critiqus et comnientis.

L'appelant a prdtendu (levant cette cour que les cireonstances qui ont donn lieu an libelle constituent une occasion le privilege, connu dans le droit anglais sous le nom de "qualified privilege," pent tre invoqu6.

II n'est pas n~cessaire pour les fins de cette cause que je dcide si le "qualified privilege" existe dans notre province ou non, car j'en suis venn a la conclusion que le d~fendeur ne peut l'invoquer.

Sa defense, en effet, repose sur la v6rit( des faits

(justification) et sur son droit de critique (fair comest trop tard, maintenant que le prochs a eu lieu sur ces deux moyens de defense d'en soulever un nouveau.

D'ailleurs, les faits qui sont prouv~s dans la cause ne d6iontrent pas que le d6fendeur appellant ffit oblig6 de publier la lettre dont lintime se plaint, on qu'il eut int6rft i diffamer cette derni re. II pouvait y avoir une obligation on un inthrft de sa part de faire i ses concitoyeRs la conduite de leurs mandataires; mais quel int&rt public.avait-il de voir la d~fenderesse-intimbe diffame ?

Or, pour que le privilege qualifi -soit invoqu6, il faut que ces conditions soient r~unies, obligation on intbrft du d6fendeur d'un cot6 et devoir et intfrit de la part de la personne on du public a qui la communication est faite de recevoir cette information.

Halsbury, Laws of England, No. 1263, vo. Libel. faut de plus qu'il n'y ait pas d'abus de ce privilige et il y aurait abus dans le cas on 1'6crit est inutilement diffamatoire du demandeur et contiendrait des declarations fausses et mensongres et des motifs inavouables.

Cyc., vo. Libel and Slander, p. 402. La cour de revision en confirmant unanimement un jugeiment de la cour superieure a d6cid6 tout r~eemment dans une cause de Fontaine v. Potvini (1), que:- La jurisprudence anglaise nous enseigne aussi que 1'occasion ne serait pas priviligi~e parce que le d6feudeur agirait de bonne foi.

(Halsbury, loc. cit. No. 1262). Benner v. Edmonds (2).

Odgers, Libel (5th ed.), pp. 250-251, dit:- Dans la cause de Cam pbell Spottiswoode(3), Cockburn C.J. dit:- Quant a la v~rit6 des faits, il ne peut pas y avoir de donte.

Le jury a d6clar6 dans son verdict qu'ilS 6taient substantiellemuent vrais, mais ce verdict est en tout contraire i la preuve.

Il est bien 6vident que les jurds en sont venus a cette conclusion parce que Phonorable juge, en leur adressant la parole, leur aurait dit:

Je ne puis adopter uie telle doctrine. D'ailleurs, non-seulement le defendeur a affirm6 son droit de proprite mais il a nine.jug6 L propos de dclarer qu'on lui avait vol6 son bien, qu'il avait t6 spoli6. Or, bien loin d'avoir kt d~pouill6 de sa proprith, le Conseil Priv6 a dWcid4 que son action ptitoire 6tait fondbe et qu'il n'4tait pas le propritaire du terrain en II avait done en ternes diffamiatoires une chose fausee et alors il doit subir la responsabilit6. Quant aux commentaires qu'il a faits sur la conduite de l'intiibe, ils sont absolument injustes et hasts de plus sur une assertion fausse.

A l'origine, sons l'ancien droit frangais, sons Pempire de Fordonnance de janvier, 1629, defense 6tait faite aux sujets du royaume de publier des libelles contre le roi, ses conseillers, magistrats et officiers ou contre les affaires publiques et le gouverne- Dareau, vol. ler, p. 108.

Cette ordonnance 6tait la loi du Canada lors de la cession du pays. Elle n'a jamais & formellement r& voque, que je sache, ici.

Mais 1'6tablissement des institutions representatives et d6mocratiques comme partie de notre droit public a implicitement eu pour effet de mettre a n6ant ce vestige d'une monarchie absolue.

Les hommes public, en acceptant d'8tre mandataires du peuple, se soummettent h la critique du public et les questions d'int6rit public doivent 6tre n6cessairement d6battues pour que le peuple, qui est maintenant le maitre de ces destinbes, puisse juger en connaissance de cause.

Je crois alors que nous ne pouvous sur ce sujet trouver de guide plus sfir que le droit anglais. Or, il est le principe incontestable en droit anglais que la critique doit tre juste et raisonnable et qu'elle ne soit pas base sur un fait faux et mensonger. Halsbury, loco citato, No. 1288, dit- Aux Etats-Unis le m6me principe est suivi. Cyc, sous le mot "comment" (Libel and Slander, p. 402) dit:- En France, sous la loi de 1881, il est pourvu que la v6rit6 du fait diffamatoire pourra tre 6tablie dans le cas d'imputations contre les administrations publiques, les les s~nateurs, les fonctionnaires publics, les jurbs et les t6moins.

Fuzier Herman, mot "Diffanation," No. nous dit:evidemment A Dans la province de Quebec, la jurisprudence est A Peffet que la conduite d'un homme public, d'un candidat, d'un d6put6, ou d'un employ6 public puisse tre soumise A une critique d'intkrt public, mais des accusations fausses pourront donner lieu h une r6paration civile.

Chaimpanc (1) ; lVickham Hunt (2) ; Marchand v. Alolleur(3) ; Marcotte v. Bolduc (4) ; Voir 31ignault, vol. 5, p. 359.

Comme les commentaires faits par Pappelant contenaient Fassertion qu'il 6tait propriftaire du terrain en question et comme ce fait etait faux, il a engag6 sa responsabilit6 et le juge n'avait pas le droit de dire aux *jures que sa bonne foi pouvait le soustraire cette responsabilit6. Avec la cour d'appel je suis d'opinion qu'il doit y avoir un nouveau prochs.

L'appelant a pr~tendu devant cette cour que l'intimbe, comme compagnie, n'avait pas droit de poursuite pour le libelle en question.

Ce point n'a pas kt soulev6 par les plaidoiries, ni devant les cours infrienres, et je n'en suis pas tonin6, car si cette pr~tention peut avoir quelque consistaice sous les dispositions du droit anglais elle ne sauraft tre maintenue sons 1'empire du Code Civil.

Purp

Les corporations sont des personnes morales qui out les mimes droit que les individus. Tout propos diffamatoire est susceptible d'engager la responsabilit6 de celui qui le profre et a la nime cons6qnence la personne diffame soit une personne rdelle une corporation. L'article 1053 di Code Civil ne fait pas de distinction.

Fuzier Herman, vo. "Diffamation," No 239 dit:- La jurisprudence de la province confirme la doctrine 6noncee par Fuzier Herman. Dans la cause de LInstitut C(iandiei v. Le Youeait. Monde (1), il t6 deid

Dans cette cause il i'y avait.pas eu de dominages spciaux de prouvis et, cependant, des domma ges nominaux furent accordds.

Et ricemment, dans une cause de Fontaine v. Potvin(2), Ia cour de revision a implicitement Ia miume chose en declarant qu'un offier d'ne association sp6cialement miais non nomm ment vis6 par libelle a personnellement le droit de r clamer des domiages-intrts dle 1'auteur di libelle et quiil n'est pas n(Seessaire que la poursuite soit institude an nom de ls Sociation.

L'appel doit etre depens.

Le contreappel doit tre 4galement renvoyv6 avec dlpens. Appeal dismissed with costs; Cross- appeal dismissed with costs.