Bich, Bachand, Kalichman

Appeal from a judgment of the Superior Court granting an application to dismiss. Allowed, with dissenting reasons.

On their own behalf and on behalf of their son, the appellants brought an action for damages against the respondents as parents of their minor daughters on the grounds that the daughters made false sexual assault accusations against their son. This action was instituted less than three years ago, but more than one year after the son’s acquittal. The appellants are claiming compensatory damages and punitive damages for interference with their rights protected under section 4 of the Charter of human rights and freedoms (CQLR, c. C-12). The trial judge found that it was an action based on defamation covered by article 2929 of the Civil Code of Québec (S.Q. 1991, c. 64) (CCQ), rather than by article 2925 CCQ. She therefore summarily dismissed the action on the ground that it was prescribed.

In cases of false statements leading to criminal proceedings, it is established that prescription starts to run on the day of the acquittal. However, it is not clear from the Court’s case law whether prescription of an action like this one is governed by article 2925 or by article 2929 CCQ.

Defamation within the meaning of article 2929 CCQ arises from the wrongful use of freedom of expression, since the notion of “defamation” refers to a fault committed in a context where freedom of expression and the right to express oneself are engaged. The exercise of freedom of expression is not the issue – or at least is not the only issue – in a case where a person deliberately and maliciously makes a false report to the police of an offence they know did not occur. Rather, such a case involves the abuse of the right to report, which is the wrongful act giving rise to the interference suffered.

Certainly, this malicious conduct can tarnish the reputation of the person concerned but, more importantly, it puts their freedom in jeopardy, particularly when the false complaint is followed by an arrest and criminal proceedings (as was the case here). An action in civil liability based on interference with the freedom protected under section 1 of the Charter is therefore not based on defamation within the meaning of 2929 CCQ but on another right that is subject to the three-year prescription period under 2925 CCQ. Thus, the appellants’ action, which is governed by this provision, is not prescribed.

For his part, Bachand J.A. would have dismissed the appeal. In his view, the trial judge correctly decided the issue at the exception to dismiss stage and properly directed herself in law in finding that the appellants’ action fell under article 2929 CCQ. First, the notion of the basis of the action to which the legislature refers in this provision [“l’action fondée sur une atteinte à la reputation”] must be understood as pertaining to the nature of the initial interference suffered by the plaintiff as a result of the defendant’s alleged fault, rather than to the consequences of this interference. Second, the faults alleged in the originating application are about defamatory remarks regarding the appellants’ son, not some instance of abuse through which the complainants exploited the criminal process. Consequently, the interference initially suffered by the son was primarily to his reputation. Last, the fact that the appellants assert that the claim is limited to damages arising from interference with the freedom, honour, and dignity of their son has no impact on the characterization of their action. 

Legislation interpreted: article 2929 CCQ

Text of the decision: http://citoyens.soquij.qc.ca