* 18 Feb 2011

* BY MIKE DE SOUZA
* POSTMEDIA NEWS
Top court allows racist radio rant

DJ’s attacks on Haitian, Arab cabbies did
not harm any personally, judges decide

Independent MP Andre Arthur was chastised Thursday by the nation’s top court for making racist comments about Arab and Haitian cab drivers but ultimately cleared in a class-action suit over an infamous on-air rant from 1998.

Fares Bou Malhab, a former president of the Montreal Taxi League, led a class-action suit that resulted in a $220,000 ruling that was overturned on appeal. In a six-to-one decision, the Supreme Court of Canada agreed Thursday the suit be dismissed without awarding damages.

Arthur, a former radio host, had referred to Creole as “speaking n——” and described the drivers of Arab origin as “fakirs” during his show. The Superior Court had awarded damages of $220,000 be paid by Arthur and his former employer, Diffusion Metromedia CMR Inc., to the Association professionnelle des chauffeurs de taxi, a non-profit organization representing taxi drivers.

But the majority of the justices in the top court concluded a class-action suit was not the best way to pursue Arthur over the comments, since they believed the remarks would not necessarily sway the opinion of an ordinary person.

“He made fun of and even ridiculed them (drivers of Arab and Haitian origin),” wrote Justice Marie Deschamps, on behalf of the majority.

“His comments were scornful and racist, as has been found by all the courts that have had to consider them. It is thus easy to understand why the taxi drivers who were called to testify at the hearing said they were hurt by those comments, but this is a subjective perception, not the perception of the ordinary person.”

Deschamps added that there is no doubt the statements constituted civil fault.

“However, in this case, I am persuaded by an analysis of the trial judgment and a review of the entire record that an ordinary person might have been annoyed by Mr. Arthur’s comments but could not have applied the insults, abuse and offensive accusations to each taxi driver personally.”

The majority also noted that although the on-air rant was “undoubtedly serious and infuriating,” Arthur’s reputation as a “shock jock” was a factor that would allow the public to recognize he was exaggerating.

In a dissenting opinion, Justice Rosalie Abella rejected the conclusions of her colleagues. “The members of the group Mr. Arthur vilified interact with the public on a daily basis and their livelihoods depend upon their ability to attract customers,” Abella wrote.

“Mr. Arthur’s defamatory comments were ... made seriously and raised, objectively, the clear possibility not only of harm to reputation, but also of harmful economic consequences from customers who may have decided to avoid taxis driven by members of the group, members who were easily identified... .”