No. 2]
CASE AND COMMENT
ROBBINS v. CANADIAN BROADCASTING CORP.’
DAMAGES –
INVITATION
BY EMPLOYEE OF BROADCASTER INCITING LISTENERS TO WRITE OR TELEPHONE
TELEVISION PROGRAMME –
LETTER OF CRITICISM –
TO THE WRITER –
DELIBERATE WRONGFUL ACT –
RESPONSIBILITY
OF EMPLOYER ARTICLES 1053 – 1054 C.C.
The cardinal rule amongst commercial broadcasters and telecasters is to do
nothing to offend the audience. This is not surprising in view of the relationship
between the advertiser and the listener or viewer who is, after all, a potential
customer. The Canadian Broadcasting Corporation, however, being a Crown
corporation relying largely upon government financial support for its continuing
existence is not subject in the same way to the influence of advertisers in what
it says and does. Nevertheless, the freedom inherent in the C.B.C.’s position
should make it all the more careful to observe its legal responsibility not to
cause hari to its viewers through any of its actions. This sense of responsibility
was vii-tually non-existent almost three years ago when the master of cere-
monies on a popular television show disclosed to the audience the name and
address of a viewer who had criticized the programme.
The result of this ill-considered action was brought to light in the Superior
Court in the case under consideration. The plaintiff, Dr. Robbins, was a practic-
ing physician. He had at that time been in practice for forty years and held
a number of prominent positions in Montreal medical circles. The defendant,
the C.B.C., was a body corporate carrying on radio broadcasting and television
service in Canada, where it enjoys a monopoly of the latter except for a few cities.
Plaintiff, on 16th January, 1956, wrote to the producer of a programme
called TABLOID, criticizing the programme and two of its performances in
particular and enclbsed a newspaper clipping containing criticisms of the pro-
gramme by a newspaper television critic. Dr. Robbins closed his letter with the
following:
I Wonder if the Tabloid Quartette will iead this letter along with some of the
others they get from Viewers.
Many inay remember the broadcast of TABLOID during which the late
Dick MacDougal; then Master of Ceremonies on the programme, read Dr.
Robbins’ letter describing it as not being “a very pleasant addition to tonight’s
programme.” He then went on to suggest that Dr. Robbins be “cheered up”
by the viewers, and for this purpose his address was flashed on the screen
twice.
As the facts disclosed, on the night of the broadcast,
… within 15 minutes after the invitation to “cheer up” the plaintiff was given…
his telephone started ringing and continued until late that evening when he and
lRobbins v. Canadian Broadcasting Corp. (1958), 12 D.L.R. (2d) 35, [1958] S.C. 152.
(Page references used are to the D.L.R. version.)
McGILL LAW JOURNAL
[Vol. 5
his wife had to take the telephone off the receiver to get some peace. Further, it
so continued for three days, until the situation became so intolerable at his home
that he had to go to the telephone company and have them disconnect his number
and have them give him another number. His Telephone Answering Service was
also swamped with calls. Plaintiff spoke about the hostile messages he had received.
Some of the language was so crude he did not want to repeat it in Court.2
Other methods of “cheering up” the plaintiff included sending C.O.D. food
parcels to his home and ordering taxicabs to go to his address. The Doctor also
received 102 letters, some of them “disgusting and abusive.” He suffered
severe emotional disturbance as a result of these incidents and for several
weeks after was in no condition to practice. He suffered from insomnia for a
considerable period of time after the incident.
Finding for the plaintiff, Associate Chief Justice Scott points out that “the
uncontradicted testimony of the plaintiff stands as to what happened to him…
The only reasonable inference to draw from all this is that the Producer and
Master of Ceremonies knew this was likely to happen.” 3 Whether or not they
knew it was likely to happen, it is clear that they desired something to happen
and that they were instigators of the damage caused to the plaintiff. These
“positive acts” and the “imprudence” of the defendant’s employees establish its
fault and its responsibility to the plaintiff under art. 1053 of the Civil Code.
The case is of interest for several reasons, one of which is the unusual factual
situation itself. Both sides admitted their inability to find any case similar
to it. It is of further interest because of the testimony given by a psychiatrist.
Although members of that profession are often called as expert witnesses in
criminal proceedings, they seldom appear in civil matters. The plaintiff called
a psychiatrist to testify to the effect an invitation such as that extended by
MacDougal would have on the viewing audience. The witness established that
in a large audience (at the time estimated by another witness to be about
200,000 persons in the ‘Montreal area alone) there were bound to be “a large
number who were just marginal in their ability to control themselves” when
invited to abuse the person whose name and address was given to them. The
subsequent events made it quite clear that such was indeed the case.
Doubtless the psychiatrist was competent to testify as to the existence of
such “marginal people”; but was this evidence of positive value to the plaintiff’s
case? The fact that certain people did take up the invitation in a way which
is clear from other evidence. What did the
was damaging to Dr. Robbins
psychiatrist’s testimony add in showing that, psychologically, they were bound
to do so? The psychiatrist continued that the C.B.C. should have been aware
of the fact that the “marginal” minority would have reacted in an abusive
manner. Such testimony, however, appears beyond his competence. A more
appropriate witness on the subject of customary knowledge in the broadcasting
industry would have been someone expert in the field of broadcasting.
Similarly, the statements of a member of a firm engaged in estimating the
-At p. 41.
SAt p. 41.
No. 2]
CASE AND COMMENT
number of viewers and listeners to C.B.C. programmes seem to be irrelevant.
This witness established that a large number of people were watching TABLOID
at the time. The actual number of viewers was surely of no importance, as long
as the plaintiff suffered damages as a result of the actions of a few of them.
Or can a principle be deduced from the case that if the actual number of viewers
had been smaller, the defendant’s liability would not have been as great? Such
a conclusion does not appear to be a valid one inasmuch as liability in the past
seems to have been based upon the actual damage suffered and not upon the
number of “agents”, potential -or otherwise, in a position to effect the damage.
This case provides an unusual example .of “chain of fault.” If, in spite of
MacDougal’s invitation to the listeners, no one had decided to disturb Dr.
Dr. Robbins, there would have been no delictual damages suffered. In his
declaration, plaintiff does not allege that the actual words used by MacDougal
were, in themselves and apart from the mischief which they sparked, defamatory
too, that the Doctor himself
or injurious to him. It must be remembered,
suggested that MacDougal read his letter over the air, and therefore seemed
prepared to accept the consequences which that act alone would have engendered.
The fault of the C.B.C. was not the direct cause of the damage but was the
cause of further fault by other persons which in the end caused the damage.
There is an interesting question as to whether or not plaintiff might have had
an alternative action against the actual individuals who telephoned and wrote
him. There might be situations where this alternative would be useful to the
plaintiff although in the present case it is obvious that the C.B.C. was the
convenient defendant.
In finding for the plaintiff, the Associate Chief Justice based his assessment
of damages upon the principles laid down by the Supreme Court of Canada
in C/iaput v. Romain,4 and determined that the total sum of $3,000 would
compensate for damages suffered. In his original declaration, plaintiff claimed
for the following damages:
Loss of earnings resulting from the deprivation of the use of his telephone
service and the telephone answering service and from the impairment of
his health and his nervous condition ………………………..
Pain, suffering, annoyance, humiliation, invasion of privacy and loss of
enjoym ent of life ……………………………………………………………………………………………..
$3,000
On a motion for particulars by defendant on the question of damages, plaintiff
revised the breakdown of damages claimed and the following appeared in his
amended declaration:
$7,000
Loss of income from his professional practice in the period while he was
deprived of his telephone ……
Loss of income from his professional practice
such deprivation ………………………………………………….
.
Loss of professional income by reason of impairment of health
Pain and suffering ……….
………………………………………
Annoyance, humiliation and invasion of privacy …………………………….
Lo ss of enjoym ent of life ……………………………………………………………………………….
in the future because of
……………………..
……………………………
……………..
$1,000
……………… $5 000
$1.000
$1,000
S1I.000
$1,000
……
4 Chaput v. Romain 1 D.L.R. (2d) 241, 114 Can. C.C. 170, [1955] S.C.R. 834.
McGILL LAW JOURNAL
[Vol. 5
The $3,000 assessment seems reasonable but it is unfortunate that the Court
did not specify the extent to which the individual items claimed as damages
were considered justified. The reliance on the Chaput case does not help in
this regard and indeed seems to be unusual in the light of the distinction to be
drawn between the circumstances of the two cases. In the earlier case the
Supreme Court considered the problem of moral damages and laid down the
principle that even if no pecuniary damages are suffered as a result of a
delict or quasi-delict, a right may exist, nevertheless, to moral damages. Such
moral damages were distingushed from those of a punitive nature which lie
exclusively within the jurisdiction of the Criminal Courts, and were described
as comprising all infringements upon extra-patrimonial rights, such as the
right to liberty, to honour, to one’s name, or to the freedom of conscience and
speech. In the Chaput case the appellant had suffered from the false imputation
that he had been engaged in committing a criminal offence.
Aside from the fact that Dr. Robbins did not suffer any such infringements,
it is plain that the Supreme Court considered moral damages to be quite
distinct from delictual damages. Since the plaintiff’s claim in this case was
based upon delictual damages and not upon moral damages, it is not clear why
the principle of the Chaput case was applied. This is particularly evident in the
light of the fact that the plaintiff had claimed quite substantial and tangible
damages arising from loss of income.
This case provides another example of the inherent flexibility provided by
art. 1053; the basic principle of civil responsibility subsists and operates with
no difficulty whatsoever despite the novelty of the surrounding circumstances.
*Of the Board of Editors, McGill Law Journal; second-year law students.
W. C. MCCALLUm & R. J. COWLING*
