Desbiens c. Standish: an action arising from false complaints to the police is not subject to the one-year extinctive prescription period applicable to actions based on defamation

Is an action to claim damages for false statements made to the police subject to the one-year prescription period set out in article 2929 of the Civil Code of Québec (C.C.Q.) applicable to actions for defamation? The Quebec Court of Appeal recently answered no to this question and ruled that article 2925 C.C.Q., which provides for a general three-year prescription period, should apply. 

Factual background

In Desbiens c. Standish¹, three teenage girls filed complaints with the police to report X. As a result of these complaints, X was charged with sexual assault and arrested. X was also suspended from the high school he was attending and the students at the school were informed of the charges against him. X’s parents then gathered evidence to exonerate their son, which ultimately led to his acquittal on all charges. 

In February 2020, acting on their own behalf and on behalf of their son, X’s parents instituted proceedings to claim compensatory damages for the conduct of the three complainants, who “[translation] misled the police and Crown prosecutors by making false and unfounded allegations.”²  They claimed that the complainants violated section 4 of the Charter of Human Rights and Freedoms,³  which protects a person’s right to the safeguard of his/her dignity, honour and reputation. However, the originating application does not specifically allege damage to X’s reputation. 

The application was filed less than three years, but more than one year, after the extinctive prescription period started to run. The defendants at trial, the parents and guardians of the three teenagers who reported the incident, filed an application for dismissal under section 168 para. 2 of the Code of Civil Procedure (C.C.P.),⁴  claiming that it was a defamation action and that it was therefore prescribed pursuant to article 2929 C.C.Q.

Judicial background

In ruling on the application for dismissal, the Superior Court concluded that the central issue in dispute was defamation: the acts committed by the complainants, namely, the false statements made to the police that led to criminal charges and arrests, constitute a wrongful act that is defamatory.

In doing so, the Superior Court found that the action was covered by article 2929 C.C.Q. and dismissed the action of X’s parents on the grounds that is was prescribed. It is in this context that they are appealing the decision.

The decision of the Court of Appeal 

For the reasons of Bich J.A., with whom Kalichman J.A. concurred, the Court allowed the appeal and set aside the trial judgment ⁵. 

The Court began by stating that article 2929 C.C.Q. is an exception to the three-year prescription period that should be interpreted “[translation] as restrictively as its terms allow.”⁶. 

The Court then went on to state that the first step of the analysis should be to “[translation] qualify the action and consider whether or not it is ‘based on defamation’”⁷. This involves evaluating the factual allegations underlying the originating application and identifying the wrongful act at the source of the action.

In this case, the Court believes that the wrongful act giving rise to the interference stems from the fact that the respondents triggered a police investigation with statements they knew to be false, thereby causing harm to the appellants and their son. The Court acknowledged that their is a certain trend in the case law that suggests that actions instituted following false reports to the police must be considered as based on defamation. That being said, another trend in the case law suggests that such conduct constitutes a civil fault, which may trigger the application of article 1457 C.C.Q., without relying on the notion of defamation. The Court adopted this approach and found that the appellants’ action “[translation] was not an action in defamation.”⁸.

Bich J.A. dissected the notion of defamation, and stated that defamation and freedom of expression “[translation] form a pair largely inseparable,”⁹  in the sense that an action in defamation necessarily opposes the right to one’s reputation and freedom of expression. Defamation is the wrongful exercise of freedom of expression. According to the Court, nothing in the legislative history of article 2929 C.C.Q. (or its predecessor in the Civil Code of Lower Canada) suggest that this provision should apply to other types of situations. 

However, in this case, the Court believes that the wrongful act was not the result of a wrongful use of freedom of expression, but rather the abusive exercise of the right of any person to report the commission of a crime to the authorities.

While the Court acknowledged that such a fault may have incidentally tarnished X's reputation, it was of the view that this fault first and foremost interfered with his freedom. For the majority, the true basis of the action was the interference with X’s freedom, specifically to the extent that the false statements led to his arrest and criminal proceedings. According to the Court, to conclude otherwise would give “[translation] too broad a scope to article 2929 C.C.Q., an exceptional provision,” which would be far removed from the very notion of defamation “[translation] which is central thereto.”¹⁰

The Court found that an action in liability based on interference with the right to freedom protected under section 1 of the Charter of human rights and freedoms is not covered by article 2929 C.C.Q., but rather by article 2925 C.C.Q., which provides for the general three-year prescription period. Therefore, it allowed the appeal and dismissed the respondents’ application for dismissal.

Practical consequences

The Court's reasoning in this case sheds some useful light on the method to be followed in determining the prescription period applicable to an action resulting from false criminal complaints to the police.

While the Court made a point of specifying that its analysis was limited to the situation of the malicious or unreasonable complaint to the police, criminal or penal authorities, and not to other types of statements\reports, the fact remains that its framework of analysis, which focuses on the allegations in the originating application and the cause of injury, as well as its comments on the scope of article 2929 C.C.Q., will be transferable and useful to other types of actions involving defamation.

Since the decision of the Court of Appeal was made in the context of an application for dismissal, the facts alleged in the originating application were assumed to be true. The application of the framework established by the Court of Appeal could therefore lead to a different result in a case that may seem, at first glance, similar to this one, if the issue of prescription were instead raised at trial, in which case the presiding judge would have the benefit of all the evidence and could conclude that the proven facts differed from those alleged in this case.

Finally, it should be noted that both Bich J.A., for the majority, and Bachand J.A., dissenting, referred to article 2929 C.C.Q. as potentially becoming obsolete. The transient nature of defamation, that originally justified the one year prescription¹¹, is increasingly questionable in the digital age, where defamation can leave a permanent trace. We will have to monitor whether the Court’s comments will resonate with the legislator.¹². 

The author would like to thank Clara Larocque, articling student, for her contribution to preparing this legal update.