DATE: 20060606
C40140 C41620
COURT OF APPEAL FOR ONTARIO
GOUDGE, SHARPE AND LAFORME JJ.A.
B E T W E E N :
ASSESSMED INC., JACK RICHMAN AND HEMENDRA SHAH
Philip P. Healey, Timothy James Hill and Danielle M. Peck for the appellants
Plaintiffs/Appellants
- and -
CANADIAN BROADCASTING CORPORATION, DAVID STUDER, DAVID KAUFMAN, LINDEN MacINTYRE and MICHEL P. RATHBONE
Philip Tunley, Jenny P. Stephenson and David Stockwood, Q.C. for the respondents
Defendants/Respondents
Heard: February 27 and 28, 2006
On appeal from the judgment of Justice Paul U. Rivard of the Superior Court of Justice dated March 2, 2004.
GOUDGE J.A.:
1On November 10 1998, the Canadian Broadcasting Corporation broadcast a 20-minute segment of its program The Fifth Estate entitled “Prove It If You Can”. By telling the stories of three people who suffered serious injuries in car accidents, and their difficulties with their insurers, the CBC described how insurance companies can treat accident victims unfairly.
2One of the three was Janet Hough. While the focus of the program was the insurance industry, part of her story of unfair treatment was that her insurer sent her to the medical assessment firm it used, which reported that she was not disabled. The insurer then stopped her accident benefits, despite medical reports from her treating physicians that supported her entitlement.
3AssessMed, the medical assessment firm, Jack Richman, its chief medical officer, and Hemendra Shah, the psychologist who did the report for AssessMed, sued for defamation.
4After a 76-day trial, Rivard J., sitting alone, dismissed the action, finding that the defence of fair comment had been made out.
5This is the appeal from that judgment. The appellants make two major attacks on it: first, that the trial judge erred in unduly narrowing the defamatory meaning of the broadcast; and second that the trial judge erred in a number of respects in applying the defence of fair comment. For the reasons that follow, I conclude that both attacks fail and the appeal must be dismissed.
THE TRIAL JUDGMENT
6The trial judge began his reasons with a careful review of the evidence. He described the genesis of the idea for the program and the subsequent research for it done by the CBC, including the interviews that were done with a number of individuals familiar with most aspects of the business of insuring accident victims. He reviewed the growth of AssessMed into a substantial medical assessment firm providing opinions mainly for insurers and the role Dr. Shah performed for them.
7He then turned to the assessment of Janet Hough done by Dr. Shah. He found that Dr. Shah used well validated tests and followed accepted procedures, but may have fallen into error in interpreting the test results and in failing to consider other important evidence. He concluded:
70Dr. Shah’s approach was to look to test results, establish a hypothesis and proceed to find evidence to support that hypothesis. This becomes obvious when one reviews those portions of the reports he quoted from his assessment. The selective approach he maintained can be viewed as consistent with confirmatory bias.
71I am satisfied that, upon a review of all the medical and neuropsychological information available to Dr. Shah at the time he completed his assessment of Janet Hough, on the basis of the medical and psychiatric evidence which became available after this report was prepared, in light of the efforts made by Ms. Hough to return to her teaching and Ph.D. thesis, one could conclude that Dr. Shah’s assessment was in error.
72The general philosophy of AssessMed, the manner in which Dr. Shah crafted his report, and the conclusions he expressed can also lead to a reasonable conclusion that his report was biased.
8The trial judge then reviewed in detail the content of the program, particularly the part that dealt with Janet Hough’s case. While Dr. Shah declined to be interviewed at all, the program included an interview with Dr. Richman, although he declined to talk about the particular case. In speaking generally about his business, Dr. Richman indicated his view that many of the claimants they see honestly believe they are disabled but are not. He was interviewed along with a fellow executive of the Canadian Society of Medical Evaluations, Dr. Ameis. Dr. Ameis acknowledged that some insurers treat some claimants very badly but made clear that their company tried to be as objective and impartial as possible.
9However the program then quoted from an article by Dr. Richman saying that in 3,000 evaluations by his company, only 3% needed long-term disability benefits. The trial judge reviewed the article and concluded:
78This article manifested an intellectual tendency on the part of Dr. Richman to treat claimants with suspicion and to question the validity of the opinions expressed by their treating health care workers. It was an attractive approach for those insurers who questioned the extent of their insured’s disability, but left doubt as to whether the approach resulting from this ideology was objective or impartial.
79While Dr. Richman’s opinions find some support in medical literature, they are considered too skeptical by others. Dr. Richman’s research in this area was based on discussions with assessors at AssessMed but not on any empirical or validated study. In my view, it reflected a tendentious approach to assessments, which subjected AssessMed to being viewed as partial to insurers.
10Finally, the trial judge turned to the evidence of Dr. Michael Rathbone, who was Janet Hough’s treating neurologist and a defendant in the lawsuit. He had treated her for over four years and had a thorough understanding of her medical difficulties. He concluded that because of the brain injury she suffered in the accident, she was permanently impaired. The trial judge accepted this evidence and found that Dr. Rathbone’s conclusions were legitimate and to be preferred. He then described Dr. Rathbone’s part in the program as follows:
97Dr. Rathbone was interviewed for the program “Prove It If You Can” on June 25, 1998. During the interview, it became known to MacIntyre and Kaufman he had not seen Dr. Shah’s report. I am satisfied he took the time needed to review Dr. Shah’s report. When he was first shown the report, he looked at it and read some of the quotes Dr. Shah had relied on. He commented that some of the quotes were always negative quotes. He testified he felt the quotes were taken out of context and were misleading. He agreed with MacIntyre’s suggestion that this was biased.
98Dr. Rathbone then took some time to read Dr. Shah’s report. Having done so, he said Dr. Shah’s report was “biased and unfortunately comes to a conclusion which is clearly in error”.
99I am satisfied that this comment was made by Dr. Rathbone independently of MacIntyre’s previous reference to bias and with a reasonably held belief that Dr. Shah’s report was in error.
11The trial judge then began an equally careful legal analysis. He first concluded that the plain and obvious meaning of the words used in the broadcast was capable of being defamatory: it was capable of being understood as saying that the appellants participated with the insurance company in the wrongful denial of benefits payable to Janet Hough, a severely injured accident victim.
12He next considered the particular false innuendos pleaded by the appellants and found that the words used were capable of conveying some but not all of these meanings. In particular, he found that they were not capable of meaning that the appellants used the same aggressive and sceptical approach with all claimants that they demonstrated with Janet Hough. However he found that the program could be taken to mean that their medical evaluation of Janet Hough was affected by a predisposition to treat claimants as liars and fakers.
13The trial judge then considered whether the broadcast was in fact understood in its defamatory sense and found that it was.
14Turning to the defence of fair comment, the trial judge held that the words complained of were comments rather than bare facts which had no support, were based on facts referred to in the broadcast that were themselves true, and were comments on a matter of public interest. They were honestly held views that a fair-minded person could reasonably hold. As well, they were fair in the sense that the program balanced them with expressions of the other side of the debate. Finally he found that they were made without malice. The defence of fair comment was thus successfully made out.
15Even though he found that the defence of fair comment succeeded, he went on to assess damages in case he was in error. Finally, he concluded by dismissing the action with costs to the respondents, to be assessed.
ANALYSIS
16The appellants’ first argument is that the trial judge erred in unduly narrowing the defamatory meaning of the broadcast. Here their primary submission focuses on the first step of the analysis, namely whether the program in its plain and obvious meaning or in the specific innuendos pleaded, is capable of defamatory meaning.
17The appellants pleaded that the program was capable of being understood to mean that they treated all accident victims as liars, frauds or fakers and were biased medical evaluators. The trial judge disagreed that the program could give rise to an innuendo this broad and limited the range of possible meanings to Janet Hough’s case, and accident victims like her.
18I see no error in his doing so. He reached this conclusion by properly considering not just the specific words advanced by the appellants but the full context in which those words appeared in the program. This provided ample support for his conclusion that the innuendo advanced by the appellants – namely that they were biased medical evaluators who treated all claimants this way – was simply too broad. The program made clear through Dr. Richman, Dr. Ameis, and the CBC host, that some but not all claimants were frauds, and that this was recognized by the appellants. While the trial judge found support for the innuendo that the appellants had a predisposition to treat claimants as liars or frauds, the program stopped short of saying they do so generally. There clearly were cases where they did not treat the claimants this way. I agree that the program is not capable of the broad innuendo asserted by the appellants.
19This case is not the same as Barltrop v. Canadian Broadcasting Corp., 1978 2145 (NS CA), [1978] 86 D.L.R. (3d) 61 (N.S.C.A.) on which the appellants seek to rely. There the defamatory words in the program were in a context that led to the conclusion that Dr. Barltrop was intellectually dishonest generally as a physician. Here the context simply does not permit the same general conclusion about the appellants’ approach to their cases.
20In oral argument, the appellants also sought to support the innuendo that the program was capable of being understood to mean that the appellants were dishonest doctors in the pockets of insurers. The simple answer to this is that the appellants did not plead this innuendo. Moreover there is no suggestion in the program that in rendering their reports the appellants said what they did because they were paid to say so. The trial judge did not need to consider this innuendo.
21Finally, the appellants say that the trial judge erred in finding that reasonable viewers understood the words of the program to mean that the opinion about Janet Hough in Dr. Shah’s report was biased and in error but not that his medical evaluation was performed improperly or incompetently.
22I do not agree that the trial judge erred in this respect. This finding is at step two of the determination of defamatory meaning, when the trial judge is addressing not the meanings the broadcast was capable of supporting, but how the broadcast was in fact understood by reasonable viewers. As such, the trial judge’s conclusion is a finding of fact that deserves deference on appeal. Moreover, it is a finding well supported by the record. The reasonable viewer would have understood the difference between the opinion expressed by Dr. Shah in his report and the medical testing of Janet Hough that he did before forming his opinion. While the former was said to be biased, nothing was said in the program to leave the understanding that the testing itself was done incompetently.
23The appellants’ second major attack is on the judge’s conclusion that the statements he found to be defamatory constituted fair comment. Here they raise a number of arguments.
24First, they say that the trial judge erred in finding these statements to be comment not statements of fact. Again, I do not agree. The trial judge carefully explained that the defamatory statements were in each case derived from facts stated in the program and that reasonable viewers would have recognized the statements to be the commentator’s opinions about, or conclusions drawn, from those facts.
25For example, Dr. Rathbone’s statement that Dr. Shah’s report was biased and in error was presented in the context of the facts about his treatment of Janet Hough over five years and would be seen by reasonable viewers as an expression of his opinion, based on his own treatment of her, about Dr. Shah’s conclusions.
26Another example is the statement found to carry the defamatory meaning that the appellants’ medical evaluation of Janet Hough was indicative of their predisposition to treat claimants as liars or frauds. This was clearly a conclusion drawn from a number of facts stated in the program including the treatment accorded to Janet Hough, and Dr. Richman’s published article. The reasonable viewer would have had no difficulty understanding it that way.
27The trial judge made the same assessment for all of the defamatory statements he found. In this respect, this case cannot be compared to Barltrop or Leenan v. Canadian Broadcasting Corp. (2000), 2000 22380 (ON SC), 48 O.R. (3d) 656 affirmed (2001), 54 O.R. (3d) 312 (Ont. C.A.). In those cases, there were insufficient basic facts presented in the program to permit reasonable viewers to understand that the defamatory statements were opinions or judgments drawn from those facts rather than themselves free-standing assertions of fact.
28The appellants then argue that the trial judge erred in finding that the program presented both sides of the debate in a balanced way. I find no error in his conclusion. The broad debate, so far as it related to the appellants rather than the insurers, was whether as medical evaluators they approached accident victims with a certain predisposition or whether they did so objectively. The program stated its own opinion on this but also presented the appellants’ view, through Dr. Richman’s colleague Dr. Ameis, that they tried to be as objective and impartial as possible.
29Even if one were to apply this fairness requirement to the particular innuendo that Dr. Shah’s position that Janet Hough was not disabled was without support, there is still no error. As the trial judge found, the medical evidence established that she was disabled, that early medical reports that might support the contrary view were overly optimistic and wrong, and that this was clear by the time of the broadcast. Thus there was no support for Dr. Shah’s position to be presented.
30Finally, although not addressed in oral argument, in their factum the appellants attack the trial judge’s conclusion that the comments were based on facts that were themselves true. Again, I disagree. What is required for the fair comment defence to be established is that there be a sufficient basis of fact to warrant the comment. The trial judge set out in great detail the facts in the program upon which the defamatory comments were based and found that all were proven to be substantially true. These findings deserve significant deference in this court. All have a basis in the evidence. None represent palpable and overriding error. This includes the finding of an absence of malice based on the trial judge’s assessment of the credibility of the respondents and his conclusion that they each honestly believe the statements and held the opinions and drew the conclusions presented in the program.
31In summary, therefore, I find no basis to interfere with the conclusion of the trial judge that the respondents properly established the defence of fair comment.
32Before concluding, there are several matters that require brief comment.
33Although it was not separately pursued in oral argument, in their factum the appellants launch a discrete attack on the trial judge’s conclusion concerning Dr. Rathbone’s statements. As I understand it, this is essentially a reiteration in this specific context of their fair comment arguments that I have already dealt with, and I would give the same answers.
34The appellants also challenge the trial judge’s damage assessment. Given the disposition I would make of the appeal on liability, I do not think it necessary to address this argument.
35In like measure there are four other matters that need not be dealt with. The appellants brought separate appeals from each of two intra-trial rulings denying their request to amend their pleadings to broaden the damage claim. The respondents also appealed a ruling at trial denying their request to amend their pleadings on an aspect of liability and a cross-appeal on damages contingent on the liability appeal being allowed. Given my disposition of the latter, it is unnecessary to deal with any of these.
36For these reasons I conclude that the appeal must be dismissed.
37There is no reason why the respondents should not receive their costs on a partial indemnity basis. Together their proposed costs total some $120,000.00. For their part, the appellants suggested that if successful they should receive $100,000.00.
38The trial took 76 days – much too long, as the court indicated on the hearing of this appeal. This unfortunately necessitated review of a huge volume of material in what was in significant measure a fact driven appeal. Argument of the appeal took two days. Taking these factors into consideration, I conclude that a reasonable amount for costs is $80,000.00 all inclusive, split $30,000.00 to Dr. Rathbone and $50,000.00 to the remaining respondents.
RELEASED: June 6, 2006 “STG”
“S.T. Goudge J.A.”
“I agree Robert J. Sharpe J.A.”
“I agree H.S. LaForme J.A.”
