CITATION: McDonald v. Freedman, 2013 ONSC 6812
DIVISIONAL COURT FILE NO.: DC-529
DATE: 20131107
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Matlow, Taliano, Wilton-Siegel J.J.
BETWEEN:
Sandy McDonald
Plaintiff/Respondent
– and –
Mark Freedman
Defendant/ Appellant
Jonathan C. Lisus, for the Plaintiff/Respondent
C. Kirk Boggs, for the
Defendant/Appellant
HEARD: at Oshawa on September 19, 2013
REASONS FOR DECISION
Wilton-Siegel J.
[1] The appellant Mark Freedman (the “Appellant”) appeals an order dated October 2, 2012 of Edwards J. (the “Order”) dismissing his summary judgment motion.
Background
[2] The Appellant is a neurologist. The respondent, Sandy McDonald (the “Respondent”), is a vascular surgeon. A new theory relating to treatment for multiple sclerosis (“MS”) patients referred to as “liberation therapy” has put these doctors on opposite sides of a medical debate.
[3] The new theory hypothesizes that an alleged condition, referred to as chronic cerebrospinal venous insufficiency (“CCSVI”), which involves compromised blood flow through the veins draining the central nervous system, is a cause of MS. Relief of this venous insufficiency, by angioplasty to widen constricted neck veins, is hypothesized to relieve the symptoms of MS patients. The question of whether there is a causative link between CCVSI and MS, and whether these treatments will result in a cure for MS, remains a matter of considerable debate.
[4] In the action, the Respondent claims damages for defamation based on statements made in an email (the “Email”) sent by the Appellant on October 2, 2010, to the Minister of Health and Long-Term Care of the Province of Ontario (the “Minister”) with a copy to the president of the College of Physicians and Surgeons of Ontario (respectively, the “President” and the “College”). The Respondent also claims that a later email of the Appellant dated November 5, 2010, which responded to a letter of the Respondent demanding a retraction and apology, was also defamatory. This later email was also sent to the Minister and copied to the President.
[5] The Email contained strong language describing the Respondent, his clinic and practice. For purposes of this motion, it is assumed, but not determined, that the Respondent can establish that the statements in the Email were, in fact, defamatory.
[6] The Minister responded to the Email by a letter dated December 16, 2010, acknowledging receipt of the Email and noting that CCSVI and any corresponding treatment is considered experimental and is therefore uninsured in Ontario. The letter also stated that any services in support of an experimental treatment are also uninsured, including the imaging studies described in the Email.
[7] The Appellant knew when he sent the Email that the College procedure for filing complaints with the Registrar involved completing an electronic complaint form which was available on the College website. The Appellant chose not to follow this process. Nevertheless, the College treated the Email as a formal complaint. It defined the complaint as “failing to behave in an ethical manner in that [the Respondent] is “luring” patients from both in and outside Ontario for imaging studies (related to CCSVI) that are being billed to OHIP under the guise of another diagnosis or possibly having the patients pay out of pocket.” The College provided the Appellant with a complaint form to this effect which the Appellant signed and sent to the Registrar of the College.
[8] The College proceeded to conduct an investigation in accordance with its complaints procedure. The Respondent learned of the Email in the course of this investigation, which prompted his letter demanding a retraction and apology and the later email of the Appellant dated November 5, 2010. The complaints committee issued a decision on March 11, 2011, in which it stated that it could see no evidence to suggest that the Respondent was luring patients to undergo imaging for CCSVI, did not consider it to be inappropriate for the Respondent to bill patients directly for CCSVI testing as that procedure was an uninsured service under OHIP, and decided to take no further action on the Appellant’s complaint.
The Action
[9] In his fresh as amended statement of claim, the Respondent pleads that the contents of the Email are defamatory in ten respects. In addition, he alleges that the later email of the Appellant compounded the harm of the Email by reinforcing and repeating the defamatory statements in the Email. He also pleads that the Appellant acted maliciously and with a reckless disregard for the truth in sending the Email and the later email. In addition, he pleads that the Email and the later email were sent for the purposes, among other things, of vexing and embarrassing him, bringing his personal and professional integrity into disrepute, embarrassing him and his clinic with the Ministry of Health and Long-Term Care (the “Ministry”), undermining his professional and personal reputation with the Ministry, and biasing the Ministry against funding research into CCSVI and the connection between CCSVI and MS.
[10] In his statement of defence, the Appellant states that his criticism of the CCSVI theory and proposed treatment is that doctors are purporting to diagnose CCSVI as an identifiable medical condition when no such medical condition has been recognized and are then either encouraging or assisting people suffering from MS to undergo angioplasty or other surgical treatments for the alleged medical condition. The Appellant asserts that these procedures pose risks to patients when no medically accepted justification presently exists for undertaking such surgical procedures.
[11] The Appellant has pleaded, among other things, that the Email was sent on an occasion of absolute privilege. In the alternative, he pleads that the Email was sent in good faith without malice on an occasion of qualified privilege, as it was sent “to inform the Minister and [the President] about a matter of significant public interest falling within their respective jurisdictions for consideration and potential investigation.”
[12] In his reply, the Respondent pleads that the Email was not communicated to the Minister for the purpose of reporting his supposed professional conduct and was not a bona fide “request” for an inquiry into his billing practices. He says that the Appellant was aware that the Minister had no authority or responsibility under the Regulated Health Professions Act 1991, S.O. 1991, c.18 (the “RHPA”), with regard to an investigation into professional misconduct or physician billing practices and that it was the duty of the General Manager appointed under the RHPA to determine all issues relating to accounts for insured services. He alleges that the Email was part of a continuing campaign to embarrass and vex the proponents of CCSVI and was not intended as a bona fide “report” or “request”.
[13] The Respondent has served a Jury Notice in the action.
The Summary Judgment Motion
[14] The Appellant brought the motion for summary judgment on the ground that various defences apply and, therefore, the Respondent’s action cannot succeed. The motion judge held that the question of whether the Email is subject to absolute privilege is a novel one that requires a full factual record, as well as the full forensic machinery of a trial so that a jury will have an opportunity to hear and assess the two main protagonists. The motion judge also held that the plaintiff should have the opportunity to have the issue of malice fully canvassed before a jury. On this basis, the motion judge dismissed the Appellant’s motion as failing to meet the full appreciation test set out in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, leave to appeal to S.C.C. granted, 436 N.R. 399 [“Combined Air”].
[15] The full conclusions of the motion judge are set out in paragraphs 44-46 of his reasons as follows:
The distinctions suggested on behalf of Dr. Freedman are not lost on this court. Nonetheless the Court of Appeal in Dr. Dawg has reinforced something that becomes obvious from a review of the jurisprudence as it relates to summary judgment and defamation actions. The observation of the Court of Appeal that summary judgment has rarely been granted in defamation cases must be acknowledged because, as the court observes"the threshold over which a statement must pass in order to be capable of being defamatory of a plaintiff is relatively low". To remove that threshold from the trier of fact in this case, that being a jury, could fundamentally result in a miscarriage of justice.
The factual issue before the Court of Appeal in Dr. Dawg was a novel issue, that being whether or not someone could be defamed during the course of what is described as the cut and thrust of political discourse in the internet blogosphere. Clearly no such issue is before this court. Nonetheless the question of whether the October email by Dr. Freedman is subject to absolute privilege is one that this court is satisfied, based on the evidence before it, is a novel question, and it does require a full factual record, as well as the full forensic machinery of a trial so that a jury will have the opportunity to hear and assess the two main protagonists, i.e.: Dr. Freedman and Dr. McDonald.
As to the question of malice, it is fundamental from this courts perspective that the plaintiff have the opportunity to have this issue fully canvassed before a jury. A jury will have the opportunity to watch, listen and determine, based on the evidence of the parties and perhaps other extrinsic evidence, whether or not malice can be established on the record before them. Fundamentally, Dr. McDonald should not have withdrawn from him the ability to have a jury determine whether or not the October email went beyond the bounds of scientific and professional regulatory discourse, and if so was it then sent maliciously with an intent to injure and not for the purposes of advancing what is suggested by Dr. Freedman as being a bonafide complaint. It may very well be that once a jury has heard all of the evidence a jury will in fact agree with Dr. Freedman that the October email was well within the bounds of appropriate scientific and professional regulatory discourse, sent without malice and was simply sent for the purposes of advancing a complaint to the College and to the Minister. It would, however, not be appropriate to grant summary judgment on the basis of the record before this court and to essentially take from the plaintiff the fundamental right to a jury, particularly in a defamation action such as the one before this court. The defendant's motion is therefore dismissed.
Standard of Review and Applicable Law
[16] This appeal proceeds under section 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The applicable standard of review is the standard of appellate review set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 19, 25, 27 and 28. On this appeal, the principal issues are issues of law which attract a standard of correctness.
[17] Rule 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that a court shall grant summary judgment, in whole or in part, where the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. In Combined Air, the Court of Appeal for Ontario established the “full appreciation test” for the purposes of a summary judgment motion under rule 20.04(2). The “full appreciation test” requires that a motion judge assess whether the attributes of a trial are necessary to enable a full appreciation of the evidence and issues in the action. The specific issue for the Court on this appeal is whether or not the motion judge correctly applied the “full appreciation test” in reaching his conclusion to dismiss the Appellant’s summary judgment motion.
[18] As the Respondent has served a Jury Notice in the action, the respective roles of the court and a jury in a defamation action are significant for the result in this proceeding.
[19] In Baglow v. Smith, 2012 ONCA 407, 110 O.R. (3d) 481 [“Baglow”], the Court of Appeal observed as follows, at para. 24:
As the motion judge readily acknowledged, summary judgment has rarely been granted in defamation cases, probably because the courts have recognized that the threshold over which a statement must pass in order to be capable of being defamatory of a plaintiff is relatively low: see Cherneskey v. Armadale Publishers Ltd., 1978 20 (SCC), [1979] 1 S.C.R. 1067, at p. 1095, and because the question whether a statement is in fact defamatory has long been considered the purview of a trier of fact. Whether impugned words are defamatory of an individual in fact is the type of decision better made on the basis of a full factual record with cross-examinations and possibly expert testimony. Indeed, until the Judicature Act, R.S.O. 1980, c. 223 was replaced by the Courts of Justice Act S.O. 1984, c. 11, actions for libel and slander were among a small group of claims that the law required to be tried by a jury, unless the parties consented to waive such a trial: see Judicature Act, s. 57.
[20] This statement must be understood, however, in the context of the scope of the responsibility for the determination of factual matters. As in other civil jury actions, the determination of matters of fact is the responsibility of the jury while matters of law are reserved for the trial judge. In a defamation action, the matters of fact include principally the determination of whether a particular publication is defamatory and whether the statement was published with malice, as well as the determination of the factual circumstances under which publication occurred, to the extent any such facts are in dispute. The determination of whether such facts give rise to an occasion of absolute privilege or qualified privilege is a matter of law reserved to the trial judge.
[21] The doctrine of absolute privilege is grounded in the principle that, as a matter of ensuring freedom of speech where it is essential that freedom of speech should exist, it is not desirable to inquire whether utterances on certain occasions are malicious or not. Among other situations, absolute privilege extends to words spoken, and documents properly used or prepared for use, in the course of proceedings before any court or judicial tribunal recognized by law, including communications made on occasions preparatory to such proceedings. Of relevance to the present proceeding, absolute privilege also applies to communications in the course of quasi-judicial proceedings. As was noted in Sussman v. Eales (1985), 1 C.P.C. (2d) 14 (H.C.J.), aff’d 25 C.P.C. (2d) 7 (C.A.), the issue is whether the body to which a complaint is sent is quasi-judicial or merely administrative in nature.
[22] In Sussman, the Court of Appeal upheld the determination of a motion judge that a complaint validly made to the complaints committee of the Royal College of Dental Surgeons of Ontario gave rise to an occasion of absolute privilege, stating that the communication was “incidental to the initiation of quasi-judicial proceedings” before a statutory body exercising disciplinary powers over a member with respect to unprofessional conduct. In that case, the motion judge noted that the extension of absolute privilege to quasi-judicial regulatory proceedings of professional bodies involves the balancing of two interests:
It is a question of balancing two interests. The public interest should outweigh that of the individual for at least two reasons. Firstly the immunity will only be conferred upon a citizen complaining in a confidential way to a body created by statute. A communication of that kind can hardly be said to be a publication of the kind that is apt to harm one's reputation in the community to a degree sufficient to attract an award of compensation.
Secondly, the right to engage in professional activities must be the subject of rules governing them. These rules cannot be enforced without a corresponding right in the members of the public to complain uninhibited and without fear of being found wrong and as a result being subject to actions in defamation. Surely it is a small price for a professional person to pay.
[23] In Sussman, the court also held that the immunity was lost insofar as the complaint was sent to another body that did not exercise quasi-judicial functions. In that case the complaint had been sent to the Waterloo-Wellington Dental Society and the Court of Appeal concluded that “[t]hat step constituted a publication which was not necessary or properly incidental to the initiation of the quasi-judicial proceeding.”
[24] The English Court of Appeal reached a similar conclusion in Lincoln v. Daniels, [1961] 3 All E.R. 740 (C.A.). In that decision, a complaint that was made to the Benchers of one of the Inns of Court about a member was also sent to the Bar Council. The court held that the making of the complaint to the Benchers was an occasion that attracted absolute immunity but the sending of the complaint to the Bar Council did not. The court reasoned that the Bar Council did not perform any function on behalf of the Inns of Court nor did it exercise a quasi-judicial function. Accordingly, the letter did not initiate any proceedings.
[25] The leading case in Ontario on the law of qualified privilege is RTC Engineering Consultants Ltd. v. Ontario (2002), 2002 14179 (ON CA), 58 O.R. (3d) 726 (C.A). In that decision, Laskin J.A stated, at paras. 14 and 16 respectively, that the defence of qualified privilege applies "to the occasion when a defamatory statement is made, not to the statement itself" and that "[a]t the heart of the defence of qualified privilege is the notion of reciprocity or mutuality." For the defence to apply"[a] defendant must have some interest in making the statement and those to whom the statement is made must have some interest in receiving it". The onus is on a defendant "to prove all such facts and circumstances as are necessary to bring the words complained of within the privilege .... Whether the facts or circumstances proved or admitted are or are not such as to render the occasion privileged is a question of law for the judge to decide": see Globe & Mail Ltd. v. Boland, 1960 2 (SCC), [1960] S.C.R. 203, quoting with approval Gatley on Libel and Slander (4th ed.), at p. 282.
[26] In Prud'homme v. Prud'homme, 2002 SCC 85, [2002] 4 S.C.R. 663, at para. 57, the Supreme Court of Canada summarized the applicable principles governing a defence of qualified privilege as follows:
In the common law, malice is presumed once the plaintiff establishes that the defendant spoke the offensive words about him or her. The defendant may try to rebut that presumption by citing qualified privilege. If the defendant succeeds in establishing that the criteria for that defence have been met, the presumption of malice will fall and give way to a presumption of good faith. The plaintiff must then establish that the defendant acted in bad faith or had malicious intent.
[27] Accordingly, to defeat the presumption of good faith that arises if the occasion of publication was one of qualified privilege, a plaintiff must prove malice on the part of the defendant. In this context"malice" means: (a) a lack of an honest belief in the truth of the libelous statements; or (b) a use of the privileged occasion for an improper purpose.
Analysis and Conclusions
[28] The motion judge effectively found that a genuine issue for trial existed with respect to the issues of the defence of absolute privilege and of malice, leaving unclear whether he also concluded that a genuine issue for trial existed regarding the defence of qualified privilege. Each of these issues will be addressed in turn.
Absolute Privilege
[29] The Appellant submits that the publication of the Email to both the Minister and the President were occasions which attract the immunity of absolute privilege on the basis that each was incidental to the instigation of quasi-judicial proceedings. We will address the availability of the defence of absolute privilege in each situation in turn.
The Publication to the Minister
[30] The Appellant submits that the motion judge was required to interpret the applicable legislation for which the Minister was responsible and determine whether the Email constituted “a complaint made in a confidential way to a body created by statute.”
[31] The relevant legislation is the Health Insurance Act, R.S.O. 1990, c. H6 (the “HIA”) which provides in section 2(1) that the Minister is responsible in respect of the administration and operation of the Ontario Health Insurance Plan (“OHIP”) and is the public authority in Ontario for the purposes of the Canada Health Act, R.S.C. 1985, c. C-6.
[32] The HIA provides for the appointment of a General Manager whose functions include administering OHIP as its chief executive officer. The General Manager may choose not to fund certain physician services on a number of grounds, including misrepresentation of the nature of the service, absence of a demonstrated medical need for a service, and a failure to provide a service in accordance with accepted professional standards and practice. The General Manager can request a hearing before the Physician Payment Review Board of a claim submitted by a physician where the General Manager is of the view that any of these circumstances exist and the physician knew or ought to have known the claim was false. The Review Board has the power, following an investigation, to make any order it considers appropriate. In addition, if the General Manager obtains reasonable grounds to believe that a physician has committed professional misconduct, he is required to provide confirmation to the College.
[33] The Appellant argues that the processes established under the HIA are analogous to those that apply to a complaint to the College and are squarely within the applicable principle stated in Sussman and subsequent cases. As such, the Appellant says that the Email should be protected by absolute privilege.
[34] For the reasons set out below, that the motion judge did not err in concluding that the availability of the defence of absolute privilege in respect of the sending of the Email to the Minister raised a genuine issue requiring a trial.
[35] In Amato v. Welsh, 2013 ONCA 258, 350 O.A.C. 155, at paras. 34, 35 and 68-70, the Court of Appeal stated that, while the scope and application of the doctrine of absolute privilege continues to evolve, expansion of the reach of the doctrine is viewed with suspicion by the courts. The Appellant has not identified any case that holds that the proceedings under the HIA referred to above are quasi-judicial proceedings, rather than administrative proceedings, for purposes of the application of the defence of absolute privilege. Further, it is not clear on the record that a communication with the Minister can be characterized as “incidental to the initiation of any such proceedings”.
[36] These are genuine issues of fact that require a full factual record after a trial before a judge will be in a position to address the legal issue of whether the publication of the Email to the Minister gave rise to an occasion of absolute privilege. Among other things, it will be necessary to establish the extent that a communication with the Minister can initiate quasi-judicial proceedings under the HIA.
The Publication to the President
[37] The Appellant chose to send a copy of the Email to the President of the College. He acknowledges that, in doing so, he was aware that he was departing from the complaint procedure established by the College for instituting a professional complaint against a member of the College.
[38] The Appellant says, however, that the relevant facts respecting this communication are undisputed – he intended to make a complaint to the College and it was treated as a complaint by the College, with the customary confidentiality afforded all complaints investigated by the complaints committee. He argues that the motion judge erred in stating that the application of absolute privilege in these circumstances was a “novel” issue requiring a trial. He says Sussman is directly on point.
[39] The novel factual issue in this case is the Appellant’s decision not to follow the formal complaint procedure established by the College. The Respondent says that this action raises a genuine issue requiring a trial regarding the availability of the defence of absolute privilege on alternative grounds.
[40] First, the President received the Email in his capacity as an officer of the College, not in his personal capacity. He apparently delivered the Email to the Registrar and thereafter it was treated by the College as a complaint. As such, as a factual matter, it is clear that the Email was incidental to the initiation of a quasi-judicial proceeding. However, the Respondent suggests that, by sending the Email to the President, the Appellant took an action analogous to the actions in Sussman and Lincoln, in that the communication was sent to third parties who did not exercise any quasi-judicial functions. We do not agree.
[41] Section 25 of the Health Professions Procedural Code, S.O. 1991, c. 18, Sch. 2 (the “Code”) contemplates that the College shall establish a panel from among the members of the complaints committee of the College to investigate any complaint filed with the Registrar regarding the conduct or actions of a member. It does not mandate any particular manner or procedure for the filing of a complaint with the Registrar, apart from section 25(4) which requires that a complaint be in writing or recorded on a tape, film, disc or other medium.
[42] The College has addressed the process for commencing a complaint on its website. The website states that “[t]he College must receive [a] complaint in writing or in another permanent form, such as tape, film or disk.” The website also states that “[a] complaint form which may be completed electronically, printed out and mailed to the College is provided here for your convenience” (italics added) and a link is provided to the form. There is, therefore, no statutory provision that would preclude the initiation of a complaint by mailing it to the President, provided that it resulted in a formal complaint being made to the Registrar. Nor is there any requirement that the initiating communication be in the form of the complaint form provided on the website of the College.
[43] In short, I am not aware of any statutory provision that would preclude the treatment of a communication to the President as an initiating communication of a complaint governed by the complaints process of the College. Moreover, such a rule would appear to be contrary to the policy of the Code, which is to ensure that professional complaints regarding a member will be properly investigated for the benefit of the public at large who may have dealings with the member. It is not in the interest of such a policy to apply a restrictive approach to the means of communicating a complaint to the College, provided it is sent to a responsible officer of the College.
[44] Second, the Respondent says that the fact that the President and the College treated the Email as initiating a professional complaint does not alter the real purpose of the Email, which was to defame him rather than to institute a complaint proceeding. The Respondent argues that this raises a genuine factual issue requiring a trial.
[45] The Respondent relies on two decisions in which courts have addressed the circumstances in which a communication could be held to be too remote to constitute a real complaint.
[46] In Moseley-Williams v. Hansler Industries Ltd. (2004), 2004 66313 (S.C.), at paras. 57 and 58, Cullity J. addressed the issue in the following terms:
… In any of these situations, the justification for the privilege to make statements maliciously, is still to be found in the public policy that protects statements made in the course, and for the purpose, of judicial proceedings and, as Professor Fleming insisted, it is not sufficient that there is a remote connection with such proceedings. References to occasions "incidental" or "preparatory" to judicial proceedings, and to those "intimately connected" with them, are simply different methods of expressing the same thought. Each refers to a degree of connection that will not be too remote.
Not every occasion in the chain of events that leads, or may lead, to litigation can be considered to be preparatory to - in preparation for - the litigation and not all defamatory statements made on such occasion in respect of the matters that are, or may be, subsequently litigated, will be subject to absolute privilege. In deciding the question of degree involved in determining whether an occasion is preparatory or incidental to - or intimately connected with - judicial or quasi-judicial proceedings, and where a line is to be drawn, all the facts, including the purpose for which the statements were made, must, I believe, be considered. I do not think Mr. Eastwood's letter falls on the side of the line that would, or should, attract an absolute privilege.
[47] In Lincoln, Sellers R.J. held that the defendant was “too remote from judicial proceedings” in writing to the Bar Council, which was an entity separate from the Inns of Court that had responsibility for professional regulation.
[48] In each of these cases, while the issue is framed in terms of the remoteness of the communication in relation to the commencement of quasi-judicial proceedings, the fundamental question is whether the remoteness is evidence that the purpose of the communication was or was not the initiation of such proceedings – that is, was or was not a complaint.
[49] The circumstances in this case raise the same issue – did the Appellant intend his Email to constitute a complaint for the purposes of the initiation of quasi-judicial proceedings by the College or was it sent to the President for some other purpose? This is a factual issue rather than a legal issue. The issue on this appeal is whether the motion judge erred in concluding that he could not make a determination of this factual issue on the record before him and that the “full appreciation test” required a trial.
[50] As mentioned, the Appellant sent the Email to the President with full knowledge of the complaint procedure established by the College. While this is not a case in which the communication was made to another entity that did not have regulatory authority as in Lincoln and Sussman, these circumstances raise the question of whether, in sending the Email, the Appellant intended to initiate a complaint process as he says he did. It is possible that a trier of fact could conclude on the evidence that the Email did not constitute a “complaint” for the purpose of initiation of the College’s formal complaints procedure but, rather, was sent for another purpose.
[51] In reaching our conclusion that a genuine issue requiring a trial therefore exists, we have taken into consideration the following matters. In reaching this conclusion, however, no determination is being made regarding the merits of the respective positions of the parties on this issue.
[52] First, the fact that the College interpreted the Email as initiating a complaint, insofar as it was sent to the President, may be relevant but cannot be dispositive on its own. Determination of this issue involves an assessment of the Appellant's subjective intentions as well as the understanding of the recipient. Such an assessment cannot be dealt with on a paper record in accordance with the “full appreciation test”. It requires viva voce evidence from the Appellant.
[53] Second, the Appellant directed the Email to the Minister and only copied the President on the Email. The predominant purpose in sending the Email appears to have been to advise the Minister, as the primary recipient, of broader policy matters pertaining to the imaging studies being conducted by the Respondent and others in the Province, as well as concerns regarding the payment of OHIP funds for such studies and the application of the Ontario Health Act in respect of private payment for such studies. This is far broader than the scope of the complaint that was initiated by the College. It is not immediately obvious how the same Email, as copied to the President, constitutes a complaint limited to the Respondent “luring patients from both in and outside Ontario for imaging studies (related to CCSVI) that are being billed to OHIP under the guise of another diagnosis or possibly having the patients pay out of pocket”.
[54] Third, the Appellant says that his Email was not directed at the Respondent personally but rather at all clinics in the Province, including that of the Respondent, conducting imaging studies of the kind offered by the Respondent’s clinic. The Appellant’s objective was to have all such clinics shut down as had occurred in Québec. This is qualitatively different from a complaint of professional misconduct even if a complaint of professional misconduct may be said to be subsumed within it.
[55] Fourth, in addition to not following the College’s formal complaint procedure in sending the Email to the President, the Appellant did not adjust the language of the Email sent to the President to recognize the complaint procedure of the College in any way. In particular, he did not include any express language requesting the initiation of a formal complaint under the College’s complaint procedures. It is an open question as to what he would have done if the President and the College had not treated his Email as instituting the focussed complaint that was investigated by the College.
[56] Fourth, instead, the Email requests the Minister “confer” with the College, investigate the claim and any other claims offering similar reviews and put a stop to “unacceptable medical practices”. In effect, the Email could be interpreted as leaving the definition of the nature and form of any investigation and decision-making process to the Minister. The act of copying the Email could have constituted nothing more than providing the College, through the President, with advance notice of the Appellant’s communication with the Minister in case the Minister’s office chose to follow his suggestion of conferring with the College.
[57] Accordingly, the motion judge did not err in concluding that determination of the availability of the defence of absolute privilege in respect of the publication of the Email to the President was a genuine issue requiring a trial. It should be noted, however, that a determination that the Email was not a “complaint” would not be determinative of the issue of defamation, as it is possible that the Email could have been communicated on an occasion of qualified privilege if it were found not to be a “complaint”.
Qualified Privilege
[58] The motion judge did not expressly address whether the availability of the defence of qualified privilege raised a genuine issue requiring a trial in respect of either or both of the communications to the Minister or the President. He did, however, conclude that the issue of malice was a genuine issue requiring a trial. This section will deal with the issue of qualified privilege and the following section will deal with the issue of malice.
[59] As set out above, the availability of the defence of qualified privilege is dependent on a finding of an interest, or a duty, on the part of the maker of the statement to communicate it and a corresponding interest or duty, on the part of the recipient to receive it. This reciprocity, necessary to establish the basis for a qualified privilege, is a factual state. In our view, this is not a factual determination that can be made without the benefit of a full factual record after a trial that addresses the interests and duties of the sender and the recipient of the Email. The cautionary language of the Court of Appeal in Baglow, while made with specific reference to the determination of whether a statement was defamatory, is equally applicable in this context.
[60] Further, I am not aware of any case law in which a communication with a Minister of the Crown in similar circumstances has been held to be an occasion of qualified privilege. Similarly, if a court were to find that the publication of the Email did not constitute the initiation of a complaint under the complaint procedure of the College, there is no judicial guidance as to whether the circumstances in which the Email was sent would be an occasion of qualified privilege. It should be noted, as well, that any such determination would be also be dependent upon the finding of the trier of fact as to the nature of the Email for such purposes.
[61] On the “full appreciation test”, a genuine issue requiring a trial therefore exists in respect of the availability of the defence of qualified privilege asserted with respect to the sending of the Email both to the Minister and to the President.
Malice
[62] To the extent that the Email was sent to the Minister or the President on an occasion of qualified privilege, the respondent bears the onus of establishing malice in order to rebut the presumption of good faith. The Appellant asserts that he acted in good faith and without any malicious intention in respect of the Respondent. The motion judge held, however, that this is an issue that required a jury trial for determination, in effect concluding that a genuine issue requiring a trial existed with respect to whether the Appellant acted with malicious intent in sending the Email.
[63] Given the determinations above, it may be unnecessary to address this issue. However, we agree with the conclusion of the motion judge that there is some evidence upon which a trier of fact could find malice.
[64] The Appellant argues that the motion judge could not find that a genuine issue existed regarding malice after having found that the Appellant honestly believed that CCVSI was not a recognised diagnosis. It is not clear that the motion judge made such finding. Even if he did, however, malice may also be inferred by the use of the privileged occasion for an improper purpose.
[65] In this case, the Appellant chose to elevate his concern to the highest possible authorities in the Government of Ontario and the College without first reviewing the publicly available facts regarding the Respondent’s clinic.
[66] It is also arguable that his action in copying the Minister and the President on his later email responding to the Respondent’s letter of November 4, 2010, also evidences malice, given that the Respondent’s letter was addressed only to the Appellant.
[67] In addition, the language of the Email itself is, in certain respects, inflammatory. In particular, it refers to the Respondent’s clinic “luring” patients for imaging studies and twice refers to the medical practices of the clinic as making a “mockery” of the Ontario health system.
[68] Lastly, the issue of malice involves the Appellant’s mental state and, accordingly, necessarily raises an issue that cannot be dealt with adequately on a paper record but requires oral testimony and cross-examination for a proper determination. The admonition of the Court of Appeal in Baglow cited above is also apposite in respect of the factual issue of malice. We note that, in Baglow, at para. 31, the Court of Appeal reached a similar conclusion with respect to the determination of malice, stating that the issue of malice (in that case in relation to the defence of fair comment) required “a delicate balancing of the factual context in its entirety for determination”. The Court of Appeal also noted that the fact that the parties to a defamation action did not know each other personally is not dispositive. Blair J.A. went on to state, at para. 32, that “[d]etermining actual and express malice often requires that the trier of fact draw inferences from proved facts” and that often “proof of malice is found beyond the four corners of the publication at issue”, which necessitates a full record of the factual context in which a publication was made.
Conclusion
[69] Based on the foregoing the appeal is denied. The parties may make written submissions as to costs within one month of the date of release of this decision by delivering them in triplicate to the office of this Court at Newmarket, failing which no award will be made.
Wilton-Siegel J.
Matlow J.
Taliano J.
Released: November 7, 2013
CITATION: McDonald v. Freedman, 2013 ONSC 6812
DIVISIONAL COURT FILE NO.: DC-529
DATE: 20131107
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Matlow, Taliano, Wilton-Siegel J.J.
BETWEEN:
Sandy McDonald
Plaintiff/Respondent
– and –
Mark Freedman
Defendant/ Appellant
REASONS FOR DECISION
WILTON-SIEGEL J.
Released: November 7, 2013