COURT OF APPEAL FOR ONTARIO

CITATION: Zoutman v. Graham, 2020 ONCA 767

DATE: 20201203

DOCKET: C67036

Pepall, Benotto and Coroza JJ.A.

BETWEEN

Dr. Dick Eric Zoutman

Plaintiff (Respondent)

and

James Graham and RateMDs.com

Defendants (Appellant)

Marc Munro, for the appellant

Frank McLaughlin, Dorothy Charach and Erin Chesney, for the respondent

Heard: September 23, 2020 by video conference

On appeal from the judgment of Justice Graeme Mew of the Superior Court of Justice, dated May 7, 2019, with reasons reported at 2019 ONSC 2834, and from the costs order, dated August 21, 2019, with reasons reported at 2019 ONSC 4921.

REASONS FOR DECISION

Introduction

[1] The appellant, James Graham, appeals from a judgment dismissing his anti-SLAPP motion under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and granting summary judgment in the amount of $50,000 in favour of the respondent physician, Dr. Dick Zoutman.

Background Facts

[2] Tragically, the appellant’s brother died following a medical operation. The appellant, his brother’s estate, and other family members sued the attending physician, Hamilton Health Sciences Corporation and others. At the trial of the action, the respondent, a specialist in infectious diseases, was called by the defendants and gave expert testimony on causation. The jury dismissed the action. The jury concluded that the physician had not met the applicable standard of care but the plaintiffs had failed to establish causation.

[3] RateMDs.com is a doctor rating website for patients to comment on their physicians. Its terms of use make it clear that only actual patients should comment on a physician’s profile. After the trial, although not a patient of the respondent, the appellant admitted to posting two derogatory comments about the respondent on RateMDs.com but denied posting eight additional derogatory comments about the respondent on the website and two others on another website. The respondent asked the appellant to remove all of the postings, but the appellant declined to remove any.

[4] There was no evidence from anyone other than the respondent about the extent to which, if at all, persons other than he or his lawyers had viewed the postings.

[5] On March 3, 2015, the respondent commenced an action against the appellant and RateMDs.com for defamation. He discontinued the action against RateMDs.com on May 26, 2015. On July 6, 2018, the respondent served a notice of motion for summary judgment, which was returnable on November 20, 2018. He served his motion record in support on August 2, 2018.

[6] On October 5, 2018, relying on s. 137.1 of the Courts of Justice Act, the appellant served motion materials to dismiss the respondent’s action.

[7] Both the respondent’s summary judgment motion and the appellant’s anti-SLAPP motion were adjourned and ordered to be heard together on January 15 and 16, 2019. Accordingly, both motions came before the motions judge at the same time.

Motions Judge’s Decision

[8] The motions judge dismissed the appellant’s anti-SLAPP motion. He was prepared to accept that the passage of time alone should not disentitle the appellant from relief. However, the respondent’s summary judgment motion had been served and filed more than two months before the appellant brought his anti-SLAPP motion, a hearing date had been set for the summary judgment motion, and an order had been made for the two motions to be heard concurrently. In these circumstances, the appellant’s delay was fatal to his motion. It subverted the intent and purpose of s.137.1.

[9] The motions judge stated that in any event, he would also reject the motion on the basis that the appellant had failed to establish that the proceedings arose from an expression made by him in that he did not acknowledge that 10 of the 12 postings were authored by him or that they related to a matter of public interest, both requirements of s. 137.1(3) of the anti-SLAPP provisions. In addition, the appellant had no valid defence to the respondent’s claim, which had substantial merit. Finally, the harm suffered by the respondent was sufficiently serious that the public interest in permitting the proceeding to continue prevailed.

[10] As for the summary judgment motion, despite the appellant’s denial of authorship of 10 of the 12 impugned postings, the motions judge concluded that the appellant had authored all 12 of them, not just the two he acknowledged. The appellant admitted authorship of the July 31, 2014 posting, yet the July 30 posting was virtually identical. Moreover, the July 30, 2014 posting emanated from the same IP address as four other postings. In addition, the postings revealed a consistent style and recurring words and phrases that were suggestive of common authorship.

[11] The motions judge readily accepted that the content of the postings was defamatory of the respondent. Among other things, they were derogatory and degrading to the respondent, both personally and professionally and some of the postings went to the core of his integrity.

[12] The motions judge noted that to be actionable, a defamatory remark must be communicated to a third person, other than the defamed individual or his lawyers. He surveyed the case law and noted that while there is no presumption of publication in relation to allegedly defamatory material posted on the internet, in some cases publication can reasonably be inferred from the proven facts. The motions judge cited the following statement from Gatley on Libel and Slander, relied upon by the Supreme Court in Gaskin v. Retail Credit Co., [1965] 2 SCR 297 at p. 300, and referred to by Deschamps J. in Crookes v. Newton, 2011 SCC 47, [2011] 3 S.C.R. 269, at para. 109:

It is not necessary for the plaintiff in every case to prove directly that the words complained of were brought to the actual knowledge of some third person. If he proves facts from which it can reasonably be inferred that the words were brought to the knowledge of some third person, he will establish a prima facie case.

[13] The motions judge acknowledged that there was no evidence from anyone other than the respondent about the extent to which, if at all, persons other than the respondent or his lawyers had viewed the defamatory postings. However, he determined that an inference of publication could be drawn from the totality of the circumstances, including:

a. The comment by an apparent third party on 14 July 2014, referring to Mr. Graham’s earlier posting of 27 November 2013;

b. RateMDs.com and similar physician rating websites are frequently used by the public for the purpose of choosing a physician;

c. Mr. Graham’s evidence that he authored postings to warn prospective patients about Dr. Zoutman;

d. Mr. Graham’s acknowledgment that he posted the second of the postings that he admits having authored because he found that the first posting had been deleted and was concerned that his message would not be received by the public; and

e. The prominence of the RateMDs.com and OntarioDoctorDirectory.ca profile in Google searches concerning Dr. Zoutman.

[14] The motions judge concluded that the cumulative effect of these factors provided ample evidence of publication.

[15] He rejected the appellant’s defence of fair comment and had no hesitation in concluding that he acted out of malice. He also concluded that he should award general damages of $25,000, aggravated damages of $25,000 for a total of $50,000 and a permanent injunction preventing the appellant from disseminating defamatory content relating to the respondent. Lastly, he ordered the appellant to pay costs of $50,000 in favour of the respondent.

Analysis

[16] Although not pressed in oral submissions, the appellant submits that the motions judge had no jurisdiction to rule on the summary judgment motion once the appellant brought his anti-SLAPP motion due to the language of s. 137.1(5). Section 137.1(5) provides that once a s. 137.1 motion is made, no further steps may be taken in the proceeding until the anti-SLAPP motion, including any appeal, has been finally disposed of.

[17] However, the respondent brought and scheduled his summary judgment motion well before the appellant brought his motion under s. 137.1. Furthermore, the two motions were ordered to be heard at the same time, and the appellant did not seek to appeal that decision. In this context, the respondent did not take any further step within the meaning of s. 137.1(5). It will not be every case that the presence of a motion for summary judgment precludes a s.137.1 motion: see Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, at para. 9. However, given the constellation of facts in this case, it was open to the motions judge to decline the s.137.1 relief on the basis of its timing.

[18] That said, as discussed, the motions judge nonetheless addressed the merits of the appellant’s motion. In that regard, we reject the appellant’s argument that the motions judge erred in concluding that the anti-SLAPP motion failed due to the appellant’s failure to admit authorship of all but two of the postings. As the appellant denied authorship of 10 of the 12 postings, he could not have succeeded in his motion to have the respondent’s entire claim dismissed. No viable argument could be advanced with respect to 10 postings. We are not persuaded that the motions judge erred in his conclusion that the public interest requirement found in s. 137.1(3) had not been established.[^1] It is therefore unnecessary to address whether the respondent met the requirements of s. 137.1(4)(a) and (b) that the respondent’s proceeding had substantial merit and the appellant had no valid defence. However, as we will discuss when dealing with the motion for summary judgment, the respondent did establish these requirements in any event. In our view, the motions judge correctly dismissed the appellant’s motion under s. 137.1.

[19] The appellant also submits that summary judgment ought not to have been granted. First, he argues that the respondent failed to prove that the words complained of were published. He claims that material posted on the internet is not deemed to be published and there was no pleading or evidence that the postings were ever communicated to anyone other than the respondent or his legal counsel. Second, he submits that there was no evidence of authorship with the exception of the two postings the appellant admitted. Lastly, the appellant argues that the respondent had not identified any tangible injury or harm and indeed, his career has and continues to flourish.

[20] A defamation claim requires a claimant to prove three elements, on a balance of probabilities: (i) the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (ii) the words in fact referred to the plaintiff; and (iii) the words were communicated to at least one person other than the plaintiff: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28. Relying on the aforementioned quotation from Gatley on Libel and Slander, the motions judge found that there was evidence of review by at least one other person and he drew an inference of publication from that and other findings of facts, as described in his reasons at paras. 82-83. We would not disturb his conclusion of publication.

[21] We also see no palpable and overriding error in the motions judge’s finding that the appellant was the author of all the defamatory postings. His finding was explained and was grounded in the evidence before him. Similarly, his finding of malice, also anchored in the evidence, was a full answer to the appellant’s fair comment defence. There was no palpable and overriding error in his conclusion that the appellant was motivated by malice, a conclusion that was heavily dependent on factual findings evident from the postings. We also note that the factors relied upon by the motions judge were present in both of the postings that the appellant admitted to authoring. As the motions judge stated, he had no hesitation in concluding that the appellant acted out of malice.

[22] Similarly, his damages and costs awards are entitled to deference and we see no basis to interfere.

Disposition

[23] For these reasons, the appeal is dismissed. The appellant is to pay the respondent $16,000 in costs inclusive of disbursements and applicable tax.

“S.E. Pepall J.A.”

“M.L. Benotto J.A.”

“S. Coroza J.A.”

[^1]: Given how interrelated the issues of the anti-SLAPP and summary judgment motions are, we have treated the entire order as final for the purposes of this appeal: see Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520 (C.A.) and Burtch v. Barnes Estate (2006), 2006 CanLII 12955 (ON CA), 80 O.R. (3d) 365 (C.A.).