COURT FILE NO.: 10-1355

DATE: 20121002

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Sandy McDonald Plaintiff – and – Mark Freedman Defendant

Jonathan C. Lisus and Christine Muir for the Plaintiff

C. Kirk Boggs and Stuart Zacharias, for the Defendant

HEARD: September 2, 2011 with further written submissions received January 20 th and July 5 th

Revised REASONS FOR DECISION

The text of the original Reasons has been corrected with text of corrigendum (released November 19, 2012)

Edwards j.

Overview

[ 1 ] The words multiple sclerosis, (“MS”) like so many other medical conditions that afflict far too many Canadians, spark fear and uncertainty in those who have the misfortune to be told they will suffer from a debilitating neurological disease for which there is no proven cure.

[ 2 ] Recently, MS patients have been given some hope, which some may describe as false hope, based on a theory that chronic cerebrospinal venous insufficiency (“CCSVI”) may be the cause of MS. CCSVI is the compromised flow of blood through the neck veins due to blockages.

[ 3 ] The theory that CCSVI is causally linked to MS was developed by an Italian doctor who has received considerable publicity in the media. Dr. Paolo Zamboni in April 2009 published a paper in which he described the association between CCSVI and MS. In his paper he hypothesized that the reverse flow of blood to the brain caused by CCSVI set off the inflammation in immune based brain damage described in MS.

[ 4 ] In a second paper published by Dr. Zamboni in November of 2009, he described how through the use of angioplasty to relieve the effects of CCSVI, improvements were noted in a study of 65 CCSVI-MS patients.

[ 5 ] The papers authored by Dr. Zamboni generated considerable media publicity, as evidenced in a W5 program broadcasted by CTV in November of 2009 regarding Dr. Zamboni’s theory entitled “The Liberation Treatment”. Anyone, including MS patients, who would have seen the W5 program would undoubtedly have been impressed by the introduction to the program which referred to a “stunning medical discovery”, a “revolutionary treatment for a most debilitating disease”, a “relatively simple procedure”, that “could free MS patients from a lifetime of suffering” and “a scientific breakthrough”.

[ 6 ] In addition to providing hope to the MS patient, the W5 program and the papers authored by Dr. Zamboni sparked an interest in the plaintiff, Dr. McDonald, who is a vascular surgeon practicing medicine in Barrie, Ontario.

[ 7 ] Dr. McDonald after researching CCSVI began to accept referrals to his Clinic in Barrie which was an established vascular imaging clinic which very quickly became inundated with physician requests for the imaging of the neck veins of their MS patients. I will refer to Dr. McDonald’s Clinic as the Barrie Clinic.

[ 8 ] With the interest generated by the W5 program, and his own work in imaging neck veins of MS patients to identify venous abnormalities, Dr. McDonald in March 2010 trained in Italy under the guidance of Dr. Zamboni.

[ 9 ] After this training further publicity into the so called research of Dr. Zamboni resulted in a follow-up program by W5 in which Dr. McDonald was interviewed. During the course of the interview he commented on the positive clinical outcome experienced by a patient. Subsequent to the second W5 program Dr. McDonald’s Clinic received numerous physician referrals requesting CCSVI imaging.

[ 10 ] As part of the information available to the general public, Barrie Vascular had a link to CCSVI. The link to the Barrie Clinic website was added on April 12, 2010 so as to provide information and manage the large volume of phone calls that were being received by the Clinic, largely generated as a result of the W5 programs.

[ 11 ] As anyone who watched the W5 program in April of 2010 would attest, the question of whether the Zamboni treatment would result in a cure for MS was the matter of considerable debate. On the one side of the debate in Canada was Dr. McDonald. On the other side of the debate was the defendant Dr. Freedman, who suggested that those who advocated for the Zamboni treatment were capitalizing on desperate people. The medical debate between these two doctors has now resulted in the present litigation which is an action for defamation by Dr. McDonald. The motion before this court was a motion for summary judgment to dismiss Dr. McDonald’s claim.

The Facts

[ 12 ] Dr. McDonald is a cardiovascular thoracic surgeon who has privileges at the Royal Victoria Hospital in Barrie, as well as the Sunnybrook Health Sciences Centre in Toronto. He is the Chief of Surgery at Royal Victoria Hospital, and he is a certified vascular ultrasound technologist and vascular interpretation physician. As previously noted he has a Clinic in Barrie known as the Barrie Vascular Imagining Clinic where he is the medical director interpreting physician. Dr. McDonald has had over twenty years of experience interpreting vascular ultrasound images.

[ 13 ] The defendant, Dr. Freedman is a neurologist who has privileges at the Ottawa hospital. Dr. Freedman has been a director of the Multiple Sclerosis Research Clinic at the Ottawa hospital and has been involved in extensive research related to the treatment of MS.

[ 14 ] The genesis for the defamation action arises out of an email that Dr. Freedman sent on October 2, 2010 at 11:35 p.m. The email was sent to the Minister of Health and Long Term Care for Ontario (“The Minister”) with a copy sent to the president of the College of Physicians and Surgeons of Ontario (hereinafter the “College”). I will refer to the email of October 2 nd throughout these reasons as the October email.

[ 15 ] The plaintiff argues that the October email defames Dr. McDonald’s professional and personal reputation. The October email requested the Minister to shut down Dr. McDonald’s Clinic.

[ 16 ] The thrust of the defence by Dr. Freedman on the motion before this court was to characterize the comments that he made in the October email as truthful, and fair comment on the scientific controversy arising out of the so called liberation therapy advocated by Dr. Zamboni and seized upon by Dr. McDonald as a possible cure for MS.

[ 17 ] Dr. Freedman suggests that a trial by a jury is not required to assess the truth of his allegations, and that the nature of the occasion on which he sent his October email was not motivated by malice. It is suggested that the occasion on which the October email was sent was an occasion of absolute privilege given that it was in the nature of a complaint to the College and to the Minister of Health for the Province of Ontario. In the alternative it is suggested that if the occasion in which the October email was sent was not an occasion of absolute privilege then it was an occasion of qualified privilege. In the context of qualified privilege the issue of malice becomes critical.

[ 18 ] On the evidence before this court it is fair to suggest that Dr. Freedman does not believe in the CCSVI hypothesis. At an education session hosted by the MS Society of Ottawa Dr. Freedman is quoted as having made the following observation:

“The “liberation procedure”, a controversial new surgical procedure that appears to cure Multiple Sclerosis, is based on circumstantial evidence and MS sufferers should not rush into getting it.”

[ 19 ] Dr. Freedman was quoted in an article found in the National Post dated January 23, 2010 as describing the CCSVI hypothesis as a “hoax”. There was a suggestion in the evidence that Dr. Freedman may have been misquoted, and that what he meant to say is that the CCSVI hypothesis “might turn out to be a hoax.” Regardless of whether he was misquoted or not, there can be absolutely no doubt from a review of the evidence before this court that Dr. McDonald and Dr. Freedman are on opposite ends of the spectrum when it comes to the debate with respect to the CCSVI hypothesis.

[ 20 ] With the debate having generated substantial media coverage both in the press and on television Dr. Freedman decided to send the October email to the Minister and to the College. The email in its entirety is reproduced as Schedule “A” to these reasons.

[ 21 ] It is particularly noteworthy that the October email was according to Dr. Freedman in his cross examination composed carefully and deliberately over the course of a week. He confirmed in his cross examination that he deliberately chose the “strong” words because he was “looking for action”. He has testified in his cross examination that he stands by every word in the October email. He also understood, having reviewed the College website that, the proper method of filing a complaint was to complete an electronic complaint form to be addressed to the Registrar of the College. As previously noted the October email was not sent to the Registrar of the College but rather was sent to the Minister with a copy to the President of the College.

[ 22 ] Dr. McDonald argues that the plain and ordinary meaning of the October email and the words “luring” “guise” “boast” “shutdown” and “mockery” when viewed in the context of the publication as a whole are that Dr. McDonald is a charlatan praying on desperate vulnerable patients by providing unproven treatment and that he was defrauding OHIP.

[ 23 ] Dr. McDonald argues that the thrust of the October email was to call for the shutdown of the Barrie Clinic so as to prevent its vascular imaging services from becoming a mockery of the Ontario Health Care System.

[ 24 ] It is suggested by Dr. McDonald that the overall implication of the October email was to characterize Dr. McDonald as being unethical and unprofessional.

[ 25 ] The October email was followed up by the College by way of a letter from a College investigator addressed to Dr. Freedman on October 21, 2010. It’s noteworthy that the College investigator refers to the October email as a “letter of concern” and “complaint”. The College investigators letter of October 21, 2010 to Dr. Freedman goes on to indicate that the College would notify Dr. McDonald “of your complaint”. It is also noted that after all of the necessary information had been obtained the Complaints Committee would review the information and decide whether further action was required. The letter from the College enclosed information about the complaints process. Clearly the College seems to have accepted the October email as a formal complaint even though the October email did not comply with the College procedure for initiating a complaint.

[ 26 ] Having received the October email and having treated it as a complaint the College then sought input from Dr. McDonald. For the first time Dr. McDonald became aware of the October email which then generated correspondence between Dr. McDonald and Dr. Freedman. Dr. McDonald wrote to Dr. Freedman by way of a letter dated November 4, 2010. Dr. McDonald notes that in the October email Dr. Freedman had informed the Minister that he “boasted” of “luring” patients to his Clinic where he provided “fraudulent medical services and defrauded both OHIP and my patients”. Dr. McDonald goes on to accuse Dr. Freedman in his letter of November 4, 2010 that the October email was false and defamatory and that it had harmed his reputation and caused him great professional embarrassment. Dr. McDonald made clear to Dr. Freedman that he reserved his right to sue for defamatory comments and provided him with an opportunity to make a retraction and apology. Dr. McDonald requested the retraction and apology be addressed to the Minister of Health, with a copy to the president of the College, with a copy to himself.

[ 27 ] Dr. Freedman responded to Dr. McDonald’s letter of November 4, 2010 by way of an email dated November 5, 2010, with a copy to the Minister of Health, Debra Matthews and a copy to the College of the President, Mr. Mandel. The entirety of Dr. Freedman’s response to Dr. McDonald is reproduced as follows:

Dear Sandy:

My letter was in no way false or defamatory. I was relaying information provided to me by numerous patients and all I did was to request that the Ministry of College look into what is happening at your clinic. That is my right as a doctor in this province who suspects misgivings by a colleague and is encouraged to do so by the College. If what you say is correct, then any inquiry by the College or the Ministry will absolve you of any misgiving and nothing needs to go public. I would never publically defame a colleague without clear evidence and all I have thus far is the testimony of patients who have attended your clinic. Unless you are accusing them of lying, then my accusations are not false but warrant clarification. I am not the College and it would not be my place to question you directly. Thus far, the College, Minister, you and I are the only ones privy to my complaint. I don’t see how this has harmed your reputation or caused you any embarrassment unless you’ve somehow gone public with the information, or fear the results of their inquiry. The College gets many complaints about doctors, investigates them and if all is well, there is nothing that is publicized.

Your letter is threatening and need not be. I don’t apologize for standing up for my patients or my beliefs and doing what I feel is in their best interests and safety.

[ 28 ] Dr. McDonald provided a detailed response to the College investigator which was sent to the College on December 2, 2010 by counsel for Dr. McDonald. A copy of the response by Dr. McDonald to the College was also provided to Dr. Freedman under correspondence from the College dated December 6, 2010.

[ 29 ] Having completed its investigation and having received the response from Dr. McDonald the College issued a decision on March 11, 2011. The Complaints Committee came to the conclusion that it would take no further action on the complaint. The reasons given for rejecting the complaint are reproduced as follows:

Committee’s Conclusion/Reasons:

In his response to the complaint, Dr. McDonald indicated that he carried out CCSVI testing on three patients, one of whom was from Quebec, without a physician referral, Dr. McDonald noted that every other patient that has undergone imaging for CCSVI in his clinic was referred to him for CCSVI testing by another physician. On this basis, the Committee could see no evidence to suggest that Dr. McDonald is luring patients to undergo imaging for CCSVI.

According to information Dr. McDonald provided to the College, his office staff contacted OHIP on November 23, 2009. The purpose of the call was to obtain specific instructions from OHIP about the appropriate code to use when billing for CCSVI testing. Based on the information available in this matter, the Committee saw no reason to believe that Dr. McDonald fraudulently billed OHIP for CCSVI imaging. On the contrary, it appeared that he made OHIP aware that he was carrying out the testing and the code he used to bill for 17 procedures was chosen in accordance with OHIP’s advice.

Dr. McDonald indicated that he now charges patients for CCSVI testing. As OHIP has decided that the procedure is an uninsured service, the Committee did not consider it to be inappropriate for Dr. McDonald to bill patients directly.

In light of the above, the Committee decided to take no further action on Dr. Freedman’s complaint. The Committee would note, however, that though the College does not prohibit CCSVI testing it does offer guidance on this issue to physicians and patients. The College expects physicians to proceed in a cautious and ethical manner in offering diagnostic tests related to a specific treatment that does not have sufficient clinical evidence to support its use. Physicians who wish to perform procedures of this type should consult with a teaching hospital or academic facility and convene a research ethics board to oversee clinical trials of the procedure. Such a process allows patients access to new and developing treatments while ensuring that patient safety is not compromised.

On the issue of imaging for CCSVI the Committee expects Dr. McDonald to abide by the above-mentioned College guidelines.

[ 30 ] The October email was of course sent to two individuals. The first of which was the Minister and the second was the President of the College. The College rendered its decision through the Complaints Committee as noted above. The Minister of Health Deb Matthews responded to the email under cover of letter dated December 16, 2010 acknowledging the email concerning the imaging studies for CCSVI and the billing of vascular imaging of the neck. The letter from Deb Matthews went on to state:

As you have noted, CCSVI and any corresponding treatment is considered experimental, and are therefore uninsured in Ontario. Any services in support of an experimental treatment are also uninsured; this would include the imaging studies you have described.

The Ministry does have responsibility for review of physician billing practices, and will deal directly with any physician regarding such an issue if the circumstances warrant.

Thank you again for bringing this important issue to my attention.

[ 31 ] While the October email did not result in any further proceedings before the college other than a dismissal of the complaint, and while the October email did not generate any further formal response then the aforesaid letter from the Minister, Dr. McDonald none the less followed through with the threat in his first correspondence to Dr. Freedman and has proceeded with the action presently before this court. Dr. McDonald seeks damages for defamation in the amount of $500,000.00, aggravated damages in the amount of $50,000.00, and a declaration that Dr. Freedman defamed him.

The Issues

[ 32 ] As previously noted the motion before this court was a motion for summary judgment by Dr. Freedman dismissing the action in its entirety. Dr. McDonald in response argues that a trial is required as this court does not have a full appreciation of the evidence and issues. It is suggested by Dr. McDonald that there are three core issues that require a trial: specifically whether the allegations of Dr. Freedman in his October email are true; whether the October email was sent on an occasion of either absolute or qualified privilege and; whether the October email was actuated by malice.

The Law

[ 33 ] The motion when it was initially argued in September 2011 was argued prior to the release by the Ontario Court of Appeal of its decision in Combined Air Mechanical Service Inc. v. Flesch , 2011 ONCA 764 . It was anticipated when the motion was initially argued that the Combined Air decision would be released and as such the release of this court’s decision was somewhat delayed pending receipt of further submissions by the parties addressing the “full appreciation” test now mandated by the Court of Appeal in Combined Air . The release of this court’s reasons was also delayed in part as a result of further submissions received from counsel for Dr. McDonald arising out of two decisions of the Ontario Court of Appeal. John Baglow a.k.a “Dr. Dawg” v. Roger Smith a.k.a. “Peter O’Donnell”, Connie Fournier and Mark Fournier , 2012, ONCA 407 as well as a decision of TPG Technology Consulting Ltd. and Donald Powell v. Her Majesty the Queen in Right of Canada et. al ., 2012 ONCA 87 . Further written submissions arising out of the release of these two decisions were received from counsel for the parties on July 5 th and July 9, 2012.

[ 34 ] Prior to the release of the Court of Appeal decision in Combined Air jurisprudence that had interpreted the new summary judgment rule could be broken down between two schools of thought. The first school of thought advocated a more liberal approach to the utilization of the summary judgment rule, while the second school advanced a more conservative approach to the use of the summary judgment rule. Regardless of the approach it can be fairly said that Rule 20.04 (2.1) of the Rules of Civil Procedure has given the court greater powers then it had prior to the passing of the new rule. The court has greater power to weigh evidence and evaluate credibility and to draw reasonable inferences from the evidence. On the facts before this court it is suggested by counsel for Dr. Freedman that “when the present dispute is stripped of the puffery that the plaintiff has wrapped it in, it is nothing more than a very simple fact situation based on limited documents, with very little in the way of conflicting evidence that requires factual determination”. It is further submitted on behalf of Dr. Freedman that while there may be legal determinations that this court must make on a number of issues, nonetheless there is nothing about the underlying facts which requires a trial for a “full appreciation” of the evidence necessary to make dispositive findings with respect to the issues before the court.

Position of the Defendant

[ 35 ] Counsel for Dr. Freedman suggests that almost without exception all of the issues that this court must address are issues of law which can be properly addressed by a judge. It is suggested to the extent that there are any factual determinations required, these facts and determinations are either not in dispute or can easily be made based on the documentary record before the court.

[ 36 ] As to the issue of absolute privilege it is noted that the focus of this court’s analysis must be on the occasion on which the communication is made and not on the content. In that regard the position of Dr. Freedman can be best summarized by reference to the supplemental submissions found in the defendant’s factum as follows:

In the context of the present case where there is no factual dispute regarding who the email was sent to and what their role is in relation to the health care system, there is no reason that this legal determination requires a trial for fair adjudication between the parties. It is a straight forward application of existing law to undisputed facts.

[ 37 ] As to the alternative position regarding qualified privilege it is noted that the focus of qualified privilege must be on the occasion when the communication is made. It is noted that the law presumes that the defamatory statement has been made honestly and in good faith. It follows then as submitted by counsel for Dr. Freedman that there can be no basis for this legal determination requiring a trial for a fair adjudication between the parties.

[ 38 ] On the final point raised by the plaintiff concerning qualified privilege and the question of malice counsel for Dr. Freedman notes in his factum:

As noted above, once an occasion is determined to be protected by qualified privilege the law presumes that the statement was made honestly and in good faith. In order to negate that privilege, the plaintiff must show that malice was not only a motivation for the communication but that it was the dominate motive for the communication.

[ 39 ] The argument continues that Dr. McDonald has not met the burden to rebut the legal presumption that the communication was made honestly and in good faith and that he did not set forth detailed facts with supporting evidence raising a genuine issue that malice was the defendant’s main motivation. Essentially it is argued on behalf of Dr. Freedman that Dr. McDonald did not put his best foot forward as it relates to the issue of malice.

Position of Dr. McDonald

[ 40 ] Quite appropriately counsel for the plaintiff seizes upon the full appreciation test articulated by the Court of Appeal in Combined Air as requiring the full forensic machinery of a trial to present evidence by way of a “trial narrative” to ensure a just determination of the issues between the parties. Essentially when stripped of all of the legal niceties it is suggested on behalf of Dr. McDonald that without a trial before a jury there would be a failure of procedural justice. It is noted by the Court of Appeal that the essential question really is “can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment or can this full appreciation only be achieved by way of trial?” see Combined Air (supra) at paragraph 50.

[ 41 ] As to the truth of the content of the October email it is suggested by counsel for Dr. McDonald that a full appreciation of the “truth” alleged in the October email requires an assessment of the credibility of both Dr. McDonald and Dr. Freedman. It is suggested that the full appreciation of such credibility issues requires a trial which of course includes the introduction of documents, the full examination of witnesses, including the assessment of the demeanour and conduct of the witness in the witness stand, and finally submissions of counsel. It is particularly noteworthy that the trial of this action will be conducted before a jury. It has been said on many occasions that whether in the context of a summary judgment motion or in the context of a motion to strike a jury notice that the right to a jury trial is a fundamental right not to be withdrawn or revoked lightly without cause.

[ 42 ] One of the issues the ultimate trier of fact will have to consider is whether or not the October email was sent at a time of absolute privilege or qualified privilege. Typically this may be an issue that one might consider is an appropriate issue on a motion for summary judgment. The fact remains, however, that the October email while characterized by Dr. Freedman as a complaint to the College which was in fact accepted by the College as a complaint, nonetheless did not conform to the complaints procedure mandated by the College. Clearly the College appears to have accepted the October email as a complaint and did not get wrapped up in issues of form versus substance. Nonetheless the recent words of the Court of Appeal in Dr. Dawg (supra) at paragraph 24 are apropos:

As the motion judge really 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.

[ 43 ] Counsel for Dr. Freedman sought in his supplemental factum to limit the words of the Court of Appeal in Dr. Dawg to the specific facts of that case. Specifically it was noted in Dr. Dawg that the motion was argued in the context of an action that had been brought under the Simplified Rules and as such in the context of an evidentiary record that did not allow for cross examinations. It was suggested that given the extensive cross examinations conducted by the lawyers for both Dr. McDonald and Dr. Freedman that this court in fact has all of the evidence necessary to have a full appreciation with respect to any issue that a jury might be called upon to decide.

[ 44 ] 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.

[ 45 ] 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.

[ 46 ] 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.

[ 47 ] As to the issue of costs the parties are entitled to make oral submissions with respect to costs. This court does observe, however, that when the defendant’s motion was initially brought none of the parties had the benefit of the Combined Air decision from the Ontario Court of Appeal. The parties also did not have the benefit of the Dr. Dawg and the TPG Technology decisions. The parties may therefore wish to consider their positions with respect to entitlement to and/or payment of costs given these rather unique set of circumstances. If the parties are not able to resolve the issue of costs an appointment for oral submissions should be made to the trial coordinator. Prior to oral argument the parties should exchange written submissions limited to five pages in length.

[ 48 ] This court does have the power to case manage this matter. If the parties request case management and/or an early pre trial, arrangements can be made through the trial coordinator’s office for me to case manage and/or conduct an early pretrial.

Justice M. Edwards

Released: October 2, 2012

SCHEDULE “A”

Dear Honourable Minister:

I am sure you are well aware of the issue concerning the theory of CCSVI and the plight of MS patients who are desperate for anything to help them. As a committed Neurologist both to the care of MS patients and to the research that some day will help us find an effective treatment for all patients. I can say that the CCSVI issue has completely changed the dynamic in our clinics. You have heard the review of a high level expert panel assembled by the CIHR who determined that the theory of CCSVI remains just that at this stage, and that there is no ethical or scientific rationale for pursuing treatment trials at this time, until further research substantiates it as an entity, makes the strong specific association with MS and establishes the potential link to disease pathogenesis. My reason for writing to you now is out of concern not only for my patients but also as a tax-paying citizen of Ontario who is watching previous Ontario health dollars wasted on imaging studies that are encouraging our patients to seek treatment outside of the country. The procedures are currently being billed to OHIP under the guise of another diagnosis, or worse, patients are paying for these tests out of pocket, which violates the Health Act in this province. A patient, who recently had her veins re-scanned at the Barrie Vascular Imaging Centre http:www.barrievascularimaging.com/CCSVI.htm boasted that this clinic, under the guidance of Dr. Sandy McDonald, has been luring patients from both in and outside the province for imaging studies, the results of which no doubt continue to fuel the CCSVI fervour by telling patients they have “obstructed” or “stenosed” veins. She explained that the referring physician need only request “vascular imaging of the neck” but not write CCSVI on the requisition. Dr. McDonald readily boasts that this technician has been trained by Zamboni and is therefore skilled at detecting the changes associated with CCSVI. The imaging studies are hardly a standard, are not at all accepted by radiologists or ultrasound experts as actually demonstrating venous abnormalities (which may in fact be normal variations in anatomy), have not met any sort of procedural rigor and as such, have no business being paid for by taxpayers, or worse patients themselves. In Quebec, the College of Physicians promptly warned and shut down similar clinics offering studies along the same kind as Dr. McDonald. Experimental procedures and imaging studies have no place in the mainstream care of patients. To allow this clinic to continue operating and offering such “diagnostic” services to our patients makes a mockery of the system.

I ask you to please confer with the College of Physicians & Surgeons of Ontario, investigate this clinic, and any other in the province offering similar services, and put a stop to unacceptable medical practices that make a mockery of our medical system and waste our hard earned OHIP dollars.

Thank you for your kind and immediate attention to this important matter.

CORRIGENDA

1. Page 1, counsel name is corrected to read Mr. Zacharias.

2. Page 1, Mr. Jonathan C. Lisus name and Christine Muir’s names have been reversed.

3. Paragraph 42, 43 and 44 have been corrected to read Dr. Freedman in place of Dr. MacDonald.