CITATION: Bernstein v. Poon, 2015 ONSC 155

COURT FILE NO.: 08-CV-361934

DATE: 20150119

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DR. STANLEY K. BERNSTEIN AND

POST ROAD HEALTH & DIET INC.

Plaintiffs

– and –

DR. PAT POON

Defendant

Neil M. Abramson and Lindsay Kantor, for the Plaintiffs

Gil Zvulony and Karen Zvulony, for the Defendant

HEARD: 9-13, 16, 19 and 20 June 2014 at Toronto

Mew J.

REASONS FOR DECISION

[1] The individuals involved in this defamation action are two well-known diet doctors.

[2] The plaintiffs, Dr. Stanley Bernstein and Post Road Health & Diet Inc., allege that the defendant, Dr. Pat Poon, has defamed them in two editions of a book authored by Dr. Poon, extracts from his book that were published on a website and in an interview given by Dr. Poon to a Chinese language television programme.

[3] The essence of the allegations made by the plaintiffs is that Dr. Poon criticised a diet created by Dr. Bernstein and known as the “Bernstein Diet” as akin to starvation, saying that it causes muscle wasting, stating that it ultimately gives rise to a weight gain rather than loss and calling Dr. Bernstein “commercial” and not interested in curing disease.

[4] Dr. Poon asserts that his statements amount to no more than an expression of opinion about a commercial product (the Bernstein Diet) and as such, do not defame the plaintiffs, and that this action is a strategic lawsuit by the plaintiffs to stifle criticism of Dr. Bernstein’s “cash cow”.

The Parties

Dr. Stanley Bernstein

[5] Dr. Stanley Bernstein started in family practice in Toronto after graduating from medical school in 1966. He developed an interest in dieting techniques and co-morbid diseases associated with being overweight. He attended meetings of the American Society of Bariatrics, took a number of other courses and read widely. Around 1972, Dr. Bernstein’s family practice started to morph into a weight loss practice. He opened a second clinic in 1973 and more clinics as demand increased. The plaintiffs currently operate 62 clinics known as the Dr. Bernstein Health & Diet Clinics in Ontario, Alberta and British Columbia. Dr. Bernstein estimates that over approximately 40 years his clinics have treated between 400,000 and 500,000 people. The clinics currently treat approximately 9,000 individuals each Monday, Wednesday and Friday and “several thousand” more on Tuesdays and Thursdays when new patients are seen and some of the old ones come in. The services offered by the plaintiffs are not covered by provincial health care plans.

[6] In Dr. Bernstein’s own words,

“The basic principle of the diet is it’s a reduction in calories, it’s a low fat diet, it is a limited carbohydrate diet and it is a normal protein intake diet.”

[7] Each clinic has a physician and nurses on staff. Dr. Bernstein has personally written all of the protocols. He trains the physicians who work in the clinics. He serves as the medical director of the Dr. Bernstein Health & Diet Clinics. Dr. Bernstein admits that he treats only a handful of dieters directly. He has never met the vast majority of his dieters. However, he gets charts, emails and information on the Clinics’ dieters, claiming to answer between 50 and 100 emails and phone calls every day.

[8] Dieters who follow the Bernstein Diet receive a diet manual and a recipe book. The diet manual contains “The 20 Commandments – Vital Instructions” which, as the first “commandment” explains, are rules to be followed exactly, and upon which the dieter’s success depends. The programme includes thrice weekly visits to the clinic for monitoring and administration of vitamin B injections. Patients are also provided with a recipe book entitled Dr. Bernstein’s Simply Sensational Diet Recipes.

[9] Dr. Bernstein’s evidence at trial was that the daily caloric intake of dieters who follow the Bernstein Diet is typically between 850 and 950 calories (this is disputed by Dr. Poon who says it is lower). The diet generally allows two daily servings of proteins. In addition, patients are placed on daily oral multiple vitamins, a potassium supplement and other vitamins as required, in addition to the vitamin B injections administered at the clinic. The exact content of these injections is not disclosed on the basis that it is proprietary information.

[10] At the regular thrice-weekly visits, in addition to the administration of vitamin injections, a nurse will:

a. assess the dieter’s weight and blood pressure;

b. perform a urinalysis;

c. assess the dieter’s food diary which sets out everything the dieter has eaten since his or her last visit;

d. assess how the dieter is feeling;

e. discuss any relevant behaviour modification techniques;

f. retrieve blood samples for testing when appropriate.

[11] Dieters are seen by a physician approximately every two weeks. The physician will assess the dieter’s weight loss to ensure that it is appropriate, and will apply food and vitamin changes if necessary. Co-morbid diseases are also monitored as indicated.

[12] Once a dieter achieves the desired weight loss, he or she can transition to a maintenance programme. Individuals continue to come in to the clinic weekly for a minimum of two months, with more food being introduced each week until it is determined how much can be consumed while keeping the new weight stable. Ideally the individual is then followed for another 10 months (although not all dieters continue with clinic visits for that length of time).

[13] According to Dr. Bernstein’s Diet Manual, the Bernstein Diet works because:

…. we can stimulate the body to break down fat faster than normal – thus releasing stored energy and food value. Combine that with a well-balanced controlled food intake and you get more than adequate nutrition without hunger. The weight loss is supervised through almost daily monitoring by nurses and doctors who check your progress and health. There’s no guesswork involved.

As to the long-term prospects:

…. with the correct Maintenance Program, nutritional education and supervision, there is an excellent prospect of keeping the weight off permanently.

Most other diet programs don’t mention it, but their long-term success rate is less than 5% – due to inadequate diet procedures. Yet the large majority of Dr. Bernstein’s patients reach their body weight goals and stay there.

Post Road Health & Diet Clinics

[14] The corporate plaintiff is owned by what Dr. Bernstein described as an “intricate family trust” over which he exercises full control. It is not a health professional corporation as described in the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 or related legislation. The statement of claim asserts that the corporate plaintiff owns and operates weight loss clinics “at which obese patients are treated under medical supervision with the Bernstein Diet”. Dr. Bernstein’s evidence was that there is really no difference between himself and the corporate plaintiff:

…. the practice is run as if it was my practice.

Dr. Pat Poon

[15] Dr. Poon obtained a Ph.D. in clinical biochemistry before entering medical school. He started his medical practice in 1988 as a family physician in Richmond Hill. He soon noticed that a lot of his patients wanted to lose weight. Dr. Poon did not know how to counsel them. He began to develop an interest in nutrition. He attended conferences and read a lot. In 2005 he took an examination administered by the University of Alabama to obtain a physician nutritionist specialist qualification. For the past 18 years, the treatment of obesity has been the focus of his medical practice. He speaks at medical conferences on issues relating to nutrition and obesity.

[16] Dr. Poon currently has four offices in the Greater Toronto Area where, with 15 other physicians, he treats obesity and its related complications. All of his patients are referred to his clinics by other physicians.

[17] He is the author of a book, Dr.Poon’s Metabolic Diet, which is currently in its third edition. Dr. Poon says that he wrote his book with a broad objective of educating the medical community on diet and nutrition and to assist his existing obese patients. Dr. Bernstein asserts that Dr. Poon published his book to promote his own diet and, in doing so, to criticise other diets, including the Bernstein Diet.

[18] Dr. Poon also maintains a website.

Circumstances Giving Rise to the Plaintiffs’ Claims

[19] In 2008, Dr. Bernstein became aware of the references to the Bernstein Diet in Dr. Poon’s book through a patient at one of his clinics. He subsequently purchased a copy of the second edition of Dr. Poon’s book. Having done so, he became aware that extracts from Dr. Poon’s book were also available on his website. Dr. Bernstein then instructed solicitors to provide notice before action as required by section 5(1) of the Libel and Slander Act, R.S.O. 1990, c.L.12.

[20] This action, commenced in September 2008, was initially concerned with allegedly defamatory statements contained within the second edition and on the website. However, in 2009, Dr. Poon gave an interview to a Chinese language television programme in which he discussed the Bernstein Diet. Shortly thereafter, a recording of that television programme was posted on Dr. Poon’s website. Then, in 2010, Dr. Poon published a further edition of his book. Although both the second and third editions of the book had chapters entitled “Pros and Cons of Different Diets”, whereas in the second edition there had been a specific heading “Dr. Bernstein’s Diet”, in the third edition the corresponding heading was “Doctor Supervised Very Low Calorie Diet”. It is not, however, disputed that this portion of the third edition pertains to the Bernstein Diet.

Some Context

[21] Context is an important consideration in various aspects of the law of defamation.

[22] This dispute arises at one of the many intersections between business and profit on the one hand, and health and wellness on the other. Both the plaintiffs and the defendant are, financially, the beneficiaries of the burgeoning needs and demands of an increasingly obese population. While the plaintiffs are openly commercial and not dependent on public health care funding, the defendant, whose clinics see patients mainly on referral from other healthcare practitioners under the auspices of publicly funded healthcare, acknowledged that he has augmented the income from his medical practice through the sales of his books.

[23] Until this lawsuit brought them together, Dr. Bernstein and Dr. Poon had never met. Nor, other than through lawyers’ letters, had they ever communicated with each other. Dr. Bernstein had never heard of Dr. Poon until the patient alerted him to the references to the Bernstein Diet in Dr. Poon’s book.

[24] Dr. Poon testified that he had reviewed the charts of 47 of his patients who, when registering with Dr. Poon, had listed the Bernstein Diet as a diet they had previously tried. He acknowledged that none of these charts showed how long any of these patients had been on the Bernstein Diet, nor what they had weighed when they started the Bernstein Diet, or how much weight they had lost, or how they had felt while they were on the Bernstein Diet. Nor did the charts indicate to what extent, if at all, the patients’ co-morbid diseases were managed while they were on the Bernstein Diet. Dr. Poon did acknowledge that none of these patients had presented with muscle wasting.

[25] Dr. Poon obtained through patients copies of the Dr. Bernstein Diet Manual and Dr. Bernstein’s Simply Sensational Diet Recipes as well as Bernstein Diet flyers, Bernstein Diet Tune-Up Manuals, a Bernstein Diet Maintenance Plan Manual, former Bernstein dieters’ food logs and sample menus. He also consulted various medical texts which he had access to and read articles that were publicly available, including a published article by Sarah Scott in Chatelaine magazine and an article on the CBC Marketplace website. He claims that he gave more weight to information that came from objective and “expert” sources than information which did not.

[26] Dr. Poon also made his own calculations of the number of calories in the Bernstein Diet based on the sample menus that he obtained using what he said were recognised and accepted methods.

[27] These, then, were the sources that Dr. Poon says informed the sections of his book that discussed the Bernstein Diet.

[28] Dr. Poon’s book is available in some public libraries. Ten thousand copies of the second edition were printed. The book was self-published. Copies were sold for $22 each in Dr. Poon’s offices and through his website. He estimates that he gave away around 500 copies. The third edition was published by Ontario Nutrition Company Incorporated in 2009. Ontario Nutrition has sales points in each of Dr. Poon’s offices which sells copies of the book. Of the 20,000 copies of the book printed, around 12,000 remain unsold.

[29] Although Dr. Poon has not made any direct profit from sales of the third edition, he acknowledged that he has a business relationship with Ontario Nutrition. In addition to Ontario Nutrition selling copies of the third edition out of stores in each of Dr. Poon’s offices, as well as from a store in Scarborough, and on its website, Ontario Nutrition’s website had a link to Dr. Poon’s website, and patients of Dr. Poon who wished to purchase diet supplements could do so from Ontario Nutrition.

[30] Dr. Poon expressly acknowledged that his books promote his diet and criticise other diets. In that regard, Dr. Poon acknowledged that “half of the objective of [his] book is to promote [his] diet.”

[31] There were only three witnesses at trial. Dr. Bernstein for the plaintiffs; Dr. Poon and Sarah Scott, a journalist, for the defendant. Neither side called expert evidence.

[32] The Bernstein Diet has been the subject of media attention on several occasions over the years.

[33] Sarah Scott’s article, “I lived on 640 calories a day!” was published in Chatelaine magazine in April 2004. Ms. Scott, who had previously slimmed down “the Weight Watchers way”, heard about the Bernstein Diet from a friend, who recommended it, and decided to try it. In addition to taking the diet herself, Ms. Scott undertook a review of medical literature and interviewed people who were experts to help her understand what she had read in the medical literature.

[34] While preparing her article, Ms. Scott had three days from her food diary reviewed by Leslie Beck, a dietician, who told her that her daily caloric intake was 640 calories. Dr. Bernstein acknowledged, with the qualification that he had not seen Ms. Scott’s food diary, that it was “certainly possible” that her calorie count was 640 calories. Indeed, when asked to calculate the average daily caloric intake for a three week sample menu in the current edition for the Bernstein Diet, Dr. Bernstein calculated about 770-820 calories per day and acknowledged that the daily caloric intake for a sample menu he had reviewed from an earlier edition was 600 calories per day.

[35] During the course of Dr. Poon’s testimony reference was made to a CBC Marketplace and television programme and a corresponding article on the CBC website. This programme together with the Scott article, had made reference to a lawsuit against Dr. Bernstein by the family of a dieter who had died while following the Bernstein Diet. The lawsuit was settled on Dr. Bernstein’s behalf by his insurers for $700,000.

[36] The Marketplace television programme had asked how much weight should be given to celebrity endorsements, and in particular the late night television talk host, Mike Bullard, who had endorsed the Bernstein Diet. The television programme and the website article had also referenced the views of Dr. George Blackburn of the Harvard Medical School, an expert in obesity and clinical nutrition, who expressed the view that:

Any time you’re eating less than 1000 calories and losing more than two pounds or three pounds per week, you would be in the semi-starvation mode and that would require medical supervision.

[37] It bears noting that the Marketplace article, including Dr. Blackburn’s comments, were admitted as evidence of the existence of other published views of the Bernstein Diet rather than as evidence of the actual opinions stated in those articles.

[38] In the same programme, Dr. Bernstein took issue with the classification of his diet as a “Very Low Calorie Diet”, a position he repeated at trial:

The definition of a very low calorie diet… Is under eight hundred calories. Our diet is between 850 and 950 calories.

[39] It was apparent from the evidence given at trial that there were a number of elements of the Bernstein Diet that Dr. Poon was unaware of when he made the statements that are now the subject of this action. He did not know:

a. whether any blood work was done on patients at the Bernstein Clinics, or, if so, how frequently such blood work was done (while acknowledging that blood work is important in evaluating his own diet’s efficacy with respect to certain diseases);

b. whether, and if so, how physicians at the Bernstein Clinics manage patients with co-morbid diseases;

c. how often blood pressures of patients with co-morbid diseases are monitored;

d. how often the physicians at the Bernstein Clinics manage patients’ cholesterol levels;

e. how often physicians at the Bernstein Clinics manage patients’ uric acid levels;

f. how adjustments to food-intake or vitamin intake are made for patients with co-morbid diseases;

g. the dosages of the B6 and B12 injections which are administered on the Bernstein Diet, or whether, and if so, how these dosages are tailored differently for patients with co-morbid diseases.

Legal Overview

[40] In this, as in any defamation action, the plaintiffs bear the onus of proving that:

a. The words about which the plaintiffs complain are defamatory;

b. The words refer to the plaintiffs;

c. The words were published to a third person.

[41] If the plaintiffs meet this burden, falsity and damage are presumed and the onus then shifts to the defendant to establish one of the three defences which he has pleaded, namely:

a. Justification, i.e. that the defamatory statements are substantially true;

b. Fair comment, i.e. comment on a matter of public interest, that is based on fact and not actuated by malice; and

c. Responsible communication made in respect of a matter of public interest.

Determination of Whether Words Used Were Defamatory

[42] To determine whether the words complained of by a plaintiff bear a defamatory meaning, the question is whether the words in their ordinary signification are capable of being defamatory (Sim v. Stretch (1936), 52 T.L.R. 669 (H.L.) per Lord Atkin at 671). The words do not have to be understood in a defamatory sense by everyone who reads or hears them. The question is whether a reasonable person to whom the words were published would understand them in a defamatory sense? (Raymond E. Brown, Brown on Defamation, loose-leaf (2014-Rel. 5), 2d ed. (Toronto: Carswell, 2014) at p. 5-28 to 5-29). Prof. Brown (supra, at p. 5-29) states that:

Particular attention will be given to the time when the words are read or heard, to the mode or manner of the publication, and to the community in which they are published. The nature of the publication itself may be a material consideration…

[43] The process of analysis therefore involves two steps. The first is to determine whether, as a matter of law, the published words are capable of bearing the defamatory meanings alleged by the plaintiffs. If that matter is decided in the affirmative, the second step is to decide whether a reasonable person would have understood the words in their defamatory sense (see Assessmed Inc.v. Canadian Broadcasting Corp., [2004] O.T.C. 208 at paras 111-2).

[44] The broad effect of the publication must be considered: “disputed passages must be given a fair reading in the context of the publication as a whole” (Brown, supra, at p. 5-157)

[45] In determining the meaning of the impugned statements, all of the circumstances of the case may be considered, including:

a. Any reasonable implications the words may bear;

b. The context in which the words were used;

c. The audience to whom the words were published; and

d. The manner in which the words were presented.

(Brown, supra, at p. 1-44)

[46] A defamatory meaning is one that injuriously affects a person’s fame, reputation or good name, or diminishes his or her respectability (Brown, supra, at p. 4.16 to 4.17). Although this is not a high hurdle for a plaintiff to jump, there should be a realistic threat that the statement, in its full context, would reduce a reasonable person’s opinion of the plaintiff (WIC Radio Ltd. v Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, per LeBel J. (partially concurring) at para. 78).

The Impugned Words

The allegations of defamation pleaded by the plaintiffs are set out below. For the sake of convenience, I have grouped some of the impugned statements that are similar. After each set of words complained of, I summarise the complaints levelled by the plaintiffs and my analysis of whether the words were prima facie defamatory.

Very Low Calorie Diet

[47] The impugned words are:

a. “Dr. Bernstein’s Diet – This is a very low calorie diet of 800 to 900 calories per day”

b. “Doctor supervised very low calorie diet - This type of diet relies on maintaining a diet is [sic] a very low in calories”

[48] Dr. Bernstein objects to the categorisation of the Bernstein Diet as a “very low calorie diet”. He believes that it gives the reader the wrong impression, i.e. that the Bernstein Diet is too low in calories and that patients who try the Bernstein Diet are not doing the right thing.

[49] Dr. Poon acknowledged that a “very low calorie diet” is one which has even less caloric intake than a “low calorie diet”.

[50] I have difficulty accepting that the term “very low calorie diet” is capable of having a defamatory meaning. But even if I am wrong about that, and bearing in mind the cautionary note sounded by LeBel J. in WIC Radio, I do not accept that there is a realistic threat that the public would think less of the plaintiffs as a result of Dr. Poon describing the diet as a “very” low calorie diet, as opposed to just a low calorie diet. Diet doctors may regard the emphasis conveyed by the word “very” as damaging, but in my view it would not reduce the reasonable person’s view of the plaintiffs. Furthermore, since the actual number of calories i.e. 800 to 900 calories per day, is spelt out with specificity, it makes it all the harder to accept that, in that context, the more general term “very low” would affect the plaintiffs’ reputation.

“Starvation”

[51] The impugned words are:

a. “It is like starving”

b. “During a starvation diet ... “

c. “According to medical literature, during a semi-starvation type diet, the level of T3 decreases within a few days, and the level of an inactive metabolite reverse T3 rise. This may lead to lowering resting energy expenditure”

[52] Dr. Poon acknowledged that calling the Bernstein Diet a “starvation diet” is “highly critical”.

[53] Dr. Bernstein’s evidence was that the Bernstein Diet is not “like starving”, as starving means eating nothing and implies that patients will be hungry and weak with, ultimately, an unhealthy result, whereas in fact the Bernstein Diet allows patients to eat lots of food and patients are not hungry. The references to T3 decrease could support an inference being drawn that the Bernstein Diet causes thyroid difficulties.

[54] In my view, and in contrast to my conclusion concerning the description “very low calorie diet”, a reasonable person reading Dr. Poon’s diet book, would readily recognise that the terms “starvation” or “semi-starvation”, when applied to a diet which is supposed to confer benefits to a dieter’s health, are, indeed, “highly critical” and capable of bearing a defamatory meaning.

In Addition to Fat Burning, Muscle is Also Being Burned

[55] The subject of whether an effect of the Bernstein Diet is that, in addition to dieters burning fat, the limited amounts of protein intake allowed by the diet also result in muscle being burned, was discussed at trial at some length.

[56] The full text of the impugned statements are as follows:

a. “In addition to fat burning, muscle is also being burned to form glucose to fuel the body. The client’s protein intake is limited because of the calorie restriction. Too little protein intake will decrease the ability of the body to repair damaged muscles and leads to muscle waste. During the first one to two weeks of a very low calorie diet, the body will utilize glycogen, amino acids and fatty acids as its energy source. This means that there will be a net loss of muscle in addition of [to?] fat loss. Even if you are eating protein from the very beginning, you cannot avoid this muscle loss. If you continue with this type of diet without the addition of extra protein, more muscle will be lost”

b. “[I]f you have two groups of subjects eating two types of very low calorie diets with equal amounts of calories, one group with high protein and the second group with high carbohydrates, the former group will lose a small amount of muscle and the second group will demonstrate further muscle wasting”

[57] The plaintiffs raise the following objections to these words:

a. the inference to be drawn is that patients on the Bernstein Diet will experience muscle loss no matter what they do, even though patients of the Bernstein Diet are checked to ensure that they are not losing muscle;

b. the use of the word “client”, as opposed to “patient”, is objectionable as the Bernstein Clinics are medical practices which treat patients;

c. the inference to be drawn is that the Bernstein Diet provides for too little protein, when this is not the case;

d. patients will be left with the erroneous assumption that the Bernstein Diet is unhealthy, and that if they go on the Bernstein Diet they will run into medical problems with muscle loss, when in fact there are very low calorie diets which do not burn protein;

e. the statement lumps all very low calorie diets together, when some of them are very different (i.e. power protein diets, liquid protein diets, etc.), and therefore does not provide the readers, most of whom are not physicians, with sufficient context;

f. the determination of whether a patient is suffering from muscle wasting will depend on the composition of the patient’s calorie intake;

g. the Bernstein Diet is not a very low calorie diet.

[58] Even Dr. Poon acknowledges that the first of these statements may well provoke anxiety in readers who are not physicians. But in his opinion, the Bernstein Diet does not have enough protein to prevent muscle loss. He also points to the fact that others have levelled similar concerns and criticisms at the Bernstein Diet.

[59] In the absence of context, the impugned words would, in my view, injuriously affect the plaintiffs’ reputation. The context, of course, is that the words are contained in a chapter in the defendant’s book that is entitled “The Pros and Cons of Different Diets”. But what Dr. Poon characterises as his opinion, the plaintiffs regard as statements of fact. That discussion is better suited to the evaluation of any available defences, rather than whether the words bear a defamatory meaning, which, in my view they could.

Once a Dieter Goes Off the Diet he or she will Regain Some of the Fat Weight Back

[60] The impugned words are:

a. “It is difficult to maintain on [sic] this low calorie intake for a prolonged period of time. Once the client goes off the diet, he or she is bound to increase the calorie intake and gain some of the fat weight back.”

b. “However, there are no statistics to show the success rate of patients keeping the weight off”

c. However, the key is for you to keep the diet forever”

d. “Do not give up dieting all together or you will end up gaining all the weight back, maybe even more”

[61] The plaintiffs’ objections to these words can be summarised as follows:

a. the words infer that dieters find it difficult to stay on the Bernstein Diet, when this is not the case;

b. there is an inference that once patients stop the Bernstein Diet and start the maintenance programme, they are bound to gain the weight back;

c. the words infer that because it is difficult to stay on the Bernstein Diet, patients should not bother trying it in the first place;

d. the Bernstein Diet is singled out in a way which suggests that patients going off the diet are bound to regain the weight they lost (in contrast to other diets) ;

e. the inference that for the diet to remain effective patients must stay on the diet forever and, hence, that the patients are being misled by representations to the contrary;

f. the statement “[do] not give up dieting altogether …” gives readers the erroneous impression that patients will lose muscle tissue and will gain the weight back;

g. the same statement will “turn off” physicians who refer patients to the Bernstein Clinics, as well as patients of the Bernstein Diet who are physicians themselves, but who have not studied this level of nutrition and will not appreciate that Dr. Poon’s calculations are incorrect;

h. Dr. Poon makes no reference to the maintenance programme, which he acknowledged during his testimony that patients could use to successfully keep the weight off.

[62] The impugned words relating to the gaining of weight after a diet finishes are, by Dr. Poon’s own admission, applicable to any diet, yet they are made with specific reference to the Bernstein Diet (although Dr. Poon does comment, with respect to the Weight Watchers diet that “The rate of weight loss is too slow and patient [sic] gain back some weight at year two”). Indeed, Dr. Poon acknowledged that if a patient who has been on the Bernstein Diet then goes onto the maintenance programme, he or she can keep their weight off, yet he did not make any statement to this effect in his book. Dr. Poon also conceded that the former patients of the Bernstein Diet who he has seen regain weight regained it because they did not follow the programme.

[63] By singling out the Bernstein Diet with what can reasonably be regarded as negative comments despite such views being applicable to any diet, yet failing to make any reference to the Bernstein Diet’s maintenance programme, there is, in my view, a realistic threat that the words used would reduce a reasonable person’s opinion of the plaintiffs. Accordingly I find that they are prima facie defamatory.

The Injections

[64] A unique feature of the Bernstein Diet is the administration by injection of a proprietary solution containing Vitamins B6 and B12. The plaintiffs complain of the following words written by the defendant:

a. “some clinics give their clients B6 and B12 injections three times per week apparently to help the patient burn fat”

b. “[I]f you can lose weight by simple vitamin injections, why do no other physicians do that to their patients?”

c. “The weight loss clinic said that with special vitamin B6 and B12 injections and supplements, the body’s metabolism is supposed to improve. By how much can they increase the metabolic rate?”

d. “[e]ven if it is true that the vitamins and supplements can improve on the metabolic rate, how much was the increase in order to lose five pounds of fat per week? Doing no exercise and eating a diet that is more than 850 calories per day, the vitamins and supplements have to [be] able to boost the metabolic rate by over 1000 calories per day. Is it possible?”

e. The plaintiffs’ principal objection, which they state in a number of different ways, is the inference that the Bernstein Diet promotes that it increases patients’ metabolic rate (when it does not do so). The reader is given the erroneous impression that the Bernstein Diet is akin to a diet pill or something that is speeding up their metabolism. The plaintiffs also object to the inference that as no one else uses these injections for weight loss purposes it must be inappropriate or wrong.

[65] In cross-examination, Dr. Poon acknowledged that none of the materials which he had reviewed included any reference by the plaintiffs to increasing patients’ metabolic rates. Yet all the impugned words are premised on either a representation or an inference that the vitamin injections increase metabolic rates. In his defence Dr. Poon asserts that he is criticising the science underlying the claim that patients on the Bernstein Diet can lose five pounds of fat per week, rather than accusing the plaintiffs of misleading dieters.

[66] The words used by Dr. Poon go beyond a debate of pros and cons. Whether he admits it or not, he is telling his readers that the Bernstein Diet claims to increase a dieter’s metabolic rate, that the use of injections forms part of this claim and that as this is not possible, dieters are being misled. A reasonable person would think less of Dr. Bernstein as a result of Dr. Poon’s comments. Accordingly, in my view, subject to consideration of any applicable defences, the words are defamatory.

The Results Promoted by the Bernstein Diet Are Not Possible

[67] The impugned words are:

a. “[a]s heard on some of the radio ad, you will lose 20 pounds monthly, month after month. On some website it said that you would lose four to five pounds of fatty tissue per week. It did not comment on the type of client that can lose 20 pounds per week. One has to assume that it’s for an average obese patient with an average height. In order to lose 20 pounds as promised, since the diet promises that no muscle or fluid will be lose [sic], the client has to lose five pounds of fat per week. According to medical literature, patients have to consume 500 calories less than their basal metabolic rate in order to lose one pound of fat per week. To lose five pounds per week the patient will need to consume 2500 calories less than their basal metabolic rate. The basal metabolic rate of an average build male that is 5 foot 11 inches tall and weighs 238 pounds has an estimated metabolic rate of 2204 calories. In order for him to lose five pounds per week, even with complete fasting, he has to exercise to burn off another 300 calories per day to reach that goal. In such a diet program, it’s stated that exercise is not needed. They said that their clients consume at least 850 calories per day without exercising and still lose 20 pounds per week. Even with the lower quote he gives regarding weight loss of 16 pounds of fat per month, this patient has to eat 2000 calories less than basal metabolic rate per day. This equals to a 204 calorie per day diet.”

b. “Let us look at a female with the height of 5 foot 11 inches and a weight of 156 pounds, BMI 32.6. Her estimated basal metabolic rate is only 1411 calories. Even without eating, she cannot lose four pounds of fat per week if she does not do exercise.”

c. “The weight loss clinic wishes to define a very low calorie diet as a diet that is lower than 800 calories per day. If their patients are really eating 850 calories or more per day, and that the patients will only lose fat weight, how can the patients lose five pounds of fat per week? The calories do not add up.”

[68] The plaintiffs challenge the defendant’s calculations. Beyond that, they raise a number of objections to the impugned words:

a. they imply that Bernstein Clinics advertise that all patients will lose 20 pounds per month (rather, they advertise that patients can lose up to 20 pounds monthly);

b. Dr. Poon erroneously states that the Bernstein Clinics advertise that patients will lose 20 pounds per week (rather than up to 20 pounds per month);

c. the words used infer that the only way to get rid of calories is to burn them (when in fact the body can get rid of them in other ways such as excreting them through urine);

d. the calculation of 204 calories per day is misleading, and would leave someone with the impression that they are not eating anything as no one can live on 200 calories a day;

e. the inference is that the results promoted by the Bernstein Diet are not possible, when in fact these results are frequently achieved;

f. the implication that it is impossible to obtain the results promoted by the Bernstein Diet without interfering with their health.

[69] Dr. Poon acknowledged that someone reading the first of these statements could well take away from it that he was saying that this advertisement for the Bernstein Diet is not true.

[70] The reference by Dr. Poon to the claim that a client on the Bernstein Diet can lose 20 pounds per week was admitted by Dr. Poon to have been an error. It was, in my view, so obvious an error that the subsequent comment “[t]hey said that their clients consume at least 850 calories per day without exercising and still lose 20 pounds per week” is, as the plaintiffs submitted, ridiculous. It shows, if nothing else, a troubling lack of care and attention on the defendant’s behalf.

[71] The pith and substance of the words used by Dr. Poon is that the claims made by the Bernstein Diet must be untrue. Such words would be understood by a reasonable person as damaging to the reputation of Dr. Bernstein and, accordingly, as defamatory.

The Bernstein Diet is Less than 800 Calories Per Day

[72] The plaintiffs object to the statement that “it was reported by registered dietitians that if the patients follow the menu list on the very low calorie diet manual, the daily calorie will be less than 800”.

[73] The essence of the plaintiffs’ objections to this statement is that it infers that the daily caloric intake on the Bernstein Diet will be less than 800 calories and, as a result, that the representations that the Bernstein Diet provides 850 to 950 calories a day are untrue.

I have some doubts that an assertion that the coloric yiled of the Bernstein Diet of less than 800 calories would be regarded by a reasonable person as defamatory, when the plaintiff puts the calorie count at 850-950. However, I would resolve those doubts in the plaintiff’s favour for the purpose of determining whether the words are prima facie defamatory. As will be seen later, in my view the words are clearly comments which would attract the defence of fair comment. Dr. Bernstein Will Take Dieters’ Money But Not Cure Their Illness

[74] In the video, Dr. Poon says:

“Let me explain our aim. Our goal is to help obese people and the sick and obese people to lose weight. We are medical doctors. We not only help people lose weight. If you simply want to lose weight, there are weight loss centres in the marketplace such as Weight Watchers, Jenny Craig or Dr. Bernstein that help people lose weight on a commercial basis. Our goal is not the same. Our goal is to cure illnesses”.

[75] The plaintiffs take exception to this statement for a number of reasons:

a. the Bernstein Clinics are not just “weight loss centres” such as Weight Watchers or Jenny Craig; they are medical practices which treat patients;

b. Dr. Poon acknowledged that he categorized Weight Watchers, Jenny Craig, and Dr. Bernstein in one group all together and in so doing, he did not acknowledge that Dr. Bernstein is a medical doctor;

c. As Dr. Poon acknowledged, people watching the video might think that he is saying that Weight Watchers, Jenny Craig and Dr. Bernstein will take their money to help them lose weight but won’t cure their illnesses;

d. Dr. Poon acknowledged that there is a commercial element to his own practice too and yet he singled out Dr. Bernstein for criticism in this regard.

[76] The impugned words are insulting. They imply that the Bernstein Clinics are weight loss facilities with no medical component. Yet in his book, Dr. Poon refers to the Bernstein Diet as “Doctor Supervised”. The statement that “[i]f you simply want to lose weight” Dr. Bernstein will help you lose it on a commercial basis, juxtaposed with the claim that Dr. Poon’s goal is to cure illness, does indeed imply that the Bernstein Clinics will not help dieters cure their illness. A reasonable person would regard these words as demeaning of Dr. Bernstein.

Do the Words Used Refer to the Plaintiffs?

[77] The defendant suggests that the defamatory words do not refer to or concern either the corporate plaintiff or Dr. Bernstein personally.

[78] The argument runs that the Bernstein Diet is separate and distinct from either Dr. Bernstein himself or the corporate plaintiff. Indeed, Dr. Poon’s comments are made in respect of a product, not an individual or entity. And Dr. Bernstein should not be able to effectively shield the diet programme from any critique due to the fear of a claim for defamation (as opposed to the more onerous burden that would be placed on the plaintiffs if they were required to establish the tort of injurious falsehood).

[79] Furthermore, in the third edition, Dr. Poon referred only to a “Doctor Supervised Very Low Calorie Diet’ and not to Dr. Bernstein personally (although a number of the footnote references in the text would lead a reader to Dr. Bernstein and Dr. Poon acknowledged during his testimony that he was discussing the Bernstein Diet).

[80] For statements to be defamatory, the plaintiffs must show that they were published “of and concerning them”. Regardless of what corporate entities are used, the evidence very clearly establishes that the Bernstein Diet is so inextricably linked to Dr. Stanley Bernstein as an individual that most if not all defamatory statements made about the Bernstein Diet would be regarded as defamatory of Dr. Bernstein himself.

[81] Despite the defendant’s efforts to erase direct reference to Dr. Bernstein’s Diet in the third edition of his book, most of the narrative from the second edition’s commentary on the Bernstein Diet has been cut and pasted into the third edition. Many of the footnote references in the third edition can be readily seen as relating to Dr. Bernstein and the Bernstein Diet. Dr. Poon expressly acknowledged, on multiple occasions, that he was referring to the Bernstein Diet when he wrote this section of the third edition. In short, I am satisfied that a reasonable person reading the impugned words, and their related references, would quickly conclude that the comments relate to the Bernstein Diet.

[82] Whereas an action for malicious falsehood, a form of intentional interference with economic relations resulting in special damages, might form the basis for a claim by one or both of the plaintiffs for pecuniary losses, that does not preclude a claim for defamation being advanced as well as, or instead of, an action for malicious falsehood. In the present case, the only damages now sought by the plaintiffs are for general damages, punitive damages and, in respect of Dr. Bernstein only, aggravated damages.

[83] In my view, therefore, the impugned comments can readily be construed and understood as being of and concerning Dr. Bernstein.

[84] But what of the corporate plaintiff? The information on the corporate plaintiff’s interest is limited. It is pleaded by the plaintiffs that the corporate plaintiff owns and operates weight loss clinics at which obese patients are treated under medical supervision with the Bernstein Diet. Dr. Bernstein confirmed that he is the president of the corporate plaintiff. The company is owned by Dr. Bernstein’s family trust. His evidence was that there is really no difference between him and the corporate plaintiff.

[85] None of the publications and other documents filed at trial bear the name of the corporate plaintiff. Rather, they refer to an entity named as “Dr. Bernstein Health and Diet Clinics”. The copyright to all of the diet manuals and recipe books is claimed by Dr. Bernstein. The defendant pleads no knowledge of the corporate plaintiff.

[86] The requirement that a defamatory statement is “of and concerning the plaintiff” is essential. The allegedly defamatory publication must refer to some ascertained or ascertainable person. The test in every case is whether the ordinary sensible person to whom the words were published would understand them as referring to the plaintiff: Grant v. Cormier-Grant (2001), 2001 CanLII 3041 (ON CA), 56 O.R. (3d) 215 (C.A.) at para 19.

[87] However, Dr. Bernstein’s assertion that there is no distinction between him and the company was not seriously challenged. In the absence of any other evidence to the contrary, there is no reason not to accept Dr. Bernstein’s evidence. The fact that Dr. Bernstein’s interest in the Bernstein Diet and its spin-off products are owned through a corporation would not surprise an ordinary sensible person. Accordingly I am satisfied that the plaintiffs have established – albeit barely - that the corporate plaintiff is an ascertainable person and that defamation of Dr. Bernstein could reasonably be understood to also be defamation of the corporate plaintiff.

Publication

[88] There is no doubt that thousands of copies of both the second and third editions of Dr. Poon’s book were published and found their way to readers in Canada and the United States.

[89] The same cannot be said of Dr. Poon’s website. The allegations are that an excerpt from Dr. Poon’s book, including the passages which are said to defame the plaintiffs, together with a video of the television programme recorded in the Cantonese language, were posted on Dr. Poon’s website. When Dr. Poon learned that the video was considered offensive by Dr. Bernstein, he had it removed from the website.

[90] Publication of the website content has not been formally admitted by the defendant. This is more than a mere technicality. Whereas defamatory words contained in a newspaper or a broadcast are deemed to be published pursuant to s. 2 of the Libel and Slander Act, there is no such presumption in relation to allegedly defamatory material is published on the internet: Elfarnawani v. International Olympic Committee, 2011 ONSC 6784 at para. 34.

[91] In the present case, no evidence was provided to establish that the web preview or the video posted on Dr. Poon’s website was ever viewed by anyone other than the plaintiff himself and his legal representatives. As was the case in Elfarnawani, supra, not so much as a single affidavit from any independent third-party stating that he or she had visited Dr. Poon’s website and read the web preview of his book or viewed the allegedly defamatory video, was provided to the court. Furthermore, it is argued by the defendant that because the video was in Cantonese, the impugned words must have been spoken to persons who understood them, and that must be proved: Reilander v. Bengert (1908), 1 Sask. L.R. 259 (C.A.) (cited by Brown, supra, at 22-34).

[92] The plaintiffs argue that, notwithstanding the absence of a presumption of publication, there is sufficient evidence from which the court can infer that the impugned words were read and understood. In Gaskin v. Retail Credit Co, [1965] 1 SCR 297 at 300, cited by Deschamps J. in Crookes v. Newton, 2011 SCC 47, [2011] 3 S.C.R. 269 at para. 109, the following statement from Gatley on Libel and Slander was relied on:

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.

[93] In Crookes, the issue was whether a website owner who published an article which contained hyperlinks to other websites which contained allegedly defamatory material should be regarded as having published such material. A majority on the Supreme Court of Canada held that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers. Deschamps J., concurring in the result, and referring to the above cited passage from Gatley, was of the opinion that depending on a variety of factors, it was open to a court to infer that a third party clicked on the link and read and understood the linked information and, hence, that the owner of the website could be regarded as having published the hyperlinked material.

[94] In the present case, there is no doubt that Dr. Poon controlled the content of his website. The evidence is that the impugned material was freely available on that website for between one and two years. Dr. Poon, who is originally from Hong Kong, and who speaks Cantonese, acknowledged that his patients include members of the Cantonese speaking community. To find otherwise would be to ignore the realities of twenty-first century communication and the multi-lingual demographics of Canada today.

[95] There is therefore, in my view, more than ample evidence to support the drawing of an inference that the web preview and the video published on the defendant’s website were viewed by third parties who were able to understand what they were viewing.

The Defences

[96] As already noted, defamation is a strict liability tort. Accordingly, with respect to those of the impugned words that have been held to be defamatory of Dr. Bernstein (and in respect of which publication has been established), the defendant is liable in damages, regardless of whether he acted intentionally or negligently in making the impugned statements, subject to certain defences which the law provides for.

Justification

[97] Justification, that is, truth, is a complete defence to an action for defamation. The defendant must, however, prove the truth of “every injurious imputation which the [court] find[s] to be conveyed by the publication”: Price v Chicoutimi Pulp Co. (1915), 1915 CanLII 66 (SCC), 51 S.C.R. 179 at 199-200 (cited by Brown, supra, at p. 10-36).

[98] Dr. Poon’s subjective belief in the truth of his words is not sufficient to discharge his burden. As he acknowledges, there are fundamental disagreements between him and Dr. Bernstein concerning Dr. Poon’s analysis of the medicine and the science.

[99] No expert evidence was adduced by Dr. Poon to establish the truth of the impugned statements.

[100] Dr. Poon pleads that the allegations of fact made in the impugned statements are true, but argues that the impugned words should be regarded as comment, rather than as statements of fact. If that is the correct characterisation (and for reasons that follow, I conclude that it is), the effect is to render the defence of justification redundant in this case.

[101] If I am wrong about the characterisation of the impugned words as comment rather than as statements of fact, then I would find, in the absence of expert evidence, that Dr. Poon has not met the burden of establishing the truth of such statements.

Fair Comment

[102] The defence of fair comment helps hold the balance in the law of defamation between, on the one hand, the respect for individuals and protection of their reputation from unjustified harm and, on the other hand, the freedom of expression and debate: WIC Radio, supra, at para. 1.

[103] In WIC Radio, supra, at para 1, the Supreme Court of Canada adopted the following formulation of the elements of fair comment:

a. the comment must be on a matter of public interest;

b. the comment must be based on fact;

c. the comment, though it can include inferences of fact, must be recognisable as comment;

d. the comment must satisfy the following objective test: could any man honestly express that opinion on the proved facts?

e. Even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.

The Requirement of Public Interest

[104] The main thrust of the defence is that the defendant’s discussion of the pros and cons of various diets, including the Bernstein Diet is his contribution to a broader debate on diet and nutrition, both subjects of considerable public interest.

[105] The plaintiffs argue that where a physician has written books for a commercial purpose in which he promotes his own diet and criticises a competitor’s, he cannot meet the “public interest” requirement (the same would apply to a recording of a television interview in which he purports to do the same thing).

[106] I do not understand the law to deprive a defendant with a commercial motive from raising a defence of fair comment if the matter commented on can otherwise be said to be one of public interest. The public interest is a broad concept: WIC Radio, supra, at para 30. Indeed, in WIC Radio, the court noted that the defendant radio talk show host had a reputation for provoking controversy and that with controversy had come a measure of commercial success, but at no time was it suggested that the subject matter of his comments (the inclusion in schools of educational material on homosexuality) did not, as a result, engage the public interest.

Characterisation of the Impugned Words as Comments

[107] In order to determine whether a defamatory comment or imputation can be protected as fair comment, it is necessary to first determine whether it is comment upon given facts or a statement of facts. As observed in Mainstream Canada v. Staniford 2012 BCSC 1433, 356 D.L.R. (4th) 125, at para. 153:

The distinction is fundamental and must absolutely be made because an assertion of facts can never be defended as fair comment.

[108] The plaintiffs argue that a comment is the subjective expression of opinion in the form of a deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof. In order for it to be fair, it must be shown that the facts upon which the comment is based, which must be clearly set out, are truly stated and that the comment is one which anyone could honestly have expressed based upon the proven facts. Moreover, the opinion must be expressed in such a way that the reader or listener can easily separate what is asserted as fact, and what is claimed to be comment. If facts and comments are stated in the same publication, the author’s conclusions, and the facts upon which such conclusions are drawn, must be distinguished, failing which the defence of fair comment will not apply.

[109] The defendant argues that such an approach is inconsistent with the contemporary approach to the tort of defamation articulated by Binnie J. in WIC Radio (at para 15):

The function of the tort of defamation is to vindicate reputation, but many courts have concluded that the traditional elements of that tort may require modification to provide broader accommodation to the value of freedom of expression. There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action. Investigative reports get “spiked”, the Media Coalition contends, because, while true, they are based on facts that are difficult to establish according to rules of evidence. When controversies erupt, statements of claim often follow as night follows day, not only in serious claims (as here) but in actions launched simply for the purpose of intimidation. Of course “chilling” false and defamatory speech is not a bad thing in itself, but chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship. Public controversy can be a rough trade, and the law needs to accommodate its requirements.

[110] Words that appear on the surface to be statements of fact may nevertheless, in pith and substance, be properly construed as comment (WIC Radio, supra, at para 26).

[111] In British Chiropractic Association v. Singh, 2010 EWCA Civ 350, the defendant, a science writer, published an article in The Guardian newspaper which included the following passage:

The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

[112] Eady J. at first instance held that these were assertions of fact, not expressions of opinion and that, accordingly, the defendant at trial must prove that the meanings were factually true or lose. The Court of Appeal, disagreed, noting that the subject matter of the impugned article “was an area of epidemiology in which the relationship of primary fact to secondary fact, and of both to permissible inference, is heavily and legitimately contested” (at para 18). The Court of Appeal continued (at paras 22-23):

It is one thing to defame somebody in terms which can only be defended by proving their truth, even if this ineluctably casts the court in the role of historian or investigative journalist. It is another thing to evaluate published material as giving no evidential support to a claim and, on the basis of this evaluation, to denounce as irresponsible those who make the claim. Recent years have seen a small number of high-profile libel cases in which the courts, however reluctantly, have had to discharge the first of these functions. But these have been precisely cases in which the defendant has made a clear assertion of highly damaging fact, and must prove its truth or lose.

The present case is not in this class: the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth.

[113] The Court of Appeal’s analysis in Singh provides an example of where words, on their face, could be regarded as a statement of fact but actually, in pith and substance, are a statement of opinion.

[114] Singh is also instructive because it provides real-world context for the challenges presented by an overly technical approach. At paras. 26 and 27 the court said:

What “evidence” signifies depends heavily on context. To a literalist, any primary fact – for example, that following chiropractic intervention a patient’s condition improved – may be evidence of a secondary fact, here that chiropractic works. To anyone (and not only a scientist) concerned with the establishment of dependable generalisations about cause and effect, such primary information is as worthless as evidence of the secondary fact as its converse would be. The same may equally well be true of data considerably more complex than in the facile example we have given: whether it is or not is what scientific opinion is there to debate. If in the course of the debate the view is expressed that there is not a jot of evidence for one deduction or another, the natural meaning is that there is no worthwhile or reliable evidence for it. That is as much a value judgment as a contrary viewpoint would be.

The pleadings in the present case usefully illustrate this. Dr. Singh’s defence includes, in §8(25), a survey of controlled clinical trials on the efficacy of chiropractic in treating infantile colic, none of which, he contends, affords objective support for the BCA’s claim. The BCA, in §9(23) of its reply, relies (among other studies) on a 1989 observational study of 316 children, of which it is said:

“This …. measured the number of hours each child spent in crying. It showed a reduction in crying time from 5.2 hours each day to 0.65 hours each day at 14 days. This was a very substantial improvement. There was no control group. However, the study constitutes evidence.”

One need go no further in order to see how value-laden the word “evidence” is in the present context, let alone to envisage the examination and cross-examination of witnesses called to testify about it, and about the dozens of other reports cited by one side or the other. If Eady J’s decision stands, it will not be open to the trial judge to conclude that what they amount to is all a matter of opinion, for it will already have been decided that the existence or non-existence of evidence for the claims made by the BCA is a verifiable fact.

[115] The views of the Court of Appeal for England and Wales notwithstanding, it remains a requirement that the factual foundation for an expression of opinion is properly disclosed, sufficiently indicated or so notorious as to already be understood by the audience (WIC Radio, supra, at para. 34).

[116] Dr. Poon’s comments (other than the video) arise in the context of a chapter entitled “The Pros and Cons of Different Diets” in a book in which he states at the outset that:

Most commercial diet programs will work for the general public. Otherwise they would cease to exist.

[117] Dr. Poon testified that his books attempt to reflect, accurately, scientific facts as he understands them. At the beginning of the second edition, he writes “[a]s new scientific information becomes available through basic and clinical research, recommended treatments and drug therapies undergo changes. The author have [sic] done everything possible to make this book accurate, up-to-date, and in accord with accepted standards at the time of publication”.

[118] In his prefatory comments made at the beginning of the chapter in the second edition entitled “The Pros and Cons of Different Diets”, Dr. Poon writes:

No one diet can fit the need [sic] of everyone, even with modification. You have to find out for yourself which diet fulfills your need the most. It also depends on why you became obese in the first place. People gain weight because of overeating, lack of exercise, genetic disorder, stress induced, or a combination of the above. No single diet can address all the causes at the same time. If a particular diet plan promises you that it can cure all your problems and it sounds too good to be true, it probably is too good to be true. Remember that most of these commercial programs are usually one program-fits-all type.

In the third edition, no doubt rewritten with an eye to this action which was, by that time, underway, Dr. Poon writes:

This chapter lists some of the more commonly followed diets for your reference. It is not the intention to attack those diets but simply to inform the patients of the pros and cons of different diet programs so that they can make better decisions.

[119] However, as the cases make clear, courts are required to consider the broad context in which impugned words are written or spoken. Whatever he says about its broader objectives, Dr. Poon’s book describes and promotes Dr. Poon’s metabolic diet. The back cover of the book describes him as an advocate of the metabolic diet. Most if not all readers of books on dieting will know (or very quickly become aware) that there are many diets out there, all of which claim, to a greater or lesser degree, to be effective.

[120] Dr. Poon refers to facts to support his opinions. For example, Dr. Poon testified that in forming this opinion he looked at the menu items in the Bernstein Diet and calculated the protein content using a calorie counting book and the United States Food & Drug Administration (USDA) website. He also points to “protein packs” sold to the plaintiffs’ dieters which contain cookies that are said to contain one serving of protein. Dr. Bernstein’s Diet Manual prescribes two servings of protein a day and states that 100 grams or 3½ ounces of protein make up a serving. Yet the Nutrition Facts information on the protein packs states the protein content of each cookie is 15 grams or 30% of recommended daily intake according to the Government of Canada. According to Dr. Poon, it ill lies in the mouth of Dr. Bernstein to complain about the defendant’s words when, looking at the packaging of Dr. Bernstein’s products and at his diet manuals, it is questionable whether dieters using Dr. Bernstein’s products will in fact get the requisite levels of protein.

[121] While Dr. Bernstein agreed with Dr. Poon that too little protein intake will decrease the ability of the body to repair damaged muscles and will lead to muscle wasting, it was Dr. Bernstein’s evidence that he has never observed muscle loss in all of his years of practice.

[122] Despite the absence of expert evidence, but with the knowledge from media sources referred to at trial that Dr. Poon is not alone in his views concerning the adequacy of the protein content of the Bernstein Diet or the potential for burning muscle, it is clear that there are divided opinions on this topic.

[123] Most importantly, Dr. Poon’s views are not new. In Sarah Scott’s article, reference was made to the views of Dr. Ronnie Aronson, an endocrinologist, immediately following which Ms. Scott wrote:

Because I was eating only 640 calories per day, my body had slowed its rate of calorie burning, he said. What’s more, I had probably lost as much muscle as fat, which would slow my metabolism even further.

[124] On the issue of whether the impugned words are statements of opinion or statements of fact, Dr. Poon provides greater context in the passage in the third edition of his book that corresponds with the impugned words (which are reproduced from the second edition). For ease of reference, words that appear in both editions are underlined.

Some clinics claims [sic] that only fat weight will be lost on this diet, not muscle weight. No bodily fluid will be lost either. These clinics say that it is achieved by a unique combination of vitamins and supplements. In all the biochemisty [sic] and physiology books that I read, when a person eat [sic] less than the basal metabolic rate, the body has to go through gluconeogenesis to provide the necessary energy to fuel the body. During gluconeogenesis, there is fat burning. However, muscle is also being burned to provide the necessary calorie [sic]. This is not a unique phenomenon to the very low calorie diet, but occurs in any weight loss diet, even the high protein diet. During the first one to two weeks of a very low calorie diet, the body will utilize glycogen, amino acids and fatty acids as its energy source. This means that there will be a net loss of muscle in addition to fat loss. Even if you are eating protein from the very beginning, you cannot avoid this muscle loss. If you continue with a very low-calorie type diet without the addition of extra protein, more muscle will be lost. You can regain all the muscle once you have a steady intake of good quality protein in doses of 50-80 g per day.

[125] Dr. Poon provides some references to medical texts and articles in support of some of the statements made in the above quoted passage.

[126] On the “Less Than 800 Calories” issue, although Dr. Poon’s comment has the appearance of a statement of fact, it is reflective of the views of others. As has already been noted, not only are such views aired in Ms. Scott’s article, but Dr. Bernstein himself calculated the average daily caloric intake for a three week sample menu in the current edition for the Bernstein Diet, as being in a range of about 770-820 calories per day and acknowledged that the daily caloric intake for a sample menu he had reviewed from an earlier edition was 600 calories per day.

[127] In Singh, the Court of Appeal adopted, as do I, the observations of Judge Easterbrook of the US Seventh Circuit Court of Appeals in Underwager v. Salter 22 F. 3d 730 (7th Cir. 1994), a libel action over a scientific controversy. Easterbrook J. said at para. 19:

[Plaintiffs] cannot, simply by filing suit and crying ‘character assassination!’, silence those who hold divergent views, no matter how adverse those views may be to plaintiffs’ interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path toward superior understanding of the world around us.

[128] The subject of diet and nutrition is one of unending debate between scientists, health care professionals, welfare agencies and commercial parties. Although, as a physician and a scientist, Dr. Poon often expresses his views in an unequivocal manner grounded on his understanding of the applicable science, when considered in the context of his book as a whole, I am satisfied the reasonable person would understand Dr. Poon’s views to be just that – his views on issues of diet and nutrition as opposed to declarations of existing fact.

Honest Belief

[129] The essence of the requirement of honest belief is summarised by Binnie J. at para. 37 in WIC Radio as follows:

The common law judges long ago decided that the gravamen of the defence of fair comment would not be the reasonableness or proportionality of the comment in relation to the facts (which would, of course, create stronger protection for the person defamed, but would depend in its application on the mental yardstick employed by a particular court) but whether the comment reflected honest belief. …. However, there is a world of difference between an attack made without honest belief and an attack whose relevance to the underlying facts may be disputed.

[130] Dr. Poon may at times have mistaken the facts (an obvious example is when he comments on the claim that dieters can lose 20 pounds a week on the Bernstein Diet when in fact the claim was up to 20 pounds a month). He may have muddled some of his calculations. He may not have been as well informed about aspects of the Bernstein Diet as he could have been. He may have criticised the Bernstein Diet more than he did other diets. But his views are not expressed in a vacuum. His evidence was that he drew on his knowledge and experience as a scientist and physician specialising for many years in diet and nutrition. In his critique of the Bernstein Diet he drew not only on his own knowledge but on the views of others.

[131] With two exceptions, I detected nothing from what he wrote in his books or from his evidence and demeanour in court that would lead me to conclude that the words used by Dr. Poon in his books were not an honest expression of his opinion. In the words of Binnie J. (WIC Radio, supra, at para 39):

If the speaker, however misguided, spoke with integrity, the law would give effect to freedom of expression on matters of public interest.

[132] It bears emphasising that Dr. Poon’s opinions do not have to be “reasonable” or “fair”. The test is whether anyone could honestly have expressed the defamatory comment on proven facts. As stated by the High Court of Australia, in a passage cited with approval by Binnie J. at para. 49 in WIC Radio:

The protection from actionability which the common law gives to fair and honest comment on matters of public interest is an important aspect of freedom of speech. In this context, “fair” does not mean objectively reasonable. The defence protects obstinate, or foolish, or offensive statements of opinion, or inference, or judgment, provided certain conditions are satisfied. The word “fair” refers to limits to what any honest person, however opinionated or prejudiced, would express upon the basis of the relevant facts.

(Channel Seven Adelaide Pty. Ltd. v. Manock (2007), 241 A.L.R. 468, [2007] HCA 60, at para. 3 (emphasis added))

[133] I have concluded that certain of Dr. Poon’s comments about the vitamin injections take those comments outside the protection of fair comment. The content of these injections is kept by Dr. Bernstein as a closely guarded secret. That is bound to provoke some discussion and speculation among those that comment on the Bernstein Diet. But by his own admission, none of the materials which Dr. Poon reviewed made any reference to any claim by the plaintiffs (or anyone else) that the injections increase patients’ metabolic rates. Nor does Dr. Poon point to any factual basis for inferring that the vitamin injections alone cause dieters to lose weight. His comments are purely speculative. While there are other facts which Dr. Poon can point to as supporting his opinion that the science underlying the plaintiffs’ claim that dieters can lose five pounds of fat per week is questionable, he did not identify any evidence of any claims by the plaintiffs that the Bernstein Diet, whether through the use of injections or otherwise, increases dieters’ metabolic rates. His statements and the inferences properly drawn from them to the effect that the Bernstein Diet makes false claims about boosting the metabolic rate are without basis in fact and, as a result, cannot be fair comment.

[134] The comments made by Dr. Poon on the video also fall into a different category. The clear implication of his words are that “we are medical doctors who not only want to help people lose weight but to cure illness but Dr. Bernstein, who helps people lose weight on a commercial basis, does not help people cure illness”, adding insult to injury by failing to acknowledge that Dr. Bernstein is also a medical doctor (as are the physicians who work at each of his clinics) despite describing the Bernstein Diet in the third edition of his book as “doctor supervised”.

[135] Dr. Poon knows that Dr. Bernstein is a physician. Dr. Poon would have known, if he had read the copies of Dr. Bernstein’s Diet Manual that he says informed him in coming to the opinions he expressed, that Dr. Bernstein says that:

Unlike so many of the slick-marketed diet centres, the only people who treat you here are doctors and registered nursing personnel. We perform treatments that others are not qualified to do. Treatments such as prescribing and administering medications and blood tests are performed right on site.

Our doctors also work with patients who suffer from a wide spectrum of additional weight-related problems.

… I, my staff and colleagues are committed to providing you with excellent medical care….

[136] The clear effect of the words used by Dr. Poon in the video is to dispute the veracity of Dr. Bernstein’s description of the method and purpose of his clinics. Yet beyond his bare statement, Dr. Poon offered no evidence that would support a conclusion that he honestly believed that the Bernstein Clinics are not staffed by medical doctors, that they cannot or do not provide medical care or that they only want to help people lose weight but have no interest in curing illness. In my view, for these and the other reasons asserted by the plaintiffs in argument on the issue of defamatory meaning, Dr. Poon on this occasion steps across a line that goes beyond honest belief.

Malice

[137] The plaintiffs assert that, to the extent the court finds the defendant has met the test for fair comment, that defence is defeated by Dr. Poon’s express malice in publishing the impugned statements. Although malice is commonly understood as spite or ill-will, it includes “any indirect motive or ulterior purpose” which conflicts with the sense of duty being put forward in commenting on a matter of public interest: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 per Cory J. at para 145.

[138] It is sufficient for malice to be the dominant motive of a particular comment (as opposed to the dominant purpose of the publication as a whole) to defeat a defence of fair comment with respect to that comment: WIC Radio, supra, at para 53.

[139] Defamatory comments which are made to injure a plaintiff and thereby to gain an economic advantage are malicious, for the purposes of depriving a defendant of the defence of fair comment: WeGo Kayaking Ltd. v Sewid, 2007 BCSC 49 at para. 84.

[140] I do not read the authorities referred to by the plaintiff as providing that a collateral commercial purpose will in all cases deprive a defendant of the defence of fair comment. Rather, there must be a demonstrated motive to injure the plaintiffs and, thereby, to gain an economic advantage.

[141] Having listened to Dr. Poon and considered the context in which he made his comments, I do not accept the argument that his motive was to injure the plaintiffs. Rather, his purpose was to discuss and promote his metabolic diet. In doing so, he included a chapter which attempted, sometimes clumsily, to discuss the pros and cons of other diets, including the Bernstein Diet.

[142] I would, however, except from this conclusion the remarks made by Dr. Poon on the video. It is clear from what he said in that interview that his purpose was to dissuade “sick and obese people” from pursuing the Bernstein Diet (or any of the other diets he identified). Accordingly, even if I had found that the words used by Dr. Poon in the video were otherwise fair comment, the availability of that defence would be defeated by Dr. Poon’s improper motive of putting down the Bernstein Diet in order to promote his own clinics and, thereby, gain an economic advantage.

Conclusion on Availability of Defence of Fair Comment

[143] The application of the principles discussed above leads me to the conclusion that, with the two exceptions I have just identified, the defence of fair comment has been made out.

[144] Dr. Poon’s characterisation of the Bernstein Diet as a “starvation diet” is, to be sure, a blunt and stinging criticism. But he explains his view by reference to the number of calories he and others have calculated that the Bernstein Diet delivers to a dieter, and to the use of injections and supplements, which, in his view, are required “because the diet cannot provide the client with all the essential ingredients”.

[145] Similarly, under the subheadings “In Addition to Fat Burning, Muscle is Also Being Burned” and “The Bernstein Diet is Less than 800 Calories Per Day”, t the defence of fair comment would apply, on the basis that the impugned words are expressions of opinion based on the defendant’s scientific and medical knowledge and the various sources he used to inform himself. .

[146] I am also satisfied that the defence of fair comment has been made out in respect of what I have found to be the prima facie defamatory quality of Dr, Poon’s comments on weight being regained and his opinion that the results promoted by the Bernstein Diet are not achievable. In each case, Dr. Poon presents a factual basis for his views, albeit that he may have made inadvertent errors in some of his calculations and his assumptions.

[147] I have, however, concluded that the defence of fair comment does not protect the comments made by Dr. Poon under my earlier subheading “The Injections” or his comments on the video which was posted on his website for a period of time.

Responsible Communication

[148] The defence of responsible communication was articulated by the Supreme Court of Canada in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640. The defence only applies to comments made by a defendant for which the defences of justification or fair comment are not available. The test for the defence of responsible communication requires that:

a. the publication is on a matter of public interest; and

b. if so, the defamatory communication was responsible. (Grant, supra at para 126)

[149] In determining whether a defamatory communication was responsible, the court is to consider a variety of factors:

a. the seriousness of the allegation;

b. the public importance of the matter;

c. the urgency of the matter;

d. the status and reliability of the source;

e. whether the plaintiffs’ side of the story was sought and accurately reported;

f. whether inclusion of the defamatory statement was justifiable; and.

g. whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage’); and

h. any other relevant circumstances (Grant, supra at para. 126).

[150] The plaintiffs submit that the purpose of this new defence was to broaden the protection to be provided to public communicators, such as the press, in reporting matters of fact. It should not apply to matters, such as the instant case, where a medical practitioner wrote allegedly defamatory statements about a competitor in a book promoting his own practice.

[151] In paras. 38 – 40 of its decision in Grant, the Supreme Court discusses the rationale for its review of the defences available in the law of defamation as pertaining to public communicators and, in particular, the press.

[152] Upon a review of the factors set out by the Supreme Court of Canada to determine whether a defamatory communication was responsible, it is immediately obvious that a number of those criteria would have no application to the type of communication which is the subject of this action.

[153] While I would not definitively rule that the defence of responsible communication is the exclusive preserve of so-called “public communicators”, it is clear that the defence can most readily be associated with communications relating to matters of public importance where the timeliness of the communication is a factor (“news is often a perishable commodity”) (Grant, supra at para. 70).

[154] It is sufficiently clear to me that the nature of the impugned communications in the present case could not reasonably engage consideration of the factors set out in Grant that I will refrain from a more detailed analysis of the defence of responsible communication in the context of this matter. In my view there is no reasonable basis upon which the defendant could engage this defence.

Damages

[155] The plaintiffs seek compensatory damages in the form of general damages and (only in the case of Dr. Bernstein personally) aggravated damages. In addition, punitive damages are claimed.

[156] I have found that the defendant defamed the plaintiffs with two of his statements and the inferences properly drawn from them to the effect that the Bernstein Diet makes false claims about boosting the metabolic rate of dieters and as a result of the Cantonese language interview that he gave, the video of which was posted on his website.

[157] General damages in defamation cases flow from the defamatory publication and compensate the plaintiffs for any harm to his or her reputation or emotional well-being (Brown, at 25-31 to 25-32). This is often referred to as compensation for the “sting” of the defamation.

[158] Dr. Poon argues that Dr. Bernstein already had a sullied reputation as a result of the CBC Marketplace programme and website article, the Chatelaine article and other public criticisms of the Bernstein Diet. Furthermore, Dr. Poon claims that very little of what he said about the Bernstein Diet has not already been said by other people at other times. As such, he submits, the plaintiffs have at best suffered nominal damages.

[159] According to Dr. Bernstein, while the Chatelaine article was “upsetting”, the comments made by various individuals in that article either did not hurt his reputation, or only did so “very minimally”. The CBC Marketplace programme and article got “mixed reviews” and that any damage to his reputation which might have occurred as a result had been contained prior to the publication of the second edition of Dr. Poon’s book. Dr. Bernstein did acknowledge, however, that for a period of time after the Marketplace programme aired, he doubled his advertising budget.

[160] As a physician presenting himself to the public as a specialist, the defamatory comments made by Dr. Poon are, according to Dr. Bernstein, likely to cause members of the public to believe that the Bernstein Diet is harmful.

[161] The approach to quantifying general damages is conveniently summarised by Matheson J. in Awan v Levant, 2014 ONSC 6890:

[192] The factors to consider in determining the quantum of damages for defamation include the following: the plaintiff’s position and standing, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence or refusal of any retraction or apology, the whole conduct and motive of the defendant from publication through judgment, and any evidence of aggravating or mitigating circumstances: Barrick Gold Corp. v. Lopehandia (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416, 187 O.A.C. 238, at para. 30, citing Hill.

[193] In the Internet context, these factors must be examined in the light of the ubiquity, universality and utility of that medium: Barrick, at para. 31.

[162] However, where the plaintiff is a corporation, it is inappropriate to award damages for injured feelings, humiliation or mental anguish. Accordingly, in the absence of actual damages, a corporation will only rarely receive a substantial award: Assessmed, supr., at para 344 (the court awarded no damages to the corporate plaintiff).

[163] With respect to matters that might influence the assessment of general damages, Dr. Bernstein testified as follows:

a. Dr. Poon's statements undermine Dr. Bernstein's 40 years of practice as a physician trying to help people and save lives;

b. Dr. Bernstein has lost sleep over Dr. Poon's statements. They are constantly on his mind and have interfered with his lifestyle;

c. Dr. Bernstein has had to offer explanations to patients and to staff so that they can reassure patients;

d. He has similarly had to offer explanations to family members and close friends; and

e. Dr. Bernstein is of the view that Dr. Poon's statements have the public thinking that the Bernstein Clinics do not practice good medicine, and thus the public will "think twice" before attending one of the clinics. Moreover, he presumes the impugned statements have also interfered with physician referrals to the Bernstein Clinics. All of this can be labelled as anxiety and stress caused by Dr. Poon.

[164] In submissions, counsel for Dr. Bernstein also notes that where a defendant enters a plea of justification, that plea is considered a republication of the original defamation (Brown, at p. 10-2). Significantly, though, no other relief is sought in respect of the 12,000 unsold copies of the third edition of Dr. Poon’s book.

[165] In Myers v Canadian Broadcasting Corp. (1999), 47 C.C.L.T. (2d) 272 (ON SC), varied on appeal, (2001) 2001 CanLII 4874 (ON CA), 6 C.C.L.T. (3d) 112 (ON CA), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 433, the plaintiff was a prominent cardiologist. Certain views that he expressed on the use of a particular drug were, to quote the Court of Appeal, used in a sophisticated “cut and paste” during the course of a CBC “Fifth Estate” television programme so that statements which the plaintiff made expressing concerns with the drug’s use were portrayed as approving the use of the drug despite evidence that the long-term use of the drug had resulted in the death of patients. The initial airing of the programme was seen by over one million people across the country. It was rebroadcast and seen by another 200,000 people. In assessing general damages of $200,000, Bellamy J., after describing the immediate aftermath of the programme (calls to the plaintiff from friends and colleagues, sleepless nights, calls from patients, concerns about the long-term effects on his professional reputation), noted a number of other aggravating factors at para. 171, all of which supported a high award:

1. The CBC is a media source which is highly respected and considered reliable in Canada. As the court noted in Vogel, supra, this gives it an enormous capacity to cause damage. In Baltrop v. CBC: (1978), 1978 CanLII 2145 (NS CA), 25 N.S.R. (2d) 637 (C.A.), the court also took into account the prestige and apparent authority of a CBC program when calculating damages.

2. The plaintiff is a highly regarded, leading Toronto cardiologist, whose good reputation was never put in question during the trial.

3. The nature of the actual defamation is the most damaging kind. This program seriously defamed the professional reputation of Dr. Myers, casting doubt on his competence and integrity as a physician. The CBC did not achieve this through the creation of a completely false story, but rather through the distortion and manipulation of comments. This has the effect of being especially damaging, since it is much more difficult to explain the truth.

4. Dr. Myers was immediately devastated by the defamation. Physically, he suffered some anxiety and sleeplessness, but emotionally and psychologically, he felt like he had been thrown into an overwhelming professional nightmare. He felt that his long-earned reputation had been attacked, that he might be perceived differently by his colleagues and patients, and that all the work he had done in the area of hypertension was now coloured by these innuendoes of improper motivation. I accept his evidence that the program has made a lingering and long-lasting impression on him.

5. The widow of a former patient congratulated the CBC on the "exposé of Dr. Myers" in the program. She wrote that she "watched with horror and jubilation as the facts were revealed", as she had always felt that Dr. Myers was responsible for her husband's death and that the CBC "exposé" only corroborated her suspicions. She then asked whether this could lead to a class action law suit. Dr. Livingstone, Vice-President of Professional Affairs at Sunnybrook Hospital, facilitated an investigation of Dr. Myers' handling of the complainant's late husband's case. Ultimately, the conduct of Dr. Myers and his staff was found to meet all standards, and the concerns were found to be groundless. The tone of the letter and the subsequent investigation confirm that the program directly affected the professional life of Dr. Myers, in addition to causing him substantial personal suffering.

6. The conduct was malicious. Given my finding that neither a fair minded nor a reasonable person could glean these opinions from the CBC resources, I am unable to accept the evidence of the defence witnesses that they lacked suspect intentions or ill will towards Dr. Myers. I am especially troubled by their decision not to include any reference to the other expert doctors who largely concurred with Dr. Myers' views on both short-acting and long-acting nifedipine.

7. I take into account the large number of viewers and the repeat broadcasts of the episode.

[166] I have recited the comments of Bellamy J. in detail because they clearly illustrate that Myers was a case in which the injury to the plaintiff was orders of magnitude greater than in the present case.

[167] I was unconvinced by Dr. Bernstein’s evidence of the impact of Dr. Poon’s words. His claim that he had lost sleep over Dr. Poon statements, that they are constantly on his mind, and had interfered with his lifestyle (in ways that he did not particularise) struck me as at best exaggerated. Dr. Bernstein is a tough competitor. He is no stranger to public criticism or to litigation. The ongoing success of the Bernstein Diet and all of its commercial apparatus is testament to the plaintiffs’ durability. My very firm impression is that Dr. Poon’s criticisms were at worst an irritant.

[168] Furthermore I have found that only two of the sets of impugned words complained of are actionable. There was no evidence as to whether some of the things said by Dr. Poon caused more harm to Dr. Bernstein’s reputation than others.

[169] Approximately 10,000 copies of the second edition of Dr. Poon’s book entered circulation, less than the number of patients who each week pass through the plaintiffs’ clinics. Eight thousand copies of the third edition have been sold, with another 12,000 copies still in existence. There was no evidence concerning the traffic on Dr. Poon’s website or what proportion of people visiting Dr. Poon’s website would understand Cantonese and, hence, the video. Indeed, other than the evidence of Dr. Bernstein referred to above, there was no other evidence of the impact, if any, which the publication of Dr. Poon’s words has had on the plaintiff’s reputation or his business interests.

[170] In my view, this case is more about ego than injury. It is more about turf warfare in the competitive world of diet medicine than about reputation.

[171] As Cave J. observed in Scott v Sampson (1882), 8 Q.B.D. 491, at 503:

… the law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action.

[172] In Leonhard v Sun Publishing Co. Ltd. (1956) 1956 CanLII 311 (BC SC), 4 D.L.R. (2d) 514 (BC SC), citing Scott v Sampson as authority, it was concluded that the plaintiff had no reputation capable of being injured and, thus, was entitled to nominal damages of $1. And in the seminal case of Ruskin v Whistler, (unreported) heard at the Old Bailey in 1878, the jury, after concluding that John Ruskin’s criticism of the artist James McNeill Whistler’s painting Nocturne in Black and Gold: The Falling Rocket was defamatory (“I have seen, and heard, much of Cockney impudence before now; but never expected to hear a coxcomb ask two hundred guineas for flinging a pot of paint in the public’s face.”), awarded the plaintiff damages of one farthing.

[173] I would not adopt the view taken in Leonhard that the plaintiff has no reputation capable of being injured. In that case the plaintiff admitted to having been in prison and associating with underworld characters in gambling clubs. A more apt comparison is with the vain artist, Whistler, who sued the establishment art critic, Ruskin.

[174] An appropriate measure of general damages in this case would be more than nominal, but not greatly more. In my view a suitable award is $10,000. Based upon Grant v. Cormier-Grant, supra, these damages are awarded to Dr. Bernstein only. I am not satisfied that this is a case where it is appropriate to award damages to the corporate plaintiff.

[175] Dr. Bernstein also seeks aggravated compensatory damages. Such damages may be awarded where the conduct of a defendant is particularly high handed or oppressive, thereby increasing the likelihood that the plaintiff will suffer additional humiliation and anxiety. The defendant’s plea of justification, his failure to adduce expert evidence at trial to prove the truth of his statements and the publication of defamatory statements in the third edition of his book after the present action was commenced, are all pointed to as supportive of an award of aggravated damages.

[176] In my view, having regard to the award of general damages and what I perceive to be the minimal degree of injury caused to Dr. Bernstein as a result of the defendant’s defamatory remarks, it would be inappropriate to award aggravated damages.

[177] Finally, the plaintiffs also seek an award of punitive damages. Such damages are meant to punish a defendant for his reprehensible conduct. In defamation cases, a punitive award is based upon the nature and character of the defendant’s malice and misconduct, and focuses on motive and intent (Brown, at 25-359).

[178] Punitive damages are very much the exception rather than the rule and should be awarded only where a compensatory award is insufficient to convey the objectives of retribution, deterrence and denunciation: see, generally, Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 SCR 595.

[179] In my view, the circumstances of this case do not warrant an award of punitive damages.

Conclusion

[180] It is the plaintiffs’ right to seek redress in the courts to vindicate their reputation. In this case the culmination of that process has, to date, been a trial of seven and a half days’ duration, lengthy written submissions and, now, these reasons which, of necessity, have attempted to address the extensive evidentiary record and comprehensively presented legal arguments of the parties.

[181] After all that, it may seem anticlimactic that the end result is an award of $10,000. However the possibility of such an outcome is one that would have been known and understood by the parties and their respective experienced and very capable counsel. It is for others to decide whether the substantial public resources that have been made available to enable this dispute to be adjudicated are proportionate to the rights and interests that were at stake.

[182] In addition to an award of general damages of $10,000 to Dr. Bernstein, he is entitled to interest on that award pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43.

[183] The plaintiffs should provide a bill of costs and written costs submissions of not more than five pages in length by 2 February 2015. The defendant should then provide responding costs submissions of not more than five pages in length within 10 days of receipt of the plaintiffs’ submissions.

Mew J.

Released: 19 January 2015

CITATION: Bernstein v. Poon, 2015 ONSC 155

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DR. STANLEY K. BERNSTEIN AND

POST ROAD HEALTH & DIET INC.

Plaintiffs

– and –

DR. PAT POON

Defendant

REASONS FOR DECISION

Mew J.

Released: 19 January 2015