Ricardo Antonio Rolon v. Amanda Bell and Grand River Hospital, 2015 ONSC 6042

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-4340-SR

DATE: 2015/09/29

B E T W E E N:

Ricardo Antonio Rolon

Self-represented

Plaintiff

• and -

Amanda Bell
Grand River Hospital

Nicholas DiCastri, for the Defendants

Defendants

HEARD at Kitchener, Ontario: September 15, 2015

The Honourable Justice P. R. Sweeny

ENDORSEMENT

Introduction

1The defendants move for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure on the basis that there was no genuine issue requiring a trial in this case.

2This is an action brought under the simplified procedure for defamation arising out of the attendance by the plaintiff at the Grand River Hospital (“the Hospital”) on May 7-8, 2012 for the birth of his granddaughter. The plaintiff is the father of Annette Rolon (“Annette”), who gave birth to a daughter on May 7, 2012. The defamation claim arises out of nursing notes and a SCAN report written by the defendant Amanda Bell (“Nurse Bell”) at the Hospital. The plaintiff claims that the nursing notes on the chart for Annette are defamatory. In addition, the SCAN report to be sent to Child and Family Services was also defamatory. He asserts that while they may have been made on an occasion of qualified privilege and have other statutory protections, Nurse Bell acted with malice and therefore the privilege does not apply.

3I am satisfied that there are no genuine issues requiring a trial and that I can fairly and justly determine the issues on the basis of the evidence on this motion. It is in the interest of justice that this case be determined on this motion.

Background

4On May 7, 2012 Annette was admitted to the hospital for a delivery. Nurse Bell provided nursing services to Annette during her labour and delivery. The baby was born at 11:10 p.m.

5Annette had a comprehensive birth plan which was prepared and witnessed. Nurse Bell found the birth plan very unusual. Nurse Bell questioned Annette about the birth plan. In the course of her interactions with the plaintiff, Nurse Bell observed the conduct of the plaintiff and found it to be inappropriate. As a result of her concerns, she contacted the Family and Children’s Services. She was advised to complete a SCAN form. A SCAN form was completed by Nurse Bell.

6Nurse Bell’s observations were supported, in part, by Tanya McCarthy (“Nurse McCarthy”) who was the supervisor of Nurse Bell. Nurse McCarthy deposed in her affidavit that she agreed with Nurse Bell that the plaintiff’s behaviour was unusual, potentially abusive, and that a consultation to the Family and Children’s Services should be made prior to discharging the newborn.

7Following Annette’s discharge from the hospital, a representative of the Family and Children’s Services visited Annette at home. She was interviewed. Family and Children’s Services found there was no evidence of any child protection concerns and no further steps were taken.

8The relevant issues are as follows:

(1) Are the contents of the SCAN form and the medical notes written by Bell defamatory?

(2) Do the comments on the SCAN form and the medical notes written by Bell refer to the plaintiff?

(3) Have the comments on the SCAN form and the medical notes written by Bell been published?

(4) Were the contents of the SCAN form and the medical notes written by Bell made on an occasion of qualified privilege?

(5) Is the defence of qualified privilege negatived as a result of demonstrated malice on the part of Nurse Bell?

Analysis

9On issues (1) and (2), the defendants acknowledge that the comments on the SCAN form and the nurse’s notes are defamatory in that they would tend to lower a person in the estimation of right-thinking members of society, or to expose a person to hatred, contempt or ridicule. (Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3 at para. 62) These words clearly refer to the plaintiff.

10On the issue of publication, it seems clear that the words were seen by others and communicated to others. Those “others” include other nurses at the hospital. In addition, the substance of the words was communicated by Nurse Bell to the Family and Children’s Services by telephone. This is not a case where it is the plaintiff complaining about the contents of his own medical records as in Ryabikhina v. St. Michael’s Hospital, 2011 ONSC 1884, [2011] O.J. No. 1779. In that case, it was held that the patient’s medical records could not be disclosed or would not be disclosed to other persons/third party without the consent of the patient. Therefore, in my view, it is reasonable to find there was publication.

11With respect to the issue of privilege, there is a statutory protection afforded to Nurse Bell for communications to Family and Children’s Services. Section 72.7 of the Child and Family Services Act provides that no action lies against a person providing information in compliance with their duty to report, unless they do so maliciously or without reasonable grounds for the suspicion. In addition to the statutory protection, qualified privilege arises in this case.

12In Meyers v. Canadian Broadcasting Corp., [1999] CarswellOnt 3735, Bellamy J., in discussing the issue of qualified privilege, wrote as follows:

The common law provides for a “qualified privilege” in publishing defamatory remarks if the remarks are made by a person in the discharge of a public or private duty, or for the purpose of pursuing or protecting a private interest of the publisher or the person defamed, or some third person. The person receiving the information must be shown to have a corresponding interest or duty to receive it.

There are certain occasions in which a person is entitled to publish untrue statements about another, or he or she will not be liable even if the publication is defamatory….The duty may be legal, social or moral. The test is where persons of ordinary intelligence and moral principle, or the great majority of right-minded persons would consider it a duty to communicate the information to those to whom it was published. Brown, supra, at 662.

68 To succeed in making out the defence, the defendants must establish:

(i) That they had an interest or duty to communicate the information; and

(ii) That the recipient had a corresponding duty or interest to receive the information.

13In this case, the defendants have established, and I understand it is not disputed by the plaintiff, that the communications were made on an occasion of qualified privilege. Nurse Bell was under obligation to create the nursing notes and was under an obligation to communicate with Family and Children’s Services.

14The qualified privilege may be defeated by malice. The plaintiff’s claim turns on the plaintiff’s ability to establish malice. In McVeigh v. Boeriu, 2011 BCSC 400, the court stated:

A defendant is actuated by malice if he or she publishes the comment:

(i) knowing it was false; or

(ii) with reckless indifference whether it is true or false; or

(iii) for the dominant purpose of injuring the plaintiff because of spite or animosity; or

(iv) for some other dominant purpose which is improper or indirect, or also, if the occasion is privileged, for a dominant purpose not related to the occasion.

15The plaintiff asserts that Nurse Bell made the comments knowing they were false or with reckless indifference whether they were true or false. Nurse Bell has deposed of her concerns for the child. She did have concerns about the plaintiff and she expressed those concerns. Those concerns were in some part confirmed by Nurse McCarthy. Nurse Bell’s conduct in communicating with the Family and Children’s Services is consistent with her concern for the child. There is no evidence that she misrepresented the plaintiff as domineering and controlling because he was following the birth plan as written.

16The suspicion Nurse Bell expressed was found to be unjustified by the Family and Children’s Services. The issue is not whether her suspicions were true or whether the conclusions she drew from the behaviour she observed were accurate; the issue is whether she acted with malice. I am satisfied that her behaviour was not motivated by malice.

17The plaintiff’s assertion that Nurse Bell reported the plaintiff to Family and Children’s Services to follow through on a threat she had made to Annette is without foundation.

18The affidavit sworn by Nurse Bell includes additional information aside from her notes. The plaintiff was critical of the specific words she used in her affidavit. The affidavit was sworn more than three years after the incident. The contents of the affidavit provide no basis for a claim for defamation, as the contents of the affidavit are subject to absolute privilege (see Hall v. Baxter (1922), 22 O.W.N. 207).

19In conclusion, I am satisfied that the comments on the SCAN report and the nurse’s notes were written by Nurse Bell on an occasion of qualified privilege. I am satisfied that Nurse Bell was not motivated by malice. The motion for summary judgment is granted and the action is dismissed.

20In the circumstances, there will be no order as to costs.

Sweeny J.