Court File and Parties

COURT FILE NO.: CV-15-115-00 DATE: 20190507

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DR. DICK ERIC ZOUTMAN Plaintiff – and – JAMES GRAHAM and RATEMDS.COM Defendants

Counsel: Dorothy Charach and Erin S. Chesney, for the plaintiff Marc A. Munro, for the defendant, James Graham

HEARD at Kingston: 15 and 16 January 2019

MEW J.

REASONS FOR DECISION

(Motions for (1) Summary Judgment; (2) relief pursuant to ss. 137.1 - 137.5 of the Courts of Justice Act)

[1] RateMDs.com and OntarioDoctorDirectory.ca are online resources which enable users to inform themselves about physicians through the first hand experiences of other patients. These websites allow patients to rate a physician in the categories of Staff, Punctuality, Helpfulness and Knowledge, as well as leave a comment about the physician.

[2] RateMDs.com’s terms of use make it clear that only actual patients should comment on a physician’s profile. A physician’s overall quality rating is based on the average of the category ratings imputed by all patients who have commented on the physician’s profile.

[3] Dr. Dick Zoutman is a specialist in infectious diseases. He is currently Chief of Staff at the Scarborough Rouge Hospital, but at the time of the events giving rise to this action, he was the Chief of Staff, Medical Director of Medical Microbiology and an attending specialist physician at Quinte Health Care in Belleville. He is also a Professor Emeritus in the Faculty of Health Sciences at Queen’s University, Kingston.

[4] Dr. Zoutman commenced an action against James Graham and RateMDs.com in 2015 after what Dr. Zoutman describes as a campaign by Mr. Graham lasting for approximately a year and a half, during which it is alleged that Mr. Graham posted adefamatory comments about Dr. Zoutman, principally on the RateMDs website. The action against RateMDs.com has been resolved. However, against Mr. Graham, Dr. Zoutman claims general damages, aggravated damages, punitive damages and permanent injunctive relief.

Procedural History

[5] The action was commenced on 3 March 2015. It was discontinued against RateMDs.com on 26 May 2015.

[6] Mr. Graham delivered a notice of intent to defend on 16 June 2015. His statement of defence was served on 17 July 2015.

[7] Nothing further happened procedurally until 6 July 2018, when the plaintiff gave notice of a motion for summary judgment. That motion was returnable on 20 November 2018.

[8] Then, Mr. Graham brought a motion for an order dismissing the action pursuant to the “Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings)” provisions of the Courts of Justice Act, R.S.O. 1990, c C.43 (sections 137.1 - 137.5), commonly referred to as “anti-SLAPP” relief. Failing such an outcome, Mr. Graham also seeks leave to amend his statement of defence and an order transferring the action from Kingston to Hamilton.

[9] No examinations for discovery have taken place.

[10] After delivery of the two notices of motion already referred to, cross-examinations took place on 31 October 2018 (Mr. Graham) and 8 November 2018 (Dr. Zoutman).

[11] The plaintiff notes that the defendant did not obtain a separate date for his anti-SLAPP motion and seems to have assumed that he could use the hearing date that the plaintiff had obtained for summary judgment.

[12] When the motions came on for hearing on 20 November 2018, MacLeod-Beliveau J. noted that the defendant had short-filed the supporting materials for its motion. Furthermore, as a result of the defendant’s motion, the one day previously allocated for the hearing of the summary judgment motion was considered to be insufficient to hear both that motion and the defendant’s motion, the presiding judge being of the view that both motions should be argued at the same time.

[13] Two days were then allocated for the hearing of argument on these motions on 15 and 16 January 2019. At the outset, it was agreed that, in the interests of judicial economy, the motions should be argued concurrently or one immediately after the other (the alternative being to deal with the defendant’s motion first, and then if only if necessary after deciding that motion, to hear the motion for summary judgment).

[14] At the outset of the hearing on 15 January, I heard argument on whether additional evidence should be admitted as part of the record on these motions. For oral reasons given by me at the time, what were described as “contemporaneous snapshots” of the RateMDs.com website were admitted. However, evidence pertaining to the ownership of the defendant’s home was ruled to be inadmissible for use on the motions.

[15] On the issue of venue, the parties agreed that it would be appropriate for this action to be transferred to Toronto if it is not resolved by the present motions.

[16] The proposed amended statement of defence of Mr. Graham pleads that the action against him is statute barred pursuant to sections 5(1) and 6 of the Libel and Slander Act, R.S.O. 1990, c.L.12. No material facts supporting that defence are contained in the draft pleading, and counsel was unable to articulate any particulars when asked. The proposed amendments being otherwise unobjectionable, leave to amend the statement of defence of Mr. Graham is granted, save for the proposed amended wording in paragraph 6 (dealing with the limitation defence).

Facts

[17] On 25 February 2001, Matthew Graham died as a result of post-operative infection following a sigmoidectomy performed at the Henderson Hospital in Hamilton.

[18] A clinical negligence lawsuit was commenced by Mr. Graham’s estate and members of his family against Hamilton Health Sciences Corporation and individuals alleged to have been responsible for Matthew Graham’s death. One of the plaintiffs in that action was Matthew Graham’s brother, James Graham, who is the defendant in the present action.

[19] Dr. Zoutman was called by the defence as an expert witness at the clinical negligence trial. He was asked to provide an opinion on the care and treatment provided to Matthew Graham by Dr. Adam Mohammed.

[20] The action against Dr. Mohammed was dismissed by the jury.

[21] James Graham was present in court while Dr. Zoutman testified. The following day, despite never having been a patient of Dr. Zoutman’s, Mr. Graham posted a rating on Dr. Zoutman’s profile on RateMDs.com. Out of a maximum of 5 stars, Mr. Graham’s rating of Dr. Zoutman was Staff (3), Punctual (2), Helpful (1), Knowledge (1). He left the following comment:

This fellows [sic] misplaced arrogance is surpassed only by his obstinance. He is definitely the smartest person he has ever met. Unable to distinguish between sepsis and pyo-myositis, Dr. Dick claims that neither condition would benefit from the administration of antibiotics. Dangerous and delusional, this individuals [sic] services should be considered carefully prior to allowing treatment.

[22] Individuals providing ratings on RateMDs.com are not required identify themselves. However, Mr. Graham admits that he authored this posting.

[23] He also admits being the author of a further posting on 31 July 2014, in which he identified himself as the brother of the patient described in his comment, which was as follows:

Zoutman provided “expert” opinion in a case where a surgeon was accused of negligence in the death of a 36 year old man who had undergone an elective procedure. I found him to be arrogant, obstinate and condescending. He actually claimed he believed he could do a better job determining the cause of death than the pathologist who conducted the autopsy – 12 years after the fact, and without the benefit of any sort of examination (can you say delusional?) The surgeon was found negligent by a jury of a peers, listing too many breached to the standard of care to list here. Endorsing reckless behaviour is dubious business, and I conclude Zoutman poses a similar threat. The patient was my brother.

[24] Mr. Graham denies authorship of ten other postings concerning Dr. Zoutman, eight of which appeared on RateMDs.com and two of which were posted on OntarioDoctorDirectory.ca.

[25] For reasons that I will elaborate on below, I have no doubt whatsoever that Mr. Graham was the author of all of the impugned postings.

[26] I have taken the following summary of the contents of those postings, as well as the two which Mr. Graham does admit authorship of, from the factum of Dr. Zoutman, as moving party (paragraphs 9 – 14).

[27] The plaintiff claims that the postings are defamatory of Dr. Zoutman in three major ways:

a. Mr. Graham masqueraded as a patient by purporting to rate Dr. Zoutman’s services as a physician; b. Mr. Graham criticised Dr. Zoutman by making false and derogatory statements undermining Dr. Zoutman’s competence and trustworthiness as a physician; and c. Mr. Graham mischaracterised Dr. Zoutman’s trial evidence to falsely portray Dr. Zoutman as a danger to patients.

[28] The postings provide low ratings of Dr. Zoutman’s staff, his punctuality, helpfulness and knowledge and according to Dr. Zoutman, giving the impression that Dr. Zoutman is not to be trusted.

[29] The derogatory words complained of by Dr. Zoutman are said to describe his demeanour, appearance and overall abilities as a physician. The postings describe Dr. Zoutman as “arrogant”, “obstinate”, “thin-skinned”, “delusional”, “ding bat”, “rude”, and “conceited”. Dr. Zoutman is described as bully, as having “bad body odor [sic]” and “dirty fingernails”, and that his appearance is “disturbing”. Dr. Zoutman is said in the postings to be unpopular among his colleagues, a “threat to patient safety” and the epitome of “all that is wrong with the health care system in this country”.

[30] With respect to Dr. Zoutman’s testimony at the clinical negligence trial, the postings state that Dr. Zoutman “believes antibiotics are ineffective in the treatment of infection”, supports “reckless behaviour”, “claimed that he could determine cause of death better than the pathologist who conducted the autopsy”, and is “unable to distinguish between sepsis and pyo-myositis”.

[31] There is no evidence from anyone other than Dr. Zoutman about the extent to which, if at all, persons other than Dr. Zoutman or his lawyers have viewed the impugned postings.

[32] Nor is there tangible evidence of any loss of patients or of loss of professional standing on Dr. Zoutman’s part.

[33] Indeed, since the commencement of these proceedings, Dr. Zoutman was appointed to his current position, a move widely regarded as an advancement in his medical career, carrying greater remuneration than his previous position.

[34] Nevertheless, Dr. Zoutman states that in his experience, patients research physicians on the internet in order to determine their reputation in the medical community and other physicians and health professionals view physician profiles on RateMDs.com for their own research purposes, including the provision of appropriate referrals or collaboration of research projects.

[35] Based on this belief, and on articles in the Journal of the American Medical Association and the Journal of Medical Internet Research, which discuss and assess the use and impact of physician rating sites, Dr. Zoutman’s belief is that each posting that Mr. Graham published on RateMDs.com or on OntarioDoctorDirectory.ca negatively impacted on the professional reputation that he has “worked very hard to build over many years”.

[36] The record also includes screen shots of Google searches on the term “Dr. Zoutman review” which display Dr. Zoutman’s profile on RateMDs.com as the very first result and on OntarioDoctorDirectory.ca as the fifth result; the search term “Dr. Zoutman” displays the RateMDs.com profile as the eleventh result and the OntarioDoctorDirectory.ca profile as the eighth result.

[37] Although all of the impugned RateMDs.com postings have now been removed, Dr. Zoutman states that he lives “the constant apprehension that a new posting from [Mr. Graham] will appear”. He claims to feel distressed by the need to frequently monitor RateMDs.com and other online reviewing services for new postings from him. He adds that the postings on OntarioDoctorDirectory.ca are still online.

Issues

[38] The defendant asks the court to dismiss the plaintiff’s action based on the anti-SLAPP provisions of the Courts of Justice Act (section 137 et seq). To use the words of Doherty J.A. in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, at para. 76, these provisions “created a new pre-trial procedure allowing defendants to move expeditiously and early in the litigation for an order dismissing claims arising out of expressions by defendants on matters of public interest”.

[39] As a preliminary matter, the plaintiff suggests that I should not entertain an anti-SLAPP motion brought more than three years after the commencement of the litigation, and being heard concurrently with a fully briefed summary judgment motion.

[40] A further complicating factor raised by the plaintiff is that, with the exception of two of the impugned postings, Mr. Graham does not acknowledge authorship of the allegedly defamatory statements. Yet his motion cannot succeed unless he satisfies the court:

a. that the proceedings arise from an expression made by him; and b. the expression relates to a matter of public interest.

[41] Assuming that Mr. Graham can get over the hurdle of demonstrating that his expression relates to a matter of public interest (s. 137.1(3)), the onus then shifts to the plaintiff to establish the requirements under s. 137.1(4)(a) and (b), namely to show:

a. the proceeding has substantial merit; and b. the defendant has no valid defence.

[42] If the defendant’s motion fails, the plaintiff’s motion for summary judgment falls to be considered. Summary judgment is appropriate if there is no genuine issue requiring a trial. This requires the court to consider:

a. The appropriateness of summary judgment; then, assuming the court concludes that summary judgment is appropriate, b. The authorship of the postings; c. Whether the plaintiff has established the elements of the tort of defamation, namely that the words complained of: i. were defamatory; ii. referred to the plaintiff; and iii. were published. d. Any defences available to the defendant; and e. Damages.

Anti-SLAPP Motion

[43] Section 137.1 of the Courts of Justice Act provides a mechanism at an early stage in the litigation process to screen out claims that have little merit and which undermine freedom of expression: Platnick v. Bent, 2018 ONCA 687, at para. 43.

[44] The evaluation undertaken by the court on a motion brought under s. 137.1 must, according to the Court of Appeal in Pointes (at paras. 76 and 78):

76 …be done having regard to both the context in which s. 137.1 motions are brought and the procedures controlling those motions. A s. 137.1 motion is intended to be brought at an early stage of the proceeding. The defendant is not even required to serve a statement of defence: s. 137.2(1). The motion must be heard within 60 days: s. 137.2(2). Cross-examination on affidavits or documentary evidence will usually be limited to a total of seven hours for each side: s. 137.2(4). The timing of the motion and the limits on cross-examination are not conducive to either party putting its "best foot forward", as is expected in summary judgment proceedings.

78 Motion judges must be careful that s. 137.1 motions do not slide into de facto summary judgment motions. If the motion record raises serious questions about the credibility of affiants and the inferences to be drawn from competing primary facts, the motion judge must avoid taking a "deep dive" into the ultimate merits of the claim under the guise of the much more limited merits analysis required by s. 137.1(4)(a). If it becomes apparent to the motion judge that a proper merits analysis would go beyond what could properly be undertaken within the confines of a s. 137.1 motion, I think the motion judge should advise the parties that a motion for summary judgment would provide a more suitable vehicle for an expeditious and early resolution of the claim.

[45] The defendant’s explanation for not bringing his motion sooner is that he was not sure whether the plaintiff was serious about moving his action forward. Nearly three years elapsed between the delivery of the defendant’s statement of defence and the plaintiff delivering a draft notice of motion for summary judgment. The defendant urges the court to judge this proceeding by its progress (or lack thereof), rather than by the calendar.

[46] I am prepared to accept that the passage of time alone should not disentitle the defendant from seeking relief under s. 137.1. I agree that the action is, in procedural terms, immature.

[47] The admonition to motion judges to avoid taking a “deep dive” becomes more challenging in a case such as this, given the existence of what is now a fully briefed summary judgment motion, in which the parties are required to put their best foot forward.

[48] The scheme of s. 137.1 is that once an anti-SLAPP motion has been brought, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of: s. 137.1(5). In Todd R. Archibald and P. Tamarah Sugunasiri, Ontario Superior Court Practice 2019 (Toronto: Lexis Nexis, 2019) at p.425, the authors note that:

Once the anti-SLAPP motion is brought, no party may make take any further steps in the proceeding until the motion is finally disposed of. The prohibition makes good sense given the purpose of the legislation, as it prevents the use of “extraneous steps” that might be used to undermine the efficiency of the intended process. The provision contains no exceptions and, importantly, the court is afforded no power to grant relief from the prohibition in any circumstances.

[49] In this matter, the plaintiff’s motion for summary judgment had been served and filed more than two months before the defendant brought his anti-SLAPP motion. A hearing date for the summary judgment motion had been set. Subsequently, an order was made by MacLeod-Beliveau J. for the anti-SLAPP and summary judgment motions to be heard concurrently. That order was not appealed and, as already indicated, in the interests of judicial economy, both motions were argued on the allocated days (the anti-SLAPP motion first, followed by the summary judgment motion).

[50] Despite the views expressed by Doherty J.A. in Pointes, and others, that the efficacy of s. 137(1) is undermined if the motion is not brought on a timely basis, the legislation does not specify when the motion must be brought. However, as a practical matter, where, prior to the anti-SLAPP motion being commenced, there is already a substantial evidentiary record available to the court because of a pending summary judgment motion a different approach is warranted. Otherwise, the purpose and efficacy of the anti-SLAPP relief is rendered redundant. If, as the court is required to, the legislation is interpreted in a purposive fashion, the effect in circumstances such as this should be to subsume the s. 137.1 motion within the summary judgment motion.

[51] In the present case, the plaintiff sent out a draft of its notice of motion on 22 June 2018 and formally served its notice of motion on 6 July. Perhaps if, upon receipt of the draft, the defendant had immediately responded and said “hold off – now that I know that you are serious about pursuing this action, I’m going to bring a motion under s. 137.1”, the defendant’s position would be more tenable. But, instead, the defendant waited until 5 October 2018 to deliver his notice of motion and then, as already indicated, made it returnable on the same date as the summary judgment motion, without securing additional time for the motion to be heard.

[52] In the meantime, the plaintiff had delivered a comprehensive summary judgment motion record on or shortly after 2 August 2018.

[53] In my view, the defendant has left it too late to bring his anti-SLAPP motion. That ship sailed no later than the plaintiff’s delivery of its record in the summary judgment motion. There is now a fully formed summary judgment motion before the court. To allow the s. 137.1 relief to be considered at this time would undermine the orderly and fair administration of justice.

[54] Even if I were to be found in error for not considering the defendant’s s. 137.1 motion for the reason just articulated, I would also reject the defendant’s motion on the basis that s. 137.1(3) requires him to satisfy me that the proceeding (a) arising from an expression made by him; that (b) relates to a matter of public interest.

[55] The defendant falls at the first of these hurdles. He does not acknowledge that ten out of the twelve impugned expressions were made by him.

[56] Furthermore, even if the lack of acknowledged authorship is not, in and of itself, fatal to Mr. Graham seeking relief under s. 137.1, it is very difficult to determine whether the expressions are in the “public interest” if only two of the impugned postings can be considered.

[57] Finally, as will become from my ruling on the summary judgment motion, even if Mr. Graham could satisfy me that his comments meet the requirements of s. 137.1(3), there are grounds to believe that Dr. Zoutman’s claim has substantial merit; that Mr. Graham has no valid defence in the proceeding; and, that the harm likely to be or suffered by Dr. Zoutman as a result of Mr. Graham’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighed any public interest in protecting that expression.

[58] Accordingly, I would dismiss the defendant’s motion under s. 137.1.

Summary Judgment

[59] The defendant does not challenge the appropriateness of resolving this matter through the summary judgment procedure. Indeed, the defendant takes the position that the evidentiary record provided by the plaintiff is so inadequate that rather than granting summary judgment in favour of the plaintiff, the action should be summarily dismissed.

Authorship

[60] Mr. Graham acknowledges authorship of only two of the twelve impugned postings. With respect to the remainder, he admits only the fact that the postings once existed.

[61] One of the postings which Mr. Graham admits to having made was on 31 July 2014. There was also a posting on Dr. Zoutman’s RateMDs.com profile the previous day, 30 July 2014. Mr. Graham denies being the author of that posting, despite it being virtually identical to the 31 July posting.

[62] I do not accept Mr. Graham’s denial of authorship of the 30 July 2014 posting. He claims that he authored the 31 July posting because he realised that his earlier 27 November 2013 posting had been removed from RateMDs.com and wanted to ensure that his message about Dr. Zoutman remained in the public domain. Yet while posting his 31 July 2014 communication, Mr. Graham would surely have seen the virtually identical posting that had been made the previous day and, as Dr. Zoutman argues, there would have been no need to effectively repost a comment that had been posted just the day before.

[63] Significantly, based on subpoena responses provided by RateMDs.com, the 30 July 2014 posting emanated from the same IP address as four other postings.

[64] Even a cursory review of the postings reveals a consistent style and recurring words and phrases suggestive of common authorship.

[65] The 31 July 2014 posting (which Mr. Graham admits is his) describes Dr. Zoutman as “arrogant, obstinate and condescending”. The next posting, on 14 August, which he does not acknowledge authorship of describes Dr. Zoutman as “arrogant, obstinate and condescending”. On 14 October, Dr. Zoutman is described as “conceited and thin-skinned”. On 3 November 2016, he is said to be “arrogant, thin-skinned”. On 3 May 2018, he is “conceited, arrogant, and condescending”.

[66] Some other examples. In the 31 July 2014 posting, Mr. Graham wrote of Dr. Zoutman “He actually claimed he believed he could do a better job determining the cause of death than the pathologist who conducted the autopsy… ”. The posting on 14 August states “Claimed he could determine cause of death better than the pathologist who conducted the autopsy… ”.

[67] The first posting on 27 November 2013 made reference to Dr. Zoutman’s inability “to distinguish between sepsis and pyo-myositis”. Another posting, made in fact on the profile of Dr. Wendy Wobeser, a colleague of Dr. Zoutman’s, after praising Dr. Wobeser as an “exceptional physician” continues “I cannot imagine her confusing sepsis with pyo-myositis. Not arrogant or obstinate… ”.

[68] Looking at all of these postings in the round, I am left in no doubt they have a common author: the defendant.

The Postings are Defamatory of Dr. Zoutman

[69] Whether a statement is defamatory is determined by examining the natural and ordinary meaning of the impugned words: Mantini v. Smith Lyons LLP, 64 O.R. (3d) 516, at para. 10.

[70] I have no hesitation in concluding that the language used to describe Dr. Zoutman in the postings would lower the reputation of a doctor in the estimation of right thinking members in the community. The comments posted by Mr. Graham are derogatory and degrading to Dr. Zoutman, both personally and professionally.

[71] Some of the postings go to the very core of Dr. Zoutman’s integrity. He is accused of “reckless behaviour”, “turns to bullying”, and “epitomizes all that is wrong with the health care system in this country”. Online comments by non-patients which impugn the trustworthiness of a doctor have been held to be defamatory (Sagman v. Belleville Telephone Co of Canada, 2014 ONSC 4183, at paras. 11-12) as have false innuendos created by taking a physician’s comments out of context (Myers v. Canadian Broadcasting Corp, 54 O.R. (3d) 626 (C.A.) at para. 7). Mr. Graham’s statements concerning Dr. Zoutman’s trial testimony can be similarly characterised.

[72] The plaintiff has satisfied me on a balance of probabilities that the impugned postings are defamatory of Dr. Zoutman.

Publication

[73] To be actionable, a defamatory remark must be communicated to a third person, other than the defamed individual (or his lawyers).

[74] The defendant argues that the plaintiff has failed to establish publication. No evidence has been provided of any individual (other than the plaintiff and his lawyers) having read the defamatory postings. Nor has any information been obtained from, for example, RateMDs.com or OntarioDoctorDirectory.ca indicating the number of hits on Dr. Zoutman’s profiles.

[75] In Elfarnawani v. International Olympic Committee, 2011 ONSC 6784, an issue arose as to whether material posted on the International Olympic Committee’s website was published in Ontario. Campbell J. noted that there was “not so much as a single affidavit from any independent third party stating that they visited the IOC website and viewed the allegedly defamatory materials”. Campbell J. reiterated that “publication” is a matter of proof, by evidence, in each individual case: Elfarnowani, at para. 34.

[76] In Craven v. Chmura, 2013 ONSC 1552, Nightingale J. observed, at para. 34, that while “there is no presumption of publication in relation to allegedly defamatory materials published on the Internet”, it some cases “publication can reasonably be inferred from the proven facts”.

[77] In Hee Creations Group Ltd. v. Chow, 2018 BCSC 260, although there was no direct evidence that postings on certain English and Chinese language internet platforms were read by any third parties, there was evidence from some of those platforms on how many times the postings had been accessed. In that case, the defendant had posted numerous disparaging comments about the plaintiff’s wedding services on the internet. The defendant’s evidence was that one of the sites she had posted comments on was an online forum targeting Chinese people living in Vancouver and from that, the trial judge felt he could reasonably draw the inference that the postings, at least to the extent that they were posted on that website, were read by one or more persons in British Columbia. He added, at para. 85, that to find otherwise would be to ignore the realities of 21st century communications and internet based publication.

[78] On cross-examination, Mr. Graham agreed, with respect to the postings about Dr. Zoutman that he did acknowledge authorship of, that he wanted the public to know about the things that he had written about Dr. Zoutman and while he said that he would not anticipate the general public would be reviewing the RateMDs.com site, he did anticipate that anyone who wanted to use Dr. Zoutman’s services professionally might be reviewing that site.

[79] Furthermore, the record does include a comment by an unidentified user who, in a post dated 19 July 2014, wrote, apparently in reference to Mr. Graham’s 27 November 2013 posting:

I cannot imagine who posted the last rating but I wonder if it was just a jealous medical colleague as there is use of weird and special medical terms in that posting…

[80] In Gaskin v. Retail Credit Co., [1965] 2 SCR 297, at p.300, cited by Deschamps J. in Crookes v. Wikimedia Foundation Inc., 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.

[81] In Crookes, a website owner had published an article which contained hyperlinks to other websites which contained allegedly defamatory material. An issue that arose was whether that material had been published. The majority in 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, stated that, depending on a variety of factors, it was open to a court to infer that a third party had 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.

[82] In my view, Dr. Zoutman has established publication. I come to this conclusion taking into account the totality of the circumstances, including:

a. The comment by an apparent third party on 14 July 2014, referring to Mr. Graham’s earlier posting of 27 November 2013; b. RateMDs.com and similar physician rating websites are frequently used by the public for the purposes of choosing a physician; c. Mr. Graham’s evidence that he authored postings to warn prospective patients about Dr. Zoutman; d. Mr. Graham’s acknowledgment that he posted the second of the postings that he admits having authored because he found that the first posting had been deleted and was concerned that his message would not be received by the public; and e. The prominence of the RateMDs.com and OntarioDoctorDirectory.ca profile in Google searches concerning Dr. Zoutman.

[83] The cumulative effect of these factors provides ample evidence of publication.

Defences

[84] Mr. Graham raises the defence of fair comment (he also pleads the defence of responsible communication, but did not pursue this defence in argument).

[85] Mr. Graham does not plead the defence of justification, i.e. that to the extent his postings consist of statements of fact, that the postings are true.

[86] There are four elements to the defence 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; and d. The comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?

[87] Even if the comment satisfies the foregoing elements, the defence can be defeated if the plaintiff proves that the defendant was actuated by malice.

[88] Mr. Graham argues that health care, the use of antibiotics and commentary on judicial proceedings all satisfy the “public interest” element. In Pointes, albeit in the context of the term “public interest”, as it is used in s. 137.1(3) of the Courts of Justice Act, Doherty J.A. states, at para. 65, that the concept:

… is a broad one that does not take into account the merits or manner of the expression, nor the motive of the author. The determination of whether an expression relates to a matter of public interest must be made objectively, having regard to the context in which the expression was made and the entirety of the relevant communication. …

[89] That said, the court in Pointes also observed that expressions that relate to private matters are not converted into matters relating to the public interest merely because those expressions concern individuals in whom the public have an interest: Pointes, at para. 61. I agree with the plaintiff’s submission that private interest disputes are only a matter of public interest if they transcend the parties, affecting the interest of the community at large.

[90] The rationale for the defence of fair comment recognises the striking of a balance between protection of an individual’s reputation and the right of every citizen to comment upon or criticise a public concern: see generally, Raymond E. Brown, Defamation Law: A Primer, 2nd ed. (Toronto: Carswell, 2013) at p.266.

[91] Mr. Graham’s evidence is that his postings were made because he wanted to warn members of the public, and in particular, prospective patients, about Dr. Zoutman. That, of course, is part of the underlining rationale for the existence of websites such as RateMDs.com and OntarioDoctorDirectory.ca.

[92] The difficulty with Mr. Graham’s assertion is that he was never a patient of Dr. Zoutman. True, he was a party to a lawsuit, in which Dr. Zoutman gave evidence that ultimately influenced the outcome of the lawsuit. But, as Mr. Graham acknowledged, he was devastated by the jury verdict and was upset by Dr. Zoutman’s testimony.

[93] Daboll v. DeMarco, 2011 ONSC 1, was a defamation case brought by a lawyer against a former client. The client had had an unhappy experience with the lawyer, and placed advertisements that appeared in a local shopping newspaper and, ultimately, on a website, which included negative comments about the lawyer. The court found that there was no public interest in targeting the lawyer in such fashion that would be sufficient to give rise to a defence of fair comment.

[94] Ultimately, even giving Mr. Graham a great deal of latitude because of the circumstances that impelled his criticisms of Dr. Zoutman, I have serious reservations as to whether the element of public interest can be made out in this case.

[95] “Fair” comment does not have to be objectively reasonable. There is no requirement that the criticism be temperate, impartial and well-balanced. Comments that might be regarded as foolish, biased, prejudiced or exaggerated will not displace the defence of fair comment unless the language employed warrants a finding of malice: Defamation Law: A Primer, at pp.278-279.

[96] Dr. Zoutman argues that Mr. Graham’s criticisms of him are presented as statement of fact, rather than as comment. While it is the case that the comments posted by Mr. Graham are not qualified by words such as “perhaps” or “I believe”, they appear on a website which provides a forum for patients to comment about their doctors. Appreciating that Mr. Graham was not a patient of Dr. Zoutman, his stated purpose was, nevertheless, to warn others about Dr. Zoutman.

[97] Where Mr. Graham’s defence of fair comment runs into further trouble, however, is when the truth (or lack thereof) of the facts underlining his states is considered. For a start, and most significantly, as already discussed, Mr. Graham was never Dr. Zoutman’s patient. To portray himself as such (and a condition of use of RateMDs.com is that comments are made by patients) was a falsehood. Nor does he plead the truth of the underlying facts asserted by him in the postings.

[98] Furthermore, assertions by Mr. Graham that Dr. Zoutman was “unable to distinguish between sepsis and pyo-myositis” and that Dr. Zoutman “claims that neither condition [sepsis and pyo-myositis] would benefit from the administration of antibiotics” were, as tacitly acknowledged by Mr. Graham during cross-examination, false. Similarly, the assertion that Dr. Zoutman had claimed that he could do a better job determining the cause of death than the pathologist had no basis in fact, as Dr. Zoutman testified that he substantially agreed with the pathologist’s report. Allegations that Dr. Zoutman had endorsed reckless behaviour in the form of many breaches of the standard of care on the part of the defence physician were similarly without basis, because Dr. Zoutman had provided an opinion on causation, not standard of care. And Mr. Graham’s ratings of Dr. Zoutman for “staff”, “punctual”, “helpful”, and “knowledge” were entirely false because Mr. Graham had never been Dr. Zoutman’s patient.

[99] When the other postings that Mr. Graham does not admit authorship of are considered, a similar pattern of statements unsubstantiated by the facts, or the product of plain falsehoods, can be seen.

[100] Accordingly, Mr. Graham cannot sustain the defence of fair comment.

Malice

[101] Comment that is made solely for the purpose of annoyance and harassment, or in order to harm, injure or punish someone will amount to malice. A defendant must not act out of revenge in order to obtain satisfaction for some personal resentment or grudge. See, generally, Defamation Law: Primer, at pp.296-7.

[102] A court is entitled to examine the “mode and style” of the publication, the tenor, the tone and spirit of the communication, and the language which the defendant has used: Raymond E. Brown, Brown on Defamation, 2ed (Toronto: Carswell, loose-leaf, updated 2017) at para. 16.4(3)(a).

[103] Dr. Zoutman submits that the words used by Mr. Graham demonstrates spite and ill will, as they include bold, sweeping and inflammatory statements, such as calling Dr. Zoutman “[a] dingbat, rude, conceited, thin-skinned” (this in order to fulfill an alleged “duty to ensure the public beyond the courtroom understood what was happening within it”); or describing Dr. Zoutman’s appearance as “disturbing, large bags under his eyes… dirty fingernails and bad body odor”.

[104] It goes on. Despite having been qualified the court as an expert, Mr. Graham describes Dr. Zoutman as “dangerous” and “delusional”.

[105] The first posting was a day after Dr. Zoutman had testified and before the jury had rendered its verdict. Subsequent postings were made after Mr. Graham discovered that his previous comments had been deleted by RateMDs.com. The 3 May 2018 posting was published shortly after the parties exchanged affidavits of documents.

[106] Mr. Graham’s asserted belief (albeit undermined in subsequent cross-examination) in what he published would be insufficient to demonstrate the absence of malice in the face of evidence that he acted for an indirect or improper purpose: Magno v. Balita Media Inc., 2018 ONSC 3230, at para. 61, citing Leenen v. Canadian Broadcasting Corp., 48 O.R. (3d) 656 (SCJ) at paras. 140-143, aff’d (2001) 54 O.R. (3d) 612 (C.A.).

[107] Not only did Mr. Graham refuse to remove the postings which he acknowledged authorship of, he persisted in posting further comments. All the time masquerading as a patient.

[108] I understand Mr. Graham’s anger arising from the death of his brother. I understand why he does not accept the jury’s verdict. I understand why he associates Dr. Zoutman’s evidence with that anger. But none of that justifies or excuses Mr. Graham’s malicious comments. His asserted belief in his comments did not bear up under cross-examination.

[109] I have no hesitation in concluding that he acted out of malice.

Disposition

[110] There is no triable issue. The plaintiff’s allegations of defamation are amply supported by the record.

Damages

[111] Mr. Graham argues that Dr. Zoutman has failed to show that he has suffered any harm as a result of the postings. Indeed, there is no evidence of him having lost a single patient or referral.

[112] The record shows that Dr. Zoutman was, and remains, highly regarded in the medical community. He now holds a senior position with substantial responsibilities.

[113] It is, however, trite law that general damages in libel cases are presumed from the very publication of the false statement. An injured plaintiff bears no obligation to prove actual loss or injury: Rutman v. Rabinowitz, 2018 ONCA 80, at para. 62.

[114] The purpose of general damages in defamation actions is to console the victim as well as to vindicate and repair the victim’s reputation. The defamation of a professional is a serious matter which will ordinarily justify an award of substantial damages, including punitive or exemplary damages if the circumstances so warrant. See generally, Sagman v. Bell Telephone Co. of Canada, 2014 ONSC 4183, 121 O.R. (3d) 607 at para. 18, and the authorities therein cited.

[115] In Ironside v. Delazzari Estate, a plaintiff’s online defamatory publication about the plaintiff, describing him as an “Internet/eBay Scammer”, which was specifically intended to reach potential customers of the plaintiff, resulted in an award of general damages of $50,000. In Sagman, the plaintiffs were medical doctors, one of whom was also a medical technology entrepreneur. Defamatory statements posted online in what the court found to have been an attempt to intentionally damage the plaintiff’s reputations resulted in awards of damages to each of the plaintiffs of $150,000.

[116] The amount of general damages should be sufficiently meaningful to vindicate and repair Dr. Zoutman’s reputation and to provide consolation for the distress that he has experienced. But it should not be punitive.

[117] I therefore assess general damages at $25,000.

[118] Dr. Zoutman asserts that, in addition to general damages, an award of aggravated damages should be made, given “Mr. Graham’s malicious and remorseless conduct”.

[119] Aggravated damages are awarded where a defendant is guilty of “insulting, highhanded, spiteful, malicious or oppressive conduct” which has increased the mental distress and humiliation suffered by the plaintiff: Ironside, at para. 56.

[120] Dr. Zoutman’s evidence is that he has lived, and continues to live, in constant apprehension that new postings will appear. He feels distressed by the need to constantly monitor RateMDs.com and other online reviewing services.

[121] Dr. Zoutman submits that an appropriate award of aggravated damages would be in the amount of $25,000 (this was the amount awarded in Ironside).

[122] I agree. I assess $25,000 for aggravated damages.

[123] Dr. Zoutman also seeks punitive damages. Punitive damages will be awarded to deter and denounce highhanded, malicious, arbitrary or highly reprehensible conduct that departs to a marked degree from ordinary standards of decent behaviour: Ironside, at para. 64.

[124] Dr. Zoutman suggests a range of $10,000 to $50,000 for punitive damages. He submits that this is modest based on previous awards in cases involving defamation of a professional (see, for example, Myers v. Canadian Broadcasting Corporation, 54 O.R. (3d) 626 (CA).

[125] I hesitate to also award punitive damages in this case, not because I do not regard Mr. Graham’s comments as deserving of denunciation, but because I do recognise that, reprehensible as his conduct has been, it is the product of profound grief as well as anger.

[126] In my view the interests of justice are served by imposing on Mr. Graham the obligation to pay to Dr. Zoutman general damages of $25,000 plus aggravated damages of a further $25,000, for a total of $50,000.

Permanent Injunction

[127] Dr. Zoutman seeks a permanent and mandatory injunction against Mr. Graham preventing him from writing, speaking, publishing, posting or otherwise disseminating any defamatory content on the internet or any other medium, electronic or otherwise, directly or indirectly, relating to Dr. Zoutman.

[128] Permanent injunctive relief is appropriate in defamation actions where either it is likely that the defendant will continue to publish defamatory statements, despite a finding of liability, or there is a real possibility that the plaintiff will not receive any compensation (due to the uncollectability of the damages award): Astley v. Verdun, 2011 ONSC 3651.

[129] While, at the present time, all of Mr. Graham’s defamatory postings concerning Dr. Zoutman have been taken down, the record clearly indicates that, despite cease and desist letters being written, as well as the commencement of this action, defamatory postings continued to be made. As I have found, Mr. Graham is actuated by malice. It seems likely that there will be further reoccurrences if Mr. Graham’s conduct is not enjoined by an order of this court.

[130] Having so concluded, it is not necessary for me to speculate about whether or not Dr. Zoutman will be able to collect on the award of damages that has been made. Suffice it to say that I do not have sufficient evidence upon which I could make such a finding.

[131] A permanent injunction shall, accordingly, go as requested.

Costs

[132] The plaintiff has been entirely successful. He is presumptively entitled to costs. Within 21 days of the release of this decision, the plaintiff should deliver his bill of costs together with a written submission not to exceed four pages in length. Within fourteen days of receipt of the plaintiff’s costs submission, the defendant should deliver a responding submission of not more than four pages in length, together, if he so chooses, with the bill of costs which he would have presented to the court in the event he had succeeded.

Graeme Mew J.

Released: 7 May 2019

Corrected, 3 June 2019:

Paragraph 50

Second sentence amended by inserting a period after the word “warranted” and by adding the word “Otherwise,” to the beginning of the next sentence.

COURT FILE NO.: CV-15-115-00 DATE: 20190507 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: DR. DICK ERIC ZOUTMAN Plaintiff – and – JAMES GRAHAM and RATEMDS.COM Defendants REASONS FOR JUDGMENT (Motions for Summary Judgment) Mew J. Released: 7 May 2019