Court File and Parties
Court File No.: 214-2015 Date: 20190114 Ontario Superior Court of Justice
Between: Dr. James Grochowski, Plaintiff And: Adam Young, The Sarnia Observer aka The Observer, a Division of Sun Media Corporation, Defendants
Counsel: M. Polvere, for the plaintiff A. Rady, for the defendant, Adam Young
Heard: June 18, 2018 Before: McArthur, M.D., J.
Reasons for Decision
Introduction
[1] Dr. Grochowski criticized the decision of a judge in a criminal case in Sarnia in a letter to the editor that was published by The Sarnia Observer. Adam Young wrote a letter in reply that was posted online with The Sarnia Observer. This letter referenced Dr. Grochowski prescribing addictive medication to a person without close supervision while working in a busy emergency room.
[2] This posting soon came to the attention of Dr. Grochowski and others in the community and is the subject of this defamation action.
Legal Issue
[3] The issues in this case are whether the defendant, Adam Young, defamed Dr. Grochowski and, if so, what are the damages.
[4] The action had been previously discontinued against the other defendant, The Sarnia Observer.
Factual Background
[5] The plaintiff, Dr. James Grochowski, is a practicing family physician and an emergency room doctor with Bluewater Health in Sarnia, Ontario.
[6] The defendant, Adam Young, resides in Sarnia. He was not a professional journalist.
[7] Dr. Grochowski’s letter to the editor was published digitally online on November 7, 2014. In that letter, Dr. Grochowski criticized the decision of a judge in a criminal case sentence of an individual who had confronted staff in the emergency room of the hospital in Sarnia. Dr. Grochowski characterized that decision as insulting.
[8] On November 7, 2013, Mr. Young posted a commentary to the letter of the plaintiff in the online commentary section of The Sarnia Observer.
[9] The initial letter to the editor by the plaintiff was as follows:
I read with extreme disappointment the article on the man who confronted ER staff with knife (The Observer, Friday, Oct. 31). It is unbelievable how an individual can produce a prohibited weapon with the intent to harm someone with the sole deterrence delivered being 24 days of time served. Though the individual responsible for his actions was under the influence of “heavy narcotics”, it does not absolve him of his actions nor should this be a mitigating factor. Though I am not privy to details of his criminal record, one would think that this would be a mitigating factor in choosing a longer period of time for deterrence. Furthermore, a weapons ban does nothing to deter people who carry a prohibited weapon.
I am thankful that none of our staff were injured that evening. Health-care professionals deserve to work in a safe environment. The sentence imposed by Justice Jonathan George is quite honestly insulting.
Dr. Jim Grochowski Sarnia
[10] The specific postings by the defendant in relation to the plaintiff that are the subject matter of this action are as follows:
(a) “Without getting into confidential details, I’ve also seen you prescribe highly-addictive medication to someone (while stretched thin at the ER) without close inspection”;
(b) “No, but I know when someone close isn’t examined at all and a thing or two about substances we’ve been reading about over the last few years”.[11] The defendant’s postings were brought to the plaintiff’s attention while working at the emergency room of the hospital on this same date. The postings were removed by The Sarnia Observer on November 11, 2013. The plaintiff soon thereafter provided the defendant with notice pursuant to s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12.
The Proceedings and the Position of the Parties
[12] The plaintiff claims the statements amount to defamation and warrant general, aggravated and punitive damages.
[13] The defendant contends the statements were not defamatory, the contents of the statements were true and that the defences apply of responsible communication, justification and fair comment.
[14] The case proceeded pursuant to the simplified rules.
[15] The plaintiff’s case involved the affidavit of the plaintiff and the affidavits of three others individuals, each who also testified and were cross-examined.
[16] The defendant’s case involved the affidavit of the defendant and the defendant testified and was cross-examined.
[17] The defendant moved and was permitted to amend pleadings after the evidence was heard to plead the content was a communication based on the defendant’s personal experience which was made responsibly on a matter of public interest. Further evidence was then permitted by way of additional cross-examination of the defendant.
The Law
Defamation
[18] A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right-thinking members of society generally and in particular to cause him or her to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem. The statement is judged by the standard of the ordinary, right-thinking members of society. Hence the test is an objective one. [1]
[19] Defamation is, for the most part, a strict liability tort and a defendant is liable whether or not he or she intended to make any statement or one which carried a defamatory imputation, or whether or not the defendant intended or reasonably believed it would not convey a false meaning, or refer to the plaintiff or cause him any damage. The innocence, good faith, motive, belief, reasonableness or intention of the defendant is generally irrelevant to the question of liability. However, it must be shown that the defendant acted intentionally or negligently in publishing the remarks to a third person. [2]
[20] Defamatory imputations arise from:
a. literal or natural and ordinary or self-evident meaning of the defamatory words themselves; b. an inferential meaning being the meaning inferred, read in or taken from the literal words by the ordinary person without special knowledge, also sometimes referred to as “popular” or “false” innuendos; and c. a “legal innuendo” wherein the literal words may be innocent in and of themselves, but in combination with extrinsic facts known to specific people, convey a defamatory meaning. [3]
[21] Defamatory words are presumed to be false.
Defences
[22] The defences raised in this case involve justification by truth, fair comment and the communication was based on the personal experience of the defendant and was made responsibly on a matter of public interest.
Justification
[23] Where the defence of justification by truth is raised, the onus is on the defendant to displace the presumption of falsity by establishing the truth of the defamatory words as a matter of fact. The defendant’s burden is to prove the substantial truth of the alleged libel. The main charge to be justified includes the express defamatory meaning of the words and any implication that is held to have been a correct defamatory meaning of the words. [4]
Fair comment
[24] The defendant has the burden to establish these five elements for the defence of fair comment to apply:
(1) a comment, not a statement of fact; (2) made on accurate facts; (3) on a matter of public interest; (4) fairly made; and (5) made without malice.
Communication made responsibly on a matter of public interest.
[25] The Ontario Court of Appeal recently decided a series of cases that has confirmed that the recent SLAPP legislation does not alter the law as it relates to public interest claims nor are there new public-interest defences. The law of defamation remains largely unchanged. [5]
[26] A defence can be made on this basis if the defendant proves that:
(1) the publication was on a matter of public interest; (2) the publication was responsible or that he was diligent in trying to verify allegations having regard to all of the relevant circumstances including; 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 plaintiff’s side of the story was sought and accurately reported; f. whether the inclusion of the defamatory statement was justifiable; g. whether the defamatory statement’s public interest lay in the fact that it was made rather than in its truth; and h. any other relevant circumstances. [6]
Damages
[27] General damages are presumed in defamation cases from the very publication of the false statement and are awarded at large. They need not be established by proof of actual loss. General damages serve three functions: 1) to act as a consolation for distress suffered from the publication of the statement; 2) to repair harm to reputation; and 3) as a vindication of reputation. A successful plaintiff is entitled to receive an award of general damages that will be sufficient to provide suitable compensation, consolation and vindication on the basis of all of the circumstances. [7]
Evidence and Analysis
[28] The defence conceded at the outset, that he authored and made the statements and other postings in relation to the letter to the editor by the plaintiff.
The April 2013 emergency room attendance and postings by the defendant
[29] Mr. Young had been the patient of Dr. Grochowski at the emergency room of the Sarnia Hospital approximately 18 months earlier. Hospital records confirmed this was on April 7, 2013 for dental pain.
[30] Shortly after the April 7th attendance, Mr. Young posted a letter to the editor on April 11, 2013 on the online version of The Sarnia Observer about that emergency room attendance in reference to the protection of patient data and privacy during the registration process.
[31] Mr. Young exchanged comments with others who posted in relation to those issues. He mentions that he was in severe pain and some of the worst pain he had ever experienced.
[32] Mr. Young’s evidence through his affidavit, from examination and at trial, was that he attended the emergency department at approximately 8:30 pm after dinner with his wife when he experienced an onset of extreme dental pain. He had experienced periodic pain in his lower left jaw region for several weeks. The pain would subside and he had no recall of what he had done to manage the pain. He was initially triaged and waited for the doctor. Dr, Grochowski attended and went through the dental complaint verbally. The doctor was writing. Mr. Young recalled opening his mouth and gestured to the painful area but from the doctor’s position, the doctor would not have been able to look in his mouth. The doctor did not approach the defendant, kept writing and at the end of the conversation, the plaintiff gave him a prescription. He said the doctor did not look in his mouth and stayed one to two arm’s length away from him. He said he was prescribed Oxycocet, Naproxen and Penicillin and was free to go. He indicated that the doctor seemed quite rushed during the encounter that lasted 2 minutes.
[33] The triage assessment flowsheet and the emergency record for this attendance was produced. The triage nurse noted a complaint of dental pain and swelling in the jaw and his condition was assessed as non-emergent.
[34] Dr. Grochowski also noted on the emergency record that on examination Mr. Young did not have jaw swelling. He diagnosed Mr. Young with a dental infection and prescribed the medications Naproxen, Penicillin and Percocet. Mr. Young was advised to seek medical attention or to return if the symptoms increased or persisted. That record indicates a start time with the defendant of 2042 hrs (8:42 pm) and a left/disposition decision time of 2117 hrs (9:17 pm).
[35] Dr. Grochowski indicated that Mr. Young had expressed to him that he was in some of the worst pain of his life. After examination, the doctor prescribed 15 tablets of Percocet since the Tylenol 3 the defendant was taking had not provided adequate pain relief and a short course of such an opioid mitigated against the risk of dependency. This prescription provided the defendant with two days of pain control and sufficient time to access the defendant’s dentist for definitive care.
[36] Dr. Grochowski also testified that this was a Sunday evening and was not a busy time in the emergency department with reference to the documents that demonstrated that the defendant was triaged and registered between 8:30 pm and 8:42 pm and that the defendant was seen and released at 9:17 pm. This was a timely interaction particularly when the defendant was regarded as non-emergent.
[37] There are also no references about Dr. Grochowski in the comments of Mr. Young in the April 2013 online forum directly or otherwise nor any complaint of the medical care provided.
The November 7, 2014 letter and subsequent postings
[38] The statements by the defendant must be considered in context to all of the overall statements made by the defendant in the online commentary.
[39] The defendant’s initial comment on the plaintiff’s letter is reproduced fully as follows:
a_w_young comad • 2 days ago I have no doubt. An event like that certainly doesn't just "leave you". I also know how many plates they're spinning when they're working in a place like that. My point elsewhere that you seemed to disagree with was that there needs to be more pre-emptive measures and strategies in place. I don't think locking up people for longer and criticizing judges when we aren't even in the courtroom is going to dissolve the trauma or prevent more harm. Dr. Jim Grochowski: The point of identifying drug issues isn't to "absolve" people, it is to act in the best interest of the safety of the public and the individual. You're a doctor. Do you believe simply locking them up for longer would solve the problem? I hope not. There's a need for nuance there that we're not going to be able to have as members of the public outside of the courtroom. It must have been horrifying for the ER staff. I don't say these things to diminish what happened or what some had to go through. Yes, health-care professionals do deserve to work in a safe environment. You have, however, conflated the judge's decision with your feelings and with safety and implied that a longer sentence would mean safer staff. Is that necessarily going to be the case? If I were in your shoes, I'd probably be angry too, but hopefully would remember that anger isn't a good litmus. You and other staff there have been of great help to myself and people I care about who needed care in the ER time and time again. It's always appreciated. There are numerous safety problems with the ER, including privacy issues that needlessly put people at risk that were never dealt with even after complaints raised publicly and privately. Making things safer is a collaborative effort between public those delivering services. Without getting into confidential details, I've also seen you prescribe highly-addictive medication to someone (while stretched thin at the ER) without close inspection. I feel uncomfortable mentioning it here, and it's not to disparage you as you were clearly trying to help- but my suggestion is that strategies need to be implemented pre-emptively, resources put to good use and that it doesn't all end and begin with sentencing after someone's already done something. Trivializing the drug issue and pontificating on public policy and weapons bans and a sentence imposed by due process is certainly not helping. I hope everyone is OK and that you don't have to contend with this kind of thing again anytime soon.
[40] The defendant’s comments are then made over approximately four days in relation to various other individuals. These entire communications are attached in the Appendix in chronological order. The defendant is identified as “a_w_young comad”.
[41] As indicated in the attached Appendix, the response by the defendant to the comment by the person identified as brm158 that, “You of course are a medical doctor and know what a detailed medical exam is and what medications to prescribe to a patient” is:
“No, but I know when someone close isn’t examined at all and a thing or two about substances we’ve been reading about over the last few years. You’re missing the point of what I wrote though. It wasn’t about judgement.”
[42] The following are, for context, additional representative responses by the defendant to others:
“I merely disagree with the Doctor’s philosophy on matters in the courtroom and believe in due process and pushing for things that will prevent more of those horrible situations.” and, “A judge doesn’t walk into a hospital and start telling doctors what dosages to hand out, and while a doctor may have insight into some situations, typically they’re not in charge of the outcome of a court case. Criticizing his philosophy on legal process doesn’t mean I hate doctors or that somehow I want a knife-wielding or violent people or any of the rest of the implications made here. Nor does it mean I think any less of how traumatizing the event probably was for many people. I’ve been on the other end of such things in the past and I didn’t have nearly as many responsibilities at the time as people working an ER would have. I sounded horrific.”
[43] There is very little else that is relevant in the vote-up, vote down area of public discussion forum. The tone and messages of the defendant remained generally consistent and sensible throughout.
Analysis
Objective consideration of the statement
[44] As mentioned earlier, the test is objective: do the statements by the defendant tend to injure Dr. Grochowski and lower him in estimation of right-thinking people and cause him to be regarded with negative feelings? Here, the clear inference from the comments is that the plaintiff did not examine closely, or at all, a patient and prescribed addictive medication to a patient.
[45] It is the effect of the words and not the intention of the author that governs.
[46] I find the effect of the defendant’s comments lower the plaintiff in estimation of others since the conduct mentioned can only be regarded as negligence or conduct below an acceptable standard of care. In the context of the duties of a physician, such a failing goes to the core of such a professional’s duty for the medical care of an individual. I find that these statements tend to injure the reputation of the plaintiff and the presumption of falsity arises here.
Defence: Justification
[47] The defence has the burden here to prove the substantial truth that the plaintiff did not examine the patient at all or, at least, closely.
[48] Medications were obviously prescribed for pain management and infection. In the statements of the defendant as posted online, he makes reference to “highly addictive medication”. According to the hospital’s emergency record referred to earlier, the plaintiff prescribed three medications and made diagnosis of a dental infection after seeing the patient with the complaint of dental pain and noting, on observation, no jaw swelling.
[49] The plaintiff testified that “O/E” on the form denoted observations “on examination”. He testified that he would never prescribe medication without an examination and would have looked in the defendant’s mouth. He did take two minutes with the defendant from 2215 to 2217 hrs. On cross-examination, he admitted that he had some recall of seeing the defendant but did not have a detailed recollection of the events and that his recollection was in part based on what he always did. He also admitted that an oral examination is relevant to diagnose an infection. I find the nature of the plaintiff’s recall is what would be expected of a non-emergent medical consultation that occurred approximately 18 months earlier.
[50] The evidence of the plaintiff was frank, fair and sensible and I accept his evidence regarding the encounter. In addition, the encounter is one of providing assistance. It was not in any way a difficult encounter nor a situation of conflict. I find too that this was not the situation of a busy emergency department as the plaintiff testified contrary to the assertion made by the defendant. He also fulfilled his duty by taking detailed, contemporaneous notes.
[51] In addition, Luke Milley testified that if a person was prescribed medication without close examination, this would be incongruent with what he knew Dr. Grochowski would do. Stephanie Lammers also testified that she had seen Dr, Grochowski examine patients. She also commented on the defendant’s assertions that the plaintiff stood approximately one to two arm’s lengths away and wrote on a medical chart and did not approach him or conduct an examination of his teeth or inside his mouth. She testified that what was described by the defendant was not her experience of what the plaintiff does. She had never ever seen the plaintiff not examine a patient in similar circumstances.
[52] The only concerns as expressed in the November 2013 comments by the defendant were about the protection of patient data and privacy during the registration process at the emergency department. There was no reference to the plaintiff at all nor to any lack of observation by any doctors or failure to meet a standard of patient care.
[53] There is the additional feature that it was the defendant who was the actual patient. As the plaintiff’s counsel stated, the defendant cloaked himself as another person which was untrue. The subject statements by the defendant indicated that the plaintiff provided medical attention to someone reasonably assumed to be observed by the defendant. In his evidence in chief, the defendant testified, in replying to the comment made by another person, he was trying to suggest that he did not have the training but he would recognize something amiss or if no examination had taken place. The explanation provided by the defendant was that he used the term “someone” and referred to himself in the third person to protect himself and Dr. Grochowski. These rationales and explanations are muddled and make no sense in the circumstances. Rather, I find this is the defendant’s after-the-fact explanation for the reckless commentary was to make the defendant appear objective and to create anonymity for the defendant in the circumstances. Most telling was on cross-examination the defendant was unable to respond how this protected Dr. Grochowki. To his credit, the defendant did also testify on cross-examination and acknowledged that the comments he made would be hurtful to Dr. Grochowski.
[54] Overall, I accept the evidence of the plaintiff. The plaintiff’s evidence was more logically coherent and sensible. The defendant’s evidence on this attendance was vague and not reliable. The defendant’s suggestion about a busy emergency room is an after-the fact artefact to provide some rationale. However, it was a Sunday evening and the situation was non-emergent. I find that the defendant has not been able to discharge the burden to prove that it was more likely than not that the plaintiff did not examine or at least closely examine him during the April 2013 emergency room incident. To the contrary, I find that the plaintiff did do the required examination.
[55] The defence of justification fails.
Defences: Fair Comment and Communication made in the public interest
[56] As to the defence of fair comment advanced by the defendant, I find this defence also fails since this was a statement of fact and not a comment. Even if it was a comment, this statement was not based on accurate facts. Simply put, I find the plaintiff did examine the defendant, made the required observations and proper diagnosis in arriving at the treatment by prescribing medications, providing direction and advice as the plaintiff maintained.
[57] Likewise, as to the defence of a communication made responsibly on a matter of public interest, such allegations of negligence must be diligently verified. This was not done at any point by the defendant. The plaintiff clearly prescribed three medications. The defendant referenced addictive medications in his online comments. He did not seek to obtain what would have obviously been the medical records of his attendance, particularly since he obviously knew Dr. Grochowski.
[58] I find that the subject statements were made by the defendant recklessly to justify, impress and advance a point during a public discussion amongst others involving the sentencing issue in the case that the plaintiff had taken exception to. The subject statements also used a form of anonymity and a version of a past event to give a semblance of credibility. Had the defendant left his statement to the prescription of addictive medications only, the defendant would likely not have attracted legal concern. However, the additional comments that the defendant did not examine, or not closely examine whoever the person was, inferred negligence or an unacceptable professional standard on the part of the plaintiff.
Damages
[59] As to damages, general damages are presumed and ought to be sufficient to provide suitable compensation for the loss of reputation, to vindicate the reputation and for injury to the plaintiff’s feelings. I will address general damages momentarily.
Aggravated and Punitive Damages
[60] Aggravated damages may be awarded to take into account additional harm caused to the plaintiff by a defendant’s outrageous, high-handed, oppressive or malicious conduct including bad faith. It has also been recognized in cases that the failure to provide an apology can amount to aggravated damages. Punitive damages are for punishment and deterrence where the defendant’s conduct is so malicious, and oppressive that it offends the court’s sense of decency.
[61] This is not a case for aggravated damages or punitive damages.
[62] Here, the defendant knew the plaintiff from other emergency room attendances. His comments were reckless and designed to respond to comments made by the plaintiff on another collateral matter of legitimate public interest. This was not a situation where the defendant engaged in a bad faith campaign or ongoing harassment of the plaintiff. The initial comments of the defendant were directed initially to address the plaintiff’s letter to the editor. His further additional comments were to others on that topic.
[63] A notice was provided to the defendant under the Libel and Slander Act. The defendant responded by providing a statement of defence and defending this action. As has been recognized, the policy purpose of the notice is to ameliorate the impact and effect of the libelous statement. Unlike other decisions that I have considered that have additional factual features to support aggravated damages, standing alone the notice does not support aggravated damages in these circumstances.
General damages
[64] The subject comments were posted only online and for approximately four days before being removed by the publisher. Nevertheless, the comments were posted online and available for wide public review and distribution. This disparaged the plaintiff in his professional capacity and a full-time occupation where reputation is important.
[65] Dr. Grochowski is a well-reputed emergency room physician and has been at the Sarnia Bluewater Health ER since April 2014. He is 45 years of age, married with two children and lives in the nearby small and close-knit community of Bright’s Grove.
[66] He is one of nine emergency room doctors in the Sarnia-Lambton area and works at both at Bluewater and Windsor Regional hospitals. He is also an adjunct professor from Western University, the coordinator of medical care for teaching in the emergency department at Bluewater, a liaison for Michigan State University for re-entry into Canada for Doctors of Osteopathy, presented at conferences involving emergency medicine and conducted peer review of journals in the Canadian Family Physician magazine.
[67] The plaintiff described reading the subject words on the posting as a “punch to the gut” since this struck the very heart of what he did. When he read this posting while at work, he could no longer focus or concentrate. He was also in the presence of staff and he was compelled to explain to some of the nursing staff who asked, that the statements were false. I find as a person in his position and profession, these comments were undermining, damaging and hurtful.
[68] He was also properly concerned about how he would be perceived by patients in view of the opiate addiction crisis and the foundation of trust of the doctor-patient relationship.
[69] The plaintiff did not sleep much that weekend and made contacts with the Sarnia Observer and the editor about removing the posts. He was worried about whether colleagues had read the postings and what they would think. He received comments from co-workers and others in the community and was beside himself with fear and anxiety, particularly in a community that is small and where word travels fast.
[70] The plaintiff’s concerns were heightened when he discovered that the defendant was involved in website development and had followers on other social media platforms. His worry was compounded by any adverse comments on doctors since these can be collected and used in any investigations for the governing body for doctors. I accept the plaintiff’s evidence in these areas.
[71] The Sarnia Observer did withdraw the online comments approximately four days after the comments were posted.
[72] Dr. Grochowski indicated that the postings caused him considerable emotional distress and was concerned if he was viewed as a competent medical professional and he expressed that his reputation was forever tarnished. I accept the former claim, but not the latter.
[73] The additional witnesses called by the plaintiff were all people who worked in the health field with the plaintiff. They all were aware of the online postings of the defendant and of the good reputation that the plaintiff had developed and enjoyed.
[74] Frederick Osmon is a career registered nurse in the emergency department of the Sarnia Bluewater hospital. He knew the plaintiff for 15 years and was able to express his respect and regard for the plaintiff’s professionalism, experience, competency and leadership. He had an uneasy impression of Dr. Grochowski from the defendant’s online postings. However, he overcame this impression based on his work relationship with the plaintiff. He came to regard the postings as an unfounded attack that damaged patient trust.
[75] Luke Milley is also a career nurse in the emergency department of the Sarnia Bluewater hospital. He knew the plaintiff for six years and lives in Bright’s Grove. He indicated that he had a deep insight into the plaintiff’s character and professionalism and indicated that Dr. Grochowski’s medical care was always professional, timely, morally responsible and first rate and regards the plaintiff as one of the community’s best assets in the emergency department. He confirmed the stress and cloud of uncertainty that staff and the plaintiff operated under since when dealing with new patients who may or may not have known of the subject comments. He also observed the stress and frustration of the plaintiff’s efforts to address the comments without a retraction or public apology and shared the worry and fear of what others may have thought.
[76] Stephanie Lammers had been a registered nurse for 28 years in emergency departments and worked with the plaintiff for at least 15 years. In addition to aspects already commented on by the other witnesses above, she found that the subject comments caused the plaintiff to lose confidence in his ability. She was able to attest to his exemplary character as a doctor and that the subject comments were troubling and would otherwise be out of character and the opposite of the plaintiff she knows.
[77] Her evidence was that no one who works with Dr. Grochowski questions his practice. She also testified the plaintiff received numerous cards of thanks from patients. There is no doubt the resilience of the plaintiff was supported and recognized by his staff and friends.
[78] The defendant, as mentioned at the outset, was not a journalist. He is married, has a grade 11 education and lives in Sarnia. He had also performed freelance web design and managed social media accounts for business on contract and on a volunteer basis. He did have his own personal website and posted on a personal blog from time to time. He had also written letters to the editor to the Sarnia Observer from time to time on various political and social subjects.
[79] As to the other remarks by the defendant considered for context, I find the defendant did not intend to disparage the plaintiff, he was appreciative of the services of the plaintiff and staff at the emergency department and he otherwise expressed himself sincerely and sensibly on the issues of crime, punishment, mental health and drug abuse, all of which are central issues in the public mind and discourse.
[80] There were no other features such as racial, ethnic or professional discrimination or ongoing malice and particular harassment. Although there was no evidence about the reach of the online exposure of the publication, it is clear that this came to the attention of others in the community, including other hospital staff and employees where the plaintiff worked. The subject comments were not published on any other social media platforms. The defendant had other active social media accounts at the time but none of these were involved in the broadcast of the subject comments.
[81] I have also considered the many cases that both counsel raised in submissions of which the cases that were most helpful. These included Ross v. Holley, 2004 CarswellOnt 5093, Warman v. Grosvenor, [2008] O.J. No. 4462, Mudford v. Smith, 2009 ONSC 55718, [2009] O.J. No. 4317, Kumar v. Khurana, 2017 ONSC 3386 and Nasari v. Homsi, 2017 ONSC 4554, and Acumen Law Corporation v. Nguyen, 2018 BCSC 691. These cases provide guidelines and context for this case. I also recognize that where there is no substantial damage demonstrated to have occurred, nominal damages will be sufficient compensation. That is not the case here.
[82] As in the cases mentioned, general damages can be $15,000 and substantially more where the case involves numerous false statements, bad faith, a degree of malice, significant business loss, other significant features and various combinations thereof.
Conclusions
[83] I am mindful that defamatory statements occupy a continuum ranging from a defamatory statement made in the bona fide belief, though wrongly held, that the statement is true all the way to a defamatory statement made, knowing that it is untrue and made with the express intent to bring the plaintiff into hatred, ridicule and contempt and to destroy the plaintiff’s reputation in society. [8] Each libel case is unique and damages flow from the confluence of many factors and must be done with restraint and knowing that general damages are not based on any provable or measurable loss.
[84] Having regard to the plaintiff’s position as a reputable emergency room doctor, the nature of the statements going to his competency as a doctor, the public nature of the online posting in a recognized community media forum, the weekend duration of the postings, the absence of any retraction or apology, the recklessness of the defendant and absence of malice of the defendant along with the other findings, I have determined general damages in favour of the plaintiff against the defendant shall be the amount of $12,500, plus prejudgment interest. This award acts as a consolation for distress suffered by the plaintiff from the publication of the statements, repairs harm to his reputation and serves as a vindication of his reputation in these circumstances.
[85] If the parties are unable to resolve the matter of costs within 30 days, the plaintiff shall provide written submissions not to exceed 3 pages exclusive of bill of costs and offers to settle which submissions shall be served and filed within 45 days from the date hereof. The defendant shall provide written submissions not to exceed 3 pages and shall serve and file these submissions within 60 days from the date hereof.
[86] There is also the issue of costs involving the amendment of the defence granted as referred to earlier. I am inclined to order costs in favour of the plaintiff against the defendant in this way in the amount of $2,000. If either party wishes to address costs in this regard otherwise, submissions should be made separately on the basis referred to in the preceding paragraph.
“Justice M. D. McArthur” Justice M.D. McArthur Released: January 14, 2019
COURT FILE NO.: 214-2015 DATE: 20191014 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Dr. James Grochowski Plaintiff – and – Adam Young, The Sarnia Observer aka The Observer, a Division of Sun Media Corporation Defendants REASONS FOR DECISION McArthur, M.D., J Released: January 14, 2019
Footnotes
[1] Colour Your World v. Canadian Broadcasting Corp. (1998), 38 O.R. (3d) 97 (Ont. C.A) para. 14.
[2] The Law of Defamation in Canada, 2nd Edition, Raymond Brown at page 3-3 to 3-6.
[3] Canadian Libel & Slander Actions, Roger McConchie and David Potts at pages 290-293.
[4] Libel, Peter Downward, pages 45-47.
[5] 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685.
[6] Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640.
[7] Hill v. Church of Scientology, 1995 SCC 59, [1995] 2 S.C.R. 1130 at para 167.