ANTISLAPP PROCEEDINGS :ONLINE REVIEWS OF MEDICAL DOCTORS IN ONTARIO AND BRITISH COLUMBIA #1

ANTISLAPP PROCEEDINGS :ONLINE REVIEWS OF MEDICAL DOCTORS IN ONTARIO AND BRITISH COLUMBIA #1

Two libel actions by Medical doctors in Ontario and British Columbia were allowed to go to trial despite facing anti slapp proceedings .In both cases the Judge who dismissed the anti slapp motion found in a companion case that the defendants were liable for defamation and awarded damages against the defendant . First I will examine the decision from Ontario

Zoutman v. Graham, 2020 ONCA 767 AFFIRMING DECISION OF THE SUPERIOR COURT OF JUSTICE

Zoutman v. Graham, 2019 ONSC 4921 (CanLII)

Zoutman v. Graham, 2019 ONSC 2834 (CanLII)

[1]??????The appellant, James Graham, appeals from a judgment dismissing his anti-SLAPP motion under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and granting summary judgment in the amount of $50,000 in favour of the respondent physician, Dr. Dick Zoutman.

[2]??????Tragically, the appellant’s brother died following a medical operation. The appellant, his brother’s estate, and other family members sued the attending physician, Hamilton Health Sciences Corporation and others. At the trial of the action, the respondent, a specialist in infectious diseases, was called by the defendants and gave expert testimony on causation. The jury dismissed the action.?The jury concluded that the physician had not met the applicable standard of care but the plaintiffs had failed to establish causation.

[3]??????RateMDs.com is a doctor rating website for patients to comment on their physicians. Its terms of use make it clear that only actual patients should comment on a physician’s profile.

Underlining added

After the trial, although not a patient of the respondent, the appellant admitted to posting two derogatory comments about the respondent on RateMDs.com but denied posting eight additional derogatory comments about the respondent on the website and two others on another website. The respondent asked the appellant to remove all of the postings, but the appellant declined to remove any.

[8]??????The motions judge dismissed the appellant’s anti-SLAPP motion. He was prepared to accept that the passage of time alone should not disentitle the appellant from relief. However, the respondent’s summary judgment motion had been served and filed more than two months before the appellant brought his anti-SLAPP motion, a hearing date had been set for the summary judgment motion, and an order had been made for the two motions to be heard concurrently. In these circumstances, the appellant’s delay was fatal to his motion. It subverted the intent and purpose of s.137.1.

[9]??????The motions judge stated that in any event, he would also reject the motion on the basis that the appellant had failed to establish that the proceedings arose from an expression made by him in that he did not acknowledge that 10 of the 12 postings were authored by him or that they related to a matter of public interest, both requirements of s. 137.1(3) of the anti-SLAPP provisions. In addition, the appellant had no valid defence to the respondent’s claim, which had substantial merit. Finally, the harm suffered by the respondent was sufficiently serious that the public interest in permitting the proceeding to continue prevailed.

David Potts is a Toronto barrister specializing in defamation law .He has completed writing a text book on Anti slapp Proceedings for Irwin law . Anti slapp proceedings are changing the defamation landscape in previously unimaginable ways. They are designed to be quick, cheap and simple.In fact they are costly , complex and protracted with countless pitfalls and mine fields for the unwary. He can be reached at [email protected]