On June 6, 2006, the Court of Appeal for Ontario unanimously dismissed the appeal by a medical evaluation company, and two of its medical staff, from the dismissal of their claims for defamation arising out of an episode of the fifth estate, which aired in November 1998, in AssessMed Inc. et al. v. Canadian Broadcasting Corporation et al.,  O.J. No. 2226, affirming (2004), 22 C.C.L.T. (3d) 89 (Ont. C.A.).
The trial before Justice Paul Rivard extended over 76 days during 2003. Although Justice Rivard dismissed the action, his assessment of damages in the event of appeal was $1.635 million, potentially among the largest-ever awards for defamation in Canada.
The case is also important because it raises issues relating to the ability of a physician to comment publicly in the media, as an expert, on matters that have been the subject of litigation before the courts.
The program examined developments in the motor vehicle insurance field in Ontario. It focused on three cases in which victims suffered serious injuries, including brain injury, but were denied benefits by different insurers under three successive no-fault legislative schemes. The plaintiffs were medical evaluators who do most of their work for insurers in motor vehicle cases. The program referred to their evaluation of one of the three victims, which was used by her insurer to cut off benefits.
The plaintiffs claimed damages for defamation against the CBC and several named journalists, and also against Dr. Michel Rathbone, a neurologist who had treated the victim and had written a medical-legal report at the request of her lawyer. Excerpts from Dr. Rathbone's interview with CBC were included in the program. The plaintiffs alleged that these excerpts damaged their professional reputation by referring to the report they prepared as “biased” and “clearly in error.” They also claimed that other portions of the program further defamed them, by associating them with the unfair denial of benefits by her insurer, and by suggesting that they were predisposed to treat claimants as liars or fakers, and to support the interests of their insurer clients.
The Court of Appeal upheld the trial judge's ruling that the program was not capable of being understood to mean that the plaintiffs were aggressive or skeptical in their treatment of all claimants, or were biased or incompetent generally, or were “in the pockets” of their insurer clients. The court distinguished Barltrop v. CBC et al. (1978), 86 D.L.R. (3d) 61 (N.S.C.A.), in which similarly broad “innuendos” had been found to arise with respect to statements made about a medical expert. The analysis of both courts on this legal issue provides some guidance on when defamatory statements about a particular case or circumstance may, in their context within a publication, be found by the courts to give rise to a broader and more seriously defamatory meaning by innuendo.
The trial judge had also held all of the meanings that did arise from the program were opinions or “comments” rather than statements of fact. Although these meanings were acknowledged to be defamatory of the plaintiffs, the trial judge found that the comments complained of were the honestly held opinions of Dr. Rathbone and the journalists involved. Despite acknowledged scripting errors, the trial judge found that these opinions were based upon facts that were proven to be substantially true. The trial judge held that the comments were fair, in the sense that reasonable persons might reach the same conclusions on the facts proven. He found that the program was on a matter of clear public interest, and that there was no malice towards the plaintiffs, such that the comments were protected by the defence of fair comment.
Again, the Court of Appeal upheld all of these findings, and affirmed the legal analysis applied by the trial judge. Of particular interest, both courts found that reasonable viewers could readily understand which statements in the program were matters of fact, and which were comments. On that basis, they distinguished cases such as Barltrop and Leenen v. CBC (2000), 48 O.R. (3d) 656, aff'd. 54 O.R. (3d) 312 (C.A.) as ones in which there were insufficient basic facts presented to allow such understanding.
The defendants were represented by M. Philip Tunley, Jenny Stephenson and Linda Shin of McCarthy Tétrault LLP. The plaintiffs were represented by Philip P. Healey, Timothy J. Hill, and Danielle M. Peck of Aird & Berlis LLP, all based in Toronto.