$7 Million Action in Defamation and Abuse of Procedures Rejected by Superior Court of Montréal

Dr. Sylvain Girard, chiropractor, instituted an action in defamation and abuse of procedures against Canadian Broadcasting Corporation (“CBC”), the Order of Chiropractors of Québec (the “Order”) and AXA Insurance Company for an amount of approximately $7 million.

The Order and AXA Insurance Company were sued by Plaintiff in connection with an interview that was given by the president of the Order during the program Disclosure aired by CBC on January 29, 2002. During this program, some of Plaintiff's patients were also interviewed on the use by Plaintiff, while in his functions as a chiropractor, of a device called the “Vegatest.” The Vegatest is not approved by the Order. During the interview conducted by CBC, the president of the Order indicated that a chiropractor who uses a machine that is experimental has to tell his patient that such a machine is experimental and cannot charge amounts of money for the use of such a machine. The president of the Order was answering a general question and was not referring to Plaintiff in particular nor to the Vegatest device during his interview for Disclosure. During the same period of time, some of Plaintiff's patients sent letters of complaint to the Syndic of the Order in relation to the use of the Vegatest by Plaintiff. An investigation was conducted by the Syndic of the Order and two disciplinary complaints were filed against Plaintiff before the Disciplinary Committee of the Order. In May 2002, the Disciplinary Committee ordered Plaintiff's temporary radiation from the Order. In November 2003, the Disciplinary Comity ordered his permanent radiation. Plaintiff also alleged, in his action in defamation, that the disciplinary complaints filed against him constituted an abuse of procedure.

As for CBC, Plaintiff alleged that it did not produce a balanced, fair and equitable program. He also alleged that CBC would have encouraged patients and the president of the Order to make false statements. Finally, he sustained that the use of a hidden camera violated his right of privacy provided in section 35 of the Civil Code of Québec.

A judgment was rendered by the Honourable Justice Richard Wagner on January 10, 2008, following a 23 day-trial. The Superior Court of Montréal rejected Plaintiff's action. The Court concluded that the president's response to CBC's questions during the interview were of a general nature and were not defamatory toward Plaintiff. Moreover, the Superior Court confirmed that the investigation conducted by the Syndic of the Order of Chiropractors of Québec was conducted in a diligent manner, in conformity with the applicable rules. As for CBC, the judge indicated that the latter did not commit a civil fault, the program denouncing an issue of public interest about a health professional who was using a device that was not approved by his Order while charging important professional fees to his patients. Finally, the Court indicated that the use of a hidden camera was legitimate and in the public interest.

AXA Insurance Company and the Order of Chiropractors of Québec were represented by Ogilvy Renault LLP with a team comprised of Josée Noiseux and Mélanie Poisson (litigation).