Ontario Court Of Appeal Upholds Doctor's Damages For Defamatory Postings On RateMDs.com

• Published date: 09 December 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Libel & Defamation
• Law Firm: Gardiner Roberts LLP
• Author: Mr James Cook

In response to a series of negative and untruthful online reviews, a medical doctor sued the author of the posts for defamation and was awarded damages of $50,000 and $50,000 for costs, in a decision affirmed by the Ontario Court of Appeal: Zoutman v. Graham, 2020 ONCA 767 (CanLII).

The Plaintiff Doctor was a physician specializing in infectious diseases. The Defendant's brother had died following a medical operation in 2001. The Defendant and his brother's estate subsequently brought a medical malpractice action against the Doctor, which was dismissed by a jury.

After the malpractice action was dismissed, a number of derogatory comments were posted about the Doctor on RateMDs.com, a rating web site for medical doctors. The posts included inflammatory statements, such as calling the Doctor a "dingbat, rude, conceited, thin-skinned," and insulting his physical appearance. The Doctor was described as "dangerous" and "delusional."

According to the terms of use of RateMDs.com, only actual patients are supposed to post reviews of any doctors. The Defendant admitted to posting two derogatory reviews on RateMDs.com but denied being the author of a number of other postings. After the Defendant refused to remove any of the postings including the two he admitted to writing, the Doctor sued the Defendant for defamation.

In 2019, a summary judgment motion brought by the Doctor was heard by the Honourable Mr. Justice Mew, concurrently with an anti-SLAPP motion brought by the Defendant, which sought to dismiss the defamation action on the basis that the postings were expressions relating to a matter of public interest.

Justice Mew dismissed the anti-SLAPP motion and awarded the Doctor damages as set out above. Justice Mew also granted to the Doctor a permanent injunction preventing the Defendant from engaging in similar behaviour in the future.

In accordance with the Supreme Court of Canada's decision in Grant v. Torstar Corp., 2009 SCC 61 (CanLII) at para. 28, a successful defamation claim generally requires a plaintiff to prove three things:

(1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person;

(2) that the words in fact referred to the plaintiff; and

(3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.

In Justice Mew's view, there was no question that the statements in issue would lower the Doctor's...