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CBC Wins With Fair Comment Defence
Published in the July 2006 issue of Litigation Notes - View Article
In a decision released in June, the Ontario Court of Appeal dismissed the appeal of Assess Med Inc., Jack Richmond and Hamendra Shah from a decision of the Superior Court of Justice, which dismissed their action in defamation against the Canadian Broadcasting Corporation (“CBC”).
On November 10, 1998 the CBC broadcast a segment on its program the Fifth Estate entitled “Prove it if you Can” describing the difficulties that three victims of automobile accidents had in recovering disability benefits from their insurers. One of the claimants had been assessed by Assess Med and its psychologist Dr. Hamendra Shah, who concluded that the claimant was not disabled. They, together with Dr. Jack Richmond, the Chief Medical Officer of Assess Med, sued for defamation, alleging that the program was capable of being understood to mean that they “…treated all accident victims as liars, frauds or fakers and were biased medical evaluators”.
The trial in the Superior Court of Justice lasted 76 days and the trial judge concluded that the defence of fair comment had been made out by the CBC. In reviewing the content of the program, the trial judge referred to an interview of Dr. Richmond, in which he stated that in 3000 evaluations conducted by his company, only 3% needed long-term disability benefits. The trial judge concluded that Dr. Richmond demonstrated an intellectual tendency “to treat claimants with suspicion and question the validity of the opinions expressed by their treating health care workers”. In the opinion of the trial judge this led to a “tendentious approach to assessments, which subjected Assess Med to being viewed as partial to insurers”.
The trial judge also considered the evidence of the claimant’s treating neurologist, who had reviewed the report by Dr. Shah and concluded that it was biased and clearly in error.
The trial judge concluded that the words used in the broadcast were capable of a defamatory meaning, namely that the appellants participated with the insurance company in the wrongful denial of benefits payable to the claimant. It could also have been taken to mean that the evaluation of the claimant in this case “was affected by a pre-disposition to treat claimants as liars and fakers” but was not capable of meaning that the appellants use the same “aggressive and sceptical approach” with all claimants as they had demonstrated with the claimants in this case.
With respect to the defence of fair comment the trial judge found that the words complained of were based on facts which were true and were comments on a matter of public interest. Furthermore they were honestly held views that a fair-minded person could reasonably hold and were made without malice. The defence of fair comment was therefore made out. On appeal, the appellants tried to argue that the trial judge had unduly narrowed the defamatory meaning of the broadcast and that it should be taken to have been intended to mean that they treated all accident victims as “liars, frauds or fakers”. The Court of Appeal disagreed. The appellants also tried to argue that the program was capable of being understood to mean that they were “dishonest doctors in the pockets of insurers”. However this had not been pleaded and in any event the Court of Appeal did not consider that the program contained any such suggestion. The appeal was dismissed.
Assessmed Inc. v. Canadian Broadcasting Corporation, 2006 CanLII 18619