On 18 September 2015 in the case of Frank v. Legate (2015 ONCA 631) the Ontario Court of Appeal dismissed an appeal from the order of a motions court judge striking out the appellant’s statement of claim on the ground that it did not disclose a reasonable cause of action. The Court also held that the claim was also an abuse of process and could also have been struck out on that basis.
The appellant Dr Cathy Frank was an obstetrician practising in London Ontario while the respondents were lawyers who represented the appellant’s former patients in complaints with the College of Physicians and Surgeons of Ontario and medical malpractice actions against the appellant.
The appellant’s statement of claim alleged that certain statements by the respondents, six of which were published on the law firm’s website and one of which was published in an article on the CTV news website, were defamatory.
As well as the defamation claim, the appellant also included claims for malicious prosecution, champerty and maintenance, intentional interference with economic relations and intentional infliction of mental distress. She claimed $5 million in damages, including $500,000 in punitive damages.
The Court of Appeal dismissed the appeal against the order striking out the claim on the basis that the statement at issue was incapable of a defamatory meaning in the clearest of cases . If this standard is not met determination of the issue will be left to the trier of fact trial para 41, citing Guergis v. Novak, 2013 ONCA 449 (CanLII), 116 O.R. (3d) 280 (C.A.), at para.41
The Court of Appeal held at para 40 [40]
“A reasonable person in this context is one who is reasonably thoughtful and informed, who would understand the difference between allegations and proof of guilt. Such a person would keep in mind that an accused person is presumed innocent until proven guilty: Guergis, at paras. 38 and 57; Miguna v. Toronto (City) Police Services Board, [2004] O.J. No. 2455 (S.C.), at paras. 4-6, aff’d [2005] O.J. No. 107 (C.A.).”
The statements complained about were stated at para 42 in the reasons :
(i) “There are over 100 former patients of Dr. Frank who contacted Legate & Associates about her treatment. Legate & Associates has issued 58 claims in the Superior Court of Justice to date. Several more cases are under investigation.”
(ii) “It is expected that many more lawsuits will be issued.”
(iii) “… [S]ince releasing the details of lawsuits undertaken on behalf of three women who were patients of Dr. Cathy Frank, over 90 women have come forward.”
(iv) “If you think you or your baby may have a claim against Dr. Frank, please contact Legate & Associates.”
(v) “Legate is pursuing the public review by the Discipline Committee instead of the secretive Complaints Committee process.”
(vi) “… [She] passed all of the exams but when [she] went out to practice, there was a problem … the unfortunate consequence of that, we allege, is that children have been born with disabilities that they wouldn’t have otherwise had.”
(vii) “Over 100 women contacted Legate & Associates about their treatment and that of their babies at the hands of Dr. Frank. Approximately 60 women have issued claims for themselves and several more actions are under investigation for compromised babies, and one has been commenced. These women have made complaints to the CPSO as far back as 2006 about Dr. Frank.”
The Court of Appeal held at para 43 that the motions court judge correctly concluded that the seven statements complained of in the appellants statement of claim were clearly incapable of bearing a defamatory meaning
Statements (i) to (iv) and (vii), quoted above, were purely informational and did not comment in any way on the merits of the ongoing litigation. The comments were neutral in their description of the appellant.
Justice Hourigan noted at para 45 somewhat caustically that
“The appellant effectively seeks to prohibit law firms from describing allegations that form the basis of potential or ongoing claims. If this type of statement amounted to defamation, no law firm in the province could ever solicit clients because they could not provide the necessary information for people to determine if they should consult a lawyer about a potential claim. The class action process, for example, would be effectively eviscerated if lawyers were restricted in their communications in the manner urged upon us by the appellant.”
Statement (v), which described the pursuit of a public review process rather than a private review process before the College, did not even mention Ms Legate . It only referred to the respondents’ preferred course of action.
Statement (vi) came from an article that appeared on the CTV News website. Justice Hourigan held at para 51
“I am of the view that the statement could not be interpreted as defamatory. A reasonable person who read the entirety of the sentence in issue would understand that Ms. Legate was merely describing the nature of the allegation against the appellant. This includes both the existence and consequences of the alleged problem. A reasonable person would not parse the statement in the manner suggested by the appellant.”
The Court then went on to consider an alternative basis for striking out, namely abuse of the process of the Court
The Jameel principle (deriving from Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75) is used frequently in the United Kingdom to strike out libel actions as an abuse of process and has been raised in one reported Ontario case (Goldhar v Haaretz.com et al., 2015 ONSC 1128) without success
However libel actions have been struck out as an abuse of process by the Ontario Superior Court of Justice (see Sauvé v. Merovitz, 2006 CanLII 35986 (ON SC); Crozier v. Cherniak, 2006 CanLII 25260, Elguindy v. Koren, 2008 CanLII 7744)
In the Frank v Legate case the Court of Appeal made clear that they would have dismissed the action as an abuse of process as well as disclosing no cause of action In contrast in Guergis v. Novak, 2013 ONCA 449 (CanLII) the Court of Appeal held it was not necessary to decide this question as they struck out the claims for not disclosing a cause of action
Justice Hourigan held at para 89
“In my view, the statement of claim, which I hasten to add was not drafted by counsel on the appeal, is an abuse of process. It is a collateral attack on the civil lawsuits against the appellant and the complaints to the College. It appears to be designed to frustrate those processes and deny the appellant’s patients redress before the courts and the College”.
He reached this conclusion for a number of reasons.
First, the appellant asserted causes of action (i.e. malicious prosecution and champerty and maintenance) that were clearly premature as no underlying action or complaint had been resolved, let alone in her favour.
Second, the appellant’s malicious prosecution claim completely ignored the clearly established case law and s. 36(3) of the Regulated Health Professions Act, 1991,stating that an action for malicious prosecution was unavailable in this situation
Third, the intentional interference with economic relations claim necessarily involved the disclosure of privileged solicitor and client communications related to ongoing litigation against the appellant. . This claim could not proceed while the complaints and actions were
Fourth, the claim containing multiple poorly pleaded causes of action was ”a transparent effort to dress up a libel claim that had no chance of success.“
David Potts is a Canadian barrister specializing in defamation who has coauthored Canadian Libel Practice and Canadian Libel and Slander Actions and authored Cyberlibel : Information Warfare in the 21st Century? and a revised edition entitled Potts on Cyberlibel
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