



COURT OF APPEAL FOR ONTARIO

CITATION: Zoutman v. Graham, 2020 ONCA 767

DATE: 20201203

DOCKET: C67036

Pepall, Benotto and Coroza JJ.A.

BETWEEN

Dr. Dick Eric Zoutman

Plaintiff (Respondent)

and

James Graham
and RateMDs.com

Defendants (
Appellant
)

Marc Munro, for the appellant

Frank McLaughlin, Dorothy Charach and Erin Chesney, for
    the respondent

Heard: September 23, 2020 by video conference

On appeal from the judgment of Justice Graeme Mew of the Superior
    Court of Justice, dated May 7, 2019, with reasons reported at 2019 ONSC 2834,
    and from the costs order, dated August 21, 2019, with reasons reported at 2019
    ONSC 4921.

REASONS FOR DECISION

Introduction

[1]

The appellant, James Graham, appeals from a
    judgment dismissing his anti-SLAPP motion under s. 137.1 of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43 and granting summary
    judgment in the amount of $50,000 in favour of the respondent physician, Dr. Dick
    Zoutman.

Background Facts

[2]

Tragically, the appellants brother died
    following a medical operation. The appellant, his brothers estate, and other
    family members sued the attending physician, Hamilton Health Sciences
    Corporation and others. At the trial of the action, the respondent, a specialist
    in infectious diseases, was called by the defendants and gave expert testimony
    on causation. The jury dismissed the action.  The jury concluded that the physician
    had not met the applicable standard of care but the plaintiffs had failed to
    establish causation.

[3]

RateMDs.com is a doctor rating website for
    patients to comment on their physicians. Its terms of use make it clear that only
    actual patients should comment on a physicians profile. After the trial, although
    not a patient of the respondent, the appellant admitted to posting two derogatory
    comments about the respondent on RateMDs.com but denied posting eight additional
    derogatory comments about the respondent on the website and two others on
    another website. The respondent asked the appellant to remove all of the
    postings, but the appellant declined to remove any.

[4]

There was no evidence from anyone other than the
    respondent about the extent to which, if at all, persons other than he or his
    lawyers had viewed the postings.

[5]

On March 3, 2015, the respondent commenced an
    action against the appellant and RateMDs.com for defamation. He discontinued the
    action against RateMDs.com on May 26, 2015. On July 6, 2018, the respondent
    served a notice of motion for summary judgment, which was returnable on
    November 20, 2018. He served his motion record in support on August 2, 2018.

[6]

On October 5, 2018, relying on s. 137.1 of the
Courts
    of Justice Act
, the appellant served motion materials to
    dismiss the respondents action.

[7]

Both the respondents summary judgment motion
    and the appellants anti-SLAPP motion were adjourned and ordered to be heard
    together on January 15 and 16, 2019. Accordingly, both motions came before the
    motions judge at the same time.

Motions Judges Decision

[8]

The motions judge dismissed the appellants
    anti-SLAPP motion. He was prepared to accept that the passage of time alone
    should not disentitle the appellant from relief. However, the respondents
    summary judgment motion had been served and filed more than two months before
    the appellant brought his anti-SLAPP motion, a hearing date had been set for
    the summary judgment motion, and an order had been made for the two motions to
    be heard concurrently. In these circumstances, the appellants delay was fatal
    to his motion. It subverted the intent and purpose of s.137.1.

[9]

The motions judge stated that in any event, he would
    also reject the motion on the basis that the appellant had failed to establish
    that the proceedings arose from an expression made by him in that he did not
    acknowledge that 10 of the 12 postings were authored by him or that they
    related to a matter of public interest, both requirements of s. 137.1(3) of the
    anti-SLAPP provisions. In addition, the appellant had no valid defence to the
    respondents claim, which had substantial merit. Finally, the harm suffered by
    the respondent was sufficiently serious that the public interest in permitting
    the proceeding to continue prevailed.

[10]

As for the summary judgment motion, despite the
    appellants denial of authorship of 10 of the 12 impugned postings, the motions
    judge concluded that the appellant had authored all 12 of them, not just the
    two he acknowledged. The appellant admitted authorship of the July 31, 2014
    posting, yet the July 30 posting was virtually identical. Moreover, the July
    30, 2014 posting emanated from the same IP address as four other postings. In
    addition, the postings revealed a consistent style and recurring words and
    phrases that were suggestive of common authorship.

[11]

The motions judge readily accepted that the
    content of the postings was defamatory of the respondent. Among other things,
    they were derogatory and degrading to the respondent, both personally and
    professionally and some of the postings went to the core of his integrity.

[12]

The motions judge noted that to be actionable, a
    defamatory remark must be communicated to a third person, other than the
    defamed individual or his lawyers. He surveyed the case law and noted that
    while there is no presumption of publication in relation to allegedly
    defamatory material posted on the internet, in some cases publication can
    reasonably be inferred from the proven facts.  The motions judge cited the
    following statement from
Gatley on Libel and Slander
,
relied upon by the Supreme Court in
Gaskin
    v. Retail Credit Co.
, [1965] 2 SCR 297 at p. 300, and
    referred to by Deschamps J. in
Crookes v. Newton
,
2011 SCC 47, [2011] 3 S.C.R. 269, at
    para. 109:

It is not necessary for the plaintiff in every
    case to prove directly that the words complained of were brought to the actual knowledge
    of some third person. If he proves facts from which it can reasonably be
    inferred that the words were brought to the knowledge of some third person, he
    will establish a
prima facie
case.

[13]

The motions judge acknowledged that there was
    no evidence from anyone other than the respondent about the extent to which, if
    at all, persons other than the respondent or his lawyers had viewed the
    defamatory postings. However, he determined that an inference of publication
    could be drawn from the totality of the circumstances, including:

a.

The comment by an apparent third party on 14 July 2014, referring to
    Mr. Grahams earlier posting of 27 November 2013;

b.

RateMDs.com and similar physician rating websites are frequently
    used by the public for the purpose of choosing a physician;

c.

Mr. Grahams evidence that he authored postings to warn prospective
    patients about Dr. Zoutman;

d.

Mr. Grahams acknowledgment that he posted the second of the
    postings that he admits having authored because he found that the first posting
    had been deleted and was concerned that his message would not be received by
    the public; and

e.

The prominence of the RateMDs.com and OntarioDoctorDirectory.ca
    profile in Google searches concerning Dr. Zoutman.

[14]

The motions judge concluded that the cumulative
    effect of these factors provided ample evidence of publication.

[15]

He rejected the appellants defence of fair
    comment and had no hesitation in concluding that he acted out of malice. He
    also concluded that he should award general damages of $25,000, aggravated
    damages of $25,000 for a total of $50,000 and a permanent injunction preventing
    the appellant from disseminating defamatory content relating to the respondent.
    Lastly, he ordered the appellant to pay costs of $50,000 in favour of the
    respondent.

Analysis

[16]

Although not pressed in oral submissions, the
    appellant submits that the motions judge had no jurisdiction to rule on the
    summary judgment motion once the appellant brought his anti-SLAPP motion due to
    the language of s. 137.1(5). Section 137.1(5) provides that once a s. 137.1
    motion is made, no further steps may be taken in the proceeding until the
    anti-SLAPP motion, including any appeal, has been finally disposed of.

[17]

However, the respondent brought and scheduled
    his summary judgment motion well before the appellant brought his motion under
    s. 137.1. Furthermore, the two motions were ordered to be heard at the same
    time, and the appellant did not seek to appeal that decision. In this context,
    the respondent did not take any further step within the meaning of s. 137.1(5).
    It will not be every case that the presence of a motion for summary judgment precludes
    a s.137.1 motion: see
Labourers International Union of North
    America, Local 183 v. Castellano
, 2020 ONCA 71, at para.
    9. However, given the constellation of facts in this case, it was open to the
    motions judge to decline the s.137.1 relief on the basis of its timing.

[18]

That said, as discussed, the motions judge nonetheless
    addressed the merits of the appellants motion. In that regard, we reject the
    appellants argument that the motions judge erred in concluding that the
    anti-SLAPP motion failed due to the appellants failure to admit authorship of all
    but two of the postings. As the appellant denied authorship of 10 of the 12 postings,
    he could not have succeeded in his motion to have the respondents entire claim
    dismissed. No viable argument could be advanced with respect to 10 postings.  We
    are not persuaded that the motions judge erred in his conclusion that the
    public interest requirement found in s. 137.1(3) had not been established.
[i]
It is therefore unnecessary to
    address whether the respondent met the requirements of s. 137.1(4)(a) and (b)
    that the respondents proceeding had substantial merit and the appellant had no
    valid defence. However, as we will discuss when dealing with the motion for
    summary judgment, the respondent did establish these requirements in any event.
    In our view, the motions judge correctly dismissed the appellants motion under
    s. 137.1.

[19]

The appellant also submits that summary judgment
    ought not to have been granted. First, he argues that the respondent failed to
    prove that the words complained of were published. He claims that material
    posted on the internet is not deemed to be published and there was no pleading
    or evidence that the postings were ever communicated to anyone other than the
    respondent or his legal counsel.  Second, he submits that there was no evidence
    of authorship with the exception of the two postings the appellant admitted.
    Lastly, the appellant argues that the respondent had not identified any
    tangible injury or harm and indeed, his career has and continues to flourish.

[20]

A defamation claim requires a claimant to prove
    three elements, on a balance of probabilities: (i) the defendant made a
    defamatory statement, in the sense that the impugned words would tend to lower
    the plaintiffs reputation in the eyes of a reasonable person; (ii) the words
    in fact referred to the plaintiff; and (iii) the words were communicated to at
    least one person other than the plaintiff:
Grant v. Torstar Corp.
, 2009 SCC 61, [2009] 3 S.C.R. 640 , at para. 28.  Relying on the aforementioned
    quotation from
Gatley on Libel and Slander
, the
    motions judge found that there was evidence of review by at least one other
    person and he drew an inference of publication from that and other findings of
    facts, as described in his reasons at paras. 82-83. We would not disturb his
    conclusion of publication.

[21]

We also see no palpable and overriding error in
    the motions judges finding that the appellant was the author of all the
    defamatory postings. His finding was explained and was grounded in the evidence
    before him. Similarly, his finding of malice, also anchored in the evidence,
    was a full answer to the appellants fair comment defence. There was no
    palpable and overriding error in his conclusion that the appellant was
    motivated by malice, a conclusion that was heavily dependent on factual findings
    evident from the postings. We also note that the factors relied upon by the
    motions judge were present in both of the postings that the appellant admitted
    to authoring. As the motions judge stated, he had no hesitation in concluding
    that the appellant acted out of malice.

[22]

Similarly, his damages and costs awards are
    entitled to deference and we see no basis to interfere.

Disposition

[23]

For these reasons, the appeal is dismissed. The
    appellant is to pay the respondent $16,000 in costs inclusive of disbursements
    and applicable tax.

S.E. Pepall J.A.

M.L. Benotto J.A.

S. Coroza J.A.





[i]
Given how interrelated the issues of the anti-SLAPP and summary judgment motions
    are, w
e have treated the entire order as final for the
    purposes of this appeal: see
Lax v. Lax
(2004), 70 O.R. (3d) 520 (C.A.)
    and
Burtch v. Barnes Estate
(2006), 80 O.R. (3d) 365 (C.A.).


