DATE: 20010612
                        DOCKET: C33365

COURT OF APPEAL FOR ONTARIO

MCMURTRY C.J.O., CATZMAN, AND AUSTIN JJ.A.

AUSTIN J.A.:

[1]               This is an appeal by the defendants (other than Trish Wood, who made a personal assignment in bankruptcy on September 23, 1999) from the judgment of Bellamy J., after a judge alone trial, released on November 19, 1999.  Her reasons for judgment are reported at (1999), 47 C.C.L.T. (2d) 272 (Sup. Ct.).  The judgment awarded the plaintiff, Dr. Martin G. Myers (“Myers”) general damages in the amount of $200,000 for defamation arising from the defendant’s production and broadcasting of a one hour episode on television.  Myers cross-appeals the dismissal of his claim for aggravated and punitive damages.

[2]               The episode, entitled “The Heart of The Matter”, was shown on a CBC feature program known as “the fifth estate”, known to engage in investigative journalism.  The program was shown once on the CBC’s main television channel to an audience of one million people and four times on its Newsworld channel to audiences totalling 400,000.  (The trial judge held that the Newsworld audiences totalled 200,000.  The court was advised during the hearing of this appeal and a parallel appeal involving Dr. Frans H. H. Leenen, that the correct figure was 400,000).

[3]               The episode involved consideration of drugs prescribed for the treatment of heart disease and specifically the work of Health Canada’s Health Protection Branch (“HPB”) respecting medications called Calcium Channel Blockers (“CCBs”) and in particular one called nifedipine, manufactured by Bayer, a large pharmaceutical company.

[4]               The thesis of the program appears to have been that nifedipine, in its short-acting capsule form which was approved by Health Canada for the treatment of angina but was being prescribed by doctors for both angina and hypertension, was turning out to be more of a hazard than a help and that HPB was not moving quickly or positively enough in determining whether nifedipine, in its long-acting pill form, was also more of a hazard than a help.

[5]               The mechanics of the program included excerpts from interviews by Wood with an insider or a former insider from HPB to establish the theme.  Then other authorities were introduced, including Myers, again by excerpts from interviews by Wood, to provide their respective views on the questions raised.  As found by the trial judge and as amply supported by my viewing a video tape of the program, this format permitted the creation of a “good guy/bad guy” scenario.

[6]               What is complained of is that by a sophisticated “cut and paste” process Myers was portrayed as one of the bad guys, largely by the use of his own statements.  The complaint is not that his words or any of the statements made are false or defamatory in their true and natural meanings, but rather that “the overall impression created by the words and the images is alleged to be defamatory”.

[7]               It was alleged that the program made the following innuendoes:

(i) Dr. Myers realized that nifedipine was killing thousands of patients and did not care;

(ii) In recommending the long-acting pills of nifedipine, Dr. Myers was dishonest;

(iii) His opinion was completely contrary to accepted medical practice and hence he did not know what he was talking about or was intentionally misleading the Canadian public;

(iv) Dr. Myers was helping Bayer push a dangerous capsule and pill which he knew to be dangerous;

(v) He was trying to stifle valid and accurate revelations of nifedipine’s capacity to kill patients;

(vi) In his role as a member of the committee selected by the HPB to review nifedipine and CCBs, he acted dishonestly;

(vii) He did not have the competence or stature to be on the  committee; and

(viii) He refused to be interviewed again because he was afraid the truth would be revealed that he was dishonest.

[8]               After a very thorough analysis of the evidence and of the law the trial judge concluded that all eight innuendoes were defamatory and were proven based on the evidence.

[9]               She then found that although the subject matter was one of public interest, the occasion was not such as to impose any duty to communicate the defamatory information to the public.  Accordingly, it was not an occasion of qualified privilege and the protection applicable to such an occasion did not apply.

[10]          The trial judge then turned to the question of fair comment, determining (1) that the broadcast did contain true facts which could support the innuendoes and (2) that it was a matter of public interest.  The next part of the fair comment test is whether the comment was one through which a fair-minded person could honestly come to the defamatory conclusion based on the facts proved.  In this regard the trial judge noted:

The long arm of the defence of fair comment highlights the importance we ascribe to freedom of expression in our society.  We place a high value on this freedom and recognize that it is not the job of the courts to tell TV producers, researchers or editors how to do their jobs.  While we expect responsible journalism, and arguably, especially from the CBC, there is little room for courts to censor what they do.  Reporters do not have to meet an objective standard of care in reporting.  The only constraint on their freedom to make damaging comments is that their comments must be fair, in the sense of satisfying the branches of the common law defence of fair comment.

[11]          She then reviewed each innuendo in context and in detail, concluding that number six was protected by the defence of fair comment but that insofar as the rest were concerned, they:

. . . do not fall within the defence of fair comment.  Although there are single facts which support the damaging innuendoes, I cannot accept that a fair-minded person, or any person, could honestly come to these conclusions, when all the proved facts on which the CBC relied, both reported and unreported, are considered.  While the defence of fair comment provides broad protection to journalists to publish whatever they want, it also imposes a minimal standard of fairness which has not been met.

[12]          The trial judge then returned to the question of malice and again, after an exhaustive analysis, found against the defendants.  This finding rendered the defence of fair comment unavailable to innuendo number six.  The trial judge then found the defendants liable in damages with respect to all eight innuendoes.

[13]          In fairness to Mr. Tunley, counsel for the appellants, it must be said that he used every possible argument to attack the judgment.  Having said that, I am not persuaded that the trial judge made any palpable or overriding error dealing with the facts or any legal error of significance.  On the contrary her reasons present a meticulous, logical, coherent and accurate analysis of a complex and difficult matter.  The defendant’s appeal is accordingly dismissed.

[14]          At trial, Myers claimed general damages of $1,000,000, aggravated damages in the amount of $500,000 and punitive damages of $500,000.

[15]          The trial judge noted that once defamation is made out, damages arise by inference of law and do not require proof of actual injury.  As the trial judge commented:

The damages reflect what the law presumes to be the material or probable consequences of the defendant’s conduct and the harm which normally results from such defamation.

[16]          The factors to be considered include the size and nature of the audience, and the conduct and character of both the plaintiff and the defendants.  As the trial judge stated:

The influence and reputation of the defendant is important in the assessment of damages, since the impact of a slander obviously depends very much on the status of the speaker.  The greater the defendant’s reputation, the more the plaintiff will suffer.

As put by Esson J. in Vogel v. Canadian Broadcasting Corporation, [1982] 3 W.W.R. 97 at 178 (B.C. S.C.):

CBC has an enormous capacity to cause damage.

[17]          The trial judge accepted Myers’ evidence that he was:

. . . devastated by the program and shocked by what was said.  He felt he had given an interview based on science and was now being portrayed as a villain who defended a drug killing tens of thousands.  He had no idea that this was coming.

[18]          Of particular significance with respect to both liability and damages is the fact that as found by the trial judge:

The widow of a former patient congratulated the CBC on the “exposé of Dr. Myers” in the program.  She wrote that she “watched with horror and jubilation as the facts were revealed”, as she had always felt that Dr. Myers was responsible for her husband’s death and that the CBC “exposé” only corroborated her suspicions.  She then asked whether this could lead to a class action law suit.  Dr. Livingstone, Vice-president of Professional Affairs at Sunnybrook Hospital, facilitated an investigation of Dr. Myers’ handling of the complainant’s late husband’s case.  Ultimately, the conduct of Dr. Myers and his staff was found to meet all standards, and the concerns were found to be groundless.  The tone of the letter and the subsequent investigation confirm that the program directly affected the professional life of Dr. Myers, in addition to causing him substantial personal suffering.

[19]          The trial judge assessed Myers’ general damages at $200,000.  Although counsel for the CBC had argued at trial that $20,000 to $25,000 general damages would have been adequate, on the appeal he candidly admitted that the actual award was modest.  I agree.

[20]          The trial judge rejected the claim for aggravated and punitive damages as follows:

This is not an appropriate case for aggravated or punitive damages.  Although I have found that there was malice on the part of the CBC, I must distinguish this conduct from the kind of outrageous conduct which occurred in cases such as Hill, supra or even Hodgson, supra.  Similarly, while I acknowledge that Dr. Myers has endured substantial personal suffering, I cannot agree that he has suffered the kind of heightened distress that usually underlies an award of aggravated damages.

[21]          Myers abandoned his claim for punitive damages so it need not be dealt with.  I have trouble, however, with the disposition of the claim for aggravated damages.  In my view, the difference between this case and Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 and Hodgson v. Canadian Newspapers Company Limited (2000), 49 O.R. (3d) 161 (leave to appeal refused, [2000] S.C.C.A. No. 465) is not one of kind but rather one of degree.  As in Hill, Myers was attacked in his calling, in his profession and, as found by the trial judge, Myers was defamed “through the distortion of his own words” which “has the effect of being especially damaging, since it is much more difficult to explain the truth”.

[22]          Finally, there is the finding of malice.  The trial judge held that:

Given my finding that neither a fair minded nor a reasonable person could glean these opinions from the CBC resources, I am unable to accept the evidence of the defence witnesses that they lacked suspect intentions or ill will towards Dr. Myers.  I am especially troubled by their decision not to include any reference to other expert doctors who largely concurred with Dr. Myers’ views on both short-acting and long-acting nifedipine.

That remains the case today; there was no softening of the position of the defendants between trial and the appeal or during the argument of the appeal.  In all of the circumstances, I would award aggravated damages in the sum of $150,000.

[23]          In summary, I would dismiss the defendant’s appeal with costs and the plaintiff’s cross-appeal for punitive damages, without costs.  I would allow the plaintiff’s cross-appeal for aggravated damages and fix such damages at $150,000 together with costs.

RELEASED:  June 12, 2001

“Austin J.A.”

“I agree R. R. McMurtry C.J.O.”

“I agree M. A. Catzman J.A.”