Leenen v. Canadian Broadcasting Corporation 54 O.R. (3d) 612 (C.A.)

  • Document:
  • Date: 2018

Leenen v. Canadian Broadcasting Corporation et al.*

[Indexed as: Leenen v. Canadian Broadcasting Corp.]

54 O.R. (3d) 612

[2001] O.J. No. 2229

Docket No. C34272

Court of Appeal for Ontario

McMurtry C.J.O., Catzman and Austin JJ.A.

June 12, 2001

 

 

* Note:          Reasons for judgment for Myers v. Canadian Broadcasting Corp., a companion appeal to this proceeding can be found at p. 626 and       p. 633 (traduction franaise), post.

** Application for leave to appeal to the Supreme Court of Canada was dismissed with costs February 7, 2002 (McLachlin C.J., Major and Arbour JJ.). S.C.C. File No. 28774. S.C.C. Bulletin, 2002, p. 69.

Civil procedure–Costs–Solicitor and client costs–Trial judge in defamation action awarded aggravated and punitive damages–Trial judge did not err in also awarding plaintiff his costs on solicitor and client basis–Defendants not punished more than once for same conduct.

Damages–Libel and slander–General, aggravated and punitive damages–Defendants produced television program about safety of certain heart medications–Program implied that plaintiff doctor and research scientist supported prescribing of killer drugs, was in conflict of interest, received pay-off from pharmaceutical company and acted negligently or dishonestly as chairman of ad hoc advisory committee of Health Canada’s Health Protection Branch–Aggravated damages of $350,000, general damages of $400,000 and punitive damages of $200,000 affirmed on appeal.

Torts–Libel and slander–Defences–Fair comment–Defendants produced television program about safety of certain heart medications–Program implied that plaintiff doctor and research scientist supported prescribing of killer drugs, was in conflict of interest, received pay-off from pharmaceutical company and acted negligently or dishonestly as chairman of ad hoc advisory committee of Health Canada’s Health Protection Branch–Defence of fair comment failed because defendants deliberately presented unbalanced view of issue and did not honestly believe what they were saying.

Torts–Libel and slander–Defences–Qualified privilege –Defendants produced television program about safety of certain heart medications–Program implied that plaintiff doctor and research scientist supported prescribing of killer drugs, was in conflict of interest, received pay-off from pharmaceutical company and acted negligently or dishonestly as chairman of ad hoc advisory committee of Health Canada’s Health Protection Branch–Defence of qualified privilege failed–No public interest served by presentation of biased view which defendants knew to be inaccurate or untrue.

The defendant CBC produced an hour-long television program which examined questions raised in the medical scientific community about the safety of heart medications known as Calcium Channel Blockers, particularly one called nifedipine. The thesis of the program was that nifedipine in its short- acting capsule form, which was approved by Health Canada’s Health Protection Branch (“HPB”) 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. The plaintiff, a doctor and research scientist, was interviewed. He brought an action for damages for defamation, alleging that the program, and the manner in which his interview was edited, created the innuendoes that he supported the prescribing of killer drugs; that he was in a conflict of interest; that he was receiving a pay-off or kickback from a leading pharmaceutical company; and that he acted negligently or dishonestly as the chairman of the ad hoc advisory committee of HPB.

The trial judge found that the words complained of did actually bear those meanings and that the broadcast was devastatingly defamatory of the plaintiff. He found that the defence of justification failed because many of the facts alleged by the defendants were not true. He rejected the defence of qualified privilege, concluding that, while the program was “of public interest”, it was not “in the public interest”, and was contrary to the public interest because of its real potential for harm by inciting a panic amongst patients suffering from high blood pressure. The trial judge found that the CBC presenting a biased and slanted view of the issue, which in many respects it knew to be inaccurate or simply untrue, and that no public interest was served thereby. The trial judge then considered the defence of fair comment and found that it failed because the program was slanted, omitted key information, deliberately failed to provide the plaintiff an opportunity to accurately present his view s and deliberately failed to follow up with further interviews. He found that the defendants never intended there to be fairness and knew that the program’s thesis was in many respects ill- founded. He found that those involved in the production of the program could not have believed what they were doing, and that the views presented were not honestly held. Although it was unnecessary to do so, he went on to deal with the issue of malice, and reached the conclusion that malice existed.

The program was shown once on the CBC’s main television channel to an audience of over 1,000,000 people, and four times on its Newsworld channel to audiences totalling 400,000. The plaintiff was confronted by a patient who accused him of wrongly prescribing nifedipine for him for personal gain. The Director of the Ottawa Heart Institute circulated to all staff the guidelines for conflict of interest as a consequence of the program. The plaintiff was avoided by friends and neighbours.

Two of his research protocols were put on hold and for a time enrolment in his research programs was stopped. An article in the New England Journal of Medicine questioned his objectivity in assessing the safety of drugs. The trial judge concluded that this was as serious a libel as could be imagined. The defendants never apologized. Rather, to the very end, and throughout the trial, there was an uncompromising defence of their activities. The trial judge awarded $400,000 for general damages, aggravated damag es totalling $350,000, and punitive damages totalling $200,000, for a total of $950,000. The defendants appealed.

 

Held, the appeal should be dismissed.

 

The trial judge made only one error in his conclusions on the issue of liability, which did not affect the outcome. He inappropriately relied on the failure of the CBC to accept service of written notice under s. 5 of the Libel and Slander Act, R.S.O. 1990, c. L.12 on behalf of the individual defendants and on the circumstances of the defendants’ request for an adjournment of the trial as evidence of malice on the part of the CBC.

There was no error in the award of damages. The egregious behaviour of the defendants continued not only throughout the trial, but also throughout the hearing of the appeal.

The trial judge awarded the plaintiff his costs on a solicitor and client basis. The conduct in question could properly be the origin of both an award of aggravated and/or punitive damages and an award of solicitor and client costs. The intent of the trial judge was that the plaintiff be fully indemnified with respect to his legal costs. In the circumstances, that intention was properly founded, and the accepted way to give effect to it was by an award of solicitor and client costs. Apart from that, the plaintiff was entitled to solicitor and client costs under rule 49.10(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

 

Cases referred to

 

Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, 24 O.R. (3d) 865n, 126 D.L.R. (4th) 129, 184 N.R. 1, 30

C.R.R. (2d) 189, 25 C.C.L.T. (2d) 89; Myers v. Canadian Broadcasting Corp. (1999), 47 C.C.L.T. (2d) 272 (Ont. S.C.J.)

 

Statutes referred to

 

Libel and Slander Act, R.S.O. 1990, c. L.12, s. 5 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 49.10

 

APPEAL from a judgment of Cunningham J. (2000), 48 O.R. (3d) 656, 50 C.C.L.T. (2d) 213 (S.C.J.) for a plaintiff in an action for damages for defamation.

 

M. Philip Tunley, Christine Lonsdale and Stanley G. Fisher, Q.C., for appellants.

Richard G. Dearden and Alan P. Gardner, for respondent.

 

The judgment of the court was delivered by

 

[1]  AUSTIN J.A.:– This is an appeal by the defendants (other than Trish Wood who made a personal assignment in bankruptcy on September 22, 1999) from the judgment of Cunningham J., sitting without a jury, dated April 20, 2000. His reasons are reported at (2000), 48 O.R. (3d) 656, 50 C.C.L.T. (2d) 213 (S.C.J.). The judgment awarded the plaintiff, Dr. Frans H.H. Leenen general, aggravated and punitive damages totalling $950,000, together with costs, for defamation arising from the defendant’s production and broadcasting of a one-hour television program called “The Heart of The Matter”.

 

[2]  The program was produced by a part or department of the Canadian Broadcasting Corporation (“the CBC”) described as “the fifth estate” which engages in investigative journalism. The program was shown once on CBC’s main television channel to an audience in excess of 1,000,000 people and four times on its Newsworld channel to audiences totalling 400,000.

 

[3]  The defendants appeal the finding of liability, the damages and the fixing of costs.

 

[4]  The program examined questions raised in the medical scientific community about the safety of heart medications known as Calcium Channel Blockers (“CCBs”) and particularly one called nifedipine. The program focused on the response of Health Canada’s Health Protection Branch (“HPB”) to that issue. The thesis of the program was 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 doing more harm than good.

 

[5]  The mechanics of the program involved a monologue by Wood interspersed with excerpts from interviews by Wood with some of the parties or representatives of the parties said to be involved. Amongst those parties was an insider or former insider from HPB who was used to establish the theme. Other authorities were then introduced, including Leenen, again by excerpts from interviews by Wood, to provide their respective views on some of the questions raised. The trial judge found that this was done in the form of a “good guy/bad guy” scenario. A viewing of the videotape of the program confirms that characterization.

 

[6]  What is complained of is that by a sophisticated “cut and paste” process, Leenen was portrayed as one of the “bad guys”, largely by the use of his own statements and appearance. 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]  Leenen’s position is that the program created the following innuendoes:

(i)  he supported the prescribing of killer drugs;

(ii)  he was in a conflict of interest;

(iii)he was receiving a pay-off or a kickback from Pfizer Inc., a world leader in the development and production of pharmaceutical products; and

(iv)  he acted negligently or dishonestly as the chairman of the ad hoc advisory committee of HPB.

 

[8]  The trial judge analyzed the voluminous evidence and considered the arguments for and against the plaintiff’s position, concluding that the four innuendoes were defamatory and were made out on the evidence. He completed his analysis in this regard as follows [at pp. 688-89 O.R.]:

Having found in law that the words complained of are indeed capable of bearing the meanings alleged by the plaintiff, I have concluded in fact that the words complained of do actually bear those meanings. Recognizing that I am not to select the harshest and most extreme meaning along a spectrum of possible meanings, I have applied the test of a reasonable and fair-minded viewer, rather than one who is looking to question the plaintiff’s reputation. In analyzing the actual words used to assess whether harm was occasioned to the plaintiff’s reputation, I have focused on what ordinary viewers in Canada would infer the words to mean, given their general experience and knowledge of public affairs. As was stated by Lord Reid in Lewis v. Daily Telegraph Ltd., supra, [[1963] 2 All E.R. 151 (H.L.)] at p. 154:

What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them and that is also regarded as part of their natural and ordinary meaning.

Context, of course, is crucial in determining the defamatory sense of words and an alleged defamatory statement cannot be considered apart from the circumstances in which it is made. I have not analyzed the words as though I were carefully considering a written contract. Rather, I have taken the broadcast as a whole in determining whether it is defamatory and it is upon that basis that I have reached the conclusion that this broadcast was indeed devastatingly defamatory of the plaintiff. Within that context, the reasonable viewer would conclude that Dr. Leenen supported the prescribing of killer drugs, that he was in conflict of interest, that he was receiving a pay-off from Pfizer and, at the very least, that as chair of the committee he was negligent and more likely dishonest. The words, within the context of the entire broadcast, certainly are capable of bearing the meaning that the plaintiff was guilty of misconduct. The words suggest a lack of integrity on the part of the plaintiff, something which strikes at the very heart of his professional stature.

Television, a very powerful medium, provides widespread and instantaneous dissemination of information. Programs such as the fifth estate have remarkable potential and capacity to cause damage. A program such as this one, by the sensationalized manner in which it was produced, is far more likely to cause damage than other less respected publications or broadcasts. Thus, there is a greater responsibility upon those who produce such programs to ensure that the content is factually correct. A person’s reputation for honesty and integrity is a precious commodity and when that is put into question the results can be devastating. Just as allegations of conflict of interest are defamatory, to suggest that a person of Dr. Leenen’s stature lacked integrity, was less concerned about patient safety than about drug manufacturers’ profits, and that he conducted himself in a less than professional manner, not only calls into question his credibility as a research scientist, thereby demeaning him in the eyes of his colleagues, but causes his overall reputation in his larger community to suffer irreparable damage.

Having concluded that a reasonable and fair-minded viewer would infer these meanings, I want to stress that I have canvassed all of the alternatives and a full range of meanings that might be taken.

 

(Emphasis added)

 

[9]  The trial judge then went on to consider whether the defendants’ plea of justification or “truth” was a complete answer to the plaintiff’s claim. The defendants had set out their version of the “true facts” in paras. 10(a) to (q) of their statement of defence. The plaintiff conceded that a number of these “facts” were true but the trial judge concluded that, on the basis of the evidence adduced at trial, many were not and for that reason the plea of justification had to fail. I agree with that approach and that conclusion.

 

[10]  The trial judge then turned to the defendant’s claim of qualified privilege stating that “to succeed in this defence the defendant must establish not only some public or private duty, but also that the recipient had a corresponding interest in receiving the information”.

 

[11]  He concluded [at pp. 697-98 O.R.] that while the program was “of public interest”, it was not “in the public interest”

 

(emphasis added) but rather was:

 

. . . contrary to the public interest because of its real potential for harm by inciting a panic amongst patients suffering from high blood pressure . . . [the program]

. . . had nothing to do with a duty to communicate important information. It had everything to do with sensationalizing an issue, with creating viewer interest through alarm and with providing a podium for its producer’s [Regush] long-held views, capably assisted by the over heated concerns of a disgruntled regulator [the insider]. . . . The program could easily have presented important information in a fair and balanced manner and, had it done so, the public interest readily could have been served. By presenting a biased and slanted view, a view which in many respects the CBC knew to be inaccurate or simply untrue, no public interest was served.

 

[12]  The trial judge then considered the defence of fair comment. He defined it as follows [at p. 698 O.R.]:

The defence of fair comment protects words that are prima facie defamatory provided they are comments based on true facts made honestly without malice with reference to a matter of public interest . . . The defence of fair comment has been identified as the repository within the law of defamation of the values of freedom of speech and it must be interpreted and applied in that light.

 

[13]  Leenen was not the only one offended by the broadcast in question. Dr. Martin G. Myers also sued the same defendants and succeeded. The reasons of Bellamy J. are reported at Myers v. Canadian Broadcasting Corp. (1999), 47 C.C.L.T. (2d) 272 (Ont. S.C.J.). With respect to the defence of fair comment she said at p. 305 C.C.L.T.:

I conclude that no fair-minded person, nor indeed any reasonable person, could have come to hold the views about Dr. Myers which were conveyed in the program, given all the facts (reported and unreported) available to the defendants. From my review of the detailed transcripts and the tapes, including the parts which were not used in the program, I find that the CBC dramatically simplified a complex medical debate by seriously mischaracterizing Dr. Myers’ position. The CBC set him up quite unfairly as a “bad guy” in the debate.

 

[14]  After quoting this passage, Cunningham J. said [at p. 699 O.R.] “[w]ithout any question, the same applies to CBC’s treatment of Dr. Leenen”.

 

[15]  In considering the defence of fair comment in relation to the broadcast Cunningham J. said [at pp. 701-02 O.R.]:

One of the elements of fair comment, of course, is fairness. If it is found that the comment is unfair, the defence fails. In the present case, the defendants argue that they did provide the viewer with a balanced debate. I disagree. This program, from its inception, was slanted in one direction. Throughout, the critics of CCBs were treated in a positive light, while the so-called defenders were treated in a negative way. Fairness would require that viewers be presented with both sides of the argument in a balanced way. In this case, by omitting key information, by deliberately failing to provide Dr. Leenen an opportunity to accurately present his views, and by deliberately failing to follow up with further interviews, the CBC cannot claim fair comment when it describes Dr. Leenen as an advocate of CCBs. The selectivity in the presentation of the material for this program in and of itself demonstrates an inherent unfairness towards those whose views did not mesh with Mr. Regush’s. So much important informat ion was kept away from the viewer, information that, had it been presented, probably would have destroyed the Regush thesis. From this, the only conclusion one can reach is that the defendants never intended there to be fairness and what in fact they did was to either directly or by inference present statements of fact, albeit for the most part inaccurate ones. No comment can be fair if it is based upon facts which are invented or misstated: England v. C.B.C., [1979] 3 W.W.R. 193 (N.W.T.S.C.). What makes the misrepresentations in this case so alarming is that the CBC knew that its thesis in many respects was ill-founded. The CBC knew or certainly ought to have known that there was little, if any, difference between the views of all the doctors involved in the program on the subject of the use of CCBs. Yet it forged ahead with a program depicting defenders versus critics. Any differences, if not imaginary, were so slight that little attention should have been paid to them. As Esson J. held in Vo gel v. C.B.C., [1982] 3 W.W.R. 97 at p. 173 (B.C.S.C.):

To be fair, comment must be based on facts truly stated, and must not contain imputations of corrupt or dishonourable motives on the person whose conduct is criticized, save insofar as such imputations are warranted by the facts . . .

Another necessary ingredient of the defence of fair comment is honest belief in the truth of the comment. . . . Sadly, those involved in the production of this program could not have believed what they were doing. They clearly knew or had to have known that much of what they were presenting was false. Despite the defendants’ submission that all of the innuendoes said to arise from the broadcast are comments, a closer look reveals otherwise. Applying the objective test, which I must, I cannot conclude that the views presented were honestly held. And looking at the matter subjectively, I cannot conclude, despite their assertions to the contrary, that the defendants honestly believed what they were saying. Having raised the defence of fair comment, the defendants must satisfy the burden of establishing that the facts upon which it is based are true and that it is objectively fair. They have not done so.

 

[16]  The trial judge then went on to deal with the innuendoes on an individual basis concluding as follows [at p. 705 O.R.]:

I disagree with the defendant’s submission that all of the innuendoes said to arise from the broadcast are “comments” because they are unstated inferences or conclusions which a viewer would draw from the stated facts in the broadcast. As Lane J. stated in Hodgson v. Canadian Newspapers Co., supra, [(1998), 39 O.R. (3d) 235 (Gen. Div.)] at p. 385, citing O’Brien v. Marquis of Salisbury (1889), 6 T.L.R. 133 (Q.B.) at p. 137:

Comment may sometimes consist in the statement of fact, and may be held to be comment if the fact so stated appears to be a deduction or conclusion come to by the speaker from the facts stated or referred to by him, or in the common knowledge of the person speaking and those to whom the words are addressed and from which his conclusions can reasonably be inferred. This simply is not our case because the facts upon which the “comment” is based are not true. Applying all of the appropriate tests to the language of the broadcast, I am of the view that a reasonable viewer would conclude that all the innuendoes are statements of fact. They are presented as fact. Hence the defence of fair comment must fail.

 

[17]  Although at this stage of the proceedings it was not necessary to do so, Cunningham J. went on to deal with the issue of malice in the event that any of his earlier conclusions with respect to the defences raised were reversed and because it was relevant to the issue of damages. There was ample evidence to support the conclusion he reached that there was malice and having seen the videotape and read much of the evidence, I agree with his findings except in two respects. Those two instances both involve the conduct of the lawsuit and may be dealt with very briefly.

 

[18]  The first instance was the refusal of the CBC to accept service of written notice under the Libel and Slander Act, R.S.O. 1990, c. L.12, s. 5 on behalf of the individual defendants. The second was the circumstances of the defendants’ request for an adjournment of the trial of this action.

 

[19]  The trial judge dealt with these matters and counted each as illustrating the attitude of the CBC toward Leenen throughout. In my respectful view, neither of the incidents should have been relied upon as evidence of malice on the part of the CBC.

 

[20]  In so far as the refusal to accept service of the notice of libel is concerned, the factual basis is not adequate to support the inference that there was malice. Regush was not a CBC employee. Webster was in Africa. Studer said that he believed that the CBC would accept services as a matter of course. In any event, an order for substituted service was secured very quickly by counsel for Leenen. In my view, these circumstances are simply not sufficient to support a finding of malice.

 

[21]  The trial of this action was to have commenced February 15, 1999. Shortly before that date, the CBC moved for an adjournment upon the basis that Regush was going to be unavailable and his attendance on a daily basis was required during the cross-examination of Leenen. In the result, the adjournment was granted and as a consequence the Myers action was tried first. At the Leenen trial, Regush only attended to give his own evidence and little or nothing more. He did not attend for the cross-examination of Leenen. The trial judge found that “this demonstrates a further attempt on the part of the defendants to discourage Dr. Leenen from prosecuting this action. It was simply another roadblock thrown up in Dr. Leenen’s path, evidencing further proof of malice.”

 

[22]  Again with respect, I do not think that inference can be drawn safely. The CBC had the same counsel in both cases. It is entirely possible that as a result of the experience gained in the Myers trial, counsel for the defendants changed his mind as to the strategy to be followed in the Leenen trial. Such a decision falls entirely within counsel’s discretion and it would be unfair and improper for the trial judge to interfere with it. I am unable to agree that these circumstances demonstrate any malice on the part of the defendants.

 

[23]  Having decided the question of liability in favour of the plaintiff, the trial judge turned to the assessment of damages. In the result, he awarded $400,000 for general damages against all defendants, aggravated damages of $100,000 against the CBC, $150,000 against Regush and $50,000 as against each of Wood and Webster. He also assessed punitive damages against the CBC, Wood, Nicholas Regush and Webster at $50,000 each for a total of $950,000.

 

[24]  In arriving at these awards, the trial judge found that Leenen was devastated both personally and professionally. As in the case of Myers (the reasons in the appeal in Myers v. Canadian Broadcasting Corp. will be released with these reasons), a patient attacked him directly, coming into his office and stating: Dr. Leenen, you wrongly prescribed nifedipine for me and you did it for personal gain, to make money.

 

[25]  The Director of the Ottawa Heart Institute circulated to all staff the guidelines for conflict of interest as a consequence of the program. Leenen was avoided by friends and neighbours. Two of his research protocols were put on hold and, for a time, enrolment in his research programs was stopped. An article in the New England Journal of Medicine questioned his objectivity in assessing the safety of drugs.

 

[26]  In summarizing his findings, the trial judge said in part [at pp. 729-30 O.R.]:

. . . the defamatory innuendoes presented in this broadcast caused great suffering to Dr. Leenen and made him feel as though his well-earned reputation for integrity, both professional and otherwise, had been destroyed. These innuendoes would have been devastating for anyone; for a world-renowned research scientist they were almost fatal. This was the CBC firing its guns at Dr. Leenen, not some little tabloid to which no one would have paid much attention. How does one respond when the CBC strikes?

. . . . .

In the present case, this program reached over one million viewers and its rebroadcast on Newsworld, four hundred thousand. The program itself was a full one-hour documentary taking up the entire episode of the fifth estate. I have found that in fact no crisis, apart from the one created by Nicholas Regush, ever existed. Certainly there was some controversy within the medical/scientific community following the release of Dr. Psaty’s abstract. This was exactly the concern Dr. Leenen was trying to forestall when he co- authored the April 4, 1995 letter to Canadian physicians. Nevertheless, as his nasty little story developed, Mr. Regush decided to target Dr. Leenen as a hypocritical defender of CCBs in a story that not once presented in a fair way Dr. Leenen’s well-known and firmly held views. This slanted, one- sided production, I am satisfied, caused devastating damage to Dr. Leenen such that ordinary right-thinking, reasonable people, viewing this program would have concluded that Dr. Lee nen had been seriously compromised. Worse, that he had done wrong. I accept his evidence and that of his wife and nurse that he suffered enormously and that he probably continues to feel that his honesty and integrity are still being called into question.

. . . . .

Clearly, each libel case is unique and must be judged on its own peculiar set of facts. Taking into account the seriousness of the defamation as I have found it to be, the breadth of the publication and its source, the republication, the standing of the victim and the nature of his reputation at the time of broadcast, I have concluded from my review of the cases that this is as serious a libel as can be imagined.

 

[27]  In dealing with aggravated damages the trial judge referred extensively to the language of Cory J. in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at p. 1205, 126 D.L.R. (4th) 129:

Aggravated damages may be awarded in circumstances where the defendant’s conduct has been particularly high-handed or oppressive, thereby increasing the plaintiff’s humiliation and anxiety arising from the libellous statement. The nature of these damages was aptly described by Robins J.A. in Walker v. C.F.T.O. Ltd., supra [(1987), 59 O.R. [2d] 104] in these words at p. 111:

Where the defendant is guilty of insulting, high-handed, spiteful, malicious or oppressive conduct which increases the mental distress — humiliation, indignation, anxiety, grief, fear and the like — suffered by the plaintiff as a result of being defamed, the plaintiff may be entitled to what has come to be known as “aggravated damages”.

These damages take into account the additional harm caused to the plaintiff’s feelings by the defendant’s outrageous and malicious conduct. Like general or special damages, they are compensatory in nature. Their assessment requires consideration by the jury of the entire conduct of the defendant prior to the publication of the libel and continuing through to the conclusion of the trial. They represent the expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant.

 

[28]  The trial judge then addressed the issue of aggravated damages as follows [at pp. 731-32 O.R.]: I could not have been presented with a set of facts more congruent with Cory J.’s last comments. This was no spontaneous report, but rather the product of months of preparation and absolute adherence to a slanted and biased story line. There was never an apology or withdrawal of the libel; rather to the very end and throughout the trial, there was an uncompromising defence of the activities of the defendants. The pattern of conduct by the CBC was established right at the outset when its in-house counsel refused to accept service for the individual defendants. This scorched- earth attitude is evident in the refusal to disclose important information without a court order, with stone- walling on discovery claiming source protection and, most tellingly, with an eleventh-hour adjournment request which I have concluded was made only to thwart the plaintiff. Those involved in the production of this program knew or should have known that Dr. Leenen’s views on the long-acting CCBs were essentially the same as those of individuals the program portrayed as “good guys”. The CBC had to have known that Dr. Leenen knew nothing about H.P.B. conflict of interest guidelines. If it didn’t it was reckless carrying on as it did without properly sourcing that information. To put a spin on Dr. Leenen’s April 4, 1995 letter as they did and to maintain that position throughout the trial, in my view, was conduct which aggravated the situation. To suggest there was nothing they could have broadcast which would have put Dr. Leenen in a better light in respect of the April 4, 1995 letter, the trip to Egypt and the conflict allegations, is simply untrue. There was ample information the CBC had at hand which it could have used to present Dr. Leenen’s side on each of the issues raised. In frustration, at one point during his interview with Ms. Wood, Dr. Leenen stated:

You won’t help Canadians by coming up, speaking, dealing with this type of cynicism on this issue. I think you have to look at the facts and if a lot of Canadians could stop at the moment the unproven agents like calcium antagonists or like A.C.E. inhibitors, let their blood pressure go out of control, you’re doing a lot of damage. Yes your cynicism is then hurting Canadians, it’s not helping them. Needless to say, nothing like this made it to air. That would not have served the program’s thesis. In order to fully develop Mr. Regush’s story line, Dr. Leenen had to be made to look foolish, incompetent and worse, dishonest. They succeeded.

 

[29]  In dealing with the matter of punitive damages the trial judge again relied upon language of Cory J. in Hill at p. 1208 S.C.R. as follows: Punitive damages may be awarded in situations where the defendant’s misconduct is so malicious, oppressive and high- handed that it offends the court’s sense of decency. Punitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judge expresses its outrage at the egregious conduct of the defendant. They are in the nature of a fine which is meant to act as a deterrent to the defendant and to others from acting in this manner. It is important to emphasize that punitive damages should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence.

The trial judge then stated [at p. 733 O.R.]: It is with this in mind that I have determined that punitive damages are required in this case. The CBC has enormous power and an incredible ability to inflict damage. For the reasons I have earlier set out and for the malicious manner in which the defendants conducted themselves, their conduct must not be sanctioned. A clear message must be sent so that other vulnerable people will not be attacked in such a fashion. This can never simply be a cost of doing business. The award must reflect the court’s outrage of the defendant’s conduct. In my view, this is one of those exceptional cases spoken of by Cory J. in Hill v. Church of Scientology of Toronto, supra.

 

[30]  The trial judge commented on the differences between the instant action and the Myers action as follows [at pp. 733-34 O.R.]: Because the action involving Dr. Martin Myers arose from the same broadcast, and which has resulted in a judgment in his favour, I believe it is important for me to distinguish the two cases. In Hill v. The Church of Scientology of Toronto, supra, Cory J. observed that each case of libel is unique and that little is to be gained from a detailed comparison of libel awards. Defence counsel argue that an exception should be made here. I disagree. These are two separate actions with many factors distinguishing them. To begin with the pleadings are not the same. Nor is the evidence before the court identical. For example, Bellamy J. in Myers v. CBC, supra was not made aware of many of the outtake interviews to which I was exposed, nor was she aware of the extent and lack of success achieved by Dr. Brill- Edwards’ labour dispute with the H.P.B. Unlike Dr. Leenen, the program never presented a sting of conflict of interest per se against Dr. Myers. Even the findings differ. I have found that the defence of fair comment fails in respect of all of the innuendoes while Bellamy J. found that the defence, in certain instances succeeded, albeit ultimately to be defeated by a finding of malice. There did not appear to be a finding in Myers that his relationship with his hospital had changed. Dr. Leenen, on the other hand, had his reputation and integrity damaged not only with his patients but also within his research community. After the fifth estate broadcast, the director of the Ottawa Heart Institute, Dr. Wilbert Keon, circulated conflict of interest guidelines and approached Dr. Leenen in a manner never before witnessed by Dr. Leenen. Not only did the number of new patient referrals to Dr. Leenen decline, but as well his research protocols were given shorter renewal periods. Dr. Leenen, because of circumstances following the broadcast, felt compelled to resign from the Canadian Society for Clinical Pharmacology. An award of damages must reflect not only the damage inflicted on a person’s reputation but also the difficulty in restoring that reputation particularly within a research environment where one’s integrity is critical. In the present case, the defendants chose to broadcast a segment showing Dr. Leenen fumbling because he did not have his glasses. This most unflattering segment was repeated at the end of the program for no other reason, I have concluded, than to reduce Dr. Leenen’s standing and credibility in the mind of the viewer. This emphasis on trying to portray Dr. Leenen’s ineptitude with a most fundamental function in life goes to the depth to which the defendants tried to destroy the plaintiff not just professionally but as a human being. In my consideration of aggravated damages, unlike the situation here, the Myers trial was not adjourned at the last minute for six months. By doing this, in the circumstances, I have found the defendants managed to heighten Dr. Leenen’s anxiety and delay his opportunity to clear his name. This is but one of many examples of malicious conduct on the part of the defendants. This conduct began during preparation for the broadcast, continued through the broadcast and right through until the end of the trial. In the absence of any misconduct on the part of Dr. Leenen, the defendants’ conduct had a devastating impact upon him. The fact that it was orchestrated by an organization such as the CBC, in my view, clearly aggravated the situation.

 

[31]  The quantum of damages awarded calls for a review and the appellants have attacked every aspect of the awards. The strong language of the trial judge leaves no doubt about his view of the very serious damages suffered by the plaintiff and the egregiousness of the behaviour of the defendants, individually and collectively. That behaviour began with the publication of the libel and continued through to the end of the trial. To complete the picture, it continued through the hearing of the appeal. Counsel for the appellants did not retreat in any respect nor was there any suggestion of apology, remorse, or regret from the appellants.

 

[32]  In so far as liability is concerned, I am not persuaded that the trial judge erred in any matter of fact or law in such fashion as to call for any alteration in his conclusions in that regard.

 

[33]  In my view, his conclusions on malice are not well founded in so far as they are based upon the refusal of the CBC to accept service on behalf of the personal defendants and upon the circumstances of the adjournment. Counsel for Leenen also ask this court to consider two other matters in this regard. One was the refusal of the CBC to produce outtakes. This led to a motion in one action, the making of an order in that action and the CBC complying with that order in both actions. Having regard to the fact that the action was based upon what was broadcast and the outtakes were by definition not broadcast, it cannot be said that the original position of the CBC was without some merit.

 

[34]  The second matter urged upon us as evidence of malice was a comment alleged to have been made by a Master that a motion by the defendants to strike out the statement of claim or parts of it was “an abuse of process”. The motion in question was for particulars of parts of the statement of claim, or in the alternative, to strike out those parts. In the result, the order for particulars was made, demonstrating that the motion did have merit. Accordingly, a finding of malice cannot be based on that incident.

 

[35]  Returning to the awards made by the trial judge, I agree with him that this was a very serious libel, that general, aggravated and punitive damages were appropriate and that the awards made are not so large as to shock the conscience of this court. I would not reduce any of them on account of the small matters that should not have been included in the trial judge’s finding of malice.

 

[36]  The appellants also seek leave to appeal the disposition of costs. The reasons for judgment were released on April 20, 2000. On June 7, 2000, the trial judge decided that the plaintiff was entitled to solicitor and client costs and on September 11, 2000, reasons were released dealing in detail with those costs and fixing them at $836,178.94.

 

[37]  It is argued that in awarding aggravated and punitive damages, in awarding solicitor and client costs and in fixing the quantum of those costs, the trial judge in effect “punished” the defendants more than once for the same conduct.

 

[38]  The impact on the appellants may be the same but the fact is that the conduct in question may quite properly be the origin of both an award of aggravated and/or punitive damages and an award of solicitor and client costs. The intent of the trial judge was that Leenen be fully indemnified with respect to his legal costs. In the circumstances, that intention was properly founded and the accepted way to give effect to it is by an award of solicitor and client costs. Quite apart from that, the plaintiff was entitled to solicitor [and] client costs under rule 49.10(1) [Rules of Civil Procedure, R.R.O. 1990, Reg. 194] by reason of having made an offer to settle very early in the proceedings for an amount less than the judgment recovered. No persuasive reason was advanced why the rule should not apply.

 

[39]  The appellants raise issues respecting the hourly rate allowed for senior counsel, the failure to delegate more work to juniors, the attendance of senior counsel at the Myers trial and comparing the costs award to Leenen with the $100,000 award of costs to Dr. Myers. With respect to the latter item, the comments of Cunningham J. noted above are a complete answer. They were simply different actions and different trials. With respect to hourly rates, delegation and attendance at the Myers trial, no error in principle appears to have been made and accordingly, I would not intervene.

 

[40]  In summary the appeal is dismissed, with costs. Leave is granted to appeal the costs award but that appeal too is dismissed, again with costs.

2001 CanLII 4997 (ON CA)