2013 November 7

McDonald v. Freedman, 2013 ONSC 6812

The Ontario Superior Court of Justice, Divisional Court, unanimously denied an appeal by the appellant/defendant from a decision of the Ontario Superior Court dismissing his application for summary judgment dismissing this defamation lawsuit.

The plaintiff/respondent had sued for damages over statements made by the defendant in: (a) an email sent to Ontario’s Minister of Health and Long-Term Care with a copy to the President of the College of Physicians and Surgeons of Ontario; and (b) a subsequent email to the Minister, copied to the President of the College, in response to the plaintiff’s letter demanding a retraction and apology. The emails concerned “liberation therapy” which hypothesizes that multiple sclerosis involves compromised blood flow through the veins draining the central nervous system, which can be relieved by angioplasty to widen constricted neck veins.

The Divisional Court agreed with the lower court judge that the case was not suitable for determination by summary trial, because the question whether the emails were protected by the defence of absolute privilege required “a full factual record, as well as the full forensic machinery of a trial.” Similarly, with respect to the defence of qualified privilege, determining whether there was reciprocity on the part of the speaker (the defendant) and the listeners (the Minister and the President of the College) required “a full factual record after a trial that addresses the interests and duties of the sender and recipient of the Email.” In addition, the Divisional Court held there was some evidence of malice, which necessitates a full record of the factual context in which the impugned publications were made.