2020 December 3

Zoutman v. Graham, 2020 ONCA 767, affirming 2019 ONSC 4921

The Ontario Court of Appeal affirmed a summary judgment by the Ontario Superior Court in favour of the plaintiff medical doctor over 10 defamatory comments posted on RateMDs.com and two defamatory comments posted on another website.   The Court of Appeal found that the motion judge made no palpable and overriding error in finding the defendant was the author of all 12 posts, although the defendant admitted only to posting two of the comments.  The Court of Appeal noted that the finding of authorship was grounded in the evidence as follows:  “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 the other four postings.  In addition, the postings revealed a consistent style and recurring words and phrases that were suggestive of common authorship.”

The Court of Appeal also declined to disturb the conclusion of the motions court judge on the issue of publication of the defamatory expression to at least one person other than the plaintiff; which is a necessary element of the civil wrong of defamation:

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 …”  “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. Graham’s earlier posting of 27 November 2013; b. RateMDs.com and similar physician websites are frequently used by the public for the purpose of choosing a physician; c. [the defendant’s] evidence that he authored postings to warn prospective patients about [the plaintiff]; d. [the defendant’s] acknowledgement 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 OntarioDoctor Directory.ca profile in Google searches concerning [the plaintiff].

The Court of Appeal affirmed the motions judge’s award of $25,000 general damages and $25,000 aggravated damages and a permanent injunction prohibiting the defendant from disseminating defamatory content about the plaintiff.