McLoughlin v. Kutasy, [1979] 2 SCR 311

Supreme Court of Canada

McLoughlin v. Kutasy, [1979] 2 S.C.R. 311

Date: 1979-03-20

Tom McLoughlin (Plaintiff) Appellant;

and

Dr. William Kutasy (Defendant) Respondent.

1978: November 8, 9; 1979: March 20.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Libel and slander—Action for libel—Verdict of appellant at trial reversed in Court of Appeal—Qualified privilege—Fair comment—Terminology of Project Physician in report to government department—Answers given by jury—Justification for disturbing findings of jury—Aspects of jury’s answers unreasonable in the circumstances.

The respondent is a doctor who was retained as a “Project Physician” by a general construction company which employed personnel under compressed air conditions. In April 1972 appellant applied to the company for employment under such conditions. Before accepting candidates for this type of work it was necessary that they be examined by the “Project Physician” who was required to make a report to the Department of Labour, Construction Safety Branch. Three other candidates applied and were accepted after medical reports by the respondent but the appellant was rejected after a brief interview with the Doctor…on grounds of psychopathic personality (episode of fabrication decompression illness)—in great detail November 19th, 1971 approx. This man would be dangerous and the entire safety of a project would be endangered…with this sort of behaviour…” The circumstances of the episode of fabrication were that in 1967 the appellant had suffered from the decompression illness commonly referred to as “the bends”. In November 1971, when in prison and unable to arrange bail, he complained that he was suffering from “the bends” and was transferred to hospital. Having experience in this field Dr. Kutasy was called. The Doctor did not however see the appellant whose complaint was entirely fabricated and who left the hospital before the Doctor arrived. The incident is also relied on by the appellant as supporting the contention that the Doctor was prejudiced against him and that his report was activated by malice.

Held (Laskin C.J. and Spence and Dickson JJ. dissenting): The appeal should be dismissed.

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Per Martland, Ritchie, Pigeon, Beetz, Estey and Pratte JJ.: The allegation that the documents complained of contain fair comment and true statements does not constitute a plea of fair comment in the accepted sense of that term. An essential ingredient of that defence is that the comment was made on a matter of public interest and the customary form of pleading in this regard is to state that the words were fair comment made in good faith and without malice upon a matter of public interest. Here the comment was made by the respondent in the discharge of his duties as “Project Physician”. While the defence of fair comment has no application the allegation that the documents were written on an occasion of qualified privilege stands on an entirely different footing. The report made by the respondent was written to a government department and was therefore written on an occasion of qualified privilege. This was a finding of the trial judge and was not challenged. The statements therefore could only be actionable on proof of malice. The real sting of the alleged libel was that the appellant was disqualified “on grounds of psychopathic personality”, a statement which the jury found to be one of fact and to have been proved to be true. While accepting the sanctity to be associated with the finding of a jury it was not reasonable to suppose that as a result of the fabrication episode the doctor would be motivated by malice in rendering some months later a professional opinion. Further, the use of the word would, in such a phrase as “would be dangerous”, rather than the word could, is not sufficient on which to rest liability. Where there is qualified privilege the person employing the language complained of will be protected even if his language is somewhat excessive if in the circumstances he might honestly and on reasonable grounds have believed that what he wrote or said was true.

Per Laskin C.J. and Spence and Dickson JJ. dissenting: The appeal herein is in an action for libel tried by a jury which found in favour of the appellant. In Ontario all such actions must be tried with a jury unless the parties consent to proceed otherwise, and, moreover, ss. 66 and 67 of The Judicature Act, R.S.O. 1970, c. 228, which provide that the judge may require the jury to give a special verdict, are expressly made inapplicable to libel actions. The jury in the plainest way found that malice had been established and of what that malice consisted. The appellate Courts have a duty to give effect to the findings of a jury in a broad way when there is evidence to justify them. The Court of Appeal erred in its interpretation of the jury’s answers which should have been interpreted as a whole and regard had to all parts of them. Thus understood the answers

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establish a case of libel on an occasion of qualified privilege and then a finding of malice to defeat that privilege. There being evidence upon which the jurors so found their verdict cannot be disturbed.

[Adam v. Ward, [1917] A.C. 309; Netupsky v. Craig, [1973] S.C.R. 55 applied.]

APPEAL from the Court of Appeal for Ontario allowing an appeal from a judgment of Osler J., sitting with a jury and dismissing an action for libel in respect of which the jury had awarded $2,600. Appeal dismissed, Laskin C.J. and Spence and Dickson JJ. dissenting.

Boris G. Freesman, Q.C., and M. Ben-Dat, for the appellant.

Burton Tait, for the respondent.

The judgment of Laskin C.J. and Spence and Dickson JJ. was delivered by

SPENCE J. (dissenting)—I have had the privilege of reading the reasons for judgment to be delivered by Mr. Justice Ritchie. I need not, therefore, repeat the summary of the facts therein contained and I content myself with any further reference to the facts which are relevant to these reasons. I must, however, come to a conclusion differing from my brother Ritchie.

It must be remembered that this is an appeal in an action for libel tried by a jury in which trial the jury awarded the appellant a verdict. In Ontario, from which province this appeal comes, actions for damage for libel or slander must be tried with a jury unless the parties consent to the dispensation of the jury: The Judicature Act, R.S.O. 1970, c. 228, s. 59. Moreover, the Ontario The Libel and Slander Act, R.S.O. 1970, c. 2-3, in s. 15 provides:

on a trial of an action for libel, the jury may give a general verdict upon the whole matter in issue in the action…

and ss. 66 and 67 of The Judicature Act providing that the judge may require the jury to give a special verdict are expressly made inapplicable to libel actions.

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It is a well established principle of law that a jury’s verdict must be given all deference and full weight and effect given thereto except in the most unusual circumstance. I need only cite one authority for this. Chief Justice Duff said, in McCannell v. McLean[1], at p. 343:

The principle has been laid down in many judgments of this Court to this effect, that the verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it. That is the principle on which this Court has acted for at least thirty years to my personal knowledge and it has been stated with varying terminology in judgments reported and unreported.

Further, I am in accord with Nesbitt J. when he said in Jamieson v. Harris[2] at p. 631:

Answers by the jury to questions should be given the fullest possible effect, and if it is possible to support the same by any reasonable construction, they should be supported.

And Wells J., as he then was, expressed the same view very well in Usher v. Smith[3], at p. 527, when he said:

Jurymen are laymen who are not accustomed to state matters with the particularity and clarity which more trained men might exhibit, and it is, I apprehend, the duty of the Court to give effect to their findings in a broad way when there is evidence to justify them…

I am further of the opinion that this course must be followed very strictly in considering the jury’s answers to questions in a libel action in view of the fact that the legislature has directed that such actions must be tried with a jury and that the jury may, in its sole discretion, refuse to answer specific questions and give a general answer. Every effort must be exerted to understand and give a reasonable construction to the jury’s answers remembering that jurors “are laymen who are not accustomed to state matters with the particularity and clarity which more trained men might exhibit”. It is with that principle in mind that I approach the

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consideration of the jury’s answers to questions 3, 4, 5, 9 and 10. Of course, the occasion upon which the alleged libel was published being plainly one giving rise to the defence of qualified privilege and the jury having found the words used were defamatory, the question becomes whether the plaintiff had established that malice was present so as to destroy that privilege. Questions 9 and 10 deal with malice and the jury’s answers were as follows:

Q. Do you find that the defendant in publishing the report of April 20th, 1972, was motivated by malice?

A. Yes.

Q. Of what did such malice consist?

A. He was looking for a reason to reject Mr. McLoughlin because of the Tor. Hospital incident. Should be given a more thorough examination. A true diagnosis could not have been made in such a short time.

Therefore, the jury in the plainest of words found that the plaintiff had established malice and of what such malice consisted.

Zuber J.A., in giving reasons for the Court of Appeal for Ontario, firmly rejected the present respondent’s submission that there was no evidence of malice and that the learned trial judge should have taken the case from the jury, saying:

In my opinion there is no merit in this submission. There was some evidence that the diagnosis of the plaintiff as a psychopathic personality was not only false, but given irresponsibly, or recklessly. This evidence, which the jury could have accepted, would have been sufficient to support a finding of malice.

Zuber J.A. determined that the defendant’s (here respondent’s) appeal should be allowed because the allegation that the defendant’s diagnosis of the plaintiff (here appellant) as a “psychopathic personality” was untrue and had been rejected by the jury and that such rejection of the “central aspect of the plaintiffs case removed all evidence of malice”. I find it very difficult to understand how on the same page the learned justice in appeal is able to state that there was evidence upon which a jury could find malice and

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then that there was none. The matter must be resolved by considering the jury’s answers to questions 3, 4 and 5 which are as follows:

3. Q. With respect to the report of April 20th, 1972, are the words complained of statements of fact or expressions of opinion, or partly one and partly the other, and if any are statements of fact, indicate which?

A. Fact—psychopathic personality (epic of fabrication of decompression illness) in great detail November 1972, proved to be true.

Opinion—This man would be dangerous and the entire safety of a project in compressed air would be endangered, not only himself but to everybody in it, with this sort of behaviour. He has no comprehension of the responsibilities involved in the technological position such as a compressed air worker must have.

4. Q. Insofar as you find that they are statements of fact, are such statements of fact true?

A. Yes. Mr. McLoughlin verified hospital incident.

5. Q. Insofar as you find that they are expressions of opinion, do such expressions of opinion exceed the limit of fair comment?

A. Yes. Hasty diagnosis. No history available. Assumption would be dangerous. Exageration in comment in report.

It is quite evident that Zuber J.A. interpreted the jury’s answer to question 4 as a finding that the jury had found to be true all it described in question 3 as fact, i.e.,

Fact—psychopathic personality (epic of fabrication of decompression illness) in great detail November 1972, proved to be true.

Such a conclusion could be made. But it is trite law that any document, and I would certainly include a jury’s answers, must be interpreted as a whole and regard had to all parts thereof, for the reasons I have delineated. Applying such a method, I am able to come to no other conclusion than what the jury found to be true was the statement “(episode of fabrication of decompression illness) in great detail in November 1971,

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approx.”. The jury, it should be noted, in its answer altered the word “episode” to the word “epic” and the date “1971” to “1972”. It would seem to me impossible that the jury intended to find that the diagnosis “psychopathic personality” was true in the light of the jury’s answer to question 4: “Yes. Mr. McLoughlin verified hospital incident”. Mr. McLoughlin, the appellant, verified the incident, he certainly did not verify the diagnosis—that was the basis of his complaint. The jury’s answer to question 5 is equally persuasive. Asked to determine whether the “expressions of opinion” had exceeded the limits of fair comment, the jury’s first words of its answer were “hasty diagnosis”. The one and only diagnosis with which the jury was concerned was contained in the words “psychopathic personality” and this answer makes it strikingly clear that the jury considered those words an “expression of opinion”. Therefore, discharging what I conceive to be my duty to understand and give a reasonable interpretation of the jury’s answer, I think that the jury’s answer may be summarized as follows: the words were defamatory and although the plaintiff admitted the episode of fabricated decompression illness, the diagnosis of him as a psychopathic personality was too hastily made without obtaining a complete history and, as well, the possible danger from his being employed was exaggerated. When the jury’s answers are so understood, they do not consist of a rejection of “the central aspect” of the appellant’s action. The jury’s answers would establish a case of libel on an occasion of qualified privilege and then by its answers to questions 9 and 10 the jury found that the plaintiff (here appellant) had established the existence of malice to defeat that qualified privilege.

With respect, I agree with Zuber J.A. that there was evidence upon which the jury could so find. I do not infer that if I had been the fact-finder I would have so found. What the jury found in its answer to question 10 was malice in its dictionary sense of “spite”. Spite and much less, i.e., indirect motive, is malice in law. Reading the words of the record, one could conclude that such malice had not been established. The jurors, however, heard the witnesses, including the rather revealing cross-

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examination of the respondent, and they concluded that malice in the form of spite had been established. As I have said, I agree with Zuber J.A. that there was evidence upon which the jurors could so find. I am of the opinion that their verdict cannot be disturbed.

For these reasons, I would allow the appeal, set aside the judgment of the Court of Appeal for Ontario, and restore the judgment of the learned trial judge, including his allowance to the plaintiff (here appellant) of only two-thirds of his costs of the trial of the action. The appellant should have his costs of the respondent’s appeal to the Court of Appeal and his further appeal to this Court.

The judgment of Martland, Ritchie, Pigeon, Beetz, Estey and Pratte JJ. was delivered by

RITCHIE J.—This is an appeal from a judgment of the Court of Appeal for Ontario setting aside the judgment rendered at trial by Mr. Justice Osler, sitting with a jury, and dismissing the action brought by the present appellant claiming damages for libel in respect of which the jury had awarded a total of $2,600.

The respondent is a Doctor who was retained as the “Project Physician” by S. McNally & Sons, Limited, a company which conducted a general construction business in Toronto, and in which it was necessary, amongst other things, to employ personnel under compressed air conditions.

In April 1972 the appellant applied to the McNally Company for employment under such conditions, and before accepting candidates for this kind of work it was necessary that they be examined by the “Project Physician”, who, in turn, was required to make a report to the Department of Labour, Construction Safety Branch.

Three other candidates applied and were accepted after medical examinations by the respondent, but the appellant was rejected after what appears to have been a brief interview with the Doctor. In making his report to the Department of Labour, the respondent explains his rejection of the appel-

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lant in the following language in a report dated April 20, 1972:

…disqualified on grounds of psychopathic personality (episode of fabrication decompression illness) - in great detail November 19th, 1971 approx. This man would be dangerous and the entire safety of a project in compressed air would be endangered, not only himself but to everybody in it, with this sort of behaviour. He has no comprehension of the responsibilities involved in a technological position such as a compressed air worker must have.

The episode of fabrication of decompression illness referred to the somewhat unfortunate circumstances under which the Doctor had known of the appellant before his examination. These circumstances can be briefly outlined as follows. In 1967 the appellant had suffered a decompression illness commonly known as “the bends” whilst employed in compressed air conditions and while hospitalized for this complaint he had become familiar with those symptoms and treatment of this type of illness. In November 1971 finding himself incarcerated in prison under circumstances in which he was unable to arrange any bail, the appellant complained that he was suffering from “the bends” and at 4 a.m. the prison authorities transferred him to the Toronto General Hospital. As a result of his wide experience in this field, Dr. Kutasy was called upon to tend the patient but it appears that he never came into direct contact with him, as Mr. McLoughlin, whose complaint was entirely fabricated, had elected to walk out of the hospital before the Doctor arrived, although he took part in the investigation which revealed to him and the hospital authorities that the complaints were groundless.

This incident which occurred five months before the examination and rejection of the appellant for employment with the McNally Company is relied on by the appellant as supporting the contention that the Doctor was prejudiced against him and that his report was therefore activated by malice.

The pleadings in this case are significant, but I think that at this stage it is enough to say that paragraph 7(a) of the Statement of Claim contains

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a recitation of the Doctor’s report which is preceded by the following language:

On or about April 20th, 1972, without medically examining the Plaintiff and without any justification whatsoever, Dr. Kutasy falsely and maliciously wrote and published or caused to be written and published of the Plaintiff in the form of a typewritten letter, the following words, namely:…(Italics are my own).

The Amended Statement of Defence contains a rebuttal of the above allegations and is phrased as follows:

The defendant, Kutasy, denies the allegations contained in paragraphs 7A to 13A of the statement of claim and alleges that the record of physical examination and the letters dated April 20, 1972 and May 9, 1972 were written, as to the record of physical examination pursuant to a statutory duty under The Department of Labour Act and Regulations, hereafter referred to, and with respect to the said letters, at the request of the plaintiff and his agent, Mr. Gallagher, and that such documents contain the opinion of the defendant, Kutasy, based upon an honest, competent and skillful assessment of the plaintiff’s condition. The words contained therein were not written with malice.

Paragraph 6 of the Amended Statement of Defence reads as follows:

6. The defendant, Kutasy, further alleges that the said documents contain fair comment and true statements rendered at the request of the plaintiff or his agent to the best of the defendant’s ability and in keeping with accepted medical practice. The defendant Kutasy further alleges that the said documents were written on occasions of privilege or qualified privilege and with justification.

The allegation that the documents complained of “contain fair comment and true statements” does not, in my opinion, constitute a plea of “fair comment” in the accepted sense of that term. An essential ingredient of that defence is that the comment was made on a matter of public interest and the customary form of pleading in this regard is to state that the words complained of “were fair comment made in good faith and without malice upon a matter of public interest” (see Bullen and Leak, Precedence of Pleadings 12th ed., at p. 1176). This defence is one which is available to every member of the public and relates exclusively

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to comments or opinions made upon facts which are shown to have been true. (See Galley on Libel and Slander, 7th ed., pp. 292 and 293).

Here the comment was not made on a matter of public interest but rather on a matter arising in the course of the discharge by the respondent of a duty which he was required to perform in his capacity as “project physician” for the company with which the appellant was seeking employment. Under these circumstances, in my opinion, the defence of fair comment has no application, although I do not consider that in stating that “the documents contain fair comment” the defendant (respondent) in any way detracted from the clear plea of “qualified privilege” contained in the last words of paragraph 6 of the defence.

The allegation “that the said documents were written on an occasion of…qualified privilege”, stands on an entirely different footing from that of fair comment; such an occasion is defined by Lord Atkinson in Adam v. Ward[4], at p. 334 as

…an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made had a corresponding interest or duty to receive it.

I think it should be said at the outset that the report made by Dr. Kutasy on April 20, 1972, was written by him to a government department in the course of his duties and that it was therefore written on an occasion of qualified privilege. This was a finding made by the learned trial judge and it has not been challenged, with the result that the statements here made could only be actionable upon proof of the existence of malice on the part of Dr. Kutasy.

The case put to the jury included a complaint as to the libellous character of a letter written by the Doctor to the Labourer’s International Union and Mr. Gallagher, President of that Union, which was dated May 9, 1972, but I think that this allegation can be disregarded in the consideration of the present appeal because of the following answer

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made by the jury to the second question which they were asked:

2. Q. Were the words used by the defendant Kutasy in the letter of May 9th, 1972, defamatory of the plaintiff?

A. No.

The appellant made no attack on this finding and this appeal is therefore concerned exclusively with the terms of the report of April 20, 1972, which I have quoted and in this regard the following answers of the jury are relevant and significant:

1. Q. Were the words used by the defendant Kutasy in the report of April 20th, 1972, defamatory of the plaintiff?

A. Yes.

3. Q. With respect to the report of April 20th, 1972, are the words complained of statements of fact or expressions of opinion, or partly one and partly the other, and if any are statements of fact, indicate which?

A. Fact—psychopathic personality (epic of fabrication of decompression illness) in great detail November 1972, proved to be true.

Opinion—This man would be dangerous and the entire safety of a project in compressed air would be endangered, not only himself but to everybody in it, with this sort of behaviour. He has no comprehension of the responsibilities involved in the technological position such as a compressed air worker must have.

4. Q. Insofar as you find that they are statements of fact, are such statements of fact true?

A. Yes. Mr. McLoughlin verified hospital incident.

5. Q. Insofar as you find that they are expressions of opinion, do such expressions of opinion exceed the limits of fair comment?

A. Yes. Hasty diagnosis. No history available. Assumption would be dangerous. Exaggeration in comment in report.

9. Q. Do you find that the defendant in publishing the report of April 20th, 1972 was motivated by malice?

A. Yes.

10. Q. Of what did such malice consist?

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A. He was looking for a reason to reject Mr. McLoughlin because of the Tor. Hospital incident. Should be given a more thorough examination. A true diagnosis could not have been made in such a short time.

I am of opinion, as I have stated, that the defence of fair comment has no application under the pleadings and facts of this case and the answer to question No. 5 has no relevance in considering the defence of qualified privilege upon which the respondent relies. Moreover, the jury’s answer to question No. 5 is essentially a finding that the statements made in the report disclosed a negligent (i.e. hasty) diagnosis and it does not touch the root question of whether the statements represented opinions held honestly and not maliciously by the respondent.

In this regard the elements requisite to sustain the defence of qualified privilege are discussed in the case of Netupsky v. Craig[5], at pp. 61 and 62 where the following paragraph occurs in the judgment of this Court:

The determination of this appeal in my opinion, turns on the question of whether there was any extrinsic or intrinsic or intrinsic evidence that the respondents were motivated by malice in writing the letter which is complained of. There can be little doubt that if there is evidence proving that the statements complained of are false to the knowledge of the person who makes them, they are taken to have been made maliciously, but this statement must be read in light of the language used by Lord Atkinson in Adam v. Ward [1917] A.C. 309 at p. 339, where he said:

…a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.

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I agree with the submission made on behalf of the respondent that the real sting of the libel alleged to be contained in the report of April 20th was the statement that the appellant was disqualified “on grounds of psychopathic personality”, and it is more than significant that in answering question No. 3 the jury found this statement to be one of fact and to have been “proved to be true”.

It was submitted on behalf of the appellant that “the truth…of the assumed findings of the jury that the plaintiff was found to suffer from psychopathic personality’ is not an issue…” but as the defence of qualified privilege extends to protect the author of a statement of fact which he might honestly and on reasonable grounds have believed to be true, it will be apparent that a finding that the statement was in fact true constitutes a sustaining factor in establishing that defence and negating malice. In any event, in the present case the defendant has alleged that the statements are true and made with justification and there can accordingly in my view be no doubt that the truth or falsity of the statement that the plaintiff suffered from “psychopathic personality” was indeed an issue, and one which was resolved in favour of the respondent by the jury’s answers to questions 3 and 4.

In my opinion, if the matter rested on the jury’s answers to questions No. 3 and 4, this would of itself be sufficient to support the defence of qualified privilege, but it remains to be observed that in answering questions 9 and 10 the jury found that the respondent was “motivated by malice” and that the malice consisted of “looking for a reason to reject Mr. McLoughlin because of the Tor. Hospital incident”.

Without in any way denying the sanctity to be associated with the finding of a jury, I nevertheless share the view expressed by the Court of Appeal that in answering question No. 10 the jury assigned to “the Tor. Hospital incident”, which occurred five months before the examination of the respondent, a significance which was not supported by the evidence and I think it unreasonable to suppose that because McLoughlin’s behaviour in November, 1971, had resulted in the doctor going to the hospital at 8 o’clock in the morning on a

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fool’s errand, he would therefore be “motivated by malice” in rendering a professional opinion in April 1972.

The other question which has given rise to some difficulty in this case is the jury’s answer to the second part of question No. 3 containing as it does the statement that “This man would be dangerous and the entire safety of the project in compressed air would be endangered”.

In this regard, it was contended with some force that the characterization of the appellant as a man who would be dangerous and a danger to the entire safety of a project in compressed air was libellous in itself and the doctor himself admitted that the use of the word “would” in this context was unfortunate and that “could” would have been a more appropriate word. On this phase of the matter I refer once again to the passage cited earlier from the judgment of Lord Atkinson in Adam v. Ward (supra) where he said, in part, in reference to the defence of qualified privilege that on such an occasion the person employing the language complained of

…will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true…

I do not think that the liability of the respondent can rest upon the use of the word “would” instead of the word “could” in the above context, and I find all of the language used in the report of April 20th to be within the protection of the rule respecting “qualified privilege”.

For all these reasons, as well as those delivered by Mr. Justice Zuber in the Court of Appeal for Ontario, I would dismiss this appeal with costs.

Appeal dismissed with costs, LASKIN C.J. and SPENCE and DICKSON JJ dissenting.

Solicitors for the appellant: Robins and Partners, Toronto.

Solicitors for the respondent: McCarthy & McCarthy, Toronto.