November 24, 2015
Casses v Canadian Broadcasting Corporation 2015 BCSC 2150

The CBC series exposed that the doctor had come to Canada having given up his license in Arizona following an admission of professional misconduct there, in a case where he was also later found negligent by a jury. In Canada, there were numerous complaints to the College of Physicians of BC, some of which resulted in criticisms of the surgeon by the College. Some key aspects of the decision are these:

In describing the responsible communication defence, the judge cited the Grant test, and at para 467 emphasized the purpose behind the defence is as set out in Grant para 53:

…to insist on court established certainty in reporting on matters of public interest may have the effect of preventing communication of facts which a reasonable person would accept as reliable and which are relevant and important to public debate. The existing common law rules mean, in effect, that the publisher must be certain before publication that it can prove the statement to be true in a court of law, should a suit be filed. Verification of the facts and reliability of the sources may lead a publisher to a reasonable certainty of their truth, but that is different from knowing that one will be able to prove their truth in a court of law, perhaps years later. This, in turn, may have a chilling effect on what is published. Information that is reliable and in the public’s interest to know may never see the light of day.

The judge also noted:

[480] When determining responsibility, the trier of fact must consider the broad thrust of the publication as a whole rather than minutely parsing individual statements: see Quan v. Cusson, 2009 SCC 62, at para. 30.

The ultimate holding on responsible communication was:

[529] In summary, I find that Ms. Tomlinson and the CBC acted responsibly in developing and publishing the Web Story and each of the TV Reports. I find that Ms. Tomlinson, who was responsible for the contents of each publication, was diligent in trying to verify the allegations concerning Dr. Casses, having regard to all of the circumstances, and that much of what she reported in the Web Story and the TV Reports was true. The defamatory stings are no worse than the facts that have been proved at trial, and a more complete reporting of the facts would have been more damaging for Dr. Casses.

[530] I conclude, therefore that, with respect to the Web Story and each of the TV Reports, the CBC Defendants are entitled to succeed on the defence of responsible communication.

On justification, the court stated:

[550] … what is required to be proven is not the truth of each and every word or the literal truth of the statement. Rather, a defendant must only prove on a balance of probabilities that the gist or sting of the defamation was true, and it is sufficient if the defendant proves that a defamatory expression was substantially true. Minor inaccuracies do not preclude a defence of justification so long as the publication conveyed an accurate impression. The test is whether the defamatory expression, as published, would have a different effect on a reader or listener than what the pleaded truth would have produced. See Cimolai v. Hall, at paras. 171-173;Wilson v. Switlo, 2011 BCSC 1287, at paras. 440-441; and Jay v. Hollinger Canadian Newspapers, 2002 BCSC 1840, at para. 4.

[551] … From the findings I made in the “Background Facts” section and the discussion above regarding the defence of responsible communication, it can be seen that, in my opinion, much of what was reported in the Web Story and the TV Reports was substantially true, and, in my opinion, the CBC’s Pleaded Meanings can be justified.

However, the judge, having found that the stings were not exactly as pleaded by either party, though much close to the CBC meanings, declined to rule specifically on justification, saying:

[555] I have concluded that there will be no real benefit to either Dr. Casses or the CBC Defendants in engaging in a full analysis of the CBC’s justification defence. Rather, in my opinion, this case illustrates the importance and value of the defence of responsible communication. (emphasis added)