QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 42 Date: 2017 02 07 Docket: QB 827 of 2010 Judicial Centre: Saskatoon BETWEEN: KENNETH GRAHAM and CHRIS PURDY, ROD NICKEL, STEVEN GIBB, CAMERON HUTCHINSON, DALE BRIN, JOHN DOE and CANWEST PUBLISHING INC. Counsel: Alan McConchie for the plaintiff F. William Johnson, Q.C. for the defendants JUDGMENT D.E. LABACH J. February 7, 2017 INTRODUCTION [1] On November 24, 2009, Kenneth Graham commenced libel action against Chris Purdy, Rod Nickel, Steven Gibb, Cameron Hutchinson, Dale Brin, John Doe and Canwest Publishing Inc. [collectively the defendants] alleging that the defendants, acting alone or in concert, had published defamatory comments about him in series of articles in the Star Phoenix newspaper and on websites owned and operated by the newspaper and Canwest Publishing Inc. As result of the publication of these defamatory comments, Dr. Graham said that he suffered loss and damage to his professional and civic reputation and that such loss or damage will continue into the future in light of his professional standing. [2] On June 7, 2010 the defendants filed Statement of Defence to the claim wherein they did not deny publishing the words complained of, in the various articles complained of, but denied that the words were defamatory or that they were made with malice, deliberate calculation or recklessness. According to the defendants, the words complained of formed part of the defendants’ series of fair and accurate contemporaneous reporting of the civil jury proceedings in case involving Dr. Graham in the Saskatchewan Court of Queen’s Bench and that such words fell under the umbrella of “responsible communication”. As such, they have not published any retraction or apology nor does it appear that they have removed the alleged offensive articles from their websites. However, if any one or more of the alleged defamatory meanings are actionable, the defendants believe that Dr. Graham’s reputation was so tarnished at the time of the publications complained of that he did not suffer any damages or loss of reputation at all. [3] On July 14, 1999, Lisa Baert went to the Lloydminster Hospital for tubal ligation. This routine day surgery was performed by Dr. Graham, an obstetrician and gynecologist practicing in Lloydminster. Dr. Graham had done many tubal ligations and Ms. Baert’s surgery appeared to go well. She was discharged later that day and returned home. [4] On July 16, Ms. Baert was rushed back to the hospital in an ambulance, suffering from septic shock. Dr. Graham and general surgeon operated on her and discovered 2-millimetre puncture in her small bowel. The puncture had apparently occurred when Dr. Graham had done the tubal ligation two days earlier. The surgeon removed small portion of Ms. Baert’s bowel. While in surgery she went into cardiac arrest. They stabilized her and made arrangements to air lift her to the Royal Alexandra Hospital in Edmonton, Alberta. [5] In Edmonton, Ms. Baert had to have both her hands and feet amputated. She suffered some brain damage. She spent year in the hospital and at rehabilitation centre before returning to Lloydminster to live in care home. [6] On October 8, 1999 Lisa Baert filed claim in the Saskatchewan Court of Queen’s Bench against Dr. Graham, the Lloydminster Hospital and several nurses alleging negligence. [7] Prior to Baert’s surgery, Dr. Graham had decided to leave Lloydminster. He did not care for the medical community there, his wife had gone back to Edmonton to practice psychiatry and he was getting tired of commuting to Edmonton every weekend. Unfortunately he was unable to find position in Edmonton. Dawson Creek, British Columbia was looking for an obstetrician and gynecologist at this time and they offered him job. He liked the city, the compensation was attractive and in November 1999, he moved to Dawson Creek to practice. [8] On March 1, 2000 an article written by Jason Warick entitled “Botched Surgery Leaves Mom Helpless” appeared in the Saskatoon Star Phoenix newspaper. The article was about Ms. Baert’s surgery. The article came to Dr. Graham’s attention. He was shocked by it. He felt that it was inaccurate, inflammatory and very one-sided. It described Ms. Baert’s bowel as having been “sliced open” when there was only small 2-millimetre puncture in it. The article said that he ignored Mr. Baert when he came out of the operating room but he did not. He spoke to Mr. Baert immediately following the surgery. [9] On March and 3, 2000, two more articles written by Jason Warick appeared in the Star Phoenix. The first, entitled “Mom Longs to be Home with Her Family”, said that Ms. Baert’s bowel had been “slit open” and it described her care as “grossly negligent, malicious, arrogant, and high-handed”. The second article was entitled “Couple Fed Up with Long Wait for Compensation”. This article referred to “botched surgery”, that Ms. Baert’s “intestines were lacerated” and that the surgery was performed in “grossly negligent, malicious, arrogant, and high-handed manner calculated to ignore the rights and objections and complaints of Lisa [Baert]”. Dr. Graham was shocked by these articles and felt they were misleading. [10] On March 9, 2000 an article entitled “Lawsuit News to Hospital that Hired Gynecologist” appeared in the Star Phoenix. This article said that the Dawson Creek Hospital and South Peace Health Council had no clue that Dr. Graham was facing the Baert lawsuit when they hired him. This however was false. The hospital and health council did know about the lawsuit before they hired Dr. Graham because he had told them about it. [11] Prior to these articles appearing in the Star Phoenix, Dr. Graham had never had any complaints regarding his treatment of patients and was doctor in good standing in both Saskatchewan and Alberta. However, the local newspaper in Dawson Creek picked up on these Star Phoenix articles, began reporting on them and started phone line so patients could voice any complaints about Dr. Graham’s treatment of them. In response, and on the advice of the Saskatchewan counsel representing him in the Baert claim, Dr. Graham issued press release and gave press conference in Dawson Creek to counteract what he perceived to be media smear campaign. [12] In conjunction with his press release and press conference, his counsel sent letter dated March 10, 2000 to the editor of the Star Phoenix complaining about the articles written by Jason Warick. The letter stated that the articles caused Dr. Graham irreparable damage both professionally and personally and put the newspaper on notice of his intention to bring an action in libel against them. These articles and the attention they were attracting in the community was giving Dr. Graham bad reputation. [13] In 2002, Dr. Graham performed tubal ligation on Gloria Cooke at the Dawson Creek Hospital. Unbeknownst to the plaintiff, Ms. Cooke had had previous surgery on her bowel and uterus. He noted this at the beginning of the surgery when he inserted camera into her. This made the surgery somewhat more difficult but he continued. In the middle of Ms. Cooke’s surgery, he received an urgent call about pregnant woman in the maternity ward and problems with the baby’s heart rate. He was the only obstetrician and gynecologist in Dawson Creek but finished Ms. Cooke’s surgery before rushing off to deal with this other patient. He kept Ms. Cooke in the hospital overnight for observation. The next day she appeared fine so he discharged her with instructions. [14] The day after her discharge, Ms. Cooke returned to the Dawson Creek Hospital complaining of shortness of breath and pain in her abdomen. Worried she was becoming septic and with no surgeon on call in Dawson Creek, arrangements were made for her to be transferred to Grande Prairie Hospital for immediate surgery. During her surgery in Grande Prairie, she was noted to have small bowel perforation. She was eventually transferred to Edmonton University Hospital for some further surgeries, following which she eventually made full recovery. [15] As result of this incident, Dr. Graham voluntarily stopped performing laparoscopic surgeries and decided to take upgrading to assuage any negative public opinion in Dawson Creek. On December 11, 2002 an article appeared in the Vancouver Sun reporting on Ms. Cooke’s complications and linking the plaintiff’s voluntary suspension of laparoscopic surgeries to this and the Baert case. Similar articles appeared in the Peace River Block Daily News and the Alaska Highway News over the next number of weeks. [16] On March 3, 2003 an article entitled “Local Mother ‘Lucky to be Alive’” appeared in the Peace River Block Daily News. This was story about Dana McLellan. Dr. Graham had performed surgery on her in February 2003 and inserted catheter into her bladder. After surgery there was some blood in her urine. Dr. Graham called specialist and they inserted camera into her bladder. They noticed some blood and clots so they took her back into surgery and repaired small cut in her bladder. Ms. McLellan was stable for few days but eventually was transferred to Vancouver because of nursing requirements. The article made it sound as if Ms. McLellan almost died but that was not the case. [17] On March 5, 2003 another article appeared in the Peace River Block Daily News. The byline in this article read “Third Patient Comes Forward: Complications Followed Surgery to Remove Cyst”. This female patient had been referred to Dr. Graham because of chronic pelvic pain. When he performed surgery on her he noted lot of adhesions and that her ovary was stuck to her bowel. He called surgeon who attended and dissected the ovary off the bowel. In the course of performing the dissection, the surgeon cut the patient’s urator. He brought this to the surgeon’s attention and she stitched it up. Unfortunately the patient developed leakage out of the stitches and had to be transferred to Prince George where urologist fixed the problem. Although the article seemed to blame Dr. Graham for this woman’s problems, he was not responsible for cutting her urator. [18] Complaints were made to the British Columbia College of Physicians and Surgeons following these surgeries and Dr. Graham was investigated. The College issued written report finding no evidence that Dr. Graham was not providing the appropriate level or standard of care to his patients and he was never disciplined. As regards the Gloria Cooke surgery, the College suggested that he should have stopped the surgery when he noted the tissue mass from the undisclosed surgery. Despite this, they did not find that his continuing with the surgery fell below the appropriate standard of patient care. Ms. Cooke eventually started lawsuit against Dr. Graham. It was settled with no liability on his part. [19] The Northern Health Authority also investigated his surgeries but never disciplined Dr. Graham, suspended his hospital privileges or pressured him to resign. [20] With all the negative media publicity, Dr. Graham’s income began to decline. While he was not shunned by colleagues, they made fewer referrals to him. He also began receiving hate mail. In May 2003, Dr. Graham suffered heart attack and at the end of July 2003 had quintuple bypass surgery. He also began suffering some depression. Dr. Graham decided to cease practicing in Dawson Creek and he retired to St. Albert, Alberta. [21] Dr. Graham and his wife had five children. On May 24, 2007, his oldest son committed suicide. On August 19 his wife died of cancer. On September 17 the Baert trial began in Saskatchewan Court of Queen’s Bench. The hospital and the nurses settled out of court but Dr. Graham continued to deny that he was negligent. [22] The trial garnered considerable media interest both in Saskatchewan and across Canada. Chris Purdy, one of the reporters at the Star Phoenix newspaper, was sent to cover the trial. Prior to attending the trial, Ms. Purdy attempted to familiarize herself with the case. In that regard, she read articles that had previously been written about the case, she tried to find other stories the newspaper wrote about the case and she searched other jurisdictions to see if any other articles about the case came up. [23] Ms. Purdy attended the first day of trial but did not attend each and every day of the trial thereafter. She tried to find out when certain witnesses would be testifying and would attend for their examinations-in-chief. She would not often stay for cross-examination because by that time she usually had the salient facts or she had to leave to get story out to meet deadline. She did however make point of attending Dr. Graham’s examination-in-chief and cross-examination as nobody had as yet heard his side of the story. She kept notes of all her attendances at the trial and what occurred when she was there. [24] During the trial, Ms. Purdy observed voir dire. The voir dire concerned an application to allow number of people to testify in relation to “informed consent”. It was during this voir dire that she learned the names of some of Dr. Graham’s former patients or obtained them from Ms. Baert’s counsel. [25] Ms. Purdy attended court on November 22, 2007 to hear the closing arguments of Dr. Graham’s counsel and then again on November 23 to hear the closing arguments of Ms. Baert’s counsel. She next attended court on November 27 to hear the judge’s charge to the jury. She made detailed notes of what she heard on all of these dates. On November 28, 2007, after 51 days of trial, the jury found Dr. Graham not negligent for Ms. Baert’s injuries. [26] Ms. Purdy wrote series of articles about the case during and after the trial. All of these articles were published in the Star Phoenix newspaper and/or on the newspaper’s websites. Following closing submissions, she wrote an article entitled “Final Arguments in Surgery Suit Heard by Court”. This article was published on page A13 of the November 24, 2007 edition of the Star Phoenix and appeared on its websites on that same date. [27] On November 28, 2007, the day the verdict came down, neither Ms. Baert nor Dr. Graham were present in court. After the verdict, Ms. Purdy spoke to Ms. Baert’s counsel regarding the possibility of an appeal. She later spoke to number of people including Les Hurlburt, Lynn Laursen, Sharry Michels and Marleen Burgess. All of these people were either previous patients of Dr. Graham or relatives of his prior patients. She wrote an article entitled “Gynecologist Not Negligent in Tubal Ligation Lawsuit” and it was published on the newspaper’s websites later on November 28. [28] Dr. Graham was at home in St. Albert when the verdict came down. He received call from his counsel advising of the result and was “over the moon” that he was found not negligent and finally exonerated. He organized celebratory supper for him and his children that night at his residence. [29] Donald Graham was living with his father at the time and working on his master’s degree. He described his father as being very excited about the jury’s decision and the case being finished. Another son, Mark, echoed these comments about his father’s reaction to the verdict. Over supper, the Graham family spoke of this being point to move on from given everything their family had recently been through. [30] After supper, Donald Graham went on the internet to search for any stories about the verdict and he came across Ms. Purdy’s November 28 article. They all read the article and the mood changed. Dr. Graham was shocked, mad, dumbfounded, baffled and unhappy that there was nothing in the article about him being vindicated. He felt it was full of untruths and distortions and that it made it appear that he was lucky to have been exonerated in the trial. Nobody from the Star Phoenix had tried to contact him to discuss the verdict or the contents of this article. He felt depressed. [31] Ms. Purdy wrote five more articles: November 29 (two articles), 30, December 1, 2007 and January 3, 2008. Nobody told her to write these articles but she discussed the information she obtained and the articles she wrote with her editors. Dr. Graham and his family read each of these articles and continued to be shocked, mad and dismayed and wondering if and when these articles would stop. After reading the November 30 article, Dr. Graham was depressed and felt that the newspaper was making the point that he was negligent and the jury was wrong to have exonerated him. The article made it sound as if the outcome of the trial would have been different had the jury heard from his other patients, that he should not have been given licence to practice in British Columbia and that he should not have been working as doctor. No one from the Star Phoenix contacted him to speak to him about the article, to ask him about the verdict or to get his view on an appeal. Dr. Graham was particularly upset and appalled after reading the December article as this article was full of untruths. Still, no one from the newspaper tried to contact him to get his comment. [32] On December 3, Dr. Graham’s children prepared letter to the Star Phoenix expressing their concerns and providing some rebuttal as to what was being written about their father. The Star Phoenix published this letter in the editorial section of the paper on December 14, 2007. [33] Over the next number of months, Dr. Graham’s children noticed change in their father. He was not as happy or as talkative as he had been before. He stopped doing things with them and became preoccupied with these articles. The articles bothered him for days and weeks at time. Dr. Graham, by his own admission, was depressed, not eating properly, unable to concentrate and had problems sleeping. He never sent letter or press release to the Star Phoenix as he did not think it was an appropriate thing to do. Over time, the effects lessened but he continued to have problems concentrating and sleeping. [34] Eventually Dr. Graham decided to bring lawsuit against the Star Phoenix to get back some of the vindication that was lost as result of Ms. Purdy’s articles. On November 18, 2009, counsel for Dr. Graham gave notice to Chris Purdy, her editors and publisher at the Star Phoenix and Canwest Publishing Inc., the then owners of the Star Phoenix, of their intention to bring an action for defamation as required by s. 15 of The Libel and Slander Act, RSS 1978, L-14. On November 24, 2009 Dr. Graham filed Statement of Claim in the Saskatchewan Court of Queen’s Bench alleging that the defendants had published series of articles containing defamatory comments about him in the Star Phoenix and on websites owned and operated by the Star Phoenix and Canwest Publishing Inc., between November 24, 2007 and January 3, 2008. [35] The defendants filed Statement of Defence on June 7, 2010 denying Dr. Graham’s allegations. The parties were not able to resolve the claim at mediation or pre-trial settlement conference and eventually the claim was set down for trial. [36] Sometime between the date Dr. Graham’s claim was filed and the commencement of the trial, Canwest Publishing Inc. experienced financial difficulties and eventually its assets, including the Star Phoenix, were purchased by Postmedia Network Inc. [37] The issues in this case are as follows: (a) Should the Statement of Claim be amended to add Postmedia Network Inc. as defendant? (b) Are the defendants, or any of them, liable in defamation to Dr. Graham? (c) What damages, if any, is Dr. Graham entitled to? (d) Is Dr. Graham entitled to an injunction requiring the defendants to remove certain content from websites under their control? (a) Should the Statement of Claim be amended to add Postmedia Network Inc. as defendant? [38] Postmedia Network Inc. purchased Canwest Publishing Inc. after their claim was filed but before the trial in this matter commenced and are the current owners of the Star Phoenix newspaper and its websites. Pursuant to Rules 3-72 and 3‑84 of The Queen’s Bench Rules, counsel for Dr. Graham asks me to exercise my discretion and allow the Statement of Claim to be amended to add Postmedia Network Inc. as defendant. In their view, there is no prejudice to Postmedia Network Inc. if they are added as defendant and in effect, while not formally named as defendant to this point in time, have been defending this claim since purchasing Canwest Publishing Inc. and/or its assets. [39] The defendants oppose this request on the basis that the two-year limitation period set forth in The Limitations Act, SS 2004, L-16.1, in force at the time of the alleged defamation has expired, that there is no evidentiary basis upon which could conclude that no party will suffer actual prejudice as result of the requested amendment and, lastly, that there is no explanation for Dr. Graham’s delay in seeking this amendment until after the conclusion of the evidence in the trial. [40] Rules 3-72, 3-78 and 3-84 are relevant to this issue and specifically: 3-72(1) party may amend the party’s pleading, including an amendment to add, remove, substitute or correct the name of party, as follows: (c) after statement of defence is filed: (i) by agreement of the parties filed with the Court; or (ii) with the Court’s prior permission, in any manner and on any terms that the Court considers just. (3) Parties shall make all amendments to their pleadings that are necessary to determine the real questions in issue between the parties. (8) Unless the Court orders otherwise, if pleading is amended at trial or hearing, the amended pleading does not need to be served and filed. (2) Persons may be joined as defendants or respondents if: (a) remedy is claimed against them, whether jointly or severally or in the alternative, arising out of the same transaction, occurrence or series of transactions or occurrences; (b) common question of law or fact may arise in the proceeding; (c) there is doubt as to the person or persons from whom the plaintiff, petitioner or originating applicant is entitled to remedy; (d) damage or loss has been caused to the same plaintiff, petitioner or originating applicant by more than one person, whether or not: (i) there is any factual connection between the several claims apart from the involvement of the plaintiff, petitioner or originating applicant; and (ii) there is doubt as to the respective amounts for which each may be liable; or (e) their presence in the proceeding may promote the convenient administration of justice. 3-84(1) At any stage of the action, the Court may order that any person be added as party if: (a) that person ought to have been joined as party; or (b) the person’s presence as party is necessary to enable the Court to adjudicate effectively and completely on the issues in the action. (2) At any stage of the action, the Court may grant leave to add, delete or substitute party, or to correct the name of party, and that leave shall be given, on any terms that the Court considers just, unless prejudice will result that cannot be compensated for by costs or an adjournment. [41] In this case, at the time the articles complained of were written, Canwest Publishing Inc. owned the Star Phoenix, the newspaper that employed Chris Purdy, Rod Nickel, Steven Gibb, Cameron Hutchinson and Dale Brin. According to material on the court file, on January 8, 2010 the Ontario Superior Court of Justice made an order pursuant to the Companies’ Creditors Arrangement Act, RSC 1985, C-36, in the matter of plan of compromise or arrangement of Canwest Publishing Inc. and other related companies. Sometime thereafter, but prior to the trial commencing, Postmedia Network Inc. purchased Canwest Publishing Inc. and/or its assets including the Star Phoenix. The evidence does not disclose the specific date this occurred. However, on the court file is statement as to documents of the defendants dated November 22, 2012 wherein defendants’ counsel identifies as being solicitors for Chris Purdy, Rod Nickel, Steven Gibb, Cameron Hutchinson, Dale Brin and Postmedia Network Inc., successor to Canwest Publishing Inc. There is also an affidavit of Rob McLaughlin filed on the court file sworn November 23, 2012 in which he states that he is the editor of the Star Phoenix and that Postmedia Network Inc. is the owner of the Star Phoenix newspaper. Finally, there is letter on the court file dated November 25, 2014 from defendants’ counsel requesting permission from the Court to dispense with the appearance of all the defendants at the December 2014 pre-trial conference. The reasons for this request included the following: (1) The defendants are all insured by the (formerly) Canwest Publishing and (now) Postmedia Network Inc. insurer, Hiscox Insurance, and thus have no personal financial exposure to the plaintiff; (3) None of the defendants is now employed by Postmedia Network Inc., owner of the Star Phoenix Newspaper, at that newspaper; and (4) Only the examination for discovery of the defendant Purdy was an “in-depth” discovery and there was understandably no examination of the proper officer of Postmedia Network Inc. [42] Despite this, Dr. Graham’s counsel neglected to make application to add or substitute Postmedia Network Inc. as defendant prior to the trial commencing, at the conclusion of the plaintiff’s case or at the end of the trial. In closing argument it was agreed that the parties would submit further written submissions on Dr. Graham’s request for an injunction requiring the defendants to remove certain articles from websites under their control if these articles were found to be defamatory. Unfortunately neglected to provide the parties with appropriate direction for submission of any further argument at the end of closing submissions. [43] On October 30, 2015 received correspondence from Dr. Graham’s counsel advising that he was writing on behalf of both counsel and requesting direction as to whether the parties may submit additional written material on two questions: (i) Whether the Statement of Claim should be amended to substitute Postmedia Network Inc. (the current proprietor of the Star Phoenix) for the defendant Canwest Publishing Inc. (former proprietor of the Star Phoenix); and (ii) Whether the plaintiff, if successful in establishing the defendants are liable in defamation, are entitled to an injunction requiring the defendants to remove certain content from websites under their control. [44] On the basis of the request of the parties in closing argument and their mutual desire to provide written submissions to the Court on the aforementioned two questions, instructed the Local Registrar to contact both counsel, advise them that would receive written submissions on these points and gave them deadline by which these submissions should be filed. [45] Both counsel filed written submissions. In the defendants’ written submission, counsel reiterated that these two outstanding issues are being raised with his agreement. [46] I am satisfied that Postmedia Network Inc. was the successor to Canwest Publishing Inc. and at the time of trial, was the owner of the Star Phoenix newspaper. I am also satisfied that Postmedia Network Inc. was aware of the existence of Dr. Graham’s claim including knowledge of the matters in issue. Counsel that had been representing Canwest Publishing Inc. and the other defendants before Postmedia Network Inc. purchased the Star Phoenix continued to represent the defendants after the purchase. In documents filed with the Court, counsel began identifying that he was now representing Postmedia Network Inc. as successor to Canwest Publishing Inc. Counsel ran the trial and must have been receiving some instruction from Postmedia Network Inc. as to how to proceed. [47] Rule 3-84(2) allows the Court to grant leave to add or substitute party at any stage of the action unless prejudice will result that cannot be compensated for. It is clear that trial judge has the discretion to add parties to an action however that discretion should not be exercised when it works an injustice to one of the parties. See Bradford Smith (1989), 1989 CanLII 4442 (SK CA), 74 Sask 193 (CA). While this rule gives the judge the power to add or substitute party, the criteria to be applied by the Court in deciding whether party ought to be joined as defendant is set out in Rule 3-78(2). See Lindsay Lindsay (1981), 1981 CanLII 2318 (SK QB), 15 Sask 29 (QB) at para 4; Scharnagl (Litigation Guardian of) Tomilin, 2005 SKCA 121 (CanLII) at para 18, 269 Sask 259. [48] Here, there is nothing that leads me to believe that Postmedia Network Inc. would suffer prejudice or an injustice if they were added as a defendant at this time. They purchased Canwest Publishing Inc. and/or its assets at least three years prior to trial and they are represented by the same lawyer that represented Canwest Publishing Inc. and the rest of the defendants. Both companies are insured by Hiscox Insurance and it appears that the insurer attended the pre-trial settlement conference on behalf of both companies. Counsel for the defendants admitted in correspondence that understandably no examination of the proper officer of Postmedia Network Inc. occurred as the more important discovery was of Chris Purdy. Postmedia Network Inc. is not being taken by surprise in the action and am not convinced that the case, from the defendants’ perspective, would have been handled differently had Postmedia Network Inc. been added earlier in the action. The evidence remains the evidence; it did not change, become stale or lost simply because Postmedia Network Inc. purchased Canwest Publishing Inc. and/or its assets. [49] The presence of Postmedia Network Inc. as defendant will ultimately promote the convenient administration of justice as it will enable the Court to determine the real questions in issue between the parties and effectively and completely adjudicate on all the issues in the action. Moreover, given that the Court has no evidence as to the specific terms upon which Postmedia Network Inc. purchased Canwest Publishing Inc. and/or its assets, there may be some doubt as to which entity Dr. Graham is entitled to remedy against if he is successful in his claim. For these reasons, Postmedia Network Inc. should be added as a defendant in this action. [50] I am not convinced that adding Postmedia Network Inc. as a defendant deprives them of a defence under s. 5 of The Limitations Act. Section states: Unless otherwise provided in this Act, no proceedings shall be commenced with respect to claim after two years from the day on which the claim is discovered. [51] The articles complained of were published between November 24, 2007 and January 3, 2008, and it would appear that the limitation period expired some time ago. But in cases where it is alleged defamatory material was posted on an internet website, as in this case, “publication” takes place wherever and whenever third party downloads or views the impugned material from the website. See Elfarnawani International Olympic Committee, 2011 ONSC 6784 (CanLII) at para 31. Consequently, the limitation period begins to run each and every time defamatory content on the internet is downloaded and viewed. This was the conclusion reached by the British Columbia Court of Appeal in Carter B.C. Federation of Foster Parents Association, 2005 BCCA 398 (CanLII) at para 20, 257 DLR (4th) 133. [52] It is not necessary for plaintiff in every case to prove directly that the words complained of were brought to the actual knowledge of some third party. If, on the facts proved, it can reasonably be inferred that the words were brought to the knowledge of some third party, prima facie case is established. See Gaskin Retail Credit Co., 1965 CanLII (SCC), [1965] [53] In Bernstein Poon, 2015 ONSC 155 (CanLII), although it was proven that the defamatory material was posted on the defendant’s website for at least one to two years prior to being removed, there was no direct evidence that anyone except the defendant and his legal representatives viewed the material. In concluding that there was more than ample evidence to support the drawing of an inference that the material on the website was viewed by third parties, Mew J. held that “[t]o find otherwise would be to ignore the realities of twenty-first century communication…”. [54] The defendants in the present case acknowledged that the articles in question remain on websites controlled by the Star Phoenix, Canwest Publishing Inc. and/or Postmedia Network Inc. It was part and parcel of their closing argument that to grant an injunction that the defamatory material be removed from their websites would be akin to erasing history. That being so, it is reasonable conclusion that anyone with search engine could have accessed that material within the last two years and as result the limitation period would not have expired. [55] Even if am wrong in this reasoning, s. 20 of The Limitations Act allows the Court to add party even after limitation period has expired. This section states: 20 Notwithstanding the expiry of limitation period after the commencement of proceeding, judge may allow an amendment to the pleadings that asserts new claim or adds or substitutes parties if: (a) the claim asserted by the amendment, or by or against the new party, arises out of the same transaction or occurrence as the original claim; and (b) the judge is satisfied that no party will suffer actual prejudice as result of the amendment. [56] If both of the requirements set forth in the section are found to exist, the Court has an unfettered discretion to grant the application, however such discretion must be exercised judicially. See Stockbrugger Estate Wolfe Estate, 1987 CanLII 4901 (SK CA), [1987] WWR 759 (Sask CA). [57] The claim against Postmedia Network Inc. arises out of the same transactions or occurrences as the original claim against the defendants and for the reasons aforementioned, am satisfied that neither Dr. Graham, the other defendants nor Postmedia Network Inc. will suffer actual prejudice as result of adding Postmedia Network Inc. as defendant. Dr. Graham or his counsel gave no reason why they did not seek to amend their claim earlier, but as stated in Callihoo Lamoureux, 2001 SKQB 392 (CanLII), 211 Sask 36, even if there is negligence that is not necessarily fatal to the application. As result, would exercise my discretion and grant leave to add Postmedia Network Inc. as defendant in this case. (b) Are the defendants, or any of them, liable in defamation to Dr. Graham? [58] Dr. Graham takes issue with seven articles written by Chris Purdy, the Star Phoenix reporter tasked with covering the Baert trial. The dates of these articles were November 24, 28, 29 (two articles), 30, December 1, 2007 and January 3, 2008. He alleges particular defamatory meanings to the words in each of these articles and states that the articles as whole convey defamatory impression of him. He accuses the defendants of being actuated by express malice in the publication of these articles. [59] The defendants argue that the words complained of in the different articles are not capable of bearing the defamatory meanings, either at all or to the extent alleged by Dr. Graham. They admit that five of the articles do contain some defamatory comments or meaning. They raise the defence of privilege set forth in s. 11 of The Libel and Slander Act and the defence of responsible communication in relation to some of the articles and deny that their predominant purpose in publishing the articles was to harm Dr. Graham’s reputation or for any other malicious reason. [60] Defamation occurs when words are published to third person that contain an imputation which tends to lower the plaintiff in the estimation of right-thinking members of society generally or to expose him to hatred, contempt or ridicule. To be actionable, the words must be reasonably understood by others in defamatory sense. Words may be defamatory in their natural and ordinary meaning, they may carry an implied meaning (the true innuendo), and/or an extended meaning (the false innuendo). Unless the literal meaning is plain and obvious, the plaintiff must plead what he alleges the words were intended to mean. See Laufer Bucklaschuk (1999), 1999 CanLII 5073 (MB CA), 145 Man (2d) (CA) at para 23. [61] The basic principles of the law of defamation were succinctly stated by McLachlin C.J. in Grant Torstar Corp., 2009 SCC 61 (CanLII), [2009] SCR 640 [Grant]. There she said: 28 plaintiff in defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism: see, e.g., R. A. Smolla, “Balancing Freedom of Expression and Protection of Reputation Under Canada’s Charter of Rights and Freedoms”, in D. Schneiderman, ed., Freedom of Expression and the Charter (1991), 272, at p. 282. (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se: R. E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), vol. 3, at pp. 25-2 and 25-3.) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability. 29 If the plaintiff proves the required elements, the onus then shifts to the defendant to advance defence in order to escape liability. [62] In this case, the parties agree that the words complained of referred to Dr. Graham and that the words were published. Where they disagree is whether some of the words or articles were defamatory and whether they were defamatory to the extent that Dr. Graham says they were. [63] The role of the trial judge in determining whether or not words are defamatory was described by Hinkson J.A. (as he then was) in Lawson Baines, 2012 BCCA 117 (CanLII) at paras 26 and 27, [2012] WWR 429 [Lawson]: 26 The first task of judge in defamation case is to answer the “threshold question” of “whether the words cited are reasonably capable of defamatory meaning”: Laufer v. Bucklaschuk (1999), 1999 CanLII 5073 (MB CA), [2000] W.W.R. 462 at 470-471 (Man. C.A.). The judge, if sitting alone, then plays second role; as finder of fact, in determining whether the words do, in fact, bear that defamatory meaning. 27 In executing the first role, the question is whether the words complained of are reasonably capable of being understood in defamatory sense. In exercising this gatekeeper role, the judge must keep in mind that the question does not involve finding that the words are in fact defamatory, but concerns only what the words are capable of meaning. When performing this task, the judge must not stray from “common sense construction” of these words (as it was termed in Makow v. Winnipeg Sun, 2003 MBQB 56 (CanLII), [2003] 11 W.W.R. 166, affirmed 2004 MBCA 41 (CanLII)) and seize upon one marginal to that construction. [64] In Botiuk Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] SCR [Botiuk], Cory J. said: 62 For the purposes of these reasons, it is sufficient to observe that publication which tends to lower person in the estimation of right-thinking members of society, or to expose person to hatred, contempt or ridicule, is defamatory and will attract liability. See Cherneskey v. Armadale Publishers Ltd., 1978 CanLII 20 (SCC), [1979] S.C.R. 1067, at p. 1079. What is defamatory may be determined from the ordinary meaning of the published words themselves or from the surrounding circumstances. In The Law of Defamation in Canada (2nd ed. 1994), R. E. Brown stated the following at p. 1-15: [A publication] may be defamatory in its plain and ordinary meaning or by virtue of extrinsic facts or circumstances, known to the listener or reader, which give it defamatory meaning by way of innuendo different from that in which it ordinarily would be understood. In determining its meaning, the court may take into consideration all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented. [65] As decide whether the words and/or articles in question were defamatory, both parties urge me to consider the context in which the words were published and the context of the articles. Brown on Defamation, loose-leaf (2012-Rel 4) 2d ed, vol (Toronto: Carswell, 1999), stresses that context and circumstances are crucial in determining the defamatory sense of words. At pages 5-82 to 5-83: The defamatory communications must be viewed contextually. In determining whether they are defamatory, the words “must be considered in the context of the matter complained of as whole.” An alleged defamatory statement cannot be considered apart from the circumstances in which it was made. word having different shades of meaning may derive color and significance from the nature of the act to which it is applied. “What is said and what is done always has its proper relation to time, place, conditions, and circumstances.” Therefore, in determining the defamatory sense of language, “reference must be had, not only to the words or expressions themselves, but also to the circumstances under which they were used.” This is particularly true where an innuendo has been pled. [66] Besides arguing that the words were not defamatory, the defendants rely on the defence of privilege afforded newspapers under s. 11 of The Libel and Slander Act and the defence of responsible communication. Section 11 of The Libel and Slander Act reads as follows: 11(1) fair and accurate report in newspaper without comment, of proceedings publicly heard before court of justice, if published contemporaneously with those proceedings, shall be absolutely privileged unless the defendant has refused or neglected to insert in the newspaper in which the report complained of appeared reasonable letter or statement of explanation or contradiction by or on behalf of the plaintiff. (2) Nothing in this section authorizes the publication of blasphemous, seditious or indecent matter. [67] The defence of responsible communication is relatively new defence in Canadian law. Formally accepted by the Supreme Court of Canada in Grant, McLachlin C.J. described the elements of the new defence as follows: 126 The defence of public interest responsible communication is assessed with reference to the broad thrust of the publication in question. It will apply where: A. The publication is on matter of public interest, and B. The publisher was diligent in trying to verify the allegation, having regard to: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement's public interest lay in the fact that it was made rather than its truth (“reportage”); and (h) any other relevant circumstances. [68] With this background in mind and since each publication is separate cause of action for which an action lies (Lambert Roberts Drug Stores Ltd., 1933 CanLII 289 (MB CA), [1933] DLR 193 (Man CA), at para [Lambert]), will address each of the articles Dr. Graham complains of separately. (i) November 24, 2007 Article [69] This article appeared both in the Star Phoenix newspaper and on internet sites controlled by the newspaper. The article reads as follows: Final arguments in surgery suit heard by court The gynecologist who botched routine tubal ligation operation on Lloydminster mother, leaving her quadriplegic with brain damage, clearly failed to provide her with standard level of care, jury has heard. On Friday, lawyers for Lisa Baert began their closing arguments in the two-month civil trial in Saskatoon’s Court of Queen’s Bench. Because the lawyers need more time Monday to complete their case, Justice Grant Currie told the jury members all women they won’t need to bring their suitcases until Tuesday, when they will be sequestered for their deliberations. “It’s clear this case is about young family whose lives were unimaginably changed,” said lawyer Sandra Weber. Lisa Baert was 21 when she went to the Lloydminster hospital in July 1999 for what is considered by many to be safe, simple sterilization procedure, said Weber. But her bowel was unknowingly punctured during the laparoscopic operation, allowing toxins to leak into her body. She was discharged from hospital but two days later was rushed back suffering from septic shock. Her hands and feet had to be amputated. And she also suffered major brain damage during cardiac arrests. She now lives in Saskatoon’s Parkridge Centre. Baert, her husband Mark and their two young sons are suing Dr. Kenneth Graham for more than $10 million for negligence. The Lloydminster hospital and several nurses originally named in the suit previously settled out of court. “Dr. Graham failed Lisa Baert in number of ways,” said Weber. She said Graham did not get Baert’s informed consent for the surgery. When he met her in his office weeks before the operation, he spent only three minutes discussing the operation. Mark testified when his wife returned home, and he asked her if the doctor had discussed risks of the upcoming surgery, she told him: “I don’t believe he told me of any risks.” Weber also reminded the jury one of Graham’s other patients, who had tubal ligation that same day, testified she was unaware the bowel could be nicked during the surgery. Graham testified it was his routine to briefly mention the risk of bowel perforation. But he would not tell patients the consequences of such an injury include septic shock or death, because the event is so rare. “Even if risk is rare, if the potential consequences are serious, that must be disclosed,” Weber said. She said Graham further failed Baert by proceeding with the surgery, after another doctor diagnosed her with postpartum depression and prescribed her anti-depressants. Graham either didn’t see the update in her chart, said Weber, or he ignored the vital piece of information. She said Graham also admitted he was “crunched for time,” with three other surgeries scheduled the same morning as Baert’s operation. He obviously used “improper technique,” inserting the needle at wrong angle or pushing it too deep into the abdomen, said Weber. Graham was alerted to possible problem when the surgical equipment gave high pressure reading, an indication the needle had met an obstruction, such as the bowel, Weber said. But he completed the surgery and didn’t tell other staff or Baert of the problem so they could watch for symptoms. “The doctor’s responsibility doesn’t end when he puts in the last suture,” Weber said. “Dr. Graham had the missing piece of the puzzle that he failed to communicate, and that started the whole process.” Baert was discharged from hospital and given an instruction sheet from nurse about how she should not take prescription drugs and should call the hospital or her doctor if she experienced more pain. Baert and concerned neighbour allegedly called the hospital three times during the next two days, concerned about her increasing pain. They talked to unknown nurses who said Baert should wait out the pain and gave permission for her to take the neighbour’s prescription pain killers. Graham’s defence lawyers have argued the nurses obviously gave bad advice over the phone, and Baert should have followed the instructions by returning to the hospital. Graham’s defence suggests the hospital and Baert carry about 75 per cent of the responsibility for what happened. Weber said Baert did nothing wrong, and Graham is to blame for 80 per cent of the incident. The hospital is responsible for the remaining 20 per cent. “Dr. Graham’s negligence is by far the biggest factor,” she said. [Italics are mine] [70] Dr. Graham argues that the italicized portions of the article are false, malicious and defamatory and were understood to mean that he botched routine tubal ligation operation on Lisa Baert causing her to become quadriplegic with brain damage. [71] Defendants’ counsel says that this article is Ms. Purdy reporting on the submissions of Ms. Baert’s counsel to the jury and that the natural and ordinary meaning of the words complained of is non-defamatory. Alternatively they rely on the privilege accorded to newspapers reporting on court proceedings pursuant to s. 11 of The Libel and Slander Act and the defence of responsible communication. [72] Looking at the words specifically complained of by Dr. Graham in the context of the article as whole, am not satisfied that these words are reasonably capable of defamatory meaning. An ordinary person reading these words would understand that these are the plaintiff’s lawyer’s arguments at the end of lengthy trial. The impugned portions state as much when they end with “a jury has heard” and “said Weber”. Early in the article it states that lawyers for Ms. Baert began their closing arguments in trial and the different paragraphs are littered with references that Ms. Weber said this or she said that. An ordinary person reading this would be mindful that this trial is not finished, that no determination has yet been made as to whether Dr. Graham has done anything wrong and that what is being said here are arguments jury is going to have to consider. [73] Even if am wrong in this conclusion, the words complained of are not actionable by reason of the privilege afforded the defendants under s. 11 of The Libel and Slander Act. The article was fair and accurate contemporaneous reporting of the closing submissions made by the Baerts’ lawyer to the jury. For both these reasons, the allegation that this November 24, 2007 article is defamatory is dismissed. (ii) November 28, 2007 Article [74] This article was only published on the Star Phoenix internet sites. It read as follows: Gynecologist not negligent in tubal ligation lawsuit The gynecologist found not negligent Wednesday in the case of Lloydminster mother left with devastating injuries after routine tubal ligation recently settled second lawsuit with another patient who nearly died following the same surgery. Dr. Kenneth Graham settled the second suit out of court for an undisclosed sum earlier this month, said lawyer John Jordan of Nanaimo, B.C. Jordan said his client, Gloria Cooke, was referred to Graham for the laparoscopic tubal ligation at Dawson Creek and District Hospital in 2002. He mistakenly punctured her bowel twice during the surgery. “She almost died and struggled to hang on for month,” said Jordan. On Wednesday, after nine weeks of trial, Saskatoon jury determined Graham was not negligent in his care of Lisa Baert when he punctured her bowel during tubal ligation at the Lloydminster hospital in 1999. Baert went into septic shock and doctors had to amputate her hands and feet. She also suffered severe brain damage. Baert and her family were claiming more than $10 million in damages against Graham. Prior to trial, they reached an undisclosed settlement with the Lloydminster hospital and some nurses. One of the six jurors, her bottom lip quivering as the verdict was read, wiped tears from her face and glanced at Baert’s husband, Mark, and his three sons sitting in the courtroom. The jurors did not have to be unanimous, but five of the six had to agree on each question posed in six-page verdict sheet in order to reach their decision. Baert, confined to wheelchair and living at the Parkridge Centre long-term care home, was unable to make it to the courthouse for the verdict. And her husband did not talk to reporters when he left the building. Graham, who no longer works as doctor, also wasn’t at the courthouse. His lawyer, Christine Glazer, said he was busy with personal matters. She said the trial was difficult for her client and obviously the jury. “I realize how difficult it would have been for the jury to reach the conclusion that it did,” said Glazer. “But the jury did what it had to do, and that was set aside its emotion and look at the case objectively.” Baert’s lawyers planned to call about 10 other patients during the trial, some like Cooke suffered complications during surgeries conducted by Graham. But Court of Queen’s Bench Justice Grant Currie ruled the patients couldn’t testify because their stories weren’t relevant to Baert’s case and would prejudice the jury. Graham said Baert was partially responsible for her injuries because she did not return to the hospital when she experienced increasing pain at home. His lawyers also argued bowel perforations are recognized but rare risk of tubal ligations. And instruments inserted into the abdomen mistakenly puncture the bowel in about four of every 10,000 surgeries. Jordan, Cooke’s lawyer, said the risks increase if woman has had prior abdominal surgery, which was the case with Cooke. The 41-year-old mother of three argued she told Graham about her prior surgery, although Graham claimed she did not, said Jordan. Graham, granted licence by the B.C. College of Physicians and Surgeons despite Baert’s injuries in Saskatchewan, went ahead with Cooke’s tubal ligation on Oct. 31, 2002. Graham had to cut through lesions and adhesions formed during Cooke’s prior surgery. When Graham saw the abnormalities, he should have stopped the surgery, said Jordan. “He didn’t have the skill to do the dissection. It’s whole other level of surgery, not what obstetricians and gynecologists should be doing.” But he continued and the operation took 45 minutes, Jordan said, four times as long as Baert’s surgery and what Graham testified was normal. Jordan said Graham kept Cooke in hospital overnight to monitor her condition but she was released the next day. She soon returned to the hospital in pain but Graham diagnosed her with gastrointestinal problem and sent her home. She returned to hospital second time, and another doctor discovered she was suffering from septic shock. She was sent to hospitals in Grand Prairie and Edmonton for life-saving surgeries. Doctors determined two puncture holes in her bowel occurred during the tubal ligation, said Jordan. He said Cooke is still in chronic pain and has an incisional hernia in her abdomen. She has returned to work as medical office assistant. But because she no longer has stomach muscles, she needs to wear girdle each day to hold herself in. Graham voluntarily stopped doing laparoscopic operations after Cooke’s surgery. But four months later, Dawson Creek media reported 35-year-old Dana McLellan had to be air-lifted to Vancouver after Graham cut her bladder during hysterectomy. The hospital, the Northern Health Authority and the B.C. College of Physicians and Surgeons reviewed complaints against Graham but his licence was not revoked. College spokesperson Susan Prins said Graham voluntarily agreed to have his skills assessed at the University of Saskatchewan. And although he passed, he did not return to work. Graham, 55, testified in the Baert case that he was unable to work after heart attack in 2003. He underwent quintuple bypass surgery, then developed depressive illness. He now lives in St. Albert, just north of Edmonton. [Italics are mine] [75] It was Dr. Graham’s position that the italicized portions of this article contained false, malicious and defamatory words that were understood to mean: (a) That he negligently performed surgery on Lisa Baert, thereby causing her to suffer devastating injuries and the jury’s verdict exonerating him of negligence was wrong and should be given no credibility; (b) He negligently performed surgery on Gloria Cooke, thereby nearly causing her death; (c) He negligently failed to address post-surgery complications experienced by Gloria Cooke, thereby nearly causing her death; (d) His negligent treatment of Gloria Cooke caused her to suffer septic shock, permanent chronic pain, an incisional hernia in her abdomen and the permanent loss of her stomach muscles; and (e) He negligently performed surgery on Dana McLellan, placing her health and life in jeopardy. [76] Counsel for the defendants agreed that the italicized portions of this article were defamatory insofar as they implied that Dr. Graham was negligent in his treatment of Gloria Cooke and Dana McLellan. However he denied that the natural and ordinary meaning of the words complained of were defamatory in any other sense as suggested by Dr. Graham. He acknowledged that the statutory defence of privilege under s. 11 of The Libel and Slander Act was not available as this article was not contemporaneous reporting of court proceedings. He also advised that he was not advancing the defence of responsible communication as the evidence did not support it in this instance. [77] The defendants admit that the italicized words are defamatory and agree. The natural and ordinary meaning of these words is reasonably capable of defamatory meaning. reasonable person of ordinary intelligence would believe that, at the very least, these words meant that Dr. Graham negligently treated Gloria Cooke and Dana McLellan. However, am also satisfied that reasonable person would conclude that these words are reasonably capable of being given the extended meaning ascribed to them by Dr. Graham. [78] The byline references that Dr. Graham was not negligent in the lawsuit but the context of the article as whole and the specific words complained of make it appear that the jury was wrong to find him not at fault for Ms. Baert’s injuries. The article does not report solely on the jury’s verdict but includes serious allegations made by two of Dr. Graham’s former patients that he was negligent in his treatment of them. By including discussion of these two patients, and in the case of Ms. Cooke detailed discussion, of their complaints, leads to the inevitable conclusion that Dr. Graham was negligent in their cases and ergo must have been negligent in the Baert case. The only reason he was found not liable was because the jury was not allowed to hear about their cases. [79] The words themselves do not simply point to Dr. Graham being negligent in his treatment of Ms. Cooke and Ms. McLellan but go farther that he caused Ms. Cooke specific injury and nearly death and that he put Ms. McLellan’s life in jeopardy. The words Ms. Purdy used to describe Ms. Cooke’s treatment, or mistreatment, were “she almost died and struggled to hang on for month”, that she was sent for “life-saving surgeries”, she is “still in chronic pain”, has “an incisional hernia in her abdomen”, and “no longer has stomach muscles”. The meaning of these words is clearly more than just that Dr. Graham was negligent in his treatment of her. [80] There is only one paragraph in the article speaking about Ms. McLellan but by using the words “air-lifted to Vancouver” the meaning is that the cut to her bladder was so serious that she needed to be flown to bigger hospital to be treated. Again, the meaning of these words is more than that Dr. Graham was simply negligent in his treatment of Ms. McLellan. [81] The evidence satisfies me that the natural and ordinary meaning of the words complained of and the implied meaning of these words in the context of the article as whole, are that Dr. Graham negligently performed surgery on Ms. Baert causing her devastating injuries and the jury’s verdict exonerating him was wrong, that he negligently performed surgery on Gloria Cooke and negligently failed to address her post-surgery complications thereby causing her specific injuries and nearly causing her death and that he negligently performed surgery on Dana McLellan and placed her life in jeopardy and this is defamatory. (iii) The First November 29, 2007 Article [82] Two separate articles written by Ms. Purdy appeared in the Star Phoenix newspaper and on their websites on November 29, 2007. The first of these articles reads as follows: Gynecologist not negligent Punctured bowel led to brain damage The gynecologist found not negligent Wednesday in the case of Lloydminster mother left with devastating injuries after routine tubal ligation recently settled second lawsuit with another patient who nearly died following the same surgery. Dr. Kenneth Graham settled the second suit out of court for an undisclosed sum earlier this month, said lawyer John Jordan of Nanaimo, B.C. Jordan said his client, Gloria Cooke, was referred to Graham for the laparoscopic tubal ligation at Dawson Creek and District Hospital in 2002. He mistakenly punctured her bowel twice during the surgery. “She almost died and struggled to hang on for month,” said Jordan. On Wednesday, after nine weeks of trial, Saskatoon jury determined Graham was not negligent in his care of Lisa Baert when he punctured her bowel during tubal ligation at the Lloydminster hospital in 1999. Baert went into septic shock and doctors had to amputate her hands and feet. She also suffered severe brain damage. Baert and her family were claiming more than $10 million in damages against Graham. Prior to trial, they reached an undisclosed settlement with the Lloydminster hospital and some nurses. One of the six jurors, her bottom lip quivering as the verdict was read, wiped tears from her face and glanced at Baert’s husband, Mark, and his three sons sitting in the courtroom. The jurors did not have to be unanimous, but five of the six had to agree on each question posed in six-page verdict sheet in order to reach their decision. Baert, confined to wheelchair and living at the Parkridge Centre long-term care home, was unable to make it to the courthouse for the verdict. And her husband did not talk to reporters when he left the building. Graham, who no longer works as doctor, also wasn’t at the courthouse. His lawyer, Christine Glazer, said he was busy with personal matters. Graham, who no longer works as doctor, also wasn’t at the courthouse. His lawyer, Christine Glazer, said he was busy with personal matters. She said the trial was difficult for her client and obviously the jury. realize how difficult it would have been for the jury to reach the conclusion that it did,” said Glazer. “But the jury did what it had to do, and that was set aside its emotion and look at the case objectively.” Baert’s lawyers planned to call about 10 other patients during the trial, some like Cooke suffered complications during surgeries conducted by Graham. But Court of Queen’s Bench Justice Grant Currie ruled the patients couldn’t testify because their stories weren’t relevant to Baert’s case and would prejudice the jury. Graham said Baert was partially responsible for her injuries because she did not return to the hospital when she experienced increasing pain at home. His lawyers also argued bowel perforations are recognized but rare risk of tubal ligations. And instruments inserted into the abdomen mistakenly puncture the bowel in about four of every 10,000 surgeries. Jordan, Cooke’s lawyer, said the risks increase if woman has had prior abdominal surgery, which was the case with Cooke. The 41-year-old mother of three argued she told Graham about her prior surgery, although Graham claimed she did not, said Jordan. Graham, granted licence by the B.C. College of Physicians and Surgeons despite Baert’s injuries in Saskatchewan, went ahead with Cooke’s tubal ligation on Oct. 31, 2002. Graham had to cut through lesions and adhesions formed during Cooke’s prior surgery. When Graham saw the abnormalities, he should have stopped the surgery, said Jordan. “He didn’t have the skill to do the dissection. It’s whole other level of surgery, not what obstetricians and gynecologists should be doing.” But he continued and the operation took 45 minutes, Jordan said, four times as long as Baert’s surgery and what Graham testified was normal. Jordan said Graham kept Cooke in hospital overnight to monitor her condition but she was released the next day. She soon returned to the hospital in pain but Graham diagnosed her with gastrointestinal problem and sent her home. She returned to hospital second time, and another doctor discovered she was suffering from septic shock. She was sent to hospitals in Grand Prairie and Edmonton for life-saving surgeries. Doctors determined two puncture holes in her bowel occurred during the tubal ligation, said Jordan. He said Cooke is still in chronic pain and has an incisional hernia in her abdomen. She has returned to work as medical office assistant. But because she no longer has stomach muscles, she needs to wear girdle each day to hold herself in. Graham voluntarily stopped doing laparoscopic operations after Cooke’s surgery. But four months later, Dawson Creek media reported 35-year-old Dana McLellan had to be air-lifted to Vancouver after Graham cut her bladder during hysterectomy. The hospital, the Northern Health Authority and the B.C. College of Physicians and Surgeons reviewed complaints against Graham but his licence was not revoked. College spokesperson Susan Prins said Graham voluntarily agreed to have his skills assessed at the University of Saskatchewan. And although he passed, he did not return to work. Graham, 55, testified in the Baert case that he was unable to work after heart attack in 2003. He underwent quintuple bypass surgery, then developed depressive illness. He now lives in St. Albert, just north of Edmonton. [Italics are mine] [83] This article is identical to the November 28, 2007 article written by Ms. Purdy that was published on the Star Phoenix websites. It appeared on the front page of the November 29, 2007 edition of the Star Phoenix and continued on page A8. The only difference between this article and the previous article is the byline. The byline that appeared on the front page attached to this article was “Gynecologist Not Negligent” and on page A8 attached to the continuation of the story was “Suit: jury not allowed to hear from other patients”. [84] The words in this article that Dr. Graham complains of are the same as the words he complained of in the November 28, 2007 article. His complaints about this article are the same as his complaints about the previous article for all the same reasons set forth previously. Given this article was identical to the previous article, both counsel’s arguments about this article were identical to their arguments on the previous article. [85] From my perspective it would be superfluous for me to reiterate my reasoning and comments from the previous article here and see no need to do so. Suffice it to say that my conclusion remains that the words Dr. Graham complains of are defamatory both on their natural meaning and on their implied meaning in the context of the article as whole. The fact that the byline in this article is somewhat different than in the November 28 article and this article appeared on the front page of the newspaper does not alter my reasoning or conclusions. (iv) The second November 29, 2007 Article [86] second separate article written by Ms. Purdy appeared on page A8 of the Star Phoenix newspaper on November 29, 2007 and on their websites. It read as follows: Routine surgery became health nightmare Lisa Baert was 21 when she went to the Lloydminster hospital on July 14, 1999, to have her “tubes tied.” Lisa Baert was 21 when she went to the Lloydminster hospital on July 14, 1999, to have her “tubes tied.” She and her husband Mark, financially strapped and already parents to two sons, had decided they didn’t want more children. And Mark didn’t want vasectomy. During the routine laparoscopic operation, Graham unknowingly punctured Baert’s bowel, and the two-millimetre hole allowed toxins to leak into her body. But the surgery was completed, clips were placed on her fallopian tubes, and she was stitched up and sent home. Two days later, an ambulance rushed her back to hospital suffering from septic shock. Her bowel was repaired but because of reduced blood flow and dead tissue, doctors had to amputate her hands at the wrist and her legs below the knees. She also suffered severe brain damage, due to cardiac arrests during surgery, leaving her with the mental capacity of child. Now 29, Baert lives in Saskatoon’s Parkridge Centre long-term care home, where staff help with daily tasks such as changing her diapers and putting on her prosthetic limbs. Baert and her family launched multimillion-dollar lawsuit in 2000 against Graham, the hospital and several nurses. The hospital and nurses settled out of court for an undisclosed sum shortly before the trial began in September, leaving Graham the lone defendant. Graham, who no longer practices as doctor, denied any negligence, claiming bowel perforations are recognized, although rare, risk of tubal ligation surgeries. And he said it was up to nurses to monitor Baert for symptoms of complications after the surgery. Graham also argued Baert was partially responsible for her injuries for not returning to the hospital when she experienced increasing pain at home following the surgery. When Baert was discharged from hospital, nurse gave her an instruction sheet stating she should call her doctor or return to the hospital if she experienced more pain. Baert and concerned neighbour allegedly called the hospital three times during the next two days, concerned about her increasing pain. They talked to unknown nurses who said Baert should wait out the pain and gave permission for her to take the neighbour’s prescription pain killers. Baert’s lawyers argued she did what any reasonable patient would have. They claimed Graham used improper technique during the surgery and should have known that he punctured her bowel when equipment in the operating room measured high pressure reading. They said Graham had duty to pass that information on to Baert and the nurses so they would more closely watch for symptoms of complications. They further argued Graham didn’t properly explain to Baert the risks of the surgery or the consequences of bowel puncture, and therefore he didn’t get her informed consent to operate. [Italics are mine] [87] Dr. Graham complains that the italicized words in this article were false, malicious and defamatory and were understood to mean: (a) He negligently performed surgery on Lisa Baert, thereby causing her to suffer septic shock; (b) He negligently performed surgery on Lisa Baert, thereby causing her to suffer cardiac arrests resulting in severe brain damage, leaving her with the mental capacity of child and requiring her to live in long-term care facility; (c) He negligently performed surgery on Lisa Baert, thereby causing her to suffer reduced blood flow and dead tissue, necessitating the amputation of her hands and her legs below the knees; (d) He deliberately and deceitfully did not advise the nurses or Lisa Baert that he had punctured her bowel during surgery, or alternatively, that he negligently failed to do so; and (e) He deliberately concealed from Lisa Baert the risks associated with tubal ligation surgery and therefore did not receive her informed consent to perform such surgery. [88] Counsel for the defendants acknowledged that the meaning of the italicized portions of the article was defamatory in that they meant that Dr. Graham was negligent in his treatment of Ms. Baert, but he denied that the words were defamatory in any other sense as suggested by Dr. Graham. He took specific issue that the words in question could be interpreted to mean that Dr. Graham caused certain things, was deliberately deceitful or deliberately concealed information. He encouraged me to consider the article as whole. He did not advance any other arguments. [89] The defendants admit that the plain meaning of the words complained of in this article are defamatory insofar as they mean that Dr. Graham was negligent in his treatment of Ms. Baert. accept that the plain meaning of these words is defamatory but the meaning goes farther than the defendants’ counsel suggests. [90] The article as whole says nothing about the verdict in the case, nor does it tie in any of the information to the judge’s instructions in the case, the jury’s deliberations or their ultimate verdict. Reading this article, person would have no reason to believe that Dr. Graham was found not negligent in the case. The words complained of in the first five paragraphs of the article outline the cause and the effect: Dr. Graham performed surgery on Ms. Baert, he punctured her bowel in the process, she developed sepsis that eventually led to other complications and as result of that she ended up living in care home. Thus the words are defamatory but the meaning of the words includes more than just that Dr. Graham was negligent; it includes the results of his negligence as well. [91] The last three paragraphs Dr. Graham complains about in the article are Ms. Baert’s lawyer’s comments about what Dr. Graham did wrong. The plain meaning of these words is that Dr. Graham was supposed to do some things and he did not, for example, he did not pass on information to the nurses or properly explain the risks of the surgery to Ms. Baert. Without presenting Dr. Graham’s lawyer’s arguments on these points or indicating that the jury vindicated him of these allegations, the words indicate he was negligent by not doing these things. am not however satisfied that these words were understood to mean that Dr. Graham deliberately did not do these things or that he was, in any way, deceitful. [92] Therefore, on the evidence, the defamatory meaning of the words complained of is that Dr. Graham negligently performed surgery on Ms. Baert causing her septic shock, amputation of her hands and feet, cardiac arrest, severe brain damage leaving her with the mental capacity of child and requiring her to live in long-term care facility and further, that he did not advise the nurses or Ms. Baert that he had punctured her bowel or that he negligently failed to do so and he did not properly advise Ms. Baert of the risks associated with the surgery and did not therefore receive her informed consent to the surgery. (v) November 30, 2007 Article [93] The following article appeared in the Star Phoenix newspaper and on its websites on November 30, 2007: Baert family mulls appeal of suit decision Lisa Baert may have the mental capacity of child, but she can still comprehend the loss of her multimillion-dollar malpractice lawsuit against her former gynecologist. Mark Baert said Thursday that when he told his wife of the jury’s decision and the judge’s dismissal of the suit, she was understandably upset. “It’s lot of hopes and dreams there being crushed,” said Mark. The couple and their two sons were claiming more than $10 million in damages against Dr. Kenneth Graham. Prior to trial, they reached an undisclosed settlement with the Lloydminster hospital and some nurses. Lisa, 29, sat in her wheelchair throughout most of the trial but was not in the courtroom for the decision on Wednesday. Graham unknowingly punctured her bowel, allowing toxins to leak into her body, during routine tubal ligation in July 1999. She was discharged from hospital but two days later was rushed back suffering from septic shock. Doctors had to amputate her hands and feet. She also suffered severe brain damage. After nine weeks of testimony in the civil trial, the six-member jury all women decided Graham had Lisa’s informed consent to perform the surgery and provided standard level of care both during and after the operation. Graham’s lawyers argued bowel perforations are rare but recognized risks of tubal ligations, and it was up to the nurses to watch for symptoms of complications after the surgery. Graham also claimed Lisa was partially at fault for not immediately returning to the hospital when she experienced increasing pain at home. Because Lisa was not mentally capable of testifying in the case, Mark told the jury Lisa and concerned neighbour called the hospital three times about her pain following the surgery. But nurses who answered the calls told them to wait out the pain and gave permission for Lisa to take the neighbour’s prescription pain killers. Graham, 55, recently settled another lawsuit in similar case involving woman from Dawson Creek, B.C. Gloria Cooke almost died after Graham twice punctured her bowel during tubal ligation in 2002. After several life-saving surgeries, she was left with chronic pain and has an incisional hernia in her abdomen. The jury in the Baert trial was not allowed to hear about Graham’s other patients. Mark said he’s glad Graham is no longer working as doctor. After heart attack in 2003, Graham underwent quintuple bypass and then developed depressive illness. Mark said he went public with Lisa’s injuries in 1999 to warn others about Graham. But the doctor moved to B.C. and was granted medical licence there. “I certainly wouldn’t wish harm upon him,” said Mark. “He’s human. He makes mistakes. understand that.” Mark said he’s not sure if his family will appeal the ruling. One of his lawyers, David Risling, said because the Baerts lost the suit, they will likely be on the hook for Graham’s legal fees. The majority of damages claimed in the lawsuit $8.7 million were ear-marked for future health-care costs to move Lisa into private group home. Mark, unable to comment on the amount of the settlement with the hospital, also couldn’t say whether the move is still possible. Lisa currently lives in Saskatoon’s Parkridge Centre, publicly funded and government-subsidized long-term care home. Staff help with daily tasks such as changing her diapers and putting on her prosthetic limbs. Lisa has some movement in her shoulders and elbows but is basically immobile. Her wheelchair has headrest because she can’t hold her head up for long without support. [Italics are mine] [94] It was Dr. Graham’s argument that the italicized words in this article were false, malicious and defamatory and were understood to mean: (a) He negligently performed surgery on Lisa Baert, thereby causing her to suffer devastating injuries; (b) The verdict of the jury exonerating him of negligence in his treatment of Lisa Baert was perverse; (c) He negligently performed surgery on Gloria Cooke, thereby nearly causing her death; (d) He negligently performed surgery on Gloria Cooke, thereby causing her to suffer permanent chronic pain and an incisional hernia in her abdomen; and (e) He is guilty of habitual negligence in his surgical practice and should not be permitted to carry on practice as surgeon because of the unacceptable risk he poses to the life and health of patients. [95] Dr. Graham also argued that in the alternative, these defamatory meanings were conveyed by way of legal innuendo by the combined effect of the November 24, 28, 29 and 30 articles. [96] The defendants agreed that to the extent that the italicized words in this article meant that Dr. Graham negligently performed surgeries on Lisa Baert and Gloria Cooke, they were defamatory. However once again, counsel took issue with any additional meanings attributed to the words by Dr. Graham or that in the context of the first four articles referenced, legal innuendo conveyed the meanings attributed to the words by Dr. Graham. Counsel did not make any other argument in relation to this article. [97] The meaning of the words complained of must be looked at in the context of the entire article. The article says that Dr. Graham unknowingly punctured Ms. Baert’s bowel allowing toxins to leak into her body. Two days later she was rushed back to the hospital with septic shock. Doctors had to amputate her hands and feet, she suffered severe brain damage, she has the mental capacity of child, she is in wheelchair and lives in long-term care home. Thus in my view, when Mark Baert said that he went public with Lisa’s injuries in 1999 to warn others about Graham, an ordinary person would conclude that he believed that people should know that Dr. Graham negligently performed surgery on his spouse and that she suffered devastating injuries as result thereof. [98] The words complained of relating to Ms. Cooke are that Dr. Graham twice punctured her bowel, she almost died, she had several life-saving surgeries, she has chronic pain and an incisional hernia in her abdomen, she sued Dr. Graham and he settled with her. reasonable person looking at these words would obviously say that Dr. Graham negligently performed surgery on her that nearly caused her death and resulted in her suffering permanent chronic pain and an incisional hernia in her abdomen. [99] In addition to the article speaking of Dr. Graham’s negligent surgery on Ms. Baert and the injuries she suffered as result of that, the article also speaks of Ms. Baert being upset to learn that the jury’s decision resulted in the dismissal of her lawsuit against Dr. Graham, that Dr. Graham was sued by Gloria Cooke in British Columbia in similar case and he settled with her. Looking at the words that “the jury in the Baert trial was not allowed to hear about Dr. Graham’s other patients” in the context of the article as whole, reasonable person would think that had the jury been allowed to hear Ms. Cooke and other of Dr. Graham’s patients, it would have been obvious to them that he was habitually negligent in his surgical practice and that the verdict exonerating him would have been different. [100] cannot however agree with Dr. Graham’s contention that the ordinary meaning of the impugned words or the legal innuendo meaning conveyed by the previous articles is that he should not be permitted to practice as surgeon because of the unacceptable risk he poses to the life and health of his patients. The words, even in the context of the article as whole and/or read in concert with the previous articles written by Ms. Purdy, do not lend themselves to this meaning. Dr. Graham, according to the article, stopped practicing as doctor in 2003 after suffering heart attack and later depression. This is point made in the November 28 article and both articles on November 29. These words do not connote the meaning that this man should be prohibited from being doctor going forward. reasonable man would glean that he has already ceased practicing medicine as result of his own medical issues and is not concern anymore. (vi) The December 1, 2007 Article [101] On December 1, 2007 an article written by Chris Purdy appeared on page A4 of the Star Phoenix and on the newspaper’s websites. The article read: Former patient wanted chance to confront doctor Dr. Kenneth Graham made surgical mistakes that led to complications with four other patients before the tubal ligation on Lloydminster mother Lisa Baert in 1999 left her quadriplegic with brain damage. Sharry Michels, 50, said the gynecologist accidentally clamped her femoral artery, nerve and vein during hysterectomy at the Lloydminster hospital in 1998. When she woke up in the recovery room, her right leg was cold and felt like it was asleep. She later learned of the complication and the possibility she might never regain feeling in her leg. “I was terrified,” Michels said Friday. Although her knee is still numb and has no reflex, her leg has recovered about 85 per cent of its normal functions. Michels said lawyer advised her against filing lawsuit, and she chose not to lay complaint about Graham with the College of Physicians and Surgeons of Saskatchewan. But after she learned of Baert’s devastating injuries, she regretted that decision. “There’s guilt thing,” said Michels. “Maybe if I’d said something earlier.” Graham unknowingly punctured Baert’s bowel, allowing toxins to leak into her body, during the routine tubal ligation in July 1999. The 21-year-old was discharged from hospital but two days later was rushed back suffering from septic shock. Doctors had to amputate her hands and feet. She also suffered severe brain damage. Earlier this week, after nine weeks of evidence in civil trial launched by Baert and her family, jury decided Graham was not negligent in the case. Graham’s lawyers argued bowel perforations are rare but recognized risks of tubal ligations, and it was up to the nurses to watch for symptoms of complications after the surgery. Graham also claimed Baert was partially at fault for not immediately returning to the hospital when she experienced increasing pain at home. Michels and other former patients were supposed to testify in the trial, but Court of Queen’s Bench Justice Grant Currie ruled their stories weren’t relevant to Baert’s case and would unfairly prejudice the jury. Among them was Gloria Cooke of Dawson Creek, B.C., who almost died after Graham twice punctured her bowel during tubal ligation there in 2002. After several life-saving surgeries, she was left with chronic pain and an incisional hernia in her abdomen. Cooke recently settled lawsuit with Graham out of court for an undisclosed sum. Michels said she doesn’t hold grudge against Graham, although she’s glad he is no longer practising. Graham stopped working after heart attack in 2003. “My situation is nothing compared to Lisa’s and I’m fine,” she said. “I want to express my own absolute horror that she is not getting justice. It’s absolutely unacceptable.” Jessie Isabelle Hurlburt was 73 when she went into the Lloydminster hospital for hysterectomy in 1996. Graham punctured her bowel during the operation, and she was sent to Saskatoon for life-saving surgery. After three weeks in intensive care, she left with an ileostomy bag that she would need for the rest of her life. “Once she recovered, she was quite angry about what happened to her,” said her son Les. “My mother said, ‘I want you to do something about this because don’t want this to happen to anyone else.’” Hurlburt died four years later from encephalitis, or an infection in the brain. Les said he formally complained to the college of physicians and surgeons about his mother’s surgery. Its investigation found “no medical mismanagement” by Graham. Also in 1996, Marleen Burgess saw Graham for hysterectomy. The 52-year-old said when she woke up in the Lloydminster hospital, Graham told her she’d had “complete” hysterectomy but he left one ovary to help her through menopause. But in 2004, while undergoing surgery to remove grapefruit-sized cyst on the remaining ovary, another doctor told Burgess she’d never had complete hysterectomy. She still had cervix. Burgess said her new doctor said her insides were “mess.” “She said, ‘Oh, my Lord. Who did this to you?’” Lynn Laursen said Graham cut the main artery feeding her left leg during hysterectomy in Lloydminster in 1997. “I was in danger of losing my leg and my life,” said Laursen, now 53. She said another surgeon rushed in to stitch up the artery, and save her life. She later needed two more surgeries. “When Dr. Graham did this to me, he never came and saw my husband and me to explain what happened,” said Laursen. She said she wanted the chance to testify in the Baert case and face him. “I would just ask him why it happened,” she said. Glen Luther, law professor at the University of Saskatchewan, said the judge in the Baert trial would have weighed both the prejudicial and prohibitive values of the testimony of Graham’s other patients. “He would have had to make close call.” Luther said Baert’s lawyers may have grounds for an appeal because there is not much precedent on the issue in the civil courts. [Italics are mine] [102] Dr. Graham argued that the italicized words in this article contained false, malicious and defamatory words that were understood to mean: (a) He negligently performed surgery on Lisa Baert, thereby causing her to become quadriplegic, to suffer septic shock, severe brain damage and the amputation of her hands and feet; (b) He negligently performed surgery on Sharry Michels, causing her to suffer permanent numbness and the loss of reflex in her right knee; (c) His negligent acts and omissions in his treatment of Sharry Michels warranted severe disciplinary sanction by the College of Physicians and Surgeons of Saskatchewan; (d) He negligently performed surgery on Gloria Cooke nearly causing her death and causing her to suffer chronic pain and an incisional hernia in her abdomen; (e) He negligently performed surgery on Jessie Isabelle Hurlburt nearly causing her immediate death and resulting in her requiring an ileostomy bag for the rest of her life; (f) The complications caused by his negligent surgery resulted in Jessie Isabelle Hurlburt suffering encephalitis, brain infection, which eventually led to her death; (g) His aforesaid conduct concerning Jessie Isabelle Hurlburt warranted severe disciplinary sanction by the College of Physicians and Surgeons of Saskatchewan; (h) He dishonestly and deceitfully misrepresented to Marleen Burgess that he had performed complete hysterectomy on her; (i) He negligently performed surgery on Marleen Burgess creating surgical mess; (j) He negligently performed surgery on Lynn Laursen, nearly causing her death and the loss of her left leg; and (k) He is guilty of habitual negligence in his surgical practice and should not be permitted to carry on practice as surgeon because of the unacceptable risk he poses to the life and health of patients. [103] Dr. Graham also argued that alternatively, these defamatory meanings were conveyed by legal innuendo by the combined effect of the articles written by Ms. Purdy on November 24, 28, 29 and 30, 2007 and this December article. [104] The defendants agreed that the italicized portions of this article were defamatory. They agree that the plain meaning of these italicized words was that Dr. Graham was negligent in his treatment of Lisa Baert, Sharry Michels, Gloria Cooke, Jessie Isabelle Hurlburt, Marleen Burgess and Lynn Laursen. They deny that these words have any other meaning. The defendants did not raise any other defences in relation to these words. [105] Once again, am satisfied that the natural and ordinary meaning of the words complained of go farther than simply that he was negligent in his treatment of these six individuals. The paragraphs complained of relating to Lisa Baert, when read together, would lead reasonable person to believe that Dr. Graham made surgical mistakes on four other women before the mistakes he made during Ms. Baert’s tubal ligation and that as result of his mistakes, she suffered septic shock, severe brain damage, doctors had to amputate her hands and feet and she is now quadriplegic. [106] As relates Sharry Michels, the words in the paragraphs complained of should be read together. The gynecologist, who she later identified as Dr. Graham, accidentally clamped her femoral artery, nerve and vein during hysterectomy he was performing on her in 1998. When she woke up in the recovery room her right leg was cold and felt like it was asleep. She later learned that she may never regain feeling in her leg. Her knee is still numb and she has no reflex in it but her leg has recovered about 85 percent of its normal function. She consulted lawyer about suing Dr. Graham but he advised against it and she decided not to lay complaint against him to the Saskatchewan College of Physicians and Surgeons, decision she now regrets. [107] The defendants already admit that these words indicate that Dr. Graham negligently performed surgery on Ms. Michels. But it is apparent to anyone reading the words that as result of that negligent surgery, she has permanent numbness and no reflex in her right knee. cannot however conclude that reasonable person considering these comments complained of, read alone, or in the context of the article as whole, or even read in conjunction with the other articles written by Ms. Purdy, would understand that these words meant that Dr. Graham’s negligent acts and omissions in his treatment of Ms. Michels warranted severe disciplinary action by the College of Physicians and Surgeons of Saskatchewan. Ms. Michels is not referenced in any other articles except this one and the words make it clear that she did not pursue either lawsuit or complaint to the College after receiving legal advice. Having found out about Ms. Baert’s case, she now regrets not making complaint. The construction of these paragraphs does not allow one to draw the conclusion that Dr. Graham’s treatment of her warranted severe disciplinary sanction. The reasonable person would interpret these words as meaning that based on the legal advice she received, there was no point pursuing complaint about Dr. Graham to the College. [108] The words in the paragraphs complained of referencing Gloria Cooke are very clear in their meaning. Ms. Cooke almost died after Dr. Graham twice punctured her bowel during tubal ligation in 2002 and after several life-saving surgeries she has chronic pain and an incisional hernia in her abdomen. Even without considering the comments that she sued Dr. Graham and he settled with her, an ordinary person would understand these words to mean that Dr. Graham negligently performed surgery on Ms. Cooke, that she nearly died as result of that surgery and that she now has chronic pain and an incisional hernia as result of his mistakes. [109] There are words in the paragraphs complained of that relate to another of Dr. Graham’s former patients, Jessie Isabelle Hurlburt. These portions again are quite clear in their meaning. Dr. Graham performed hysterectomy on her in 1996 and in the course of doing so, punctured her bowel. As result of that, she was sent to Saskatoon for life-saving surgery. She was left with an ileostomy bag that she would need for the rest of her life. She was upset about this surgery and asked her son Les to do something about it. He filed formal complaint with the College of Physicians and Surgeons. What is omitted from the words complained of by Dr. Graham, but which appear in the article, is that after an investigation the College found “no medical mismanagement” by him. Four years later Ms. Hurlburt passed on as result of brain infection. Again, the defendants admit that these words indicate that Dr. Graham was negligent in his treatment of Ms. Hurlburt but these words also clearly indicate that as result of this negligence she almost died, had to have life-saving surgery and thereafter required an ileostomy bag for the rest of her life. [110] These words though do not leave one believing that she developed encephalitis as complication of Dr. Graham’s negligent surgery on her some four years earlier. reasonable person looking at these words themselves, in the context of the article as whole or in light of the previous articles complained of written by Ms. Purdy, would conclude brain infection occurring some four years later was separate and apart from any complication resulting from negligent hysterectomy. [111] am also not satisfied that looking at these words by themselves, in the context of the article as whole or in light of the previous articles complained of, that reasonable person would take from the words that as result of Dr. Graham’s negligent surgical conduct severe disciplinary sanction by the Saskatchewan College of Physicians and Surgeons was warranted. This is the only article that speaks about Ms. Hurlburt. As earlier pointed out, Dr. Graham conveniently admitted from the words complained of that the College, after investigating his treatment of Ms. Hurlburt, determined that there was no medical mismanagement on his part. Read in this light, reasonable person would understand that these words meant that Dr. Graham’s treatment of Ms. Hurlburt did not warrant disciplinary sanction from the College. [112] The next person mentioned in the words complained of is Marleen Burgess. The words in these paragraphs in the article advise that in 1996, Dr. Graham saw her for hysterectomy. Reading the paragraphs as whole, it is clear that Dr. Graham was the person who performed the hysterectomy on her. When she woke up after the surgery, Dr. Graham told her she had complete hysterectomy but he had left one ovary inside her. In 2004 she had surgery to remove cyst from that ovary. The doctor who did that surgery told her that she did not previously have complete hysterectomy and that her insides were “a mess”. Bearing in mind that the defendants admit that these words mean that Dr. Graham was negligent in his treatment of Ms. Burgess, the objective, natural and ordinary meaning of these words as whole is that Dr. Graham misrepresented to Ms. Burgess that he had performed complete hysterectomy on her and that as result of his negligent treatment of her, her insides were mess. In the context of the article as whole or in relation to the previous articles complained of, there is nothing that would lead person to believe that Dr. Graham made the misrepresentation to Ms. Burgess dishonestly or deceitfully. [113] The words in the paragraphs complained of referring to Lynn Laursen are short and to the point. Dr. Graham, in the course of performing hysterectomy on her in 1997, cut the main artery feeding her left leg. She almost lost her leg and her life. Another doctor stitched up her artery and saved her life. The clear meaning of these words to anyone reading them is that Dr. Graham negligently performed surgery on Ms. Laursen nearly causing her death and the loss of her left leg. [114] Finally, Dr. Graham argues that the words and paragraphs he has identified as problematic lead to the defamatory meaning that he is guilty of habitual negligence and should not be permitted to carry on practice as surgeon because of the unacceptable risk he poses to the life and health of patients. Looking at all of the words Dr. Graham complains of and the context of the entire article, an ordinary person would reasonably interpret that Dr. Graham was habitually negligent in his surgical practice. But this article, like the other articles written by Ms. Purdy on November 28, 29 and 30, makes it clear that Dr. Graham stopped working after heart attack in 2003 and is no longer practicing medicine. Given this information in light of the article as whole, reasonable person would conclude that thankfully, Dr. Graham has already retired from the practice of medicine for health reasons and is no longer problem. (vii) The January 3, 2008 Article [115] This is the last article that Dr. Graham complains of. It appeared on page A3 of the Star Phoenix on January 3, 2008 and on the newspaper’s websites. This article reads as follows: Baert to appeal tubal ligation ruling Lisa Baert and her family are appealing the decision of civil jury that found her gynecologist not negligent after routine tubal ligation left her brain-damaged quadriplegic. Baert’s lawyers filed the notice with the Saskatchewan Court of Appeal in Regina on Dec. 27. The 12-page document claims mistakes were made by Court of Queen’s Bench Justice Grant Currie, both during the trial and with his instructions to the jury. The notice asks the province’s top court to find Dr. Kenneth Graham liable and assess damages or order second trial in Saskatoon. Baert and her family claimed more than $10 million in damages against Graham. The family reached an undisclosed settlement with the Lloydminster hospital and some of its nurses before the trial began in the fall. In November, after sitting through nine weeks of evidence, an all-female jury determined Graham was not negligent in the case. Baert was 21 when she went to the Lloydminster hospital on July 14, 1999, to have her “tubes tied.” She and her husband, Mark, were financially strapped and already had two children. During the laparoscopic operation, Graham unknowingly punctured Baert’s bowel and the two-millimetre hole allowed toxins to leak into her body. She was discharged from hospital but two days later was rushed back in septic shock. Doctors had to amputate her hands and feet. She also suffered severe brain damage. Baert, now 29, lives in Saskatoon’s Parkridge Centre, long-term care home where staff change her diapers and put on her prosthetic limbs. Graham, who no longer practices as doctor, testified bowel perforations are recognized although rare risk of tubal ligations. The 55-year-old said it was up to nurses to monitor Baert for symptoms of complications after the surgery. Graham also argued Baert was partially responsible for her injuries because she did not return to the hospital when she experienced increasing pain at home. Baert and concerned neighbour allegedly called the hospital three times in the two days following the surgery, concerned about her increasing pain. They talked to unknown nurses who said Baert should wait out the pain and gave permission for her to take the neighbour’s prescription pain killers. Baert’s lawyers argued Graham did not get informed consent for the surgery, used improper technique and should have known he punctured her bowel when equipment in the operating room measured high pressure reading. They said Graham also had duty to pass that information on to Baert and the nurses so they could better watch for symptoms of complications. [Italics are mine] [116] Dr. Graham states that the natural and ordinary meaning of the italicized words in this article are false, malicious and defamatory and were understood to mean: (a) He negligently performed surgery on Lisa Baert, thereby causing her to suffer septic shock, the amputation of her hands and feet and severe brain damage; (b) He performed surgery on Lisa Baert without her informed consent; and (c) He deliberately and deceitfully concealed from Lisa Baert and from her nurses the fact that he had punctured her bowel during surgery thereby unconscionably exposing his patient to the risk of death or severe injury. [117] In the alternative, Dr. Graham stated that the aforesaid defamatory meanings were conveyed by legal innuendo, by the combined effect of all of the other articles written by Chris Purdy that he complained of. [118] Defendants’ counsel argued that the natural and ordinary meaning of the words complained of is non-defamatory. In his view, this article was about the Baert family’s decision to appeal the jury’s determination in the case. The defendants did not raise any other defences in relation to the words Dr. Graham complains of in this article. [119] The first three paragraphs that Dr. Graham complains of are juxtaposed together in the article. Prior to these three paragraphs, the article twice states that Dr. Graham was found not negligent after jury trial and further that notice of appeal has now been filed alleging number of mistakes made by the presiding judge and in his instructions to the jury. The paragraphs following these three paragraphs complained of summarize Dr. Graham’s position at trial and Ms. Baert’s lawyer’s arguments at trial. [120] These first three paragraphs are summary of what happened to Ms. Baert. The plain meaning of these words is that Dr. Graham unknowingly punctured Ms. Baert’s bowel thereby allowing toxins to leak into her body, two days later she returned to the hospital in an ambulance suffering from septic shock and consequently doctors had to amputate her hands and feet and she suffered brain damage. These words are reasonably capable of having the defamatory meaning that Dr. Graham was negligent in his treatment of Ms. Baert and that he caused her catastrophic injuries. [121] However, these paragraphs must be considered in the context of the article as whole. The byline indicates that the Baerts are going to appeal the decision and the article twice states that Dr. Graham was found not negligent in the case. This is an antidote to the defamatory comments in the three paragraphs complained of by Dr. Graham. reasonable person looking at this article in its entirety would understand that Dr. Graham was found not negligent of puncturing Ms. Baert’s bowel and causing her these devastating injuries and the Baerts have appealed this decision. It is inappropriate to consider these three paragraphs separate from the rest of the article. When that is done, the bane is removed by the antidote. [122] The other words complained of by Dr. Graham in the article also do not carry the defamatory meanings that he suggests. The comments that Dr. Graham did not get Ms. Baert’s informed consent for the surgery, that he used an improper technique, that he should have known he punctured her bowel and that he had duty to pass that information on to Ms. Baert and the attendant nurses are attributed to the argument made by Ms. Baert’s lawyers at trial. The two paragraphs in question make that clear. They start with the words “Baerts’ lawyers argued …” and “they said …”. Immediately preceding these two paragraphs are two paragraphs summarizing Dr. Graham’s arguments at the trial. reasonable person reading this article would understand that these were the positions taken by each of the parties at trial, that Dr. Graham’s position was accepted as he was found not to be negligent, that the Baerts’ arguments were not accepted and now the Baerts have appealed. These words do not support the defamatory meaning that Dr. Graham suggests. [123] Even looking at the combined effect of all of the previous articles complained of by Dr. Graham, reasonable person would still not be left with the impression that these words meant that Dr. Graham performed surgery on Ms. Baert without her informed consent and that he deliberately and deceitfully concealed from her and the nurses that he had punctured her bowel thereby unconscionably exposing her to risk of death or severe injury. That person would still understand that these comments are about the Baerts appealing and what they are appealing. The allegations that this January 3, 2008 article is defamatory are dismissed. [124] To summarize, the evidence establishes that Ms. Purdy defamed Dr. Graham in articles she wrote and that were published in the Star Phoenix newspaper and/or on the newspaper’s websites on November 28, 29 (both articles), 30 and December 1, 2007, the defamatory meanings of those words being: (a) He negligently performed surgery on Lisa Baert causing her to suffer devastating injuries and the jury’s verdict exonerating him of negligence was wrong; (b) He negligently performed surgery on Lisa Baert causing her to suffer septic shock, amputation of her hands and her legs below the knees, cardiac arrests resulting in severe brain damage leaving her with the mental capacity of child and requiring her to live in long-term care facility; (c) He negligently performed surgery on Lisa Baert causing her to become quadriplegic; (d) He did not advise the nurses or Lisa Baert that he had punctured her bowel during surgery or alternatively that he negligently failed to do so; (e) He did not advise Lisa Baert of the risks associated with tubal ligation surgery and did not receive her informed consent to perform such surgery; (f) The verdict of the jury exonerating him in his treatment of Lisa Baert was perverse; (g) He negligently performed surgery on Gloria Cooke and negligently failed to address post-surgery complications that led to septic shock, permanent chronic pain, an incisional hernia in her abdomen, the permanent loss of her stomach muscles and nearly caused her death; (h) He negligently performed surgery on Dana McLellan placing her health and life in jeopardy; (i) He negligently performed surgery on Sharry Michels causing her to suffer permanent numbness and the loss of reflex in her right knee; (j) He negligently performed surgery on Jessie Isabelle Hurlburt nearly causing her immediate death and resulting in her requiring an ileostomy bag for the rest of her life; (k) He misrepresented to Marleen Burgess that he had performed complete hysterectomy on her; (l) He negligently performed surgery on Marleen Burgess creating surgical mess; (m) He negligently performed surgery on Lynn Laursen nearly causing her death and the loss of her left leg; and (n) He is guilty of habitual negligence in his surgical practice. [125] Having reached this conclusion, must determine the liability of the remaining defendants. [126] Rod Nickel was the city editor at the Star Phoenix newspaper from September 2007 to January 2008. He assigned Chris Purdy to cover the Baert trial. He does not recall the instructions he gave to her or any particular discussion he had with her prior to the trial. He would have had day-to-day understanding of what Ms. Purdy was reporting on and what articles she was submitting on the trial. He could not explain what investigation he undertook to determine if Ms. Purdy covered the trial in balanced fashion except to say that he was doing his job while she was covering the trial. [127] Mr. Nickel did not recall what input he had on what Ms. Purdy reported on or what days of the trial she attended but normally he would discuss with her what stage the trial was at and what was possibly coming up. [128] He was aware that Ms. Purdy was writing articles about Dr. Graham’s previous patients but he was not sure when he became aware of that. He did not recall if he assigned her to do this or if she came up with this on her own. He did not recall what discussions he had with her about her research efforts or verifying the allegations made by these other patients. He did not recall whether he confirmed with Ms. Purdy whether she spoke to any medical doctors that had treated these patients after Dr. Graham. [129] After reviewing Ms. Purdy’s articles dated November 24, 2007 through to and including the January 3, 2008 article, he could not recall if he performed an editorial function over these articles before they were published nor did he recall having any discussions with Ms. Purdy concerning their content or any revisions or edits. [130] Dale Brin was the publisher and general manager of the Star Phoenix newspaper from 2004 to 2010. He had no involvement in the content or editing of any articles written by the reporter covering the Baert trial, he was not advised about the reporting in the case nor did he have any conversations with anyone about the reporting. [131] Cameron Hutchinson was the managing editor of the Star Phoenix in 2000. In 2007 he was aware that Ms. Purdy was covering the Baert trial but he does not recall having any involvement in the reporting or editing of the stories she wrote. He did not believe that he would have seen the stories until they appeared in the newspaper as at that time he oversaw the newsroom and reported to Steven Gibb and Rod Nickel. He did not recall having any conversations with Mr. Nickel about any of the articles Ms. Purdy wrote prior to publication. He had no recollection about whether concerns were raised or whether they had any discussions about Ms. Purdy’s reporting on other patients of Dr. Graham or about what Ms. Purdy’s investigation of the allegations made by these other patients may have been. [132] Steven Gibb was the editor-in-chief of the Star Phoenix from 1993 to 2010. [133] The defendant, Canwest Publishing Inc. owned the Star Phoenix newspaper and its websites and employed the other named defendants. The Star Phoenix newspaper, Canwest Publishing Inc. and/or its assets were purchased by Postmedia Network Inc. in or around 2012. [134] In case such as this, all persons who aid or participate in the publication of defamatory expression, in furtherance of common design, may be held liable in damages to the plaintiff, whether or not at the time they realized they were committing the tort of defamation. The law regards them as joint tortfeasors. Botiuk at paras. 73 to 77; Hill Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] SCR 1130 at para 176 [Hill]. [135] The publication of libel, composed by one, printed by another and distributed by third, is joint tort, with joint and several liability. Therefore, where it is published in newspaper, the injured person may sue in the same action the editor, the proprietor, the printer and the publisher, and each is liable on the judgment for the whole amount; the publication is the joint act of all. Lambert at para. 6. [136] In this case, and in light of the aforementioned case law, I am satisfied that at the time of the publishing of the defamatory articles, Rod Nickel, being the city editor and Ms. Purdy’s immediate supervising editor, Cameron Hutchinson being the managing editor, Dale Brin being the publisher and general manager of the Star Phoenix and Steven Gibb being the editor-in-chief of the Star Phoenix are all joint tortfeasors of Ms. Purdy’s defamatory comments and as such, jointly and severally liable in defamation to Dr. Graham. [137] I am also satisfied that Canwest Publishing Inc. as the former owner of the Star Phoenix and its websites and Postmedia Network Inc. as the current owner of the Star Phoenix and its websites are also joint tortfeasors with Ms. Purdy and the other defendants noted and as such are jointly and severally liable in defamation to Dr. Graham. (c) What damages, if any, is Dr. Graham entitled to? [138] In the pleadings, Dr. Graham claims against the defendants, jointly and severally, as follows: (a) General damages in the sum of $2,000,000; (b) Aggravated damages in the sum of $1,000,000; (c) Punitive damages in the sum of $1,000,000; (d) Special damages in an amount to be particularized; [139] In closing argument, Dr. Graham’s counsel advised that they were only seeking general and aggravated damages. He argued that general damages award in defamation case is very subjective determination and one that must be made where there is no tangible injury. He reminded me that aggravated damages ought not to be awarded unless malice has been shown but in his view there was considerable evidence of malice in this case. He took issue with any suggestion by the defendants that Dr. Graham had bad reputation when he came to court. In his view, must look at Dr. Graham’s reputation at the time of the defamation. He urged me to approach the issue by asking myself “what is sufficient sum that recognizes that this was bad, unwarranted defamation?” [140] Counsel referred me to number of cases including Hiltz and Seamone Co. Nova Scotia (Attorney General) (1999), 1999 CanLII 13144 (NS CA), 173 NSR (2d) 341 (CA) $200,000 general damages; Universal Weld Overlays Inc. Shaben, 2001 ABQB 1009 (CanLII) $100,000 general damages and $30,000 aggravated damages; Myers Canadian Broadcasting Corp. (2001), 2001 CanLII 4874 (ON CA), 54 OR (3d) 626 (CA) $200,000 for general damages and $150,000 for aggravated damages; Leenen Canadian Broadcasting Corp., (2000), 2000 CanLII 22380 (ON SC), 48 OR (3d) 656 Ont. Sup. Ct.) [Leenen] general damages of $400,000 and aggravated damages of $350,000; and Fiola LeBrun, 2002 MBQB 312 (CanLII), 169 Man (2d) 172 general damages of $250,000 and $100,000 aggravated damages. [141] Defendants’ counsel argued that Dr. Graham was only entitled to general damages in an amount not exceeding $25,000. He stated that while little is to be gained from detailed comparison of libel awards in other cases, the Court should use as an appropriate measure of the upper end of the range of damages, the Saskatchewan Court of Appeal’s decision in Rubin Ross, 2013 SKCA 21 (CanLII), 409 Sask 202 ($100,000 general damages) and the Saskatchewan Court of Queen’s Bench decision in Duke Puts, 2001 SKQB 130 (CanLII), 204 Sask 130 ($100,000 general damages and $150,000 aggravated damages). [142] He suggested that the Court pay particular attention to the factual background in this case and consider that Dr. Graham’s reputation was already previously damaged at the time he brought his claim in the present case. He denied that there was any malice on behalf of the defendants or any of them. [143] Brown on Defamation, vol at 25-33 to 23-36, describes general compensatory damages as follows: The successful plaintiff in defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the amount, consideration may be given to the damage which may yet accrue to the plaintiff as natural consequence of the publication since in any action for defamation damages must be assessed once and for all. There must be some rational and appropriate relationship between the harm suffered by the plaintiff and the amount of damages awarded. Compensatory damages are not awarded to punish defendant, nor should they be used to enrich the plaintiff at the expense of the offending party. [144] In Mann International Assn. of Machinists and Aerospace Workers, 2012 BCSC 181 (CanLII) [Mann], Masuhara J. discussed the principles governing an award of general damages: [129] General damages for defamation are presumed. The plaintiff does not need to prove injury in order to recover an award for damages. However, damages must be based upon firm factual basis and in sensible manner: Brown on Defamation, vol. 6, ch. 25 at 2, 12; Hill at para. 164; Halls v. Mitchell, 1926 CanLII 357 (ON CA), [1927] D.L.R. 163 (Ont. C.A.), per Riddell J.A. at 175, citing Ratcliffe v. Evans, [1892] Q.B. 524 at 528 (C.A.); Smith (S.C.) at para. 91. [130] General damages for defamation are at large, meaning that the court is entitled to make subjective assessment without requiring proof of specific financial loss. [131] There is no cap placed on damages for defamation: Hill at para. 168: [132] Each case is unique. Accordingly, there is no formula for determining general compensatory damages. However, in Hill at para. 182 the following factors, were identified in determining an award of general damages: (a) the plaintiff's conduct, position and standing; (b) the nature of the defamation; (c) the mode and extent of publication; (d) the absence or refusal of any retraction or apology; and (e) the whole of the defendant's conduct from the time of publication to the end of trial. [145] In Leenen the Court provided the following non-exhaustive list of factors to take into account in the assessment of general damages: [205] (a) the seriousness of the defamatory statement; (b) the identity of the accuser; (c) the breadth of the distribution of the publication of the libel; (d) republication of the libel; (e) the failure to give the audience both sides of the picture and not presenting balanced review; (f) the desire to increase one's professional reputation or to increase ratings of particular program; (g) the conduct of the defendant and defendant's counsel through to the end of trial; (h) the absence or refusal of any retraction or apology; (i) the failure to establish plea of justification. [146] In Hill Cory J. described aggravated damages, what is required before they can be awarded and some of the factors court can consider in assessing them: 188 Aggravated damages may be awarded in circumstances where the defendants' 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. CFTO Ltd., supra, [(1987), 1987 CanLII 126 (ON CA), 59 OR (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 the humiliation, indignation, anxiety, grief, fear and the like suffered by the plaintiff as result of being defamed, the plaintiff may be entitled to what has come to be known as “aggravated damages”. 189 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. 190 If aggravated damages are to be awarded, there must be finding that the defendant was motivated by actual malice, which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff. See, for example, Walker v. CFTO Ltd., supra, at p. 111; Vogel, supra, at p. 178 [[1982] WWR 08]; Kerr v. Conlogue (1992), 1992 CanLII 924 (BC SC), 65 B.C.L.R. (2d) 70 (S.C.), at p. 93; and Cassell Co. v. Broome, supra, at pp. 825-26 [[1972] All ER 801]. The malice may be established by intrinsic evidence derived from the libellous statement itself and the circumstances of its publication, or by extrinsic evidence pertaining to the surrounding circumstances which demonstrate that the defendant was motivated by an unjustifiable intention to injure the plaintiff. See Taylor v. Despard, supra, at p. 975 [1956 CanLII 124 (ON CA), [1956] OR 963]. 191 There are number of factors that jury may properly take into account in assessing aggravated damages. For example, was there withdrawal of the libellous statement made by the defendants and an apology tendered? If there was, this may go far to establishing that there was no malicious conduct on the part of the defendant warranting an award of aggravated damages. The jury may also consider whether there was repetition of the libel, conduct that was calculated to deter the plaintiff from proceeding with the libel action, prolonged and hostile cross-examination of the plaintiff or plea of justification which the defendant knew was bound to fail. The general manner in which the defendant presented its case is also relevant. Further, it is appropriate for jury to consider the conduct of the defendant at the time of the publication of the libel. For example, was it clearly aimed at obtaining the widest possible publicity in circumstances that were the most adverse possible to the plaintiff? [147] As to what constitutes malice, it is more expansive than the everyday meaning of desire to harm another. It includes spite or ill-will and relates to any indirect motive which conflicts with the sense of duty created by the occasion. Courts may infer person’s motive for publishing defamatory statements but only from what the person said, did or knew. defendant is actuated by actual or express malice if he or she publishes the words: (i) Knowing them to be false; or (ii) With reckless indifference whether they are true or false; or (iii) For the dominant purpose of injuring the plaintiff because of spite or animosity; or (iv) For some other dominant purpose which is improper or indirect. Court may consider the whole of the defendants’ conduct and the context in which it was made, both current and former. See Palen Dagenais, 2012 SKQB 383 (CanLII) at para 32, 406 Sask 107; Mann at paras 96 to 98. [148] In Botiuk, the Supreme Court of Canada said that the following comment from Lord Diplock in Horrocks Lowe, [1975] AC 135 (HL) is generally representative of the Canadian position on recklessness: 97 what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, “honest belief”. If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at positive belief that it is true. But despite the imperfection of the mental process by which the belief is arrived at it may still be “honest”, that is, positive belief that the conclusions they have reached are true. The law demands no more. [Emphasis added.] [149] Ms. Purdy testified that as journalist, she was familiar with journalistic best practices and specifically what those practices said about accuracy and fairness. As diligent journalist, it was her practice to keep notebooks and record pertinent facts including leads, sources and their contact information and she did so in the course of covering the Baert trial. [150] Ms. Purdy did not recall attending court on November 27, 2007 to listen to the judge’s charge to the jury. However, she had 13 pages of notes about the charge so she believed that she was there. In her notes she wrote down that the judge told the jury “not every mistake constitutes negligence”, “a bowel perforation sometimes happens with skilled surgeons using proper technique”, “BP happens to even the most skilled surgeon” and “BP is inherent risk of surgery itself”. Ms. Purdy agreed that these were important points in the judge’s charge that reader should or would want to know, however she acknowledged that she did not put them in any of her articles. [151] Ms. Purdy testified that after the verdict came down on November 28, she wrote an article entitled “Gynecologist not negligent in tubal ligation lawsuit”. She said that this article does not report solely on the jury’s verdict in the case but includes allegations that Gloria Cooke and Dana McLellan suffered complications as result of the surgery Dr. Graham performed upon them. She acknowledged that these were serious allegations being made by these two women and as result, she would have spoken to another source to verify their information. She said that she spoke to John Jordan, Ms. Cooke’s lawyer, but did not speak to Ms. Cooke and did not recall speaking to anyone else. She did not ask for or see Ms. Cooke’s medical records and she did not call any of the doctors that treated Ms. Cooke. She did not speak to medical professional about Ms. Cooke’s allegations. [152] Ms. Purdy said that in her notes from her discussions with Mr. Jordan, she recorded “pressure from maternity ward because baby in distress”. She reluctantly admitted that this was some significant context that she did not mention in her article. She also admitted that she did not try contacting Dr. Graham’s lawyer, she cannot say if she tried contacting Dr. Graham or left message for him but agreed that there was nothing in the article about her trying to contact him. [153] As well, Ms. Purdy said that all of her information about Dana McLellan came from previous newspaper articles. She did not recall trying to contact Ms. McLellan or the writer of the previous article. She did not believe that she tried to contact any of Ms. McLellan’s medical doctors or obtain her medical records. She could not say that she tried to contact Dr. Graham to speak to him about Ms. McLellan’s case. [154] Ms. Purdy agreed that as an obstetrician and gynecologist, Dr. Graham would have performed many of the types of surgeries he performed on Ms. Cooke and Ms. McLellan. She acknowledged that she did not try to determine his rate of complication or try to compare his rate of complication to that of the average obstetrician/gynecologist. She indicated that that would have been helpful information to know. [155] In one of the paragraphs in the article she stated that the British Columbia College of Physicians and Surgeons granted licence to Dr. Graham “despite” Baert’s injuries in Saskatchewan. She said that she chose to use the word “despite” because she felt that the College would have had to have considered the Baert case before giving Dr. Graham licence. She admitted that she had not spoken to the College about this nor did she have any information that Dr. Graham had done anything wrong. [156] Ms. Purdy did speak to Susan Prins of the College and was advised that the community Dr. Graham was working in did not have appropriate back-up in case of an emergency situation and that “no disciplinary measure is necessary”. She did not report this in her article but instead chose to simply state that Dr. Graham’s licence was not revoked. She was not sure why she chose those words. [157] Ms. Purdy acknowledged that she spoke to someone at the Northern Health Authority and was advised that Dr. Graham was “never disciplined so no release of report and no penalty”. Despite knowing this information, she did not include this in her article. [158] Ms. Purdy testified that the first November 29 article was just reprint of the website article she had written on November 28. She did not recall whose decision it was to write the second article on November 29 entitled “Routine surgery became health nightmare”. She agreed that she did not refer to the verdict in the trial in this story and that person reading this article would have no reason to think that Dr. Graham got acquitted in negligence action. [159] Ms. Purdy testified that the November 30 article was about the Baert family deciding to appeal the verdict and Mark Baert’s response to the verdict. She acknowledged that there was nothing in the article about Dr. Graham’s reaction to the verdict and admitted that she could not recall asking Dr. Graham for comment, if he was unavailable or if he had no comment. [160] Ms. Purdy testified that she wrote the December 1, 2007 article because number of Dr. Graham’s previous patients were saying that they had suffered complications as result of Dr. Graham performing surgery on them. In light of the Baert case she thought that this was important information to share with the public. [161] According to Ms. Purdy, this article was about mistakes that Dr. Graham had made in relation to five other people besides Lisa Baert. She said that she spoke to Sharry Michels, Marleen Burgess and Lynn Laursen directly. She did not speak to Ms. Cooke directly. She obtained her information about Ms. Cooke from speaking to Ms. Cooke’s lawyer, John Jordan. She was unable to speak to Jessie Hurlburt as she had passed away. Her information about Ms. Hurlburt came from discussion she had with the deceased’s son, Les Hurlburt. She invited all of these people to send her any documents supporting what they had told her. The only person that sent her anything was Les Hurlburt. He forwarded her number of documents prior to December 1. [162] Ms. Purdy said that she spoke to one other woman whose story she did not include in this article. She said that this person seemed to be talking about rumours. She could not trust what this woman was saying and she did not think it appropriate to report on that. [163] Ms. Purdy acknowledged that prior to writing this article she never asked Sharry Michels for her medical or physiotherapy records, she did not recall speaking to any of her doctors, she did not try to contact her physiotherapist and speak to them about Ms. Michels’ case and she did not know what femoral artery was. [164] Ms. Purdy said that she received number of documents from Les Hurlburt about his mother Jessie, including medical records. She did not ask Mr. Hurlburt for any other medical information. She admitted that there were at least five other doctors referenced in these medical records but she took no steps to speak to any of them nor did she speak to any of Ms. Hurlburt’s doctors. According to her, getting consent to speak to other doctors would have been time consuming. She said that she did not speak to medical doctor about interpreting the documents for her. Instead, she relied on the documents and what Les Hurlburt told her. [165] In the material she received from Mr. Hurlburt was correspondence between him and the Saskatchewan College of Physicians and Surgeons. She was aware that Mr. Hurlburt had filed complaint with the College regarding Dr. Graham’s treatment of his mother but she did not read the complaint he sent to the College even though it was one of the documents he sent her. Another of the documents was letter dated October 15, 1997 from Dr. Graham to the College responding to the Hurlburt complaint. She read this letter and in the letter, Dr. Graham referenced that Ms. Hurlburt had had bowel cancer surgery, was treated with chemotherapy and there were post-operative problems with stitches. When asked why she did not report this, she said that it had occurred in 1977 and she did not think it was relevant. However she admitted that she never spoke to medical professional to find out if it was relevant or not. Ms. Purdy also acknowledged that elsewhere in the letter was an indication that the surgery that Dr. Graham had performed on Ms. Hurlburt was not regular hysterectomy. Despite knowing this, she did not report this in her article either. [166] Ms. Purdy also agreed that she read the College’s response to Mr. Hurlburt after they had completed their investigation. After reading the response, she was aware that the investigation had found that Dr. Graham had done nothing wrong, they advised that suturing bowel may inadvertently occur and it may be difficult to diagnose. She did not specifically report this in the article and despite knowing that Dr. Graham was not at fault, she still felt that it was newsworthy to include Ms. Hurlburt’s case in the article. [167] Ms. Purdy said that in terms of the Marleen Burgess information, she just relied on what Ms. Burgess had told her. She said that she only had general understanding of what hysterectomy was and did not believe that “complete hysterectomy” was medical term. However, she did not speak to medical professional or Ms. Burgess’s doctors to find out what that term meant. Moreover she admitted that she made no effort to contact the doctor who told Ms. Burgess that her insides were “a mess” to confirm whether or not that was indeed the case. In her view, she did not have the time to do it and she felt there would have been privacy issues. [168] Ms. Purdy also admitted that she did nothing to confirm the information she received from Lynn Laursen. In their discussions, Ms. Laursen had mentioned Dr. Gupta. Ms. Purdy confirmed that she did not try to contact this doctor even though she admitted that the doctor may have some important information for her story. [169] Ms. Purdy did not recall if she made any attempt to contact Dr. Graham regarding any of these five people but she hoped that she would have. She did not however receive anything from Dr. Graham regarding any of these cases. She did not recall if there was deadline for the story and did not know if she had more time to investigate it. [170] Ms. Purdy denied writing the December article about these other patients because she felt Ms. Baert did not get justice. According to Ms. Purdy, the jury’s verdict in the Baert case was not surprising to her. She thought it was fair given the evidence the jury heard and the questions they had to answer. She said that she agreed with the jury’s finding that Dr. Graham was not negligent. She had no basis to challenge their finding. She felt that she was doing her job and was providing fair and balanced reporting during the trial. She was not out to ruin Dr. Graham despite what he or his children thought. Ms. Purdy confirmed that she has never issued retraction or an apology to Dr. Graham. [171] Both parties called expert witnesses in this case. Dr. Graham called John Miller. Mr. Miller was senior newsroom editor at the Toronto Star Newspaper for 18 years before moving on to be the chair of the School of Journalism at Ryerson University from 1986 to 1996. Thereafter until 2009, he was professor at the School of Journalism and now holds the title of Professor Emeritus. He was qualified with the consent of the defendants’ counsel as an expert in journalism. [172] Mr. Miller testified that journalists are expected to follow commonly accepted journalistic legal and ethical standards developed by the Canadian Association of Journalists. These standards stress, among other things, accuracy and verification. journalist is to make every effort to verify the identities and backgrounds of their sources, seek documentation to support the reliability of those sources and their stories and be careful to distinguish between assertions and fact. The onus is on the journalist to verify all information even when it emerges on deadline. Secondly, fairness. journalist is to respect the rights of people involved in the news. Before journalist publishes criticisms or accusations they must give people, companies or organizations that are being criticized or accused the opportunity to respond. They must make genuine and reasonable effort to contact them and if they decline comment, they must say so. [173] Mr. Miller reviewed the articles written by Ms. Purdy on November 24, 28, 29 (two articles), 30, December 1, 2007 and January 3, 2008. The November 28, 2007 article entitled “Gynecologist Not Negligent in Tubal Ligation Lawsuit” and the November 29, 2007 article entitled “Gynecologist Not Negligent; Punctured Bowel Led to Brain Damage” were identical in content in his view and both fell short of the journalistic standard of care. According to Mr. Miller, the job of these stories was to report the jury’s verdict in complicated legal case that the newspaper had been covering for the last two months. These stories should have summarized the key testimony presented at the trial and if possible, highlight what evidence may have caused the jury to find Dr. Graham not negligent. Instead, large portion of these stories talks about other cases involving Dr. Graham. [174] These articles did not meet the journalistic standard of care for two reasons: firstly they were not fair, balanced reporting of the verdict in the Baert trial. The information about Dr. Graham’s defence was sparse, there was no reaction to the verdict from either Mr. Baert or Dr. Graham, there was no detail on what questions jury was to answer and the reader was left wondering why Dr. Graham was found not negligent. Secondly, the investigative reporting of Dr. Graham’s other patients should have been stand-alone article written after the reporter had the opportunity to do more thorough job of investigating the allegations. [175] Mr. Miller was also of the view that Ms. Purdy’s editors had responsibility to make sure that the verdict in the trial was reported fully, fairly and accurately and that her information about Dr. Graham’s other patients was verified. Unfortunately, he felt that they allowed inadmissible material to get in these articles and they never ensured that Ms. Purdy’s information about Ms. Cooke or Ms. McLellan was verified with anyone. Instead, this was single-sourced and second-hand information from lawyer and newspaper article and there was little differentiation between what was verified as fact and what the sources merely alleged. [176] It was Mr. Miller’s opinion that the December 1, 2007 article entitled “Former Patient Wanted Chance to Confront Doctor” repeated some of the unverified information that appeared in the November 28 and 29 stories and added more cases. Again however, there was no attempt to verify the allegations these people were making with doctor or to seek Dr. Graham’s side of the story. [177] He opined that this story did not need to run right after the Baert trial. There was time to wait until the information from these people could be verified and documentation received and analyzed, if necessary, by medical experts. There was certainly time to wait until Dr. Graham could be interviewed to get his side of the story. [178] Mr. Miller also reviewed the material that Les Hurlburt had sent to Ms. Purdy. He noted that this material contained detailed explanation written by Dr. Graham of the care that he gave to Jessie Hurlburt and statement from the Saskatchewan College of Physicians and Surgeons about why they found that he had done nothing wrong. Ms. Purdy chose to use very little of this information in the December article and by choosing to do so, Mr. Miller felt her story became very one sided. [179] Mr. Miller felt that the reporter did slipshod investigation, the newspaper rushed this to print and by doing so vitiated any claim of responsible reporting. If the paper was going to publish this article they should have spoken to all the people and their doctors, followed up and documented any complaints made to the respective Colleges of Physicians and Surgeons, had medical professionals corroborate or explain the complaints and most importantly, talked to Dr. Graham to get his explanation of these complaints. Nothing like that occurred and as such, reasonably intelligent reader looking at this December story might ask if the newspaper was implying that the jury in the Baert trial was wrong. [180] Mr. Miller was adamant that where there are accusations or implied criticisms of any person or institution, there must always be rigorous attempt to obtain response before publication and the response should be contained in the original story. He noted that not only was there no attempt to get Dr. Graham’s side of the story in the November 28, 29 and December articles aforementioned but there was also no attempt to do so in the second November 29 article and the November 30 article. [181] In Mr. Miller’s opinion, the November 28, 29 and December articles written by Ms. Purdy fell short of journalism’s recognized professional standards of care and her editors did not exercise ongoing oversight to ensure that her information was verified and her reports were handled responsibly. [182] The defendants’ expert, Patricia Bell, was also eminently qualified. Ms. Bell graduated in 1963 with an honour’s degree in journalism from the University of Western Ontario. She worked for the Globe and Mail travelling Asia writing stories about social and medical issues and later as freelance reporter. In 1983, she joined the Ottawa Citizen newspaper, writing education pieces and later moved to their editorial board. In 1999 she moved to Regina and became an assistant professor at the University of Regina, School of Journalism. Later she became the head of the School of Journalism and continues to teach there today. With the consent of Dr. Graham’s counsel, Ms. Bell was qualified as an expert in the area of journalism. [183] Ms. Bell testified that journalist’s professional responsibility is to tell stories that matter. In that regard, they should try to get as complete story as possible, relying on more than one source so the story does not rely on single perspective. Stories need to be verified, balanced and as complete as possible, presented with sufficient facts, details and explanations to allow readers to draw their own conclusions. Where there are accusations or implied criticisms of any person or institution there must always be rigorous attempt to obtain response before publication and the response should be contained in the original story. [184] Ms. Bell was familiar with the Canadian Association of Journalists. The Association has very comprehensive code of ethics that she subscribed to and believed in. She acknowledged that accuracy was the moral imperative of journalists and news organizations and should not be compromised even by deadlines. She said that it was the journalist’s responsibility to seek documentation, to support the reliability of sources and to be careful to distinguish between sources and fact. The onus was on the journalist to verify all information despite deadlines. [185] She also agreed that the code of ethics spoke of fairness. She explained that journalists must give people, organizations or companies that are publicly accused or criticized an opportunity to respond before publishing those accusations or criticisms. Journalists must make genuine and reasonable effort to contact them and if they decline to comment, they must say so. [186] Ms. Bell reviewed Ms. Purdy’s articles in the Baert case dated November 24, 28, 29 (two articles), 30, December 1, 2007 and January 3, 2008 and Ms. Purdy’s notebooks. It was Ms. Bell’s opinion that the November 28, 2007 article took into consideration the seriousness of the allegation, the public importance of the matter, the urgency of the matter and the status and reliability of the source. However, she felt that the main emphasis of this story should have been that the verdict came down and the jury found Dr. Graham not negligent. She said the article did not give sufficient coverage to the jury’s decision that Dr. Graham was not negligent in performing Lisa Baert’s tubal ligation. There was no mention in the story of the particular questions the judge asked the jury to consider and on which they based their decision. There was also no mention about either party’s reaction to the jury’s decision. This was imperative in her view. There was no indication if Ms. Purdy sought these reactions at all or was simply unable to get response. In her opinion, this article was not complete and readers were left without enough information to consider whether they thought the jury got it right. [187] Instead, she felt that Ms. Purdy took the first opportunity after the trial to tell people about the other complaints about Dr. Graham that she became aware of. Ms. Bell found it disturbing that the verdict and these other complaints were not two separate stories. Even then, there was no indication that Ms. Purdy tried to get the other side of the complaints in the article. Ms. Bell felt that she should have been persistent in trying to get Dr. Graham’s version of these complaints. [188] Ms. Bell said that the November 29 article entitled “Gynecologist Not Negligent: Punctured Bowel Led to Brain Damage” was fuller reporting of the November 28, 2007 website article and not simply reprinting of it. By way of example, she said that this story included information that Mark Baert did not speak to reporters after the jury’s verdict and that Dr. Graham was not present in the courtroom and his lawyer said he was busy with personal matters. For these reasons she felt that this story was more useful to readers than the November 28 story. [189] With all due respect to Ms. Bell, have carefully reviewed the copies of the November 28 website article, the November 29 website printout of the article and the November 29 newspaper article entered as exhibits in the trial and they are all identical in content. There is nothing different in any of these three documents with the exception of the byline in the November 28 article. Otherwise, the text of these three documents is the same. That being said, cannot give any weight to her conclusion that the November 29 article is better written and more useful to readers than the November 28 article. [190] Putting aside this problem with her testimony, she does acknowledge that this November 29 article is still missing detail about the judge’s charge to the jury that would allow readers to understand exactly what they were being asked to consider in deciding whether Dr. Graham was negligent or not. She also admits that there is nothing indicating whether or not Dr. Graham’s comments about the decision or about the further allegations being made against him were sought. [191] Ms. Bell testified that the December 1, 2007 story was an attempt by the newspaper to bring information to the public that they needed to know. During the Baert case, Ms. Purdy found out about other complaints involving Dr. Graham and she determined that there was another story to be written. In her report, Ms. Bell said that it appeared that the publisher was diligent in trying to verify these allegations having regard to the seriousness of the allegations, the public importance of the matter, the urgency of the matter and the status and reliability of the sources. However, Ms. Bell then opined that this story did not have to come out this quickly. News is perishable commodity so if story needs to be investigated and checked, you do it as quickly as possible. But here, the information about these stories was not “perishable news”. The perishable element was only how they relate to the Baert case. As result, Ms. Bell said that Ms. Purdy should have done more work and provided more comprehensive story. What is not in this article is an explanation from Dr. Graham about what happened in these other cases. diligent reporter would report on what occurred in court, would seek out professionals to explain things they did not understand, including legal help to assist them to understand legal issues. If reporter did not accurately report on factual or legal issue and left the reader with the wrong impression, this would not meet the standards of journalism. [192] Although her report was to the contrary, Ms. Bell agreed in cross-examination that the inclusion of these other complaints in this article left the reader thinking that the jury in the Baert case got the decision wrong. The article tells readers that the jury was not allowed to hear from these other patients but what it fails to do, according to Ms. Bell, and what Ms. Purdy had duty to tell the reader, was that these other people were only being called to talk about “informed consent” and not about their surgical complications. [193] Ms. Bell ultimately reached number of conclusions. Firstly, that there was not stand-alone news story about the jury’s decision in the Baert case with sufficient information that would allow reader to make their own determination as to whether the jury reached the proper decision. [194] Secondly, there was no response from Dr. Graham in any of the articles dated November 28, 29, 30 and December 1, 2007. The reader was not told whether this was because no attempts were made to obtain his response or whether requests for response were denied. As such, the requirement of responsible communication was not met in any of these articles. [195] Thirdly, while she felt there were some gaps in the overall coverage of the court case and the jury’s decision, it did not appear to her that they were planned in order to subvert objectivity and truth in reporting. The reality of today’s newspapers is that getting stories up on the paper’s website has become the priority before considering how they would appear in the following day’s newspaper. The size of newsrooms is eroding and the opportunities were rare for editors to stop and consider the big picture of how court case might be covered and delivered in substantial and balanced way. Given the strained economies of today’s newspapers, she felt that the overall coverage of the Baert trial was sufficient, objective and balanced and reflected attention paid by Ms. Purdy to the seriousness, public importance and urgency of the issues as well as the status and reliability of the sources. [196] turn now to the issue of general damages. Dr. Graham had been medical doctor specializing in obstetrics and gynecology. In 2003 he had serious heart attack that required quintuple bypass surgery. He was also suffering from some depression. As result of these issues, sometime in the latter part of 2003 he retired from the practice of medicine and settled in St. Albert, Alberta. [197] In 2007, his oldest son committed suicide. Shortly thereafter his wife died of cancer. In September 2007, the Lisa Baert claim against Dr. Graham went to trial. Understandably, at the time of trial he was grieving and depressed. On November 28, 2007 jury found Dr. Graham not negligent for the devastating injuries suffered by Ms. Baert. [198] Ms. Purdy, the Star Phoenix reporter who had been covering the trial, wrote series of five articles between November 28, 2007 and December 1, 2007 containing defamatory comments about Dr. Graham. These articles were published within week of the verdict: November 28, 29 (two articles), 30 and December 1, 2007. Defendants’ counsel admitted that these five articles contained defamatory comments about Dr. Graham, although not to the extent that eventually determined. All of these five articles, save for the November 28 article, appeared in the Star Phoenix newspaper and on the Star Phoenix websites. The November 28 article only appeared on the Star Phoenix websites. [199] Generally speaking, the defamatory meaning of the words complained of in these articles were that Dr. Graham had negligently performed surgery on Lisa Baert, Gloria Cooke, Dana McLellan, Sharry Michels, Jessie Hurlburt, Marleen Burgess and Lynn Laursen and had nearly caused some of them death and all of them some specific injury. In some of the articles, the defamatory meaning of the words complained of were that Dr. Graham had failed to advise Ms. Baert or the attendant nurses that he had punctured Ms. Baert’s bowel, that he did not properly advise Ms. Baert of the risks of tubal ligation surgery thereby not getting her informed consent, that the jury’s verdict exonerating him of negligence for the Lisa Baert injuries was wrong or perverse, that he misrepresented to Marleen Burgess that he had performed complete hysterectomy on her and that he was habitually negligent in his surgical practice. [200] Defamatory comments regarding Dr. Graham’s negligent surgical treatment of Ms. Baert appeared in all five articles written by Ms. Purdy. Defamatory comments regarding his surgical treatment of Gloria Cooke appeared in four of the articles, and of his surgical treatment of the rest of the named individuals, in one of the articles. The defamatory meaning that Dr. Graham was habitually negligent in his surgical practice and that the jury’s verdict exonerating him was wrong was repeated in two articles. No retraction or apology from the Star Phoenix has been published or forthcoming to date. [201] There was no direct evidence before me as to how many households get the Star Phoenix newspaper, the extent of their readership base, how many people visit their websites to read the news or how many people viewed the impugned articles on the websites or downloaded them. was however advised that all five of these articles remain on the Star Phoenix websites and are accessible to whoever wants to view them. [202] From the outset of the Baerts’ claim, Dr. Graham denied liability. The jury’s verdict in the case was vindication for him but the euphoria of that vindication was short lived. While having celebratory supper with his children the night the verdict came down, they came across the November 28 article on the Star Phoenix website. When Dr. Graham read the article, he was shocked, appalled and depressed. The byline referred to the Baert case but the article talked mainly about the complaints Gloria Cooke had made about him. He felt that the article contained number of factual inaccuracies, that it implied that his medical licence should have been revoked and made it appear that he was lucky to have been exonerated by the jury in the Baert case. [203] Every day that new article was published, Dr. Graham read it and continued to be shocked, appalled, dismayed and depressed by them. He was particularly upset after reading the December article as he felt it was full of untruths. What was particularly troubling to him was that at no point in time, either before or after any of these articles were published, did anyone from the Star Phoenix ever try to contact him to get his comment on the verdict or the allegations these other people were making about him. He also found it upsetting that the articles did not report that he had been cleared of any wrongdoing as regards number of these patients. number of these people had made complaints to either the Saskatchewan or British Columbia Colleges of Physicians and Surgeons and in every instance, it was determined that he was not negligent. However, this and the fact that he had been found not liable in the Baert case was either not reported in the articles or very little was ever said about it. [204] Defendants’ counsel made point of arguing that Dr. Graham had bad reputation at the time the defamatory comments were made about him in 2007. Dr. Graham admitted that in 2002 and 2003 after people in Dawson Creek found out about the Baert case, complaints about his treatment of patients began occurring. He said that his reputation in Dawson Creek at this time was bad because of all the media hype. But he was investigated by different professional bodies and it was never determined that he did anything wrong. Then he had his own health issues and retired. In this context, do not accept that Dr. Graham had bad reputation in 2007 when Ms. Purdy wrote her articles defaming him. [205] Dr. Graham’s children noticed change in their father over time. Two of his sons testified that the articles bothered him for days and weeks at time, that he was not himself and he became preoccupied with the articles. Dr. Graham said that he was depressed, not eating or sleeping properly and was having problems concentrating. Over time, these problems lessened but he said that he still has problems sleeping and concentrating today. [206] Both parties called expert witnesses in this case. Both experts were eminently qualified journalists in their own right. Both Mr. Miller and Ms. Bell agreed on number of points including that some of the articles written by Ms. Purdy fell short of meeting journalism’s recognized professional standards of care. However where the experts differ, prefer Mr. Miller’s testimony over that of Ms. Bell. There was an instance where Ms. Bell’s opinion was not based on the evidence before me. She described reading an article written by Ms. Purdy on November 29 that she said was almost identical to the article Ms. Purdy wrote on November 28. She indicated that this November 29 article contained more fulsome facts that affected her view on how well the article was written. However, there was no difference in content between the two articles. have no idea what Ms. Bell reviewed or what she was referring to. [207] In her written report filed as an exhibit in the proceedings, Ms. Bell goes through the articles in question. Despite acknowledging that there was no indication that Ms. Purdy made any attempt to contact Dr. Graham and get his side of the story in any of the articles in question, she still concluded that Ms. Purdy’s overall coverage of the case was sufficient, objective and balanced. cannot accept this. For reasons which will discuss more fully under the heading of aggravated damages, am unable to accept that the articles written by Ms. Purdy between November 28, 2007 and January 3, 2008 were sufficient, objective and balanced. [208] As consider what is an appropriate award for general damages in this case, am also surprised at the lack of editorial oversight of Ms. Purdy’s articles. Ms. Purdy’s immediate editor, the managing editor, the editor-in-chief and the general manager and publisher of the newspaper either disavowed having any role in overseeing Ms. Purdy or had no recollection of discussing these articles with Ms. Purdy or between themselves, reviewing these articles and offering any criticism, direction or instruction about them or authorizing her to pursue the other complaints made about Dr. Graham. This, despite evidence that the editors would get together daily to talk about stories that were being written by their reporters. [209] Taking all these factors into account I conclude that an award of $50,000 for general damages would be appropriate. [210] There is no question in this case that the series of articles written by Ms. Purdy increased Dr. Graham’s mental distress. He had just been vindicated in lengthy trial and that was taken away from him almost immediately. The articles made him mad, dismayed, indignant and depressed. He felt that the reporter was suggesting that the jury was wrong and he was negligent obstetrician/gynecologist. If aggravated damages are to be awarded in this instance, I must be satisfied that the defendants were motivated by actual or express malice. [211] Ms. Purdy testified that she agreed with the jury’s finding that Dr. Graham was not negligent in his treatment of Lisa Baert and that the jury’s verdict was fair. do not accept her testimony in this regard. All of the articles complained of by Dr. Graham were written the day the verdict came down or thereafter. The first two articles he complains of are identical. One was written by Ms. Purdy on November 28, 2007, the day of the jury’s verdict and the other article was written the next day. Both Mr. Miller and Ms. Bell agreed that the purpose of these articles should have been to report the jury’s verdict that Dr. Graham was not negligent in performing Lisa Baert’s tubal ligation. Such story should have summarized the key testimony presented at the trial, what particular questions the judge asked the jury to consider and what evidence or factors may have caused the jury to decide as they did. If Ms. Purdy was satisfied that the jury had reached the correct decision, would have expected that she would have focussed more on the verdict in the trial. [212] These stories did none of that. What these stories did was introduce details about two other cases involving Dr. Graham. The first four paragraphs of the story talk about Gloria Cooke. As Mr. Miller opined, the reporter and/or her editors felt this information was more important than the verdict. So instead of straightforward, contemporaneous and even-handed account of the jury’s verdict, less than half of these articles had to do with information presented at the trial. [213] The stories involving Gloria Cooke and Dana McLellan were legitimate stories but again, both experts agree that these stories should have been undertaken separate from story about the jury’s verdict. Moreover, Ms. Purdy included this information about Ms. Cooke and Ms. McLellan in both these articles without having ever spoken to either of them directly. She obtained her information from speaking to Ms. Cooke’s lawyer and reading dated newspaper article about Ms. McLellan. She did nothing to verify this information, she made no attempt to speak to Ms. Cooke or Ms. McLellan’s medical doctors or get their medical records. Most troublesome was that Ms. Purdy made no attempt to speak to Dr. Graham to get his comment on the verdict or on the allegations made by Ms. Cooke and Ms. McLellan. By focusing on the Cooke and McLellan cases so soon after the verdict, Ms. Purdy is drawing attention to them. By not properly reporting on the verdict, she leaves the impression that the jury got it wrong in both these articles. [214] Every one of the five articles after the verdict contains words whose defamatory meaning was that Dr. Graham negligently performed surgery on Lisa Baert thereby causing her certain injuries that included septic shock, amputation, cardiac arrest, severe brain damage, living in long-term care home and becoming quadriplegic. If Ms. Purdy honestly believed that the jury had made the right decision, then there would be no reason to keep repeating these words, phrases and paragraphs day after day in such way that they were defamatory. [215] The November 30, 2007 article is follow-up reporting. In this article, Ms. Purdy focuses on getting the Baerts’ reaction to the jury’s decision. But neither Ms. Purdy nor any other Star Phoenix reporter did follow-up story on Dr. Graham’s reaction to the jury’s verdict. In Mr. Miller’s view, writing this article increased the newspaper’s obligation to report on Dr. Graham’s reaction otherwise this could be considered an “implied taking of sides”. [216] Moreover, if this was just follow-up article about the Baerts’ reaction to the verdict then have to wonder why Ms. Purdy felt she had to repeat the Gloria Cooke information in the story. That information had nothing to do with the Baerts’ reaction to the verdict. It had everything to do with being critical of Dr. Graham and again suggesting that the jury got it wrong. [217] The December 1, 2007 article reinforces my conclusion that Ms. Purdy felt that the jury was wrong in their verdict. Both experts again admit that this article did not have to run immediately after the trial and that Ms. Purdy should have taken more time to investigate the allegations made by these five other people properly and to verify their information. She did not do that. She did not speak to any medical professionals to verify the information these people gave her. She did not ask for these people’s medical records or for permission to speak to their doctors. She received some documents from Ms. Hurlburt’s son that included letter from Dr. Graham explaining his treatment of Ms. Hurlburt and letter from the Saskatchewan College of Physicians and Surgeons advising that Dr. Graham was not negligent in his treatment of Ms. Hurlburt and the reasons why. Despite having this information, Ms. Purdy never included it in the report. Instead, she simply noted that the investigation found “no medical mismanagement” by Dr. Graham. [218] This particular article contains five people’s complaints about Dr. Graham’s treatment of them in addition to the information about what happened to Ms. Baert. Yet again, Ms. Purdy made absolutely no effort to elicit response or comment from Dr. Graham in relation to these complaints. Reading this series of articles culminating in this December article leads to no other conclusion than that the jury was wrong to find Dr. Graham not negligent in his surgical treatment of Ms. Baert. [219] Ms. Purdy described herself as diligent journalist. She acknowledged being familiar with the journalistic standards of care and specifically those standards referencing accuracy and fairness. Yet she wrote five articles, four of which contained single source, unverified information about complaints made against Dr. Graham by other people and not once did she ever try to contact Dr. Graham to get his side of the story. This is contrary to the concepts of accuracy and fairness which Ms. Purdy said that she was aware of. The very fact that she failed to give Dr. Graham an opportunity to defend himself against these defamatory allegations is, in and of itself, evidence of malice. In Leenen at para. 145, Cunningham J. said: [145] The failure of the defendant to provide the plaintiff with fair opportunity to defend himself against defamatory allegations is evidence of malice: Hodgson v. Canadian Newspaper Co., supra. As Holland J. stated in Munro v. Toronto Sun Publishing Corp. (1982), 1982 CanLII 1758 (ON SC), 39 O.R. (2d) 100 at p. 118, 21 C.C.L.T. 261 (H.C.J.): when the story is prepared and the paper has the "goods" on the person targeted in the story it is basic and necessary that that person be confronted with the story so that his reaction be obtained. [220] However, I am additionally led to the inescapable conclusion that Ms. Purdy did not believe that the jury had reached the proper verdict in the Baert case. Rather than properly reporting on the jury’s verdict, Ms. Purdy deliberately chose to report on other people who had made complaints about the surgical care Dr. Graham provided them. She did so without verifying this information or even seeking Dr. Graham’s comment. Given her lack of proper investigation or verification of these complaints, she could not have reasonably believed that these complaints were true. By writing the articles that she did in the time frame that she did and in the fashion that she did, she could only have had one purpose in mind and that was to tell readers that Dr. Graham was negligent in his surgical practice and that the jury’s verdict was wrong. I am satisfied that Ms. Purdy published the words complained of by Dr. Graham with reckless indifference as to their truth and as such, malice has been made out. [221] Where an employee is acting in the course of his or her employment, any malice motivating his or her behaviour will be attributed to his or her employer. See Sun Life Assurance Co. of Canada Dalrymple, 1965 CanLII (SCC), [1965] SCR 302. Ms. Purdy was an employee of the Star Phoenix overseen by Rod Nickel, Cameron Hutchinson, Steven Gibb and Dale Brin and as such, her malice is attributed to all of them. [222] In my view, given these findings, an award of $50,000 for aggravated damages is appropriate. (d) Is Dr. Graham entitled to an injunction requiring the defendants to remove certain content from websites under their control? [223] In Astley Verdun, 2011 ONSC 3651 (CanLII), Chapnik J. said: [20] It is well-settled law that, in appropriate circumstances, court may grant an injunction to prevent defendant from continuing to disseminate defamatory material that affects plaintiff's reputation: see, for example, Barrick Gold Corp. v. Lopehandia (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416, [2004] O.J. No. 2329 (C.A.), at paras. [21] Permanent injunctions have consistently been ordered after findings of defamation where either (1) there is likelihood that the defendant will continue to publish defamatory statements despite the finding that he is liable to the plaintiff for defamation; or (2) there is real possibility that the plaintiff will not receive any compensation, given that enforcement against the defendant of any damage award may not be possible: see Hunter Dickinson Inc. v. Butler, [2010] B.C.J. No. 1332, 2010 BCSC 939 (CanLII), at paras. 75-79; Griffin v. Sullivan, [2008] B.C.J. No. 1333, 2008 BCSC 827 (CanLII), at paras. 119-27; Newman v. Halstead, [2006] B.C.J. No. 59, 2006 BCSC 65 (CanLII) at paras. 297-301; Cragg v. Stephens, [2010] B.C.J. No. 1641, 2010 BCSC 1177 (CanLII), at paras. 34-35, 40. [224] In the present case almost years have gone by since the defamatory articles in question were published by the Star Phoenix. Dr. Graham is retired, Ms. Baert has, unfortunately, deceased, none of the individual defendants remain employed with the Star Phoenix and the newspaper has been purchased by Postmedia Network Inc. There is no evidence before me that would lead me to conclude that in light of my decision, the defendants will continue to publish defamatory statements about Dr. Graham. There is also no reason for me to believe that there is real possibility that Dr. Graham will not be able to collect his damage award from the defendants. Injunctive relief is an exceptional remedy that will not be imposed by the courts lightly. As such, am not convinced that it is appropriate to grant an injunction in these circumstances and Dr. Graham’s request in this regard is dismissed. [225] Postmedia Network Inc. will be added as defendant in this case. The defendants have jointly and severally defamed Dr. Graham in series of articles written by Chris Purdy and published in the Star Phoenix newspaper and on its websites between November 28, 2007 and December 1, 2007. Dr. Graham is awarded general damages in the amount of $50,000 and aggravated damages in the amount of $50,000 together with pre-judgment interest pursuant to s. 5(1) of The Pre-judgment Interest Act, SS 1984-85-86, c P-22.2, and costs taxed in the appropriate column. J. D.E. LABACH
HELD: The action was allowed. The defendants had defamed the plaintiff and he was entitled to damages in the amount of $100,000. The court found the following with respect to each issue: 1) it would substitute Postmedia as a defendant pursuant to Queen’s Bench rule 3-84(2) as it was the successor to Canwest and was aware of the plaintiff’s claim when it purchased the Star Phoenix and it would not be prejudiced. It would not deprive Postmedia of a defence under s. 5 of The Limitations Act because the articles remained on Postmedia’s websites and were republished whenever they were viewed or downloaded; 2) after reviewing each of the articles and assessing the words complained of, it found that the words constituted defamation; 3) all of the defendants were found to be joint tortfeasors with Purdy because they participated in the publication of a libel and were jointly and severally liable in defamation to the plaintiff; and 3) an appropriate award for general damages was $50,000. The court allowed the claim for aggravated damages as the defendants were found to be motivated by actual or express malice because Purdy did not simply report the jury’s verdict in her articles but indicated that she believed that the jury had not reached the proper verdict in the trial. She deliberately chose to report the stories of people who had made complaints about the surgical care provided to them by the plaintiff without verifying it or seeking comment from the plaintiff. As she was acting in the course of her employment, Purdy’s malice was attributed to all the defendants. The plaintiff was awarded $50,000 in aggravated damages.