Personal Injury

Patient fights off defamation claim by former surgeon

By AdvocateDaily.com Staff

A woman sued by her former surgeon is relieved after successfully dismissing a defamation claim brought by the doctor, says her counsel, Toronto personal injury lawyer David Derfel.

In his May 30 endorsement, Ontario Superior Court Justice Paul Schabas dismissed the claim after finding the surgeon waited too long to complain about postings his former patient made about him online.

Derfel, founder and principal of Derfel Injury Lawyers, acted for his client on the matter, along with his colleague, Toronto personal injury lawyer Jessica Mahabir.

“Our client was very happy with the result, as was I,” Derfel tells AdvocateDaily.com. “It's always nice to be able to share news of a successful outcome with a client.”

The case dates back to 2015 when Derfel’s client underwent treatment by the plaintiff, a facial cosmetic surgeon.

Unhappy with the outcome, the woman described her experience with the physician in critical terms on various websites over the course of a couple of days in January 2016. Despite learning of the reviews shortly after they were made, Schabas’s decision says the doctor only launched his defamation action against the woman in April 2018, when the postings were still available online.

Acknowledging his issue with s. 4 of Ontario’s Limitations Act, which requires actions to be brought within two years of discovery, the plaintiff claimed that “each instance of a third party accessing or downloading the reviews is a separate and new instance of publication and, therefore, defamation.”

After determining the limitations issue could be decided before the close of pleadings, Schabas dismissed the plaintiff’s argument that the case fits into the “multiple publication” rule, which generally means that each publication of a defamatory communication is a separate and distinct libel, subject to its own limitation period.

Explaining that the rule originated in 1849 and has come under intense criticism in the internet age, Schabas pointed to a recent Ontario Court of Appeal case which he said “clearly rejected the proposition that just because defamatory words remain online and are available to be downloaded and read indefinitely, there is continuous publication allowing limitation periods to be ignored.”

Allowing the plaintiff’s proposition to stand would “create the potential for endless retriggering of limitation periods simply because the words remain on the internet,” Schabas concluded.

“This would allow plaintiffs to sit on their rights until it suited them to take action, rather than sue when they become aware of the wrong. This would be unfair to defendants who would be subject to lawsuits indefinitely, and raises concerns about freedom of expression,” he added.

Since posting her comments in January 2016, Derfel’s client had never repeated them, the judge noted.

“Time began to run for limitation purposes when [the surgeon] became aware of the statements posted by the defendant on the three websites in January 2016,” Schabas concluded. “He was therefore required to issue an action within two years of January 2016, which he failed to do. Accordingly, as a matter of law, the action is statute-barred and it is plain and obvious that the action cannot succeed. The motion is granted, and the statement of claim is struck out.”

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