TORT PROBLEM

Dr. Richard Kimball v. Canadian News Services

SUMMERS J:

INTRODUCTION
[1] On October 5, 2000, the Canadian News Service (CNS) aired an episode of the
Reel News entitled “Sarson: Saving Grace or PDS Time-Bomb?” The program dealt
with the anti-viral drug Sarson. It considered the safety of the drug and the decision by
Health Canada four weeks earlier to approve Sarson for public use as a vaccine for
Pulmonary Deficiency Syndrome (PDS). The broadcast included clips from several
interviews that the Reel News had conducted as well as clips that it had obtained from a
Health Canada advisory meeting attended by the Plaintiff, Dr. Kimball.

[2] Dr. Richard Kimball alleges the program defamed him. He claims that the
statements broadcast from his interview and the innuendos which arise from the
presentation of those statements are libelous of him personally and professionally. In
support of his claim, Dr. Kimball relies on the entirety of the broadcast, its introduction,
visualizations, context and tone.

[3] The Defendant contends that the portions of the broadcast which refer to Dr.
Kimball are not capable of constituting defamation. In the alternative, it argues that any
facts which did defame Dr. Kimball are protected by the defence of qualified privilege
since they are based on matters of urgent public interest which viewers had a right to
know and which CNS had an obligation to communicate. Alternatively, the Defendant
claims the new defence of responsible communication applies to the broadcast.

ISSUES
[4] There are two issues to be determined:

1) When viewed in the context of the entire program, are the broadcast references
to the Plaintiff capable of bearing a defamatory meaning?

2) (i) If the broadcast references are defamatory of Dr. Kimball, does the law protect
them because they fall within the defence of qualified privilege?

(ii) If the broadcast references are defamatory of Dr. Kimball, does the defence of
responsible communication apply?

FACTS
[5] Sarson is an anti-viral developed by Canadian scientists to treat PDS, a virus
whose first serious outbreak in Canada occurred early in 1999 in Toronto. In response
to the highly contagious and rapidly spreading disease, scientists around the world
focused on developing an effective and fast-acting anti-viral vaccine. In May, 2000, a
group of Canadian scientists based out of Mount Sinai Hospital in Toronto, working
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under a grant from Brayo, a large pharmaceutical company, formulated Sarson, a

vaccine which had an almost 100% success rate in preventing the onset of the virus.

[6] Although the potential long-term side effects of Sarson were unknown, the
scientists’ extensive research found little or no short-term side effects. However, Health
Canada decided to wait for the results of more research before it approved Sarson for
use as a vaccine for PDS.

[7] The pressure on Health Canada to approve Sarson for public use mounted
when, in August, 2000, there was a severe outbreak of PDS in Montreal. At about the
same time as the outbreak, two American doctors, Drs. Fulman and Paul, published
studies on Sarson and PDS. In essence, they asserted that a substantial percentage of
quickly developed anti-viral vaccinations used to treat pulmonary viruses such as PDS
had proven, in the long-term, to cause more harm than good by causing mutations of
the virus in question. These mutations would lead to more deadly and resistant strains
of the virus.

[8] Dr. Kimball is a full-time infectious diseases doctor, academic and scientist at the
Sunnybrook Health Science Centre. He is Past-President of the Canadian Infectious
Diseases Society, which issued PDS guidelines in 1999 when the first PDS outbreak hit
Toronto. The guidelines direct physicians, health care workers and the public on the
symptoms and effects of PDS, and procedures which should be taken to control its
spread.

[9] The Fulman and Paul articles were the latest installment in a decade-long debate
among scientists regarding the effectiveness and potential danger of anti-virals. Other
experts, including Dr. Kimball, held a more optimistic view of anti-viral vaccinations in
general, and Sarson in particular. Their view was that the absence of evidence of
complete safety did not, in itself, constitute evidence that Sarson was unsafe, and the
removal of Sarson from the market would be a great disservice to many patients who
might otherwise contract PDS.

[10] As a result of the Fulman/Paul articles highlighting the anti-viral debate within the
medical community and the ensuing scientific controversy over whether Health Canada
should approve Sarson, the Health Protection Branch (HPB) of Health Canada
convened an ad hoc expert advisory committee (the Committee) to discuss Sarson’s
approval for public use in general, and specifically at-risk populations in Montreal. Dr.
Vincent Kroop, of the HPB, testified that Dr. Kimball was chosen for the committee due
to his experience in treating patients with infectious diseases similar to PDS and his
knowledge of anti-viral vaccines. Dr. Kimball agreed to be part of this committee.

[11] Dr. Kimball had previously appeared before the HPB. Brayo had invited him in
1999 to attend a meeting with their representatives and the HPB to interpret the results
of a study done on behalf of Brayo. Mindful of this 1999 attendance at the HPB, when
Dr. Kimball was invited by Dr. Kroop to participate in the Committee meeting, Dr.
Kimball informed Dr. Kroop that he had done work for Brayo in the past. Dr. Kroop was
aware of his prior activities and still wanted him to participate in the Committee.
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[12] The Committee meeting was held on August 15, 2000. It was tape recorded and
thirty-four pages of Minutes were transcribed. From the transcript, one can discern that
the audiotapes were exceedingly difficult to understand. There are literally hundreds of
references to parts of the tapes being unclear. The Minutes are also replete with
medical terminology and abbreviations, consistent with a record being made for the
medically sophisticated audience in attendance. Indeed, one would not be able to
understand either the Minutes or the subtlety of the various medical positions being put
forward without the assistance of a physician, and preferably someone who had been
present at the meeting.

[13] Dr. Kimball was the first presenter. The stated objective of his talk was to
highlight some of the Sarson studies and their strengths and weaknesses. He
canvassed several studies, including the Fulman/Paul studies which outlined the
possible risks of Sarson. Despite his concerns about the limitations of the Fulman/Paul
articles, Dr. Kimball recognized that the studies did raise a legitimate need for more
research into the long-term effects of Sarson. However, he concluded that because
evidence of potential harm was circumstantial, and there was a pressing need for a
PDS vaccine, these hypotheses were not enough to conclude that Sarson was unsafe.

[14] The general consensus of the Committee was that the benefit of using Sarson as
a vaccine outweighed the possibility of the vaccine causing a more virulent strain of
PDS to develop. However, the Committee also recommended that Health Canada
devote resources to continuing research on the long-term effects of Sarson. There was
only one doctor on the Committee, Dr. Michele Bortolussi, who advised strongly against
the use of Sarson in light of the lack of long-term research on the effects of the drug.
Dr. Bortolussi was a drug reviewer at the HPB. She later resigned in protest over the
government’s handling of the PDS/Sarson matter.

[15] The Reel News conducted two weeks of investigation and research before airing
the CNS program on October 5, 2000. The decision to air a program focusing on PDS
and Sarson was motivated by recent, more aggressive mutations of the PDS virus that
had been discovered in September, several weeks after Sarson had been approved by
Health Canada. Although there was no concrete evidence that the wide-spread
vaccination of the Montreal population with Sarson was the cause of the mutated virus,
many expert scientists stated that this was probable. By the time of trial, the outbreak of
PDS in Montreal had been contained and Sarson was no longer being administered.
However, Health Canada has warned the public that PDS has not been eradicated from
the Canadian population and that another outbreak of the disease is possible.

[16] Reporters from the Reel News met with and interviewed two of the doctors who
had been on the Committee, HPB staff, and other physicians in Canada and the United
States. They were provided the audiotapes and Minutes of the Committee meeting by
Dr. Bortolussi. Dr. Bortolussi acknowledged in court that she had been in breach of her
public service oath when she provided this information to CNS.

[17] The Reel News program centered on the theme that the long-term effects of
Sarson were unknown and that, if other similar anti-virals were any indication, Sarson
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could lead to a more deadly strain of PDS, potentially causing thousands of deaths in
Canada. The Reel News devoted its entire one-hour program to this issue, something it
does only about twenty-five percent of the time.

[18] The program opened with a short review of previous media coverage on Sarson
and the general scientific opinion of Sarson (both of which included positive views of the
drug in treating PDS), as well as Health Canada’s stance that Sarson is a “safe” drug.
The rest of the program focused largely on an interview with Dr. Bortolussi in which she
was highly critical of: the process by which the Committee members had been selected,
the Committee’s recommendations, the HPB generally and Dr. Kimball specifically.

[19] There are thirteen references to Dr. Kimball in the program:

1. Devon Rose, host of the Reel News, summarizes Dr. Kimball’s position regarding
Sarson. She says that Dr. Kimball finds the negative studies preliminary and
incomplete.

2. There is a clip from the Committee meeting in which Dr. Kimball says: “We don’t
yet have good proof that Sarson is harmful. There is some circumstantial
evidence, but it’s not proof.”

3. Devon Rose says that Dr. Kimball argued that Sarson is a sound therapy for
PDS.

4. There is a clip from the Committee meeting in which Dr. Kimball says: “There is
no evidence whatsoever that Sarson is harmful, and I think it would be a great
disservice to many patients to recommend strongly that this drug not be used,
that it not be put on the market.”

5. Devon Rose says that Dr. Ragou of St. Paul’s Hospital in Vancouver, a leading
world-renowned expert on the subject of anti-viral vaccines, rejects Dr. Kimball’s
conclusion.

6. During a segment regarding how the Committee had been chosen, Dr. Bortolussi
provides an opinion about the Committee meeting, saying: “What we had at the
meeting was a small group of four that was largely dominated by one individual
who made it clear that he had already judged the situation. It was Dr. Richard
Kimball, who is an infectious disease expert at Sunnybrook.”

7. Devon Rose continues: “The same Dr. Kimball who’s been criticizing studies
which question the safety of Sarson and defending the drug, suggested that
doctors shouldn’t dwell on the worrisome safety records of other similar anti-viral
vaccinations.”

8. A clip of Dr. Kimball’s voice from the audiotapes is played and a head-shot of Dr.
Kimball is shown: “I think it is extremely important that we don’t sort of highlight,
focus on the increased risk.”
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9. Ms. Rose continues: “Kimball expressed concern that Brayo might not like a
warning that criticized its product.”

10. The audiotape of Dr. Kimball is again played, while the program moves to a clip
of Dr. Kimball shaking hands with a Brayo representative under a large Brayo
banner: “I have a question simply about a pragmatic approach. Is there anything
wrong in summoning Brayo and presenting them with, sort of, with what we’re
discussing...bring them in and raise this like a concern we have, before we make
a ruling, a final ruling, we’d like your input.”

11. Dr. Bortolussi is interviewed, commenting on Dr. Kimball’s question: “The

interesting thing to me was that my colleagues all saw it, people came out of the
meeting and they were appalled and they said, Who chose Richard Kimball?
What the hell is he doing? This is outrageous.”

12. Ms. Rose, standing outside Sunnybrook, adds: “The Reel News obtained a
government memo. It lists Dr. Kimball as a member of a drug company
contingent - the drug company was Brayo.”

13. Ms. Rose refers to Dr. Kimball as “appearing to have a possible conflict of
interest.”

I note at this point that the Reel News never requested an interview with Dr. Kimball
himself.

LEGAL ANALYSIS
1) Defamatory Meaning
[20] This is not a defamation case in which the Plaintiff complains about statements
made by a third party. The defamation alleged arises largely from direct quotes from
the plaintiff himself. In the result, Dr. Kimball claims that clips of his own voice and
extracts from his own comments defame him, because they are presented in a context
which has the effect, he argues, of inviting reasonable right-thinking viewers to draw
inferences about him which lower him in their estimation.

[21] The definition of defamation was outlined by Madam Justice Abella in Color Your
World Corp v Canadian Broadcasting Company (1998), 156 DLR (4th) 27 at 36 (Ont
CA). To succeed in an action for defamation, the plaintiff must prove three elements:

(a) That the words complained of were published;

(b) That the words complained of refer to the plaintiff;

(c) That the words complained of, in their natural and ordinary meaning, or in
some pleaded extended meaning, are defamatory of the plaintiff.

[22] In this case, the words complained of were clearly published (broadcast) and
clearly refer to the Plaintiff. The only question here is whether the references to Dr.
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Kimball in the program are defamatory of him through their natural and ordinary
meaning. It is important to remember that where there are a number of reasonable
interpretations, the trier of fact should not seize on the only bad one to give a
defamatory sense to the words in question: Lewis v Daily Telegraph Ltd, [1963] 2 All
ER 151 at 155 (HL).

[23] Dr. Kimball alleges that the program, viewed as a whole, gives rise to five
defamatory inferences and innuendos. I will consider each of these separately:

Innuendo #1: In recommending Sarson, Dr. Kimball was dishonest.

[24] I find that the cumulative effect of the broadcast is capable of bearing this
meaning. The episode suggests that Dr. Kimball supports the use of Sarson, which
other leading experts and studies suggest may cause harm. The reasonable viewer
would draw the inference that a doctor who disputes clear evidence to the contrary and
continues to recommend and support Sarson is behaving in a dishonest and insincere
way.

Innuendo #2: His opinion was contrary to accepted medical practice and hence
he did not know what he was talking about or was intentionally misleading the
Canadian public.

[25] I find that the cumulative effect of the broadcast is capable of bearing this
meaning. The broadcast juxtaposes Dr. Kimball’s support of Sarson with a “world
authority’s” contrary view. The program highlights the work of other experts and
studies, which support the view that this family of drugs may be dangerous. The
ordinary right-thinking viewer would conclude that Dr. Kimball did not know what he was
talking about and his opinion was ill considered and contrary to respected medical
opinion.

Innuendo #3: Dr. Kimball was helping Brayo push a dangerous drug, which he
knew to be dangerous.

[26] I have already explained why the broadcast can bear the meaning that Dr.
Kimball knew the drug was potentially dangerous. In terms of Dr. Kimball’s purported
affiliation with Brayo, I find the broadcast also easily bears that meaning. The program
refers to the appearance of a possible conflict of interest in Dr. Kimball’s acceptance of
the offer by the HPB to sit as a member of the Committee, and shows a photo of Dr.
Kimball with a Brayo employee, under a Brayo banner, while on the program we hear
his reservations regarding the anti-Sarson studies. One of the last references to Dr.
Kimball in the broadcast deals with a government memo concerning his attendance at
the HPB in 1999 as part of a Brayo contingency.

Innuendo #4: He was trying to stifle information regarding Sarson’s capacity to

cause more deadly strains of PDS to develop.

[27] I find that the broadcast can bear this meaning. I have already highlighted the
interviews with the experts who criticized the drugs. The reasonable viewer would infer
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from this that the revelations of Sarson’s capacity to potentially have a detrimental effect
on the treatment of PDS are both valid and accurate. The broadcast states that Dr.
Kimball dominated that meeting and that, throughout the meeting, Dr. Kimball was
concerned that the risks not be over-emphasized.

Innuendo #5: In his role as a member of the Committee selected by the HPB to
review Sarson, Dr. Kimball acted dishonestly and had an undisclosed conflict.

[28] For reasons I have already mentioned above with respect to the other innuendos,
I conclude that the broadcast can bear this meaning.

[29] In conclusion, the references to the Plaintiff, when viewed in the entirety of the
broadcast, are defamatory of the Plaintiff through their natural and ordinary meaning.
Specifically, they are defamatory of the Plaintiff through the false innuendos or
inferences which they invite reasonable viewers to make. They are not defamatory in
the sense of their plain, literal, or obvious meaning.

2 i) Qualified Privilege

There are certain occasions on which a person is entitled to publish untrue

statements about another, where he or she will not be liable even though
the publication is defamatory ... The duty may be legal, social, or moral.
The test is where persons of ordinary intelligence and moral principle, or
the great majority of right-minded persons would have considered it a duty
to communicate the information to those to whom it was published.

[30] Brown, The Law of Defamation in Canada, 2nd Ed (Toronto: Carswell, 1999) at
para 13.1 [Brown].

[31] To succeed in making out the defence, the Defendants must establish:

1. that they had an interest or duty to communicate the information; and

2. that the recipient had a corresponding duty or interest to receive the information.

[32] In the Statement of Defence, the Defendant referred to its right to publish this
information. For the purposes of qualified privilege, the issue is not whether it had a
right to communicate its perspective on the controversy, but whether a reasonable
person would feel compelled by a duty to make the communication.

[33] In Reynolds v Times Newspapers, [2001] 2 AC 127 (HL), Lord Nicholls of

Birkenhead provided a non-exhaustive list of the kinds of factors which courts should
consider in deciding whether information communicated was of sufficient value to the
public that it should be protected by privilege in the absence of malice. Such factors
included the seriousness of the allegation, the nature of the information, the source of
the information, the failure to report the plaintiff's side of the story, the urgency of the
matter, the steps taken to verify the information, whether comment was sought from the
plaintiff, the tone of the article/broadcast, and the timing of the article/broadcast. While
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some of these factors seem to overlap with the kinds normally considered in relation to
a malice analysis, the overall approach is consistent with the Canadian approach to
privilege and provides some helpful specific items to consider when examining the
circumstances surrounding the publication.

[34] The Defendant claims that the basis for the privilege is the protection of
Canadians from a possibly hazardous vaccination. It stresses that in light of: the recent
outbreak of PDS in Montreal and ensuing public panic over PDS; numerous media
broadcasts that the “wonder drug” (Sarson) had controlled the spread of the PDS virus;
findings since early September that a more virulent strain of PDS had recently
developed; and Health Canada’s statement that PDS had not been eradicated from the
Canadian public, the Defendant had a duty to inform the public of the possible dangers
of Sarson.

[35] The Reel News broadcast dealt with matters of great public interest, and, in
particular, an urgent issue of public health and safety. Applying the objective test for
privilege, I find that a reasonable person would be compelled by a sense of duty to
publish this particular information in order to inform the public of the possible risks of
Sarson. A requisite reciprocal duty and interest existed between the public and CNS.
Therefore, the defence of qualified privilege does apply to the Reel News broadcast.

[36] Proof of malice defeats the defence of qualified privilege. Malice is commonly
understood as spite or ill will towards someone: Brown at para. 16.3(1). Malice may be
established by showing that the defendant spoke dishonestly or with knowledge of, or
having a reckless disregard for, the truth. In this context, recklessness includes
speaking in utter disregard for the consequences, without caring about truth or falsity, or
without having made reasonable inquiry where the means or sources were readily
available. Malice may also be found where the defendant is reckless in the sense that
he or she deliberately refrained from making an inquiry: Brown at para. 16.3(5).

[37] In this case, I do not find that the Reel News and CNS exhibited malice in their
research and broadcast of “Sarson: Saving Grace or PDS Time Bomb.” The program
was aired at a time when PDS and Sarson were being featured daily in the news. The
general media stance was that PDS was essentially no longer a concern to health
officials because of the demonstrated effectiveness of Sarson in preventing those who
had been in contact with PDS from contracting the virus. The average viewer could,
therefore, be reasonably assumed to be familiar with the overall accepted view of
Sarson, both generally and within the medical community. Most significantly, the Reel
News broadcast opened with a synopsis of the current positive view of Sarson both in
the media, the government and the scientific and medical community in general. The
broadcast of the Reel News was the first report to reach the general public that focused
on the potential negative implications of Sarson, and the dissent within the scientific
community regarding the safety of the drug.

[38] In conclusion, I find that the Defendant was not acting in bad faith. Although the
statements found in the Reel World’s airing of the Sarson episode were defamatory
toward Dr. Kimball, CNS succeeds in meeting the conditions required for the defence of
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qualified privilege and Dr. Kimball failed to demonstrate malice on the part of the
Defendant.

2 ii) Responsible Communication

[39] The Defendant also relies on the new defence of responsible communication
recently set out by the Supreme Court of Canada in Grant v Torstar Corp, 2009 SCC
61. In order to establish this defence, the Defendant must demonstrate that the
reporting was on a matter of public interest. As noted above in my analysis of the
defence of qualified privilege, the reports in question in this action were on matters of
great public interest.

[40] The Defendant must also establish that it was diligent in trying to verify its
allegations having regard to: the seriousness of the allegation; the public importance of
the matter; the urgency of the matter; the status and reliability of the source; whether
the plaintiff’s side of the story was sought and accurately reported; whether inclusion of
the defamatory statements was justifiable; whether the public interest of the defamatory
statement lay in the fact that it was made rather than in its truth; and any other relevant
circumstances. In my view, the fact that Reel News never requested an interview with
Dr. Kimball before airing the program is sufficient to dispose of this defence. Although
this is a relatively new defence in Canada, it is my view that it simply cannot be
established where no attempt is made to obtain the plaintiff’s side of the story.

[41] Because the Defendant was successful in establishing the defence of qualified
privilege, this action is dismissed.

ISSUES FOR THE MOOT:

1) Was the trial judge correct in holding that the CNS broadcast was
defamatory of Dr. Kimball?

2) (i) If the broadcast was defamatory of Dr. Kimball, was the trial judge
correct in holding that the defence of qualified privilege is made out?

(ii) If the broadcast was defamatory, was the trial judge correct that the
defence of responsible communication does not apply?

NOTE TO MOOTERS: Dr. Kimball is the appellant from Summers J.’s judgment.
CNS is the respondent. There are no cross appeals in this moot exercise.
Therefore, since success at trial was divided, counsel for Dr. Kimball must write
the appellant’s factum without the benefit of CNS’s arguments on the first issue.
Counsel for Dr. Kimball should simply anticipate CNS’s arguments on this issue.
Unlike in a real appeal, counsel for Dr. Kimball should not be concerned about
giving away arguments that CNS might not otherwise have thought of.
4789153.1