[1] RateMDs.com and OntarioDoctorDirectory.ca are online resources which enable users to inform themselves about physicians through the first hand experiences of other patients. These websites allow patients to rate a physician in the categories of Staff, Punctuality, Helpfulness and Knowledge, as well as leave a comment about the physician.
[2] RateMDs.com’s terms of use make it clear that only actual patients should comment on a physician’s profile. A physician’s overall quality rating is based on the average of the category ratings imputed by all patients who have commented on the physician’s profile.
[3] Dr. Dick Zoutman is a specialist in infectious diseases. He is currently Chief of Staff at the Scarborough Rouge Hospital, but at the time of the events giving rise to this action, he was the Chief of Staff, Medical Director of Medical Microbiology and an attending specialist physician at Quinte Health Care in Belleville. He is also a Professor Emeritus in the Faculty of Health Sciences at Queen’s University, Kingston.
[4] Dr. Zoutman commenced an action against James Graham and RateMDs.com in 2015 after what Dr. Zoutman describes as a campaign by Mr. Graham lasting for approximately a year and a half, during which it is alleged that Mr. Graham posted adefamatory comments about Dr. Zoutman, principally on the RateMDs website. The action against RateMDs.com has been resolved. However, against Mr. Graham, Dr. Zoutman claims general damages, aggravated damages, punitive damages and permanent injunctive relief.
[117] I therefore assess general damages at $25,000.
[118] Dr. Zoutman asserts that, in addition to general damages, an award of aggravated damages should be made, given “Mr. Graham’s malicious and remorseless conduct”.
[119] Aggravated damages are awarded where a defendant is guilty of “insulting, highhanded, spiteful, malicious or oppressive conduct” which has increased the mental distress and humiliation suffered by the plaintiff: Ironside, at para. 56.
[120] Dr. Zoutman’s evidence is that he has lived, and continues to live, in constant apprehension that new postings will appear. He feels distressed by the need to constantly monitor RateMDs.com and other online reviewing services.
[121] Dr. Zoutman submits that an appropriate award of aggravated damages would be in the amount of $25,000 (this was the amount awarded in Ironside).
[122] I agree. I assess $25,000 for aggravated damages.
[123] Dr. Zoutman also seeks punitive damages. Punitive damages will be awarded to deter and denounce highhanded, malicious, arbitrary or highly reprehensible conduct that departs to a marked degree from ordinary standards of decent behaviour: Ironside, at para. 64.
[124] Dr. Zoutman suggests a range of $10,000 to $50,000 for punitive damages. He submits that this is modest based on previous awards in cases involving defamation of a professional (see, for example, Myers v. Canadian Broadcasting Corporation, (2001) 2001 CanLII 4874 (ON CA), 54 O.R. (3d) 626 (CA).
[125] I hesitate to also award punitive damages in this case, not because I do not regard Mr. Graham’s comments as deserving of denunciation, but because I do recognise that, reprehensible as his conduct has been, it is the product of profound grief as well as anger.
[126] In my view the interests of justice are served by imposing on Mr. Graham the obligation to pay to Dr. Zoutman general damages of $25,000 plus aggravated damages of a further $25,000, for a total of $50,000.
Permanent Injunction
[127] Dr. Zoutman seeks a permanent and mandatory injunction against Mr. Graham preventing him from writing, speaking, publishing, posting or otherwise disseminating any defamatory content on the internet or any other medium, electronic or otherwise, directly or indirectly, relating to Dr. Zoutman.
[128] Permanent injunctive relief is appropriate in defamation actions where either it is likely that the defendant will continue to publish defamatory statements, despite a finding of liability, or there is a real possibility that the plaintiff will not receive any compensation (due to the uncollectability of the damages award): Astley v. Verdun, 2011 ONSC 3651 (CanLII).
[129] While, at the present time, all of Mr. Graham’s defamatory postings concerning Dr. Zoutman have been taken down, the record clearly indicates that, despite cease and desist letters being written, as well as the commencement of this action, defamatory postings continued to be made. As I have found, Mr. Graham is actuated by malice. It seems likely that there will be further reoccurrences if Mr. Graham’s conduct is not enjoined by an order of this court.
[130] Having so concluded, it is not necessary for me to speculate about whether or not Dr. Zoutman will be able to collect on the award of damages that has been made. Suffice it to say that I do not have sufficient evidence upon which I could make such a finding.
[131] A permanent injunction shall, accordingly, go as requested.
Costs
[132] The plaintiff has been entirely successful. He is presumptively entitled to costs. Within 21 days of the release of this decision, the plaintiff should deliver his bill of costs together with a written submission not to exceed four pages in length. Within fourteen days of receipt of the plaintiff’s costs submission, the defendant should deliver a responding submission of not more than four pages in length, together, if he so chooses, with the bill of costs which he would have presented to the court in the event he had succeeded.
