Pulling Teeth and Strong Words: The Law of Defamation in Alberta
Where do the boundaries of defamation lie in Alberta? The Alberta Court of Appeal (“ABCA”) recently discussed the tort of defamation and the defenses thereto in Huff v Zuk, 2021 ABCA 60, and found that Dr. Zuk had indeed defamed Dr. Huff and could not avail himself of any of the applicable defenses.
Background
Prior to 2007, Dr. Zuk and the Alberta Dental Association and College (“ADAC”) had been locked in a dispute regarding the former’s non-compliance with the latter’s advertising standards. As a result, Dr. Zuk campaigned against the ADAC, with such campaign including ad hominem attacks against, among others, Dr. Huff, the Chair of ADAC’s Advertising Committee. The defamatory statements fell into two groups – the “Jasper Incident” and the “Abuse of Position”.[1]
The alleged “Jasper Incident” occurred at a meeting of the ADAC Council in Jasper. Dr. Zuk and Dr. Huff were members of the Council and attended the meeting. At the meeting, Dr. Zuk asked to be a member of the Advertising Committee. Dr. Huff refused, citing Dr. Zuk’s unresolved advertising issues. At the social event, Dr. Zuk purportedly “witnessed an inebriated Dr. Huff stuff party hats into the fly of Dr. Doty, then touch Dr. Doty’s crotch”.[2] Dr. Zuk reported the Jasper Incident to the ADAC President, who reached out to Dr. Doty, who denied the Jasper Incident. Dr. Zuk published statements about the Jasper Incident in both a digital newsletter distributed to Alberta dentists and his e-book, stating, among other things, that he witnessed Dr. Huff engage in the “inappropriate fondling of another board member”.[3]
The “Abuse of Position” allegations were Dr. Zuk’s published statements that the Advertising Committee was biased and provided special treatment for senior members of the ADAC, did not apply the advertising standards uniformly, and suppressed criticism of its advertising standards.[4] Dr. Huff argued the statements suggested he was carrying out his duties as Chair of the Advertising Committee in bad faith.
Based on the foregoing, Dr. Huff sought damages against Dr. Zuk for defamation.
The ABCA’s Decision
Defamation
A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (i) that the impugned words were defamatory (e.g., they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person); (ii) that the words in fact referred to the plaintiff; and (iii) that the words were published (e.g., they were communicated to at least one person other than the plaintiff).[5] If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defense in order to escape liability.
There was no doubt that Dr. Huff satisfied the second element, as Dr. Zuk had specifically named him in the materials. With respect to the first element, the Court explained that the context in which the statements were made must be kept in mind in determining whether the statements were defamatory. The Court advised that judges should avoid “the dissection of an overall inoffensive whole into incriminating fragments”, and take a more holistic, contextual approach.[6]
Citing Botiuk v Toronto Free Press Publications Ltd,[7] the ABCA defined defamatory statements as “publications which tend to lower a person in the estimation of right-thinking members of society, or to expose a person to hatred, contempt, or ridicule.”[8] This impact may be determined from the actual meaning of the words, as well as any implied meanings. The Court affirmed the trail judge’s finding that the e-book, taken as a whole, was spiteful rather than satirical. The trial judge found that Dr. Zuk’s statements in the book implied that Dr. Huff was part of a conspiracy, had ulterior or improper motives, and executed his duties in bad faith. These statements would lower Dr. Huff in the eyes of a reasonable person because they attacked his ethics, professionalism, and integrity. Therefore, the Court found that the statements were indeed defamatory.[9]
With respect to the final element, Dr. Zuk claimed that the newsletter posts were not publications. The trial judge found that the website to which the newsletters were posted had a viewership, and the defamatory comments had therefore been published.
Defenses
Of the five recognized defenses to defamation, Dr. Zuk attempted to rely on four: (i) justification (e.g., the statements were true); (ii) fair comment; (iii) qualified privilege; and (iv) responsible communication on matters of public interest. Dr. Zuk did not plead the final defense of absolute privilege. Dr. Zuk failed to avail himself of any of the defenses.
Justification allows the maker of a defamatory statement to escape liability if the statement was true.[10] Based on the evidentiary record, including the testimony of the alleged victim of the “Jasper Incident”, the Court concluded that the allegations against Dr. Huff were not true.
Fair comment clears a statement of defamation if: (i) the comment was on a matter of public interest; (ii) the comment was based on fact; (iii) the comment was recognizable as comment; (iv) the comment, objectively, could have been expressed by anyone on the proven facts; and (v) the defendant was not motivated by malice.[11] The Court found the defamatory comments were closer to a commentary, but since they were not based on fact, Dr. Zuk could not avail himself of the fair comment defense. Further, even if there had been a factual foundation, Dr. Zuk would have failed anyways as the Court found he was motivated by malice (discussed below).
Qualified privilege attaches to an occasion where the person who makes a communication had an interest or duty to make it to the person to whom it was made, and the person to whom it was made had a corresponding interest or duty to receive it.[12] The Court found that certain correspondence between Dr. Zuk and ADAC officials was protected by qualified privilege, but again found that Dr. Zuk could not rely on this defense due to his malicious motives.
Responsible communication on matters of public interest requires that: (i) the publication was on a matter of public interest; and (ii) the publication was responsible (e.g., the defendant diligently verified the allegations).[13] The Court found that Dr. Zuk made unsubstantiated allegations, which were unrelated to the advertising guidelines. Further, the Court found that the overall tone of Dr. Zuk’s comments was one of spitefulness rather than criticism. Again, Dr. Zuk’s malice rendered this defense inapplicable to his situation.
Malice, in the context of defamation law, is present where an individual publishes a statement: (i) knowing it to be false; or (ii) recklessly indifferent to its veracity; or (iii) for the dominant purpose of injuring the plaintiff because of spite or animosity; or (iv) for some other dominant purpose that was improper or indirect or, if the occasion is privileged, for a dominant purpose not related to the occasion.[14] The Court found that Dr. Zuk’s statements were motivated by malice as evidenced by his intent to embarrass Dr. Huff, and were made with reckless disregard of the truth. As such, the defences of qualified privilege, responsible communication, and fair comment were not available to Dr. Zuk.
Significance
Defamatory statements that are nevertheless defensible may still attract liability if the defendant was motivated by malice. Importantly, Dr. Zuk’s defamatory statements could have been protected by qualified privilege. However, the Court went beyond the cause of action and applicable defences and examined the declarant’s motivation as part of its analysis. Had Dr. Zuk’s defamatory statements been motivated by a concern for patient safety or the well-being of fellow dentists, then the defence of qualified privilege may not have been defeated. It was Dr. Zuk’s motivation in making these statements, rather than the statements themselves, that resulted in a successful claim of defamation.
Case Information
Huff v Zuk, 2021 ABCA 60
Docket: 1901-0294-AC
Date of Decision: February 17, 2021
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[1] Huff v Zuk, 2021 ABCA 60 at para 4 (“Huff”).
[4] Huff at paras 11-13.
[5] Grant v Torstar Corp, 2009 SCC 61 at para 28.
[6] Huff at para 38, citing DeKoter v McLeod, 2018 ABQB 217 at para 43, varied in part, 2019 ABCA 163.
[7] Botiuk v Toronto Free Press Publications Ltd, 1995 CanLII 60 (SCC).
[10] Huff at paras 42-44.
[11] Huff at paras 45-50, citing WIC Radio Ltd v Simpson, 2008 SCC 40 at para 28.
[12] Huff at paras 51-53.
[13] Huff at paras 55-60.
[14] Smith v Cross, 2009 BCCA 529.
