2005 BCSC 31internet Cimolai v. Hall et al

PARAGRAPHS [7] AND [153]-[155] OF THESE REASONS MAY BE AFFECTED BY THE BAN ON PUBLICATION AS DESCRIBED AT 2004 BCSC 0153 (AS AMENDED BY CORRIGENDA) AND ATTACHED FOR EASE OF REFERENCE AS APPENDIX B

Before: The Honourable Madam Justice H. Holmes

Reasons for Judgment

Counsel for Plaintiff:	D.W. Burnett
Counsel for the Defendants:	J.G. Dives E. Stanger
Date and Place of Trial:	January 20-23, 27-29, 2004 February 2-6, 10-13, 17-20, 25-26, 2004 March 4-5, 2004 May 11-14, 17-21, 2004 June 21- 24, 2004 August 3, 10-13, 2004
	Vancouver, B.C.

TABLE OF CONTENTS

OVERVIEW 4

BACKGROUND 7

THE TORT OF DEFAMATION 26

QUALIFIED PRIVILEGE 28

Introduction 28

Was There an Occasion of Privilege? 30

Did the Communications Exceed the Occasion of
Qualified Privilege? 33

Was there Malice in the Making of the Statements or
a Lack of Honest Belief in their Truth? 40

The Legal Principles 40

Dr. Cimolai's Position 41

Documents said to Disclose Malice 42

1. December 1998 E-Mails Between Drs. Speert & Scheifele 42

2. Dr. Scheifele's September 25, 1998 Memorandum 47

3. Letter of August 30, 1994 from 4 I&ID Physicians 48

Other Proffered Indicia of Malice 49

1. Steps Taken by Mr. McKerrow 49

2. Dr. Speert's Frustration 51

3. Presentation of a Single Perspective 52

4. Failure to Provide Details of Complaints 53

5. Failure to Respond to Dr. Cimolai 54

6. The Klippert Process and Following 55

7. The Human Rights Process 57

8. Failure to Verify Complaints 58

9. Other Bases 60

Conclusion As To Alleged Malice 61

Conclusion As To Qualified Privilege 61

JUSTIFICATION 62

The Pleadings 62

The Law 62

The "Sting" of the Statements 64

The Statements 67

Document #1: Letter from Dr. Forbes to Dr. Speert
- November 22, 1994 67

Document #3: Letter from Dr. Speert to Dr. Armstrong
- April 23, 1998 69

Document #4: Memorandum from Dr. Scheifele to Dr. Armstrong
dated May 6, 1998 72

Document #5: Letter from Dr. Speert to Dr. Armstrong
- September 21, 1998 82

Document #6: Letter from Dr. Hall to Dr. Armstrong
- January 5, 1999 85

Document #7: Letter from Dr. Armstrong to Dr. Dimmick
- January 25, 1999 92

Document #8: Letter from Drs. Speert, Scheifele, Junker, Forbes,
and Dobson to Dr. Hall - February 26, 1999 95

Document #9: Letter from Mr. McKerrow and Dr. Armstrong
to Dr. Dimmick and Dr. Hall – July 12, 1999 97

#10: Alleged Oral Defamation by Mr. McKerrow and Dr. Armstrong
on or about September 29, 1999 98

Conclusion As To Justification 104

LIMITATION ACT 105

The Issues and the Parties' Positions 105

The Limitation Act Provisions 107

Does the Discoverability Principle Apply? 109

Does the "Wilful Concealment" Basis for Postponement
in s. 6(3)(e) Apply? 115

The Positions of the Parties 115

The Legislative Background 117

Pre-1975 Postponement Based on Fraudulent Concealment 121

"Wilful Concealment" in s. 6(3)(e) 122

Concealment by a Person Who Does Not Rely on
a Limitation Defence 128

Conclusion As To Limitations 133

CONCLUSION 133

OVERVIEW

[1] Dr. Cimolai, who was Head of Microbiology, Virology and Infection Control ("Microbiology") at Children's Hospital in Vancouver, B.C. from November 1994 to January 2000, says he was defamed by the Head and all of the physicians of the hospital's Division of Immunological and Infectious Diseases ("I&ID"), by the Head of Pediatrics who was responsible for I&ID, and also by two senior administrative officers, in scores of statements in nine written documents and one oral communication. He says that the statements unjustifiably criticised his professional competence and maligned his character.

[2] Dr. Cimolai's claims must fail, for several reasons which I will outline here and address in greater detail below.

[3] All of the statements enjoyed a qualified privilege, because they were appropriately directed at efforts to resolve long-standing problems in the relationship between Microbiology and I&ID. The situation was quintessentially one which the privilege seeks to protect, so that for the hospital's better functioning its staff may fairly raise points of concern without threat of civil liability for defamation. A few of the statements were made in frustration, but the frustration was understandable in the circumstances and did not amount to malice so as to defeat the privilege.

[4] Most of the impugned statements were in any event justified. Statements as to two subjects were not justified. Those alleging a failure to share bacterial samples are not pleaded to be true and were quickly corrected. They, and some untrue statements alleging inappropriate claims for authorship, would attract only limited damages if other defences did not apply, because their dissemination was restricted to people who had direct or necessary involvement in the hospital's investigation of and response to the numerous concerns raised.

Citation:	*Cimolai* *v. Hall et al.,*
	2005 BCSC 31