Appeal court upholds rejection of claim over statements on lawyer’s web site

The Ontario Court of Appeal has upheld a decision to strike a defamation claim against a well-known personal injury lawyer in London, Ont., over statements about a case against a local obstetrician and gynecologist.

The case, Frank v. Legate, dealt with six statements posted on posted on the web site of lawyer Barbara Legate’s firm, Legate & Associates LLP, as well as a seventh statement on the CTV news web site, about civil and disciplinary action against Dr. Cathy Frank.

“If you think you or your baby may have a claim against Dr. Frank, please contact Legate & Associates,” reads one of the statements.

Another statement noted more than 100 former patients of Frank had contacted the firm and pointed out it had, at the time, issued 58 claims in Ontario Superior Court. Two of the statements made reference to “compromised babies” and the fact “children have been born with disabilities that they wouldn’t otherwise have had.”

Besides the defamation claim against Legate, her firm, and two other lawyers who represented the former patients, Frank also sued for malicious prosecution, champerty and maintenance, and intentional interference with economic relations and infliction of mental distress. She claimed $5 million in damages, including $500,000 as a punitive award.

Last August, Superior Court Justice Thomas Carey struck Frank’s claim, finding it didn’t disclose a reasonable cause of action. Frank appealed, arguing, among other things, that a court should only strike a defamation claim on a Rule 21 motion where the statements are clearly not capable of a defamatory meaning. The statements at issue, she argued, don’t fall within the clearest of cases.

But on Friday, the appeal court upheld Carey’s decision. Five of the statements, wrote Justice William Hourigan on behalf of a three-judge panel, “were purely informational and did not comment in any way on the merits of the ongoing litigation.”

The comments, he added, were “neutral in their description of the appellant. References to the numerous women who have come forward are supported by the appellant’s own pleading, which indicates that 58 actions have been commenced against her. No reasonable person, who is taken to understand the difference between allegations and proof of guilt, could interpret these statements in the manner suggested by the appellant (i.e. as suggestive of her being negligent and/or incompetent as a physician).”

In his findings, Hourigan also noted a bigger issue was at stake: “The appellant effectively seeks to prohibit law firms from describing allegations that form the basis of potential or ongoing claims. If this type of statement amounted to defamation, no law firm in the province could ever solicit clients because they could not provide the necessary information for people to determine if they should consult a lawyer about a potential claim. The class action process, for example, would be effectively eviscerated if lawyers were restricted in their communications in the manner urged upon us by the appellant.”

Paul Michell, the litigator at Lax O'Sullivan Scott Lisus LLP who acted for Legate and the other defendants, says he could find no other Canadian cases that involved similar circumstances and allegations.

"The Court of Appeal was concerned that, if accepted, it would severely restrict the ability of firms to communicate with potential clients," he says.

As a result, the appeal court dismissed Frank’s appeal and awarded the defendants $12,500 in costs.


Update 4:30 pm: Comments from Paul Michell added.

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