Tsatsi v College of Physicians and Surgeons of Saskatchewan, 2018 SKCA 53, held that a physician’s defamation claim against his regulator, his employer, and the government, should be dismissed as a result of the defences of truth and qualified privilege.
Dr. Tsatsi practiced as a radiologist in Saskatchewan. During a review by the College of Physicians and Surgeons of Saskatchewan (the “College”), concerns arose regarding his competency. Two assessments by competency committees appointed by the College each reported that Dr. Tsatsi failed to demonstrate the competence required to practice independently. The College notified the Ministry of Health of its concerns. The College, the Ministry, and the Sunrise Health Region, Dr. Tsatsi’s employer, decided to conduct a retrospective review of all diagnostic imaging studies performed by Dr. Tsatsi and advise the public that the review was occurring. The parties advised the public of their concerns with Dr. Tsatsi, published a toll-free number to provide information to Dr. Tsatsi’s patients and the public, and stated that Dr. Tsatsi may have put patients at risk of harm as a result of his interpretation of their diagnostic imaging.
Dr. Tsatsi was unhappy with these communications to the public and commenced a defamation action against the College, the Ministry of Health, and his employer. The defamation action was initially dismissed by the Court of Queen’s Bench. Dr. Tsatsi appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal. It found that the Court of Queen’s Bench did not err in finding that the alleged defamatory communications reflected the conclusions of the second College competency committee and were essentially true. As a result, the truth of the statements acted as a complete defence to the claim of defamation. The Court of Appeal also found it could not take issue with the finding below that the defendants could rely on the defence of qualified privilege. The Court of Appeal recognized the College, the Ministry, and the Sunrise Health Region all had duties to the public and mandates to ensure patient care. The Court found that the parties were aware of potential impacts on Dr. Tsatsi, and that the decision to name him had been carefully thought out and was reasonable. It concluded that identifying Dr. Tsatsi was neither excessive nor indicative of malice.
Comment: This case affirms that professional regulators, who have a mandate to protect the public, are able to fulfil this mandate through communications to the public without being found liable for defamation. It also provides guidance as to the precautions that should be taken by a regulator prior to publishing information about a member of the profession which may be unflattering to the individual. These precautions include:
- taking steps, such as performing an impartial review, to confirm the truthfulness and accuracy of the information;
- assessing the impact of the publication on the member; and
- weighing the impact of publication on the member against other factors such as the risk to the public and other members of the profession.
The Court of Appeal’s comments demonstrate that it is important regulators be alive to the reasonableness of any publication before it occurs.
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