Duke et al. v. Puts,

• Jurisdiction: Saskatchewan
• Judge: Vancise, Sherstobitoff and Lane, JJ.A.
• Neutral Citation: 2004 SKCA 12
• Court: Court of Appeal (Saskatchewan)
• Date: 07 May 2003
• Citation: 2004 SKCA 12,(2004), 241 Sask.R. 187 (CA),[2004] 6 WWR 208,[2004] SJ No 60 (QL),241 Sask R 187,241 Sask.R. 187,(2004), 241 SaskR 187 (CA),[2004] S.J. No 60 (QL),241 SaskR 187

Duke v. Puts (2004), 241 Sask.R. 187 (CA);

    313 W.A.C. 187

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. MR.028

Marc Puts (appellant/defendant) v. Harvey Duke, Duke Pharmacy Ltd. and Broadview Pharmacy Holdco Ltd. (respondents)/plaintiffs) and College of Physicians and Surgeons of Saskatchewan and Saskatchewan Pharmaceutical Association (intervenors)

(No. 301; 2004 SKCA 12)

Indexed As: Duke et al. v. Puts

Saskatchewan Court of Appeal

Vancise, Sherstobitoff and Lane, JJ.A.

February 9, 2004.

Summary:

The plaintiffs sued the defendant for damages for defamation, wrongful interference with contractual relations and unlawful interference with economic interest.

The Saskatchewan Court of Queen's Bench, in a decision reported at 204 Sask.R. 130, allowed the action and assessed damages accordingly. The defendant appealed.

The Saskatchewan Court of Appeal affirmed the trial judge's findings except to hold that certain statements made by the defendant were covered by absolute privilege or qualified privilege. The court affirmed the damage award.

Damage Awards - Topic 632

Torts - Injury to the person - Libel and slander - Duke was a pharmacist and a prominent citizen in a small town - He owned and operated a profitable pharmacy - Puts, a doctor, made defamatory remarks against Duke ranging from fraud and forgery to improper practice - Puts caused one of Duke's employees to move away - Puts harassed another employee, causing him not to complete a contract to purchase Duke's pharmacy - Puts diverted prescriptions from an Indian reserve to another pharmacy contrary to the reserve's instructions - The pharmacy's business suffered - Duke eventually sold the pharmacy, moved away and obtained employment as a pharmacist at a lesser income - The trial judge allowed Duke and the pharmacy's action against Puts for defamation, interference with contractual relations and interference with economic interest - The trial judge awarded the pharmacy $300,000 for loss of business - The trial judge awarded Duke $100,000 for general damages and $150,000 for aggravated damages - The Saskatchewan Court of Appeal affirmed the assessment of damages - See paragraphs 98 to 103.

Damage Awards - Topic 642

Torts - Injury to the person - Loss of reputation - [See Damage Awards - Topic 632 ].

Damage Awards - Topic 695

Torts - Injury to economic or business relations - General - [See Damage Awards - Topic 632 ].

Damage Awards - Topic 2406.1

Aggravated damages - Libel and slander - [See Damage Awards - Topic 632 ].

Damages - Topic 907

Aggravation - General - Aggravated damages - Libel and slander - [See Damage Awards - Topic 632 ].

Libel and Slander - Topic 2928

Defences - Absolute privilege - Statements made in the course of judicial or legal proceedings - Puts, a doctor, filed a complaint with the College of Physicians and Surgeons against another doctor (Jones) - The complaint included statements against a pharmacist (Duke), ranging from fraud and forgery to improper practice - The College forwarded the complaint to the Saskatchewan Pharmaceutical Association - Duke sued Puts, alleging, inter alia, defamation - The Saskatchewan Court of Appeal agreed that the letter of complaint was subject to absolute privilege to the extent that there was some nexus or connection to the proceedings - This involved a determination of whether the statements were made with reference to the inquiry of Jones - Statements that were gratuitous and irrelevant and not made with reference to the inquiry were not privileged - This required a wide and comprehensive application to the statement "made with reference to the inquiry" - It extended to what a witness could reasonably testify to with reference to the inquiry - See paragraphs 49 to 62.

Libel and Slander - Topic 2928

Defences - Absolute privilege - Statements made in the course of judicial or legal proceedings - Puts, a doctor, filed a complaint with the College of Physicians and Surgeons against another doctor (Jones) - The complaint included statements against a pharmacist (Duke), ranging from fraud and forgery to improper practice - The College forwarded the complaint to the Saskatchewan Pharmaceutical Association - Duke sued Puts, alleging, inter alia, defamation - The Saskatchewan Court of Appeal held that statements made to the investigating committee of the College of Physicians and Surgeons and the Pharmaceutical Association were protected by absolute privilege because they were made in the context of a quasi-judicial inquiry - Puts' claim of qualified privilege was defeated by malice - See paragraphs 63 to 65 and 94 to 97.

Libel and Slander - Topic 2988

Defences - Qualified privilege - Loss of - Lack of honest belief or existence of malice - [See second Libel and Slander - Topic 2928 ].

Libel and Slander - Topic 4428

Damages - General damages - Measure of - Aggravated damages - [See Damage Awards - Topic 632 ].

Torts - Topic 5023

Interference with economic relations - Elements of liability - Use of unlawful means - A doctor (Puts) made defamatory remarks against a pharmacist (Duke) ranging from fraud and forgery to improper practice - Puts caused one of Duke's employees to move away - Puts harassed another employee, causing him not to complete a contract to purchase Duke's pharmacy - Puts diverted prescriptions from an Indian reserve to another pharmacy contrary to the directions of the reserve, the Pharmaceutical Association and the College of Physicians and Surgeons - The pharmacy's business suffered - Duke eventually sold the pharmacy, moved away and obtained employment as a pharmacist at a lesser income - The Saskatchewan Court of Appeal affirmed that Puts was liable for unlawful interference with Duke's economic interests - Duke, having established defamation and interference with contractual relations, had established the requirement of unlawful means - The diversion of prescriptions also constituted unlawful means - Unlawful means were not limited to matters prohibited by law or statute - See paragraphs 91 to 93.

Torts - Topic 5210

Interference with economic relations - Contracts - Interference with contractual rights - A doctor (Puts) made defamatory remarks against a pharmacist (Duke) ranging from fraud and forgery to improper practice - Puts caused one of Duke's employees (Rowein) to move away - Puts harassed Olafson, causing him not to complete a contract to purchase Duke's pharmacy - The Saskatchewan Court of Appeal affirmed that Putts was liable for interference with contractual relations - The court rejected Puts' argument that there could be no interference where there had been no written contract of sale - This was not a case of a qualified acceptance - The parties had agreed on the essential ingredients to be incorporated into the contract and considered themselves bound by the agreement - Puts knew about the contractual relationship - Olafson's and Rowein's abandonment of their relationship was a necessary and foreseeable consequence of Puts' statements - See paragraphs 67 to 82.

Cases Noticed:

Botiuk v. Bardyn et al., [1995] 3 S.C.R. 3; 186 N.R. 1; 85 O.A.C. 81, refd to. [para. 44, footnote 34].

M.J.M. v. D.J.M. (2000), 189 Sask.R. 303; 216 W.A.C. 303; 187 D.L.R.(4th) 473 (C.A.), refd to. [para. 51, footnote 42].

Lilley v. Roney (1892), 61 L.J.Q.B. 727, refd to. [para. 54, footnote 44].

Addis v. Crocker, [1960] 2 All E.R. 629 (C.A.), refd to. [para. 54, footnote 45].

Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson, [1892] 1 Q.B. 431 (C.A.), refd to. [para. 55, footnote 46].

Munster v. Lamb (1883), 11 Q.B.D. 588, refd to. [para. 56, footnote 48].

Taylor et al. v. Director of the Serious Fraud Office et al., [1998] 4 All E.R. 801; 233 N.R. 172 (H.L.), refd to. [para. 56, footnote 50].

Seaman v. Netherclift (1876), 2 C.P.D. 53, refd to. [para. 57, footnote 53].

Henderson v. Broomhead (1859), 157 E.R. 964, refd to. [para. 57].

More v. Weaver, [1928] 2 K.B. 520, refd to. [para. 57, footnote 64].

College of Dental Surgeons (Sask.) v. Thorvaldson - see Thorvaldson et al. v. Saskatchewan et al.

Thorvaldson et al. v. Saskatchewan et al., [1991] 5 W.W.R. 436; 93 Sask.R. 22; 4 W.A.C. 22 (C.A.), refd to. [para. 69, footnote 66].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al. (1998), 172 Sask.R. 40; 185 W.A.C. 40 (C.A.), affd. [2002] 1 S.C.R. 156; 280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22, refd to. [para. 70, footnote 68].

Torquay Hotel Co. v. Cousins, [1969] 1 All E.R. 522; [1969] 2 Ch. 106 (C.A.), refd to. [para. 71, footnote 70].

Royal Bank of Canada v. Wilton, [1995] 6 W.W.R. 285; 165 A.R. 261; 89 W.A.C. 261 (C.A.), refd to. [para. 71, footnote 71].

Calvan Consolidated Oil & Gas Co. v. Manning, [1959] S.C.R. 253, refd to. [para. 73, footnote 75].

Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 53 O.A.C. 314; 79 D.L.R.(4th) 97 (C.A.), refd to. [para. 73, footnote 77].

Acrow Ltd. v. Rex Chainbelt Inc., [1971] 1 W.L.R. 1676 (C.A.), refd to. [para. 84, footnote 86].

Spicer v. Volkswagen Canada Ltd. (1978), 28 N.S.R.(2d) 496; 43 A.P.R. 496; 91 D.L.R.(3d) 42 (C.A.), refd to. [para. 84, footnote 88].

Reach M.D. Inc. v. Pharmaceutical Manufacturers Association of Canada et al. (2003), 172 O.A.C. 202; 227 D.L.R.(4th) 458 (C.A.), refd to. [para. 87, footnote 92].

Jerome v. Anderson et al. (1964), 44 D.L.R.(2d) 516 (S.C.C.), refd to. [para. 94, footnote 99].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 95, footnote 103].

Arnott v. College of Physicians and Surgeons (Sask.), [1954] S.C.R. 538, refd to. [para. 96, footnote 105].

Bunce v. Flick et al., [1991] 5 W.W.R. 623; 93 Sask.R. 53; 4 W.A.C. 53 (C.A.), refd to. [para. 99, footnote 107].

Walker and Walker Brothers Quarries Ltd. v. CFTO Ltd. et al. (1987), 19 O.A.C. 10; 37 D.L.R.(4th) 224 (C.A.), refd to. [para. 101, footnote 112].

Authors and Works Noticed:

Brown, Raymond E., The Law of Defamation in Canada (1987), vol. 1, pp. 466, 467 [para. 94, footnote 99].

Brown, Raymond E., The Law of Defamation in Canada (2nd Ed.) (1999) (Looseleaf), pp. 12-38 to 12-41 [para. 56, footnote 51].

Brown, Raymond E., The Law of Defamation in Canada (2nd Ed. 1994), pp. 595 [para. 57, footnote 57]; 608, 609 [para. 57, footnote 60]; 655, fn. 622 [para. 57, footnote 61]; fn. 213 [para. 57, footnote 58].

Gatley on Libel and Slander (1981), p. 168, fn. 80 [para. 57, footnote 57].

Fleming, John G., The Law of Torts (1998), p. 769 [para. 88, footnote 94].

Fleming, John G., The Law of Torts (7th Ed. 1987), p. 535 [para. 56, footnote 52].

Heuston, R.F.V., and Chambers, R.S., Salmond and Heuston on the Law of Torts (18th Ed. 1981), p. 152 [para. 57, footnotes 62, 63].

Osborne, Philip, The Law of Torts (2000), p. 293 [para. 83, footnote 83].

Rainaldi, Linda A., Remedies in Tort (1987) (Looseleaf), pp. 24-46 [para. 89, footnote 95]; 24-47, para. 52 [para. 91, footnote 97]; 24-47, para. 53 [para. 83, footnote 85].

Williams, J.S., The Law of Libel and Slander in Canada (2nd Ed. 1988), pp. 71, 72 [para. 94, footnote 99].

Counsel:

Reynold Robertson and Tiffany Paulsen, for the appellant;

Roger LePage and Peter Bergbusch, for the respondent;

This appeal was heard on May 7, 2003, by Vancise, Sherstobitoff and Lane, JJ.A., of the Saskatchewan Court of Appeal. Vancise, J.A., delivered the following judgment for the court on February 9, 2004.