McLoughlin v. Kutasy, (1979) 26 N.R. 242 (SCC)

• Judge: Laskin, C.J.C., Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 20, 1979
• Jurisdiction: Canada (Federal)
• Citations: (1979), 26 N.R. 242 (SCC);97 DLR (3d) 620;[1979] 2 SCR 311;[1979] SCJ No 51 (QL);26 NR 242;8 CCLT 105;1979 CanLII 39 (SCC)

McLoughlin v. Kutasy (1979), 26 N.R. 242 (SCC)

MLB headnote and full text

McLoughlin v. Kutasy

Indexed As: McLoughlin v. Kutasy

Supreme Court of Canada

Laskin, C.J.C., Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.

March 20, 1979.

Summary:

This case arose out of a claim for damages for libel. The plaintiff applied for a job which involved work "under compressed air conditions". The employer employed the defendant doctor to examine the plaintiff to determine his fitness for the work. The doctor reported to the Ontario Department of Labour that the man was unfit for the job because 6 months earlier the plaintiff fabricated decompression illness when he was in jail (the man was admitted to the Toronto General Hospital and the defendant doctor was called). The trial judge sitting with a jury awarded the plaintiff damages of $2,600. The doctor appealed to the Ontario Court of Appeal.

The Ontario Court of Appeal allowed the appeal, set aside the trial court judgment and dismissed the action by the plaintiff against the doctor. The Ontario Court of Appeal held that the jury's finding of malice was not supported by the evidence. The plaintiff appealed to the Supreme Court of Canada.

The Supreme Court of Canada dismissed the appeal and affirmed the judgment of the Ontario Court of Appeal. The Supreme Court of Canada stated that the doctor was entitled to the protection of the defence of qualified privilege and that the jury's inference of malice in the circumstances was unreasonable.

Laskin, C.J.C., Spence and Dickson, JJ., dissenting, in the Supreme Court of Canada, would have allowed the appeal and would have restored the trial court judgment. Spence, J. stated that there was evidence upon which the jury could have found that the doctor acted with malice - See paragraphs 25 to 36.

Libel and Slander - Topic 2996

Defences - Qualified privilege - Public duty, statements to government - A doctor, acting for an industrial employer, reported to the Ontario Department of Labour that a man was unfit to work "under compressed air conditions" because he suffered from a psychopathic personality - The man sued the doctor for damages for libel - The Supreme Court of Canada held that the doctor was entitled, in the circumstances, to the protection of the defence of qualified privilege - The Supreme Court of Canada stated that a person claiming qualified privilege will be protected even though his language is violent or excessively strong so long as the person honestly believes that what he wrote was true (see paragraph 23).

Libel and Slander - Topic 4064

Malice - As a bar to qualified privilege - Inference of malice - A doctor, acting for an industrial employer, reported to the Ontario Department of Labour that a man was unfit to work "under compressed air conditions" because the man had 6 months earlier fabricated decompression illness when he was in jail (the man was admitted to the Toronto General Hospital and the defendant doctor was called) - The Supreme Court of Canada set aside a jury finding that the doctor acted with malice - The jury found malice because the doctor "was looking for a reason to reject Mr. McLoughlin because of the Toronto General Hospital incident" - The Supreme Court of Canada stated that the jury's inference of malice in such circumstances was unreasonable (see paragraph 21).

Libel and Slander - Topic 3108

Defences - Fair comment - Elements of fair comment - Public interest - The Supreme Court of Canada stated that an essential element of the defence of fair comment is that the comment must be made on a matter of public interest (see paragraph 10).

Cases Noticed:

Adam v. Ward, [1917] A.C. 309, refd to. [para. 12].

Netupsky v. Craig, [1973] S.C.R. 55, folld. [para. 17].

McCannell v. McLean, [1937] S.C.R. 341, refd to. [para. 27].

Jamieson v. Harris (1905), 35 S.C.R. 625, refd to. [para. 28].

Usher v. Smith, [1948] O.W.N. 526, refd to. [para. 28].

Statutes Noticed:

Libel and Slander Act, R.S.O. 1970, c. 243, sect. 15 [para. 26].

Judicature Act, R.S.O. 1970, c. 228, sect. 58 [para. 26].

Authors and Works Noticed:

Bullen and Leak, Precedents of Pleadings, 12th Ed., p. 1176 [para. 10].

Gatley on Libel and Slander, 7th Ed., p. 293 [para. 10].

Counsel:

Boris G. Freesman, Q.C. and M. Ben-Dat, for the appellant;

Burton Tait, for the respondent.

This appeal was heard by LASKIN, C.J.C., MARTLAND, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ, ESTEY and PRATTE, JJ. at Ottawa, Ontario on November 8 and 9, 1978.

The judgment of the Supreme Court of Canada was delivered on March 20, 1979 and the following opinions were filed:

RITCHIE, J. - see paragraphs 1 to 24.

SPENCE, J., dissenting - see paragraphs 25 to 36.

MARTLAND, PIGEON, BEETZ, ESTEY and PRATTE, JJ. concurred with RITCHIE, J.

LASKIN, C.J.C. and DICKSON, J. concurred with SPENCE, J.