Arnott v. College of Physicians

Arnott v. College of Physicians
Collection
Supreme Court Judgments
Date
1954-10-05
Report
[1954] SCR 538
Judges
Kerwin, Patrick; Kellock, Roy Lindsay; Estey, James Wilfred; Locke, Charles Holland; Cartwright, John Robert
On appeal from
Saskatchewan
Subjects
Torts
Decision Content
Supreme Court of Canada
Arnott v. College of Physicians, [1954] S.C.R. 538
Date: 1954-10-05
David H. Arnott (Plaintiff) Appellant;
and
The College of Physicians and Surgeons of The Province of Saskatchewan (Defendant) Respondent.
1954: June 14, 15, 16, 17; 1954: October 5.
Present: Kerwin C.J. and Kellock, Estey, Locke and Cartwright JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Libel and Slander—Defamatory statement in Journal of Medical Society reporting minutes of meeting—Certain treatment referred to as quackery—Plaintiff closely identified with treatment—Plaintiff not mentioned by name—No malice found—Defence of qualified privilege —Whether publication proved—Whether plaintiff identified with innuendo.
The appellant, who practised medicine in Ontario, but not actively since 1940, and who was the licensor and president of a company having the exclusive right to manufacture and distribute in Canada the basic substance entering into the Koch treatment for cancer, sued the respondent for a libel allegedly published in its Medical Quarterly of December, 1951. The article in question referred disparagingly to the medical practitioners using the Koch treatment and stated, inter alia, "We know the Koch treatment is quackery … ".
The jury found that the words were defamatory of the appellant but had not been published maliciously. The trial judge held that the publication had not been made on a privileged occasion and maintained the action. The Court of Appeal held that the occasion had been privileged and dismissed the action.
Held: The appeal should be dismissed.
Per Kerwin C.J. and Estey J.: Entertaining honestly and in good faith as it did, a conviction that as a remedy for cancer the Koch treatment was without merit and possessing knowledge that the treatment was being prescribed by some of its members to the citizens of the Province, the respondent owed a duty to make that fact known, not only to its own members, but also to the public in the Province. The publication was, therefore, made upon a privileged occasion and in the absence of malice, the appellant could not succeed, even if, as found by the jury, the words were defamatory. The language used was at the most an exaggeration or an extreme statement but was not unconnected with or irrelevant to the performance of the duty which gave rise to the privilege.
Per Kellock J.: The appellant had no cause of action in respect of his relationship to the treatment as a person qualified to practise medicine in Ontario, since the practitioners referred to in the article could include only the practitioners of Saskatchewan and could not be taken to include him. Even if it could be said that the article referred to all the practitioners in Canada, this also would not help him as by his own admission he had not practised since 1940, and, therefore, the words could not lead any person acquainted with him to believe that they referred to him, Furthermore, as a licensee of the right to "make, use and vend" the substance involved in the treatment or as a licensor of those rights, the appellant was not within the situation contemplated by the article of a practitioner who prescribes the Koch treatment for his patients.
Per Locke J.: Since the article contained no reference to the appellant and since there was nothing in the evidence of the witnesses to whom publication was proven to suggest that they understood it as reflecting upon him in any way, there was no evidence of publication (Capital and Counties Bank v. Henty (1882) 7 A.C. 741), and the action should have been withdrawn from the jury at the conclusion of the appellant's evidence.
Per Cartwright J.: The report was published on an occasion of qualified privilege and the words used did not go beyond what was reasonably germane to the performance of the duty giving rise to the privilege. That protection extended to the publication which was made to persons outside the college, as these persons had in receiving the publication an "interest" in the sense in which that word was used m Harrison v. Bush (1855) 5 E. & B. 344. Consequently, the finding of the jury that the words had not been published maliciously was fatal to the action.
APPEAL from the judgement of the Court of Appeal for Saskatchewan 1, reversing the judgment at trial in a libel action.
R. N. Starr Q.C. and W. Hall for the appellant.
G. H. Yule Q.C. and G. L. Robertson for the respondent.
The judgment of Kerwin C. J. and Estey J. was delivered by:—
Estey J.:—The appellant, a licensed medical practitioner in the Province of Ontario, where he practised in London until 1940, alleges that the respondent's published report of its annual meeting at Moose Jaw in September, 1951, in so far as it dealt with the Koch treatment for cancer, constituted a libel with respect to himself as a practitioner. The publication was made by respondent in its Medical Quarterly, Vol. 15, No. 3, December, 1951, and read as follows:
Moved by Dr. F. H. Wigmore, seconded by Dr. F. E. Werthenbach, that the following matters be proceeded with
1. Amendment to Cancer Control Act to include a paragraph for control of irregular practitioners.
2. Publicity of the attitude of the organised medical profession towards the Koch treatment.
CARRIED. Discussion
No body more suitable than the Council of the College to stop these medical practitioners from using the Koch treatment.
Registrar: The Medical Profession Act states that no doctor can have his license taken away because he holds to one specific treatment. Correspondence has been had with the Deputy Minister of the Department of National Health and Welfare and the Food and Drugs' Department but nothing satisfactory has evolved. We know the Koch treatment is quackery but the Council cannot remove a license unless a patient voluntarily gives evidence of promise of cure by the doctor and none of these patients will do that. Only solution is to get the Department of Public Health and College to make a joint statement condemning it.
The problem is one of education with both the doctors and the people.
Problem is much broader than just prosecuting one man. Across the whole country it is a big problem. We have to make some statement and I agree it should be in conjunction with the Department of Public Health, in regard to the Koch treatment.
Moved by Dr. F. H. Wigmore and seconded by Dr. N. L. Brown, THAT the cancer Committee Report be adopted as amended—CARRIED.
The jury found the words were defamatory of the appellant, but not published maliciously. The learned Chief Justice presiding at trial held that this publication was not made upon a privileged occasion and directed judgment for the appellant. The learned judges in the Court of Appeal 2 were unanimously of the opinion that the occasion was privileged. They, therefore, reversed the judgment at trial and directed that the action be dismissed.
The College of Physicians and Surgeons in Saskatchewan has been an incorporated body since 1888 (N.W.T. Ordinance 1888, No. 5) and its powers and duties at all times material hereto are set forth in c. 210, R.S.S. 1940. The respondent, under the foregoing statute, is required to register and license as physicians and surgeons all persons who produce the qualifications called for under s. 29. It also gives to the respondent disciplinary powers with respect to those who are so registered and in s. 40 provides:
The council may make, alter or amend and repeal rules and regulations for the well being and discipline of the council, the conduct of its affairs, the promotion of medical and surgical knowledge and the disposition of the funds of the council, provided such rules and regulations are not repugnant to this Act.
The respondent in 1926 set up, and has since maintained, a Cancer Committee, as Doctor Ferguson stated, "to discuss the existence and treatment of cancer, and the general position of the people of Saskatchewan in respect to cancer." In 1951 the Cancer Committee reported to the annual meeting of the respondent in the City of Moose Jaw and the disposition thereof, as published by the College, is quoted above.
I respectfully agree with the judgment of the Court of Appeal that this publication was made upon an occasion appropriately described as one of qualified privilege.
The defence of qualified privilege is fully discussed in Halls v. Mitchell 3, where, after referring to certain of the English authorities, Sir Lyman Duff, speaking for the majority of this Court, stated:
The defamatory statement, therefore, is only protected when it is fairly warranted by some reasonable occasion or exigency, and when it is fairly made in discharge of some public or private duty, or in the conduct of the defendant's own affairs in matters in which his interests are concerned. The privilege rests not upon the interests of the persons entitled to invoke it, but upon the general interests of society, and protects only communications "fairly made" (the italics are those of Parke B. himself) in the legitimate defence of a person's own interests, or plainly made under a sense of duty, such as would be recognized by "people of ordinary intelligence and moral principles."
Lord Lindley, speaking with respect to the duty, stated as follows:
I take moral or social duty to mean a duty recognized by English people of ordinary intelligence and moral principle, but, at the same time, not a duty enforceable by legal proceedings, whether civil or criminal. Stewart v. Bell 4
It is, therefore, essential to determine whether this publication by the respondent was "fairly warranted by some reasonable occasion or exigency" and "fairly made in discharge of some public or private duty." This can only be determined upon examination of the facts leading up to and those surrounding the publication.
As stated by Lord Buckmaster: "the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact." London Association for Protection of Trade v. Greenlands, Limited 5. The respondent is a statutory body charged with registration, supervision and discipline of the practice of physicians and surgeons in Saskatchewan and empowered to undertake "the promotion of medical and surgical knowledge." I respectfully agree with the statement of Chief Justice Martin that the College so constituted "does not exist merely for the protection of its members in their professional capacity, but also for the purpose of safeguarding the health and welfare of the people of the Province." It is at least, as he describes it, "a quasi public institution." See to the same effect the language of Mr. Justice Hyndman in Palmer School and Infirmary of Chiropractic v. City of Edmonton 6.
Cancer, over a. long period of time, has been a dreaded and prevalent malady. Its cause, as well as its nature, character and treatment, has been the subject of constant scientific investigation by medical associations, governments and philanthropic organizations. In Saskatchewan the Government, prior to the events with which we are here concerned, set up in the Province a cancer commission which maintains two cancer clinics, one in Regina and the other in Saskatoon, all to the end and purpose that the public of that Province may have the benefit of the best diagnosis and treatment of cancer that science has so far made available. The creation of a cancer committee by respondent would be well within the exercise of its powers for "the promotion of medical and surgical knowledge" and the evidence indicates that this committee works in close co-operation with the Cancer Commission.
The members of the Cancer Committee, after a study of the Koch treatment, entertained a conviction that as a remedy for cancer it was without merit. Their report to this effect was affirmed at respondent's annual meeting, after an open discussion in which no member spoke in favour of the treatment. The report, as published in the quarterly, was mailed to respondent's members, similar bodies in other provinces, as well as libraries and persons or organizations particularly interested in the promotion of public health. A citizen who called at respondent's office received, upon his request, a copy of the quarterly. In considering the scope and extent of the publication that might be justified, it is important to observe that the respondent knew, prior to this publication, that a few of its members were recommending or prescribing this treatment. In. fact, at least one member of the public, having heard of it, wrote to one of respondent's members asking that the treatment be forwarded c.o.d. Under such circumstances it is impossible to even estimate how many citizens may have heard of the Koch treatment throughout Saskatchewan. No evidence was adduced relative to what representations were made with respect to its efficacy. One, however, can readily appreciate what might be accomplished among many people with respect to a remedy of such long standing and what it has allegedly achieved.
A statutory body such as the respondent, in possession of knowledge that a few of its members are prescribing such a treatment, owes a duty to make that fact known, not only to its own members, but to the public in the province in which it functions, who are led to believe it has merit and are called upon to pay therefor. In bringing this information to the public it is discharging a duty it owes to the people and serving "the common convenience and welfare of society." In this connection it is important to observe the concluding words in the statement of Baron Parke already quoted that "the law has not restricted the right to make" such statements "within any narrow limits."
The learned Chief Justice, who presided at the trial, stated the respondent "took no reasonable steps to verify the charges made in the libel" and that in his opinion "in stating that the Koch treatment was quackery and that it knew it was quackery, it was wholly wrong in both respects." The learned Chief Justice accepted these as factors leading to the conclusion that the occasion was not one of qualified privilege. Respondent's President deposed that his knowledge of the treatment was confined to reading medical texts and journals of recognized medical associations, and that he had found nothing favourable except that which "came from the instigators of the Koch treatment." The record discloses that the knowledge possessed by the personnel of the Cancer Committee, as well as that of the other respondent members, was based upon a reading of similar texts and of official publications such as that of the Gillanders Commission. The latter was presided over by the late Mr. Justice Gillanders of the Court of Appeal of Ontario, but had as its members physicians and surgeons. The report of this commission was published in Vol. 47 of the Canadian Medical Association Journal in 1942.
The members of the College, and particularly those of the Cancer Committee, with their knowledge and experience, would appear to be competent to read and study such publications and to form their own opinion with respect to the efficacy of the Koch treatment. Such publications constitute the recognized media through which the members of the profession are kept informed of what is being accomplished by research and study. In this particular case it is doubtful if any further information could have been obtained, unless the College was prepared to accept the type of experiment and investigation that the appellant would permit. In this connection it is pertinent to observe the history of the Koch treatment and the appellant's association therewith, so far as that is disclosed in the record of this litigation.
The treatment, as the appellant stated, consists of an injection by a hypodermic needle of a substance called glyoxylide and a prescribed course of diet. He described glyoxylide as "an aqueous solution of a chemical compound discovered by Dr. William F. Koch, in a highly diluted state. It is not a serum,—a chemical in solution." The record discloses that Dr. Koch had a great deal of trouble with the authorities in the United States and, as the appellant deposed, he has been, since 1948, a resident of Brazil because "he was driven out of the United States, he just got tired being pestered by the federal authorities."
Appellant heard of the Koch treatment in November, 1928, and that month visited Dr. Koch at Detroit. He thereafter continued to visit him once a month, for a period of from one to four days, for at least eight months. As a result of these visits and his association with Dr. Koch at that time he states:
"I came to the conclusion that undoubtedly he had cured cases of cancer, the diagnosis of which had been made in a proper manner and that he was influencing the available cases that came during that eight months that I was frequently at his clinic. Pardon me—influencing many.
"Q. Do you believe in the efficacy of the Koch treatment? A. I do.
"Q. Does it work in every case? A. No. sir. "Q. Are you entitled to expect anything when you administer the Koch treatment? A. Yes sir.
"Q. What? A. That we can honourably as family physicians bring to a patient—believing that we will bring relief generally and an absolute cure sometimes."
In his subsequent evidence he pointed out that relief of pain would be realized in 90 per cent of the cases treated and that 50 per cent or more of patients suffering from brain cancer "have been rapidly relieved and permanently cured. Cancer in other parts of the body, perhaps one case in five."
In 1936 appellant and Koch took steps to have William F. Koch Laboratories of Canada Limited incorporated, not, as appellant explained, to distribute Koch products, but "to provide an embracing vehicle to turn this over to some strong organization worthy of the responsibility, if events so transpired—to take it away from me as a person dealing with it."
Dr. Koch patented his discovery in Canada in 1939. Then on April 11, 1944, by agreement in writing between Dr. Koch and appellant, it was agreed
1. Koch hereby licenses and empowers Arnott to manufacture Glyoxylide, the subject of a Patent of Invention filed in the Patent Office of Canada as No. 430891 together with any improvement or improvements, re-issue or re-issues thereof including the use of all methods of manufacture of the same subject to the conditions hereinafter named.
2. The term of this license shall be for nine years from the date hereof and such right and license shall be exclusive to make, use and vend the said invention within the Dominion of Canada.
3. Arnott covenants and agrees with Koch that he will not divulge to any third party the process of manufacture in any of its details.
4. This license shall be personal to the said Arnott and immediately upon his death or disability this license shall cease to have any effect and shall thereafter be null.
5. This license may be assigned by Arnott upon obtaining the written consent of Koch.
It was explained that the agreement of April 11, 1944, was made because Dr. Koch was having difficulty with the authorities in the United States. On April 28, 1944, appellant entered into an agreement with William F. Koch Laboratories of Canada Limited which provided in part:
1. The Licensor hereby licenses and empowers the Licensee to manufacture Glyoxylide, the subject of Canadian Patent No. 430891, subject to the conditions hereinafter expressed. 2. The Licensee covenants and agrees with the Licensor that it will not manufacture Glyoxylide except under the exclusive and personal supervision of the Licensor and that it will not require the Licensor to disclose the method or methods of manufacture of the same.
Since the date of that agreement, April 28, 1944, that company has exclusively manufactured and distributed the Koch treatment in Canada. It is not sold through drug stores. When appellant was asked if a doctor in Saskatchewan, who wrote to the company, would receive the glyoxylide he replied:
In the interests of truth and his patients, I think he should be instructed as to the best way of getting good results and introduced to the use of this therapy; he should write to me and I would tell him whether or not in my opinion it might be used with success in helping that particular person. If a doctor has used it successfully two or three times he has a free hand.
In 1928 appellant interviewed the then Minister of Health in Ontario, Honourable Forbes Godfrey, who was sufficiently impressed at the interview to join with appellant in a visit to Dr. Koch at Detroit. Dr. Godfrey "took home supplies and used it in his own practice and three months later at his request I accompanied him to see Dr. Koch again and after that he made several visits, and after Dr. Godfrey left the service as Minister of Health I presented this knowledge I had gained of the Koch treatment to every Minister of Health of Ontario except the present incumbent." The appellant does not suggest that either Dr. Godfrey or any subsequent Minister of Health was sufficiently impressed to lend his assistance to the introduction of the treatment in the Province of Ontario.
In the spring of 1936 Dr. Koch published a booklet entitled "Natural Immunity, Its Curative Chemistry in Neoplasia, Allergy, Infection." Appellant gave copies of this book to the directors of the London Academy of Medicine and requested that a general meeting of the members might be called "that I might relate my experience of the last nine years, and receive their advice as to how I should conduct myself. That meeting was refused me."
Appellant has written articles and requested the publication thereof in the Canadian Medical Association Journal, but these have never been published. In 1936, when the Canadian Medical Association met in Victoria, appellant requested that he might appear and be heard before its Cancer Committee. He was informed that if he went he would not be heard.
The appellant apparently adduced the foregoing evidence to suggest that he had been unfairly treated. Why these bodies adopted their respective courses is not disclosed, but it is difficult to conclude, without hearing the evidence on both sides, that professional bodies would assume such an attitude without cause. More particularly is this so because of 'the appellant's attitude toward the Gillanders Commission and the requests made by the Minister of Health in Saskatchewan.
The Government of Ontario, in 1938, appointed a commission presided over by the late Mr. Justice J. G. Gillander's to investigate cancer remedies. The report of that commission indicates that the appellant first appeared before it with his counsel on November 30, 1938. He then sought to enter into an agreement with the commission under which he would co-operate to satisfy the commission that the Koch treatment had a definite therapeutic value in 'the 'treatment of cancer and, in the event of such approval being given by the said commisison, he would "use his best efforts to have the formula and methods of treatment revealed." As under this agreement neither the commission nor its experts would foe permitted to use the substance for its own investigation, nor would it have the formula, the commission declined to enter into an agreement. Later the appellant approached the commission and desired that certain clinical evidence might be given. The commission acceded to this request, but indicated that it would then require "to have the substance investigated to its 'Satisfaction both on the clinical and laboratory side." The commission held a meeting in London in 1939 and there took the evidence which the appellant offered. Later the appellant and his counsel attended before the commission at Toronto and presented further evidence. Still later one of the commissioners, Dr. Valin, arranged for the appellant to treat ten cases in Ottawa, which he did. The following statements in the commission's report are relevant:
Although it is said that Glyoxylide has been used extensively in the United States, inquiry failed to elicit any report made there by any recognized authority of assistance to the Commission.
. . . . . . . . . . . . . . . .
As intimated, it was pointed out to the sponsor early in the proceedings that the Commission desired both clinical and laboratory investigations. The Commission has repeatedly asked for some co-operation in this respect, and although Dr. Arnott has from time to time voiced his desire to co-operate, the Commission has never been able to obtain a sample of the substance in question or to observe or learn its exact method of preparation.
. . . . . . . . . . . . . . . .
A careful review of all the evidence presented at this date, fails utterly, in the opinion of the Commission, to support the claim on behalf of the Koch treatment that it is either a remedy or cure for cancer.
That such an attitude persisted on his part, and I do not overlook nor discount, so far as the record discloses, what took place in British Columbia, is established by his disposition of the request made by the Hon. Mr. Bentley, Minister of Health in Saskatchewan.
In 1947 Mr. Douglas, Premier of Saskatchewan and who was then Minister of Health, had an interview with appellant in Regina and, while the latter describes the interview as "courteous" and providing "adequate time" for him to present his "research activities and other experiences in connection with the Koch therapy as they then stood," the evidence does not indicate what, if anything, resulted from this interview.
The appellant deposes that he was again in Regina in 1950 when he met Hon. Mr. Bentley, Minister of Health, and Drs. Hames, McKerracher and Mott. The record does not disclose that anything resulted from that meeting.
In the summer of 1951 Hon. Mr. Bentley was requested by a panel group at a convention to make inquiries relative to the Koch treatment. As a consequence he wrote a letter to the appellant which reads as follows:
As you are aware, there is some interest in the Koch treatment in this province and I have been requested by the interested parties to try to arrange to obtain sufficient quantities of the product to enable the University of Saskatchewan to make an analysis of the product for the purpose of determining the nature and results to humans and animals when treated with the Koch therapy treatment. This letter is a formal request to you to provide us with sufficient quantities of this product to enable us to carry out this project.
I trust I will hear from you in the very near future in this regard.
On August 29, 1951, appellant replied, setting forth his interview of November 29 with Premier Douglas and others and stating that "any effort to demonstrate the Glyoxylide in Saskatchewan must be based upon the recognition of the work carried out in British Columbia by the Department of Agriculture during 1944, 1945, 1946 and 1947." He then stated that Hon. Mr. Bentley's letter "ignores my position in regard to the official investigation and favourable finding recorded in British Columbia" and listed five points that he required Mr. Bentley to deal with before he could accept or refuse his "official demand." The letter concludes:
Therefore, in the activities in which you invite me to engage with undisclosed members of the services provided by the University of Saskatchewan, do you expect me to turn over any part of your program to the medical men responsible for the misleading and libelous article reprinted in the Medical Quarterly referred to above?
The investigation in British Columbia was by the Department of Agriculture, when it was apparently found that this treatment had merit in respect to the treatment of animals. While that may have some relevance and would no doubt be taken into consideration in any investigation, there is no basis in this record for the conclusion that it ought in any way to curtail, limit or restrict the studied examination, thereof in relation to cancer in the human body.
The attitude of the appellant is further illustrated by his replies when his attention was directed to a paragraph in the Code of Ethics of the Canadian Medical Association, which directed the attention of physicians to the fact that there were "well recognised methods by which physicians can place their work and discoveries before those who are fitted by education and experience to judge them." He replied: "There is no such person, no such organization, to pass upon cancer treatments in Canada … ."
Q. You are referring to the Koch treatment? A. Yes, there is nobody qualified in Canada. There is nobody in Canada authorised to examine and pass upon such. There is no such committee in Saskatchewan to do it.
Q. What about the rest of Canada? A. There is no such committee anywhere in Canada. There is nobody in Canada competent to pass upon it. The foregoing evidence indicates at least some of the difficulties, many of which were known to the respondent, that it would have encountered in any endeavour to obtain glyoxylide, or the formula for the preparation thereof, in order that it might make an investigation. The basis for these difficulties may well be found in the terms of the agreement between appellant and Dr. Koch dated April 11, 1944, hereinbefore quoted.
Moreover, under the defence of qualified privilege, it is not whether the words are true in fact, but rather were they spoken honestly and made in the discharge of some public or private duty, and fairly warranted by some reasonable occasion. In London Association for Protection of Trade v. Greenlands, Limited 7, the statements made were not true. Lord Loreburn described them as having "cruelly defamed" the company. The secretary of the association had, however, acted honestly and in the discharge of his duty and the occasion was held to be privileged. Lord Buckmaster at p. 27 stated:
… the fact that the information was capable of being corrected by reference to the Register of Companies, and that this was not done … is relevant only on the question of malice.
In Jenoure v. Delmege 8, while the facts were quite different, the defence of qualified privilege was raised. Lord Macnaghten, speaking on behalf of the members of the Judicial Committee, stated that the learned trial judge had instructed the jury that the plaintiff was required to prove "that he honestly believed the statements contained in the alleged libel to be true, and that, unless and until that was made out by him to their satisfaction, it was not incumbent on the respondent to prove express malice." This direction was held to be in error in that the law does not Cast upon the defendant the onus of proving that he honestly believed the statements made to be true in order to avail himself of the defence of qualified privilege.
The respondent, in this publication, was but stating the considered opinion of its committee and of its members assembled in annual meeting. The members of the committee had arrived at their conclusion after a study of the articles in recognized medical periodicals and public documents. There can be no doubt that the members outside of the committee had studied at least some of these publications. While there is evidence on the part of the appellant to the effect that the conclusions in the publications are in error in respect to the Koch treatment, there is nothing J to reflect upon the ability of the authors, nor the intent and purpose of these publications. There may be cases where the conduct of the party is such that the failure to make further investigation or inquiry might be evidence of lack of honesty, or even of actual malice. This is not such a case. The available material supports the conviction entertained by the respondent's members and the evidence-in this litigation does not suggest other than that the respondent itself acted honestly and bona fide. The jury found it acted without malice.
It is, on behalf of the appellant, contended that even if the occasion were privileged the language used was unnecessarily severe and in excess of what was necessary to express the view held by the College and its Cancer Committee. The sentence particularly referred to is: "We know the Koch treatment is quackery." "Quackery" is defined in the Oxford Dictionary to mean "The characteristic practices or methods of a quack; charlatanry." The same dictionary describes a quack as "an ignorant pretender to medical skill; one who boasts to have a knowledge of wonderful remedies; an empiric or imposter in medicine." While, therefore, no one could properly suggest the appellant is ignorant of medical skill, it is possible that he be in error, and those who honestly believe him to be so may find some similarity in his practices and methods in respect to the Koch treatment and the characteristic practices or methods of a quack. However that may be, the sentence here complained of was used to describe the prescription or administration of the treatment. It was, therefore, not an expression unconnected with or irrelevant to the performance of the duty which gives rise to qualified privilege. At the most it was an exaggeration, or an extreme statement, which could be evidence of malice, but, apart from an express finding that it did constitute malice, would not, of itself, remove the privilege. In Warren v. Warren 9, it is stated:
But when there is only an excessive statement having reference to the privileged occasion, and which, therefore, comes within it, then the only way in which the excess is material is as being evidence of malice. This statement is quoted with approval by Lord Dunedin in Adam v. Ward 10.
Lord Atkinson, in Adam v. Ward at p. 334, stated:
It was, however, strenuously contended on the part of the appellant, as I understood, that the language used in a communication made on a privileged occasion must, if it is to be protected, merely be such as is reasonably necessary to enable the party making it to protect the interest or discharge the duty upon which the qualified privilege is founded. It has long been established by unquestioned and unquestionable authority, I think, that this is not the law.
He then continues as follows:
These authorities, in my view, clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.
The appropriateness of the language used must always be determined by a consideration of all the relevant facts. In this case the conclusion seems, upon the record, unavoidable that the Koch treatment, which has been known in Canada at least since 1928 and in the United States prior thereto, has never been approved by any recognized medical authority.
It would appear that the members of the respondent's Cancer Committee honestly and in good faith entertained a conviction that the Koch treatment was without merit. The respondent, at its annual meeting, in adopting this report, acted with equal honesty and good faith. Entertaining this view and possessing knowledge that this treatment was being prescribed by some of its members to the citizens of Saskatchewan, it was acting within the scope of its duty to the public in publishing the report in its quarterly and not restricting its communication to its own members. Moreover, the respondent owes a duty to similar bodies and to libraries and individuals who are outside of the province and particularly associated with the work of pubic health. It was but serving the common or general interests of the people of Saskatchewan and co-operating with other bodies outside of the province interested in public health in making its views known through the medium of this publication. Throughout, as the jury found, the respondent acted without malice. It follows that the publication, even if it were defamatory, as the jury found, was made upon a privileged occasion and, therefore, in the absence of malice, the appellant cannot recover.
The appeal should be dismissed with costs.
Kellock J.:—In the consideration of this appeal it is important to bear in mind the twofold relationship of the appellant to the "Koch treatment", namely, (1) as a person qualified to practise medicine in the Province of Ontario, and (2) as licensor, shareholder and president of the William F. Koch Laboratories of Canada, Limited, which company, as the appellant deposed, had exclusively manufactured and distributed "glyoxilide" in Canada since April, 1944. In my view, some confusion has crept into the case and into the arguments because of a failure to keep these two relationships separate and distinct.
It is quite clear in my opinion that in the circumstances here existing, the appellant has no cause of action, in respect of the second. In so far as the alleged libel disparages glyoxilide, it constitutes a trade libel only, a cause of action which cannot be maintained by the appellant as he is not the trader but rather the company. Even if the words complained of involve also a reflection upon the distributor of the product so as to amount to a reflection upon him in the way of his trade; Linotype Company Limited v. British Empire Type-setting Machine Co. Ltd., 11; this principle has no application in the present case for the same reason, namely, that the trade in glyoxilide is not the trade of the appellant but of the incorporated company. Accordingly, it is only the relationship first above mentioned which can have relevance to the cause of action alleged by the appellant. As put by the statement of claim itself,
By reason of the said libel the Plaintiff has been injured in his character and in his reputation as a medical practitioner.
An essential element of such a cause of action is that the words complained of should be published "of the plaintiff", and it is objected by the respondent that
there is no proper evidence to identify the Plaintiff with the alleged libel; he was not mentioned therein by name or description. The appellant attempts to meet this objection as follows (I quote from his factum):
At the time of the action it was contended on behalf of the Appellant that the libel was a libel of each member of that class of medical doctors who used the Koch Treatment and who were described as irregular practitioners. The innuendo was that those practitioners who used the Koch Treatment practised quackery and were quacks.
The italics are mine.
As in Knupffer v. London Express 12, there are two questions involved in the attempt of the appellant to identify himself as a person defamed by the words here complained of. The first question is one of law, namely, in the words of Viscount Simon L.C., in the above case, at p. 121,
can the article, having regard to its language, be regarded as capable of referring to the appellant?
It is only when that question is answered in the affirmative that the second question, one of fact, arises, namely,
does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him?
With respect to the question of law, in my opinion the "irregular practitioners" referred to in the article complained of cannot be taken to include the appellant if for no other reason than that the practit