Defamation Actions - Canadian Nurses Protective Society

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.

Registered nurses working in today’s fast paced, high-tech health care environments are aware of their professional accountability and that, at some point, they may be involved in legal proceedings related to their practice. A civil lawsuit alleging negligence is the predominant concern nurses have when they turn their minds to this issue.

There are, however, other less common, but equally important areas of the law, which may govern legal proceedings commenced against a registered nurse or other health care providers. One such area is the law governing defamation of character.

This area of the law is gaining more attention by potential litigants and their lawyers because of the recent shift upwards in the amount of money that Canadian courts have awarded in a number of defamation actions. For example, the Supreme Court of Canada recently awarded a lawyer total damages exceeding $1-million against the Church of Scientology ¹ and in Laufer v. Bucklaschuk ² the jury awarded a civil servant more than $2-million because he was defamed by a cabinet minister.

What is defamation?

Defamation consists of the publication, without justification, of a false and defamatory statement regarding some other party. Defamation may consist of either libel or slander. In libel, the defamatory statement is made in some visible and permanent form. In slander, it is made by spoken words.

In Willows v. Williams, it was stated: “A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers, which lowers him in the estimation of the right-thinking members of society, and in particular which causes him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem.” ³

After reading this information you may ask yourself, “How could a defamation action relate to my nursing practice?” Nurses have reported to the Canadian Nurses Protective Society (CNPS) a variety of situations involving allegations of defamatory activities. Some of the situations include:

Alleged defamatory statements about a supervisor contained in a nurse’s letter of resignation
Alleged defamation of character when a parent was questioned by hospital staff about suspected sexual abuse
A threatened lawsuit because of negative statements made by a nurse about two co-workers during an internal hospital review
A lawsuit by a nurse against an employer for wrongful dismissal and defamation of character
A lawsuit alleging a nurse released client information that was untrue and defamatory
A lawsuit initiated by a nursing student against a nursing instructor alleging negligence and defamation
A lawsuit by a physician against a hospital and nursing staff alleging wrongful dismissal and defamation

There are also a number of reported cases involving health care professionals where allegations of defamation have been raised. For the purposes of this article, I have selected two cases to further demonstrate potential risk areas.

The first case, Mendoza v. St. Michael’s Centre Hospital Society,⁴ involves a registered nurse suing an employer and a co-worker for libel and slander. This litigation was commenced primarily because of an entry made in a communication book by a staff member. Because staff communication books are commonly used in many facilities, I am bringing this case to your attention.

In Mendoza a health care aide, Ms. H., was concerned about Mr. M.’s (registered nurse) treatment of patients and other co-workers. Ms. H. reported her concerns to management and felt that management was not dealing with her oral complaints. When Ms. H. discussed this with her supervisor, the supervisor suggested using the communication book to address problems with patient care or working conditions. Shortly after this discussion, Ms. H. made the following entry in the communication book and signed it with her full name:

To: SMC Management
We Need Your Help.
Re: R.N. Negligence

Mr. M. (full name included) “Should be Working” during his Shift from 11 to
0700 hrs.

Instead:
1. his neglecting the patients Needs.
2. his avoiding, refusing to do the Work.
3. his Harassing, and abusing HEU night staff.

Please, Could the employer “Look” into this Serious Matter.

After reading Ms. H.’s documentation, Mr. M. initiated grievance proceedings. In one of the grievances Mr. M. alleged that Ms. H. wrote defamatory allegations in the communication book. The hospital investigated these matters and a mediator was appointed. A mediation meeting took place but the matter was not resolved. One month later, Mr. H. commenced two lawsuits. In the first action, Mr. M. alleges that Ms. H. defamed him when she wrote the entry in the communication book and when she made a defamatory statement to a third party. The second action was initiated against the hospital, its director of nursing (DON) and its executive director (ED) alleging that they published the defamatory documentation in the communication book and delayed in removing this entry from public view.

After the lawsuits were initiated, defense counsel applied to court for an order dismissing the two actions on the basis that the Court did not have jurisdiction to deal with these actions and that they should be dealt with pursuant to the arbitration provisions of the collective agreement governing Mr. M. and his employer. The judge hearing this application dismissed the second action (against the hospital, DON and ED) on the basis that this dispute involved a difference between the employer and employee as defined in the collective agreement and should therefore be subject to arbitration. In the same decision, the judge ruled that the Court has jurisdiction to hear the first action, between Mr. M. and Ms. H., because this dispute was between fellow employees who belong to separate unions and who have separate collective agreements. Their dispute would not, therefore, be subject to the collective agreement governing Mr. M. and his employer. At the time of writing this article that action had not proceeded to trial; therefore, the final outcome is unknown.

The second case, Balanyk v. Greater Niagara General Hospital et al., ⁵ involves a registered nurse who sued her employer and a number of other parties for defamatory libel. In this case, Nurse B.’s ex-employer received information that Nurse B. was visiting the hospital site frequently and was harassing union members. Because the union members feared for their safety, hospital management prepared a restraining letter informing Nurse B. that she was no longer allowed on hospital property. Nurse B.’s photograph was given to the supervisor of security for the purpose of identifying the nurse when security staff gave her the restraining letter. The supervisor put the photograph on the bulletin board in the hospital security office. Nurse B. went to the hospital again, but left before receiving the restraining letter. Consequently, the letter was forwarded to her by registered mail. The supervisor later placed the label “Unwanted Persons” on the top of the bulletin board and placed a number of photographs, including Nurse B.’s photograph and name, in this area on the bulletin board. Nurse B. commenced a lawsuit alleging that the posting of her name and photograph on the hospital notice board defamed her good name and reputation as a competent nurse.

Before this matter was scheduled for trial, a Summary Judgment motion to dismiss Nurse B.’s lawsuit was brought by a number of the defendants. The judge hearing this application found that the posting of Nurse B.’s picture was a restricted publication solely for security purposes. He ruled that there was no genuine issue for trial, and dismissed the lawsuit.

After reading this information, you may question why some of these individuals have taken the time and incurred the expense of taking these matters to court. Remember, what is at stake in these cases is the individual’s reputation – an intangible that most individuals feel is more important than money.

CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.

Hill v. Church of Scientology of Toronto et al., [1995] 24 O.R. (3d) 865 (S.C.C.).
Laufer v. Bucklaschuk, [1998] M.J. No. 479 (Man. C.A.).
Willows v. Williams, (1950), 2 W.W.R. (N.S.) 657 (Alta. S.C.) at para. 1.
Mendoza v. St. Michael’s Centre Hospital Society, [1998] B.C.J. No. 914 (B.C.S.C.).
Balanyk v. Greater Niagara General Hospital et al., [1997] O.J. No. 1124 (Ont. Crt. G.D.), appeal dismissed [1997] O.J. No. 4867 (Ont. C.A.), leave to appeal to S.C.C. denied [1998] S.C.C.A. No. 82.

Note: This article has been reprinted with permission from Canadian Nurse, March 1999.