Striking Back at the Complainant

by Theodor Kerzner, Q.C.

Dentists sometimes react to a patient’s complaint to the RCDS by wanting to strike back and take court proceedings against the complainant for having libeled them in the complaint letter.

Apart from the fact that usually the best advice is to tell the dentist to keep his/her eye on the ball and just deal with the complaint, not these side issues, the recent refusal of the Supreme Court of Canada to hear an appeal from an extension of the “complainant’s immunity” principle, is a reminder that there is a second reason not to strike back. You won’t probably succeed anyway.

More than 20 years ago, the Ontario Court of Appeal extended the doctrine of immunity to statements made by a complainant in a complaint letter to the RCDS. This is the same sort of immunity that has always existed for statements made on the floor of Parliament or for statements made in a courtroom. This what the Court of Appeal said on that earlier occasion:

“. . . The doctrine of immunity by reason of absolute privilege with respect to statements made in the course of proceedings before a statutory body, exercising disciplinary powers over a member with respect to unprofessional conduct, applies to statements made in a letter of complaint addressed to the Registrar of the Royal College of Dental Surgeons. It is a document incidental to the initiation of quasi-judicial proceedings and it matters not that the Complaints Committee has investigatory powers which may or may not lead to a direction that the matter be referred to the Discipline Committee . . .”

The policy reasons that underlie the willingness of the court to extend this principle of immunity to RCDS (and other regulatory bodies) complaint letters, was expressed by the trial level court judge in that case 20 years ago when he said:

“. . . The right to engage in professional activities must be the subject of rules governing them. These rules cannot be enforced without a corresponding right in the members of the public to complain uninhibited and without fear of being found wrong and as a result being subject to actions in defamation. Surely, it is a small price for a professional person to pay”.

More recently, the same issue arose, but in the context not of the initial complaint letter, but in a letter written by the complainant at a later stage. In this more recent case, the patient was seen on an emergency basis by a dentist. The patient felt (rightly or wrongly) that the dentist operated in an unsanitary manner, and she left the office mid-procedure when the dentist left the operatory to take a telephone call. She complained to the RCDS. About two months later, the dentist wrote the complainant both about the complaint and demanding payment of his fee for the emergency appointment. The complainant responded to his letter, and copied the RCDS. The dentist sued the patient for libel based on what he felt were the defamatory statements about his allegedly unsanitary practices to which the complainant had again referred in her latest letter to him, which she copied to the RCDS.

In this latest case, the trial level court threw out the case pointing out, that while the letter in question was not the initial letter of complaint, but instead was “a document sent to the College . . . after the initial complaint letter had been sent, there was very little in this document that is complained of that would not have been in the original complaint. Moreover, it was appropriate for the [complainant] to send this document to the College, having regard to the fact that the College had urged the [dentist] not to communicate with the patient and that he continued to do so [the dentist had according to the judge repeatedly contacted the complainant and threatened to sue her unless her complaint with the College was withdrawn], and despite warnings from the College to refrain from such communications, the dentist continued to “harass her” with further correspondence containing various threats and matters of intimidation. Since the document is inextricably connected to the initiating document, it enjoys the same privilege”.

In a general statement of the principle, the judge said that the doctrine of immunity by reason of absolute privilege “will apply to statements made in the course of proceedings before a statutory body exercising disciplinary powers over a member with respect to professional conduct. This includes letters of complaint sent to the Royal College of Dental Surgeons as well as documents incidental to the initiation of quasi-judicial proceedings”.

The dentist appealed the dismissal of his case to the Ontario Court of Appeal which dismissed his appeal, commenting as follows:

“The conclusion . . . that the correspondence was incidental or inextricably connected to the initial complaint to the Royal College is amply supported by the evidence. Privileged applied.”

Subsequently, the dentist sought permission to appeal further to the Supreme Court of Canada which refused to grant permission to appeal to that court.

Apart from the tactical undesirability and the unfavourable optics that result when a dentist responds to a complaint not merely by a measured explanation of why no professional misconduct was involved, but also by seeking to attack, or even to deter a complainant from going forward with the complaint by the threat or the actual instigation of proceedings against the complainant, the law as it has recently been confirmed and extended indicates that dentists will have a tough, if not impossible, legal task in succeeding in any event on a claim for libel, which is just added reason not to pursue this otherwise generally unwise approach to dealing with complaints.

Mr. Kerzner, who is CDPA’s general counsel, has practiced law for 39 years, during which time he has, among other things, been doing dental cases involving patient complaints since the early 1970s.