Right to reputation vs. fair comment: is the truth sometimes just easier to swallow?; by Marie-Hélène Beaudoin
(3/3/2010)
Gestion Finance Tamalia Inc. v. Garrel, 2010 QCCS 116
Introduction
Although injury to one’s reputation is regrettable, overly solicitous regard for personal reputation should not be permitted to “chill” freewheeling debate on matters of public interest (WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420).
In Gestion Finance Tamalia Inc., the Superior Court applies this principle by dismissing a defamation suit instituted against a doctor and a non-profit organization for having blown the whistle on a well-known weight-loss center’s questionable commercial activities, which involved promising considerable weight-loss in selected areas of the body through the use of natural health products and machines providing heat and/or stimulation, the whole, without diet or exercise, when in reality, the weight-loss that occurred in clients was explained by the strict low calorie diets which were recommended to clients coupled with the use of products known to have laxative effects.
Facts
The vast network of weight-loss centers known as « Centre de Santé Minceur », which was put in place by Gestion Finance Tamalia Inc., its franchisor, had grown to occupy a valuable place in the flourishing and lucrative weight-loss industry, at the end of the ’90s, with its 102 franchises across Quebec, 1000 employees and 5000 clients daily, thanks in great part to the visibility generated by its three million dollar annual investment in advertising.
This institution had certainly acquired consumers’ trust over the years, but was not thus exempt from all criticism. Indeed, detractors, stemming mostly from the scientific community, did not hesitate to strongly criticize the methods employed by the Centre de Santé Minceur to induce the miraculous weight-loss it promised its clients.
Among these detractors were Dr. Dominique Garrel, a specialist in the fields of endocrinology, diabetes and obesity, who is well-known for his communications to the public on issues related to obesity, weight-loss and nutrition, and Option Consommateurs, a non-profit organization dedicated to providing information on consumer issues and defending said consumers. Collaborating on an article published in Option Consommateurs’ Consommation magazine in July 2001, Dr. Garrel and Option Consommateurs denounced Centre de Santé Minceur’s false advertising practices and were particularly critical of its claims that it could induce considerable weight-loss in selected areas of the body through the use of natural health products and machines providing heat and/or stimulation, the whole, without diet or exercise, considering that no scientific evidence could support these claims and, even worse, that some had actually been proven false.
According to Dr. Garrel and Option Consommateurs, Centre de Santé Minceur’s expensive products and treatments were actually ineffective: in reality, the weight-loss that occurred in clients was explained by the strict low calorie diets which were recommended to clients and the use of products with laxative effects. The article also sought to warn the public against the hazards associated with the natural health products administered by the Centre de Santé Minceur.
Aside from the article published in Consommation, Dr. Garrel also made similar comments in a series of interviews he gave to spoken and written media, where he described certain practices of the weight-loss industry as constituting “fraud in terms of obesity”, “completely crazy theories regarding the metabolism of carbohydrates”, “complete fraud”, etc.
Following Dr. Garrel and Option Consommateurs’ public declarations, Gestion Finance Tamalia Inc. instituted a defamation suit in damages and for cessation of a violation of its right to reputation, claiming that Dr. Garrel and Option Consommateurs’ comments were defamatory and deceitful.
Gestion Finance Tamalia Inc. also published a press release in which it attacked the grounds and motives of Dr. Garrel and Option Consommateurs’ intervention.
On January 20th of this year, the Honourable Daniel H. Tingley of the Superior Court rendered final judgement in this action, which began over eight years ago, following a 15-day trial where Dr. Garrel and Option Consommateurs presented exhaustive expert evidence demonstrating the veracity of the comments which they had made.
Interesting fact, between the institution of proceedings before the Superior Court and the rendering of the final judgement in question, Gestion Finance Tamalia Inc. was found guilty by the Competition Tribunal of having made false and misleading representations regarding the slimming properties of its products and devices. Consequently, at the time where the trial was held before the Superior Court, Gestion Finance Tamalia Inc. was under an order formally prohibiting it to make such representations to the public, for a 10-year period (Commissaire de la concurrence v. Gestion Lebski inc., 2006 Trib. Concurr. 32), an order which de facto led to the closing of all Centre de Santé Minceur branches at the time.
Decision
In a rather concise decision, considering the approximate seven million dollars in dispute, the Honourable Justice Tingley of the Superior Court applied himself to find the just balance between the fundamental right of Gestion Finance Tamalia Inc. to the protection of its reputation and Dr. Garrel and Option Consommateurs’ right to freedom of expression, a necessary exercise when dealing with defamation.
In doing so, the Tribunal applies the usual principles of civil liability, determining that the obligation which lies with journalists and doctors, as professors or authors, is an obligation of means, which includes reasonable care in the preparation and broadcasting of their reports.
Then, to decide whether Dr. Garrel and Option Consommateurs were at fault for making defamatory comments regarding Centre de Santé Minceur, the Honourable Justice Tingley analyses and applies the criteria of the defence of fair comment to the circumstances of this particular case. At the end of this exercise, which was widely guided by the Court’s determination that the comments made were true and scientifically proven, the Court concludes that no fault had been committed by Dr. Garrel and Option Consommateurs and that Gestion Finance Tamalia Inc. consequently could not be awarded the damages it claimed: freedom of expression and the public right to information must prevail upon the right to preserve the reputation of a company with shady practices.
The comments expressed by the Honourable Justice Tingley in applying the criteria of the defence of fair comment are particularly eloquent regarding the degree of virulence which the tribunal would have required to find fault in true comments made by a doctor and a non-profit organization whose mission lies in informing the public, regarding an illicit company:
a) Public interest:
“Were the Defendants justified in stating such strong comments regarding Gestion Tamalia’s business and bringing them to public attention in 2001? The Court believes the answer to be yes. Certainly, the publication of shady practices in the weight-loss industry is in the public’s interest. This is Option Consommateurs’ reason for publishing articles which criticize or denounce the shady practices of retailers with the objective of protecting consumers. Dr. Garrel had the same motives: to inform the public of dangerous products and practices.” (Para. 30)
b) Factual basis:
“It seems evident that Dr. Garrel and Option Consommateurs had guessed the truth about five years before the Competition Tribunal. The evidence offered by the Defendants eloquently speaks to the accuracy of their comments, alleged as defamatory in relation to Gestion Tamalia’s business, especially their “shady practices.” (Para. 27)
c) Comment:
“To characterize Gestion Tamalia’s “shady practices” as “unscrupulous”, a type of “fraud” or “complete fraud”, although strong, constitutes all the same a suitable and correct opinion within the context of the theme of the article and editorial published by Option Consommateurs as well as the comments of Dr. Garrel during his interviews with the media. In addition, the Court has expressed its opinion regarding such circumstances and believes no wrongdoing is committed when, always with the public interest at heart, you call a spade a spade [Byer v. CTV Bell Globemedia, [2008] R.R.A. 375 (C.S.)].” (Para. 28)
d) Honest belief:
“Could the defamatory comments have been honestly made in light of the proven facts? Once again, the answer is yes. It is evident that the defamatory comments are directly related to the shady practices attributed to Gestion Tamalia, thus these comments are completely pertinent to the facts of the case. It is also evident that such pejorative comments represent the honest belief of theDefendants.” (Para. 34)
e) Absence of malice:
“[…] there wasn’t any credible proof that the defamatory comments were made maliciously. Malice cannot either be inferred from the circumstances of the case.” (Para. 35)
“Did the Defendants respect the professional standards of journalists and authors when they characterized the shady practices of Gestion Tamalia as “unscrupulous” and a type of “fraud”? The Court concludes again in the affirmative. They expressed their indignation regarding such practices; an honest reaction regarding activities which they found to be harmful.” (Para. 32)
Conclusion
In Gestion Finance Tamalia Inc. v. Garrel, 2010 QCCS 116, the Superior Court rightly applied the principle put forth by the Supreme Court of Canada in the WIC Radio Ltd. v. Simpson, [2008] 2 R.C.S. 410 case, that even though the violation of one’s reputation is regrettable, the Courts should nevertheless make sure that they do not confer overly solicitous regard to personal reputation, having the effect of “chilling” freewheeling debate on matters of public interest.
Considering the facts of the dispute,
“The Court does not doubt that the defamatory comments of the Defendants have interfered with Gestion Tamalia’s business. […]” (Para. 39)
However, the Court does not find any fault giving rise to any reparation in favour of Gestion Finance Tamalia Inc., considering that
“[…] businesses which subscribe to fraudulent practices with regard to consumers have no reason of surviving. Health
In this respect, the Superior Court’s decision in this particular case is all the more interesting in that the Honourable Justice Tingley holds that the Defendants’ comments were not only justified given the circumstances, but, moreover, that they had to be made:
“The Option Consommateurs journalists and the author Dr. Garrel have a mission to inform consumers on matters of public interest. This mission, effectively an obligation, includes criticism of faulty conduct affecting the public, gullible where weight-loss is concerned […]” (Para. 31)
Woods LLP is proud to have successfully represented Dr. Garrel in this case.
[All quotes taken from the judgement have been translated by the author. All emphasis has been added by the author.]
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