September 3, 2019

Defamation and Interlocutory Injunctions: when a registrant’s speech goes too far

Professional Regulation
Regulator Liability

A Manitoba court recently granted the College of Pharmacists of Manitoba (the “College”) an interim injunction restraining a non-practising member, Mr. Jorgenson, from publishing defamatory statements about staff, council members and committee members of the College. The court enjoined Mr. Jorgenson’s communications to and about the College until a decision is reached in an upcoming defamation suit: The College of Pharmacists of Manitoba v. Jorgenson, 2019 MBQB 87.

The member published, on social media and in emails to politicians, the RCMP and several media outlets, statements referencing the deaths of 24 Indigenous persons in northern Manitoba, due to how the College oversaw how prescription drugs were made available to them. Mr. Jorgenson said that the College’s registrar and council members were complicit in the murder of these people, and were part of a conspiracy to cover up their crimes. Mr. Jorgenson had previously made a complaint to the College, but it closed the investigation after he repeatedly failed to provide information requested by the College, and would not attend a meeting with a College investigator.

The College filed a defamation action against the member. Although Mr. Jorgenson had consented to an order restraining his communication with College staff and employees, the College sought a broader interim order to protect all council and all committee members from Mr. Jorgenson’s communications.

Regulators are often faced with enthusiastic advocates. Those regulating professions in the public interest must take public concerns seriously and have thick skin with regard to commentary – and dissent – about policy initiatives and healthcare delivery.  The court noted the high threshold required to limit anyone’s freedom of expression under the Canadian Charter of Rights and Freedoms (the “Charter”); interlocutory orders, i.e., orders granted before trial, should only be granted in the clearest of cases. The court nonetheless granted the College a temporary injunction pending the trial. The circumstances met the requirement that, “the words are so manifestly defamatory and impossible to justify that an action in defamation would almost certainly succeed.”

While the judgment emphasizes that Mr. Jorgenson had “literally no evidence” to support his claims, the court also noted the effect of his actions on staff. The decision references the “trauma” and safety concerns experienced by the registrar and staff by being publicly named as criminals in the documents and online postings the member distributed. The member contacted staff and their family members, referenced their home addresses, and raised the allegations with staff members in two “chance” encounters in public places. The Court noted that concerns by the registrar and staff were objectively reasonable.

The Court found the essential elements of defamation were likely met and that the “responsible communication on matters of the public interest” defence, established in Grant v. Torstar Corp., 2009 SCC 61 (CanLII), [2009] 3 S.C.R. 640, was not available. In light of the seriousness of the allegations, his decision to withhold evidence that may have supported his claims prevented the availability of potential defences.

Notably, in a time in our Canadian history where Indigenous peoples are revealing the severe impacts of Canada’s legislative regimes on their lives, members of the public who are critical about the role of institutions should not prevented from political speech. Jorgensen was not restricted from publishing his views about the alleged incidents (although the court concluded from the evidence before it that Jorgensen had no first-hand knowledge about the deaths and their links to the College). Jorgensen was, however, restricted from communicating with, or about, the College and related persons (e.g., staff, council members and committee members) until the forthcoming trial, restricted from attending at the college, and restricted from attending at the homes or places of business of related persons.

The College of Pharmacists of Manitoba v. Jorgenson, 2019 MBQB 87