Administrative law – Physicians and surgeons – Governance – Statutory provisions – Disciplinary proceedings – Defamation – Boards and tribunals – Absolute privilege – Qualified privilege
Schut v. Magee,  B.C.J. No. 102, British Columbia Supreme Court, January 20, 2003, Kirkpatrick J.
The plaintiff doctor brought an action against the defendant doctors and members of the same hospital medical staff. In 1999, the defendant doctors sent two letters to the College, expressing their ongoing concerns about the quality, safety and ethics of the plaintiff’s medical practices. The plaintiff alleged that the letters were defamatory and made with malice and for the purpose of intentionally damaging her reputation. The defendants raised the defences of absolute privilege, qualified privilege and statutory immunity, pursuant to s. 70(2) of the Medical Practitioners Act, R.S.B.C. 1996, c. 285.
The defendants applied for an order to summarily dismiss the plaintiff’s claim of defamation against the defendants.
The court held that the defence of absolute privilege applied, provided the complaint is made pursuant to, and in compliance with, the disciplinary provisions of the governing statute.
The Plaintiff argued that the defence of absolute privilege in the context of reports made to the College had been abolished by s. 70(2) of the Act. Dechant v. Stephens,  5 W.W.R. 405 (Alta. C.A.) was cited as authority for this proposition. In that case, the court held that the common law doctrine of absolute immunity for statements made in the context of quasi-judicial proceedings no longer exists where the governing statute allows only for qualified immunity.
In the case at bar, the court held that the proper test for establishing whether a statutory enactment ousts the common law by necessary implication is to ask whether or not a particular legislative scheme or provision is a complete code which renders the common law unnecessary or inappropriate.
The purpose of s. 70(2) of the Act is to encourage people who are concerned about the conduct or capacity of a medical practitioner to report their concerns, and to enable the College to take disciplinary actions where indicated by such reports. However, s. 70(2) of the Act only excludes actions for damages. It does not protect against other remedies such as injunctive or declaratory relief. In this instance, absolute privilege at common law is wider because it provides complete protection against defamation actions, rather than merely duplicating the statutory scheme.
The court held that s. 70(2) of the Act is not a complete code and it may co-exist independently with absolute privilege.
The court further held that s. 70(2) of the Act does not show with clearness the intention of the Legislature to oust absolute privilege at common law, and the decision in Dechant, supra does not affect the existence of this privilege, which affords protection to those reporting to the College under s. 53(1) of the Act.
Accordingly, the court held that the defendants were protected by absolute privilege and the plaintiff’s claim was dismissed.
With respect to qualified privilege, it was held that the defendants had a legitimate interest in bringing their concerns to the attention of the College. The plaintiff’s claim with respect to malice was not made out.
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