Milne v. Darlington, 2012 ABQB 518

Court of Queen ’ s Bench of Alberta Citation: Milne v. Darlington, 2012 ABQB 518 Date: 20120814 Docket: 0201 07538 Registry: Calgary Between: Barry John Milne Plaintiff - and - Dr. Paul Darlington Defendant _______________________________________________________ Reasons for Judgment of J.B. Hanebury, Master in Chambers _______________________________________________________ [ 1 ] This matter has been before the courts on a number of occasions. The facts can be found in Milne v. Columbia Health Care Centre Inc. , [2007] A.J. No. 652, 2007 ABQB 407 , Milne v.

Alberta (Workers ’ Compensation Board ), 2008 ABQB 710 (Master), and, Milne v. Workers ’ Compensation Board , 2012 ABQB 302 . [ 2 ] In brief, Mr. Milne was injured in an industrial accident on November 4, 1995. Following the accident he made a claim to the Workers’ Compensation Board (WCB) for benefits. What followed is a long, convoluted and unfortunate process that, he alleges, worsened his symptoms.

[ 3 ] He was required by the WCB to attend before a medical review panel in 2001 in order to further ascertain the nature and cause of his problems. At some point during this process, his WCB benefits were terminated and the appeals process ended. [ 4 ] He sued a number of the doctors who provided reports to the WCB, including Doctors Darlington, Barnes and Plageman, alleging, among other things, errors, misstatements, and conspiracy. [ 5 ] The claim in relation to Doctors Barnes and Plageman was struck in part by my decision found at Milne v.

Alberta (Workers ’ Compensation Board) , 2008 ABQB 710 , and in full by Kent J., as a result of a new argument, the same argument as is now being made in this case: 2012 ABQB 302 . [ 6 ] Justice Kent struck the claim pursuant to s. 34(4) of the Workers ’ Compensation Act , RSA 2000 c. W-15. It provides that a report submitted by a physician to the WCB under the Act is privileged, and unless it is proven that the report was made maliciously, it is not admissible in evidence or subject to production in any court in an action or proceeding against the reporting physician.

Justice Kent found that the reports of the doctors who had been sued were privileged, were not producible and therefore the claim of Mr. Barnes against the doctors “would assuredly fail”. [ 7 ] Dr. Darlington was sued in this action by Mr. Milne and Dr. Darlington now seeks to have the claim against him struck on the same basis. [ 8 ] Mr. Barnes is of the view that Justice Kent’s decision is in error and his claim against Dr. Darlington should not be struck. [ 9 ] If Justice Kent’s decision is in error, that is for an appeal court, not me, to decide. Her decision is binding upon me.

Therefore, unless there is a genuine issue for trial on the question of the applicability of the one exemption found in s. 34(4), Justice Kent’s decision must be applied and I must find that Mr. Milne’s action against Dr. Darlington should be dismissed. [ 10 ] As this is an application for

summary dismissal of Mr. Milne’s claim, the bar is high and I must be satisfied that there is no genuine issue for trial. The relevant case law describing this test can be found in the two prior cited decisions in Mr. Milne’s action against Doctors Plageman and Barnes. I will not repeat it here. [ 11 ] To summarize, I must be satisfied that there is no genuine issue for trial in relation to whether Dr Darlington acted with malice in making his report. Only then can I dismiss the claim on the grounds utilized by Justice Kent in her decision in relation to the other two doctors. Dr.

Darlington ’s Reports [ 12 ] There are four reports by Dr. Darlington to the WCB in relation to Mr. Milne. The first report is dated June 10, 1998, is 31 pages long, and attaches an appendix. It is extremely detailed and states at p. 21 that “in my opinion, at the current time Mr. Milne is almost certainly exhibiting at least partial malingering of marked severity, and may be exhibiting pure malingering”. [ 13 ] On page 28 of the report Dr. Darlington provides a current diagnosis using the Diagnostic and Statistical Manual of Mental Disorders 1994. This manual uses various axes, and Dr.

Darlington’s report explains in an appendix that the first axis is for the reporting of all the various disorders or conditions in the diagnosis except for those scored on another axis. The second axis is for the reporting of personality aspects and intelligence. [ 14 ] Dr. Darlington’s diagnosis contains some opinions that are “provisional” or that are to be “rule[d] out”. Under Axis I Dr. Darlington’s diagnosis includes “Provisional Malingering” and under Axis II of his diagnosis he includes “Obsessive Compulsive Personality Traits” and “Rule Out Narcissistic Personality Traits”.

Various other statements in relation to Mr. Milne’s personality are

made. [ 15 ] A lengthy list of recommendations is made including the obtaining of additional collateral information to deal with findings noted as provisional or to be ruled out.

He states that “[i]f there is significant objective further information this writer has not viewed which may be of significant use to this writer in the objective assessment of this individual’s level of functioning, degree of impairment, and/or disability, regardless whether such may be supportive or not supportive of this writer’s opinions, I recommend this writer be given the reasonable opportunity to review such”. [underlining as in original report] [ 16 ] In the recommendations Dr.

Darlington notes that “there is considerable overreporting of symptomatology which if not of malingering tendency, likely closely approaches such”. He states that “he does not have high expectations medications will significantly alter his behavioral [sic] manifestations...” He adds that “[i]n my opinion, malingering is not a condition which is amenable to medical treatment, no medical treatment is available nor required for such, and such is not necessitating of medical or psychotherapeutic treatment.” [ 17 ] Dr. Darlington also wrote to the Motor Vehicles Division advising it that in his opinion Mr.

Milne was addicted to codeine and was an unsafe driver. [ 18 ] Mr. Milne asked to meet with Dr. Darlington, and provided him with a video tape of his examinations at the rehabilitation program. After the meeting and reviewing the tape, Dr. Darlington provided a two paragraph letter to the WCB, dated June 25, 1998, advising them of their meeting and stating that he had no reason to modify his opinions. [ 19 ] On September 13, 1998, Mr. Milne wrote a letter of complaint to the College of Physicians and Surgeons in relation to Dr. Darlington.

It was nine pages long, and it included a page by page list of concerns in relation to Dr. Darlington’s 31 page report of June 10, 1998, and made a number of accusations of false information and bias on Dr. Darlington’s part. [ 20 ] Dr. Darlington responded to the College of Physicians and Surgeons on October 19, 1998, and sent a further report to the WCB on the same day. His further report to the WCB is very short, just over a page. The first paragraph states: Mr.

Milne has seen fit to complain to the College of Physicians and Surgeons of Alberta and authored a nine page document indicating inaccuracies this writer has made in the independent medical assessment of him and alleging this writer had defamed his character, not undertaken a physical examination, and has quoted statements he did not make. Upon reviewing the videotape of the interview of Mr. Milne, it is clear Mr. Milne has written a letter of complaint to the College of Physicians and Surgeons which is grossly misrepresenting his statements to this writer.

In my opinion, the contents of the letter clearly indicate to this writer he is lying and malingering. In my opinion, as such, please find below an updated diagnosis in respect of Mr. Milne. [ 21 ] Under Axis I of the updated diagnosis the provisional label is removed and Mr. Milne is now described as “Malingering”. Under Axis II the term “rule out” has been removed in relation to narcissistic personality traits and he is now defined as having “Narcissistic and Obsessive Compulsive Traits”. [ 22 ] Dr.

Darlington then repeats that “[i]n my opinion, malingering is not a condition which is amenable to medical treatment, no medical treatment is available nor required for such, and such is not necessitating of medical or psychotherapeutic treatment.” [ 23 ] On January 7, 1999, the College of Physicians and Surgeons issued its response to Mr. Milne. It stated that it understood Mr.

Milne’s complaint to centre on two broad issues and a number of inaccuracies and statements which required clarification. [ 24 ] The first issue was in relation to the letter to the Motor Vehicles Division and the second was in relation to the errors and misstatements in Dr. Darlington’s report. The author of the College’s response confirmed that he or she had reviewed the videotape of the meeting between Dr. Darlington and Mr. Milne. The author noted that Mr.

Milne had identified a few misstatements and typographical errors in the report, however the majority of the “falsehoods” in the report were true reflections of Mr. Milne’s answers as found on the videotape. The report concluded by noting that the College’s role is not to determine whether or not Dr. Darlington’s opinion was correct, but whether he had followed a proper process in performing Mr. Milne’s examination and that the opinion was

clearly connected with the information Dr. Darlington had gathered. The College found that Dr. Darlington’s duty had been fulfilled and he had legitimate reasons to notify the Motor Vehicles Branch as he had. [ 25 ] Dr. Darlington’s final report to the WCB was sent on April 22, 1999. It is three paragraphs long and states: Upon reviewing additional information this writer feels it is prudent to forward this writer’s comments and additional information to your office. To summarize, Mr.

Milne made a number of accusations about this writer to the College of Physicians and Surgeons of Canada and has lied in respect of numerous such concerns. Please find enclosed a copy of Mr. Milne’s letter to the College and a copy of the College’s letter back suggesting this writer was not negligent and has reported on Mr. Milne accurately in the report with the exception of the number of siblings Mr. Milne has.

In my opinion, the report authored by this writer dated June 10, 1998, does contain an error in respect of the number of siblings, indeed review of my raw notes taken at the time of the interview indicate Mr. Milne has three siblings and is not the second eldest in the sibline of three. My apologies for any inconvenience or misunderstanding in respect to the number of siblings Mr. Milne has caused by this writer’s error in such regard [sic].

In my opinion, the diagnosis previously offered by this writer in respect to “provisional malingering” is subsequently updated and is more accurately indicated as being malingering. Should you wish a copy of the videotape in which Mr. Milne’s statements to this writer are within it, please contact this writer. In addition for your information; Mr.

Milne, and/or the independent medical examination report as authored by this writer, are apparently now in the hands of one Brock Ketchum of the Calgary Herald who apparently is writing a story on the WBC, and in an unauthorized manner possibly this writer, to appear in the Calgary Herald on provisionally April 24, and 25, 1999. ANALYSIS [ 26 ] From this information the court must determine if there is a genuine issue for trial as to whether or not Dr. Darlington acted with malice in relation to his reports on Mr.

Milne. [ 27 ] The legislation awards the doctors reporting to the WCB a qualified privilege for their reports, which can only be displaced by malice. Justice Kent noted that if Mr. Milne’s action against the doctors were permitted to go to trial, Mr.

Milne would need to prove that the doctors had a motive to injure him without any justification before the reports could be admitted in evidence. [ 28 ] Justice Kent, in her decision, defined malice as “the intent, without justification or cause, to commit a wrongful act, reckless disregard of the law or a person’s legal rights, and improper motive in the sense of a motive to injure the plaintiff or to benefit the defendant or some party other than the plaintiff.” [ 29 ] The case law most relevant to the issue before this Court deals with qualified privilege in relation to a defamation action.

As pointed out in O ’Malley v. O ’Callaghan , unreported, March 6, 1992, Doc. Calgary 8801-00437, paragraph 45, “a balance must ...be struck between respecting the purpose of qualified privilege and monitoring any language which could be seen as exceeding the privilege.” [ 30 ] In Angle v.

Lapierre , 2008 ABCA 120 , the court confirmed the five principles that should be applied to the facts to determine whether malice defeats qualified privilege in the case of a defamation action: the defence of qualified privilege is not absolute; if actual or express malice is the dominant motive for publishing the statement, the privilege is defeated; if the occasion is shown to be privileged, not all statements made on the occasion will be protected by the privilege; a statement which is not reasonably appropriate in the context of the circumstances existing on the occasion will, if defamatory, not be protected by the privilege.

A statement will not be reasonably appropriate if it is the product of indirect motive or ulterior purpose or if it conflicts with the sense of duty or the mutual interest that the occasion created; and, if the defendant is acting in accordance with a sense of duty or in a bona fide desire to protect his own legitimate interests, knowledge that publication of the statement will have the effect of injuring the defendant [sic] [1] is insufficient, standing alone, to destroy the privilege.

[31] The court goes on to note that malice is a fact sensitive issue connected with the context in which it is said to arise. [32] In Davies & Davies Limited v. Kott, (SCC), [1979] 2 S.C.R. 686, the Court considered qualified privilege andagreed with a comment found in an earlier decision that an honest belief in the truth of a defamatory statement cloaks the statement withthe protection of privilege. [33] Dr. Darlington has sworn that his reports were prepared without malice and in an honest belief that they were true. Therefore,he argues, his reports are privileged, cannot be used in court and Mr. Milne’s claim cannot succeed. [34] The overall burden is on the applicant in a

summary judgment application. He or she must convince the Court that there is nogenuine issue for trial. It is trite law that credibility cannot be assessed on an application for

summary judgment. That assessment is to beperformed by the trial judge. [35] In this case there are a number of inconsistencies in Dr. Darlington’s reports which, in the context of Mr. Milne’s complaint tothe College, raise a concern as to the veracity of Dr. Darlington’s statement that his reports were prepared without malice. The originalreport was thorough in the extreme and provided a wealth of detail. However there is virtually no analysis accompanying, explaining orjustifying the changes in his diagnosis in the last two reports.

The original recommendations filled almost two pages, but in the second tolast report Dr. Darlington makes no further recommendation. He does reiterate one statement from the recommendations of his firstreport: that malingering is not amenable to treatment. [36] Furthermore, the final report insofar as it deals with Mr.

Milne, appears to add nothing to the second to last report; it seems anunnecessary reiteration of the conclusion of the second to last report. [37] The last two reports, as read, in the context of the complaint to the College, raise on their face a concern of possible malicethat is simply not dismissed with the sworn statement of Dr. Darlington that he was not malicious when writing these reports. While hisevidence at trial may quite successfully deal with that concern, on a

summary basis it does not do so for the final two reports. To findotherwise would mean every defamation case could be dismissed forthwith by a sworn statement that the alleged defaming partybelieved what he was saying was honestly true. That cannot be sufficient, in the face of apparent possible malice, to deprive a plaintiff ofhis or her day in court. [38] The possible contradictions within Dr. Darlington’s own evidence are such that I cannot find that there is no genuine issue fortrial on the question of the admissibility of these reports.

It will be up to a trial judge to determine if this sworn statement of Dr.Darlington is to be accepted. [39] As the application was to strike the claim only on the basis that the medical reports would all be excluded, the

summaryjudgment application is dismissed. Heard on the 13th day of June, 2012. Dated at the City of Calgary, Alberta this 14th day of August, 2012.

J.B. Hanebury M.C.C.Q.B.A. Appearances: Barry John Milne the Plaintiff E. Bruce Mellett Bennett Jones LLP for the Defendant [1] This quote is accurate. However, from the context, “ defendant ” should be “ plaintiff ” .