Breast Augmentation: the BCSC interprets the Protection of Public Participation Act.

In the recent case of Peterson v Deck, 2021 BCSC 1670, the plaintiff - a cosmetic surgeon - sued the Defendant, one of his former patients, for defamation. The defendant had received breast augmentation surgery - colloquially referred to as a “boob job” - and was unhappy with the result. As such, the defendant post comments on her website as well as on the plaintiff’s google review disparaging his work.

The case considered the defence codified in the Public Participation Act, S.B.C. 2019, c. 3 [PPPA], and whether they claim of defamation may proceed. Ultimately, the BCSC ruled in favour of the plaintiff and awarded him $30,000 in damages.

The comments which the plaintiff perceived as defamatory were noted by Mr. Justice G.P. Weatherill as follows:

[On] relentlessrosereviews.com (“Defendant’s Website”):

Brian Peterson, Plastic Surgeon Kelowna

My experience with this particular surgeon was an anxiety filled nightmare. Not only did I leave the operating table worse than when I initially laid down for my procedure but Peterson & his receptionist made correcting the issues seem unimportant & unpredictable.

I knew something wasn’t right immediately from the bottom half of my breast being almost entirely black & blue. He shrugged it off, said it was fine. I took his word for it even though it didn’t feel or look fine.

Fast forward to three months post op - low & behold the itty bitty boob I traded in, for a deformed downward breast that was well over an inch higher than the other. Aka torpedo tit. Peterson told me nothing could be done until it was healed leaving me with a grotesque body part for six months.

Peterson publicly stated - gotta love the lack of privacy & breach of doctor/patient confidentiality - how my condition was ‘utterly complex.’ Yet never once during my appointments did he mention the ‘complexity’ of my chest. On the contrary, he boasted how my chest wall would give me more cleavage, not only selling me on the idea of breast augmentation but encouraging it telling me how often he’s done the surgery for my ‘particular case.’

To correct his mistake in the first place the muscle needed to be released more on one side which he failed to do in my initial surgery. Resulting in my breast having next to no bottom pole.

[A small but vastly important step that turned a 4-6 week recovery time into 9 months.]

When I tried to make sense of this & asked if he had done just that during surgery all Peterson said was ‘I think so,’ looking onto a measly couple lines of notes on the back piece of paper for questionable confirmation.

I did not feel good I let this surgeon cut me open.

I was scared to have Peterson operate on me again. I requested a different surgeon in the office who I found to be so much more detailed & informative than Brian. It was night & day difference. Notes were thorough as were consultations - opposed to my at most 5 minute consultation with Brian.

It was a lengthy, stressful battle to have a different surgeon correct his mistake without having to pay full price for another breast augmentation. At one point I wanted the implants completely taken out because I fully regretted the procedure he did on me. It was a hard, frustrating process in negotiating revision surgery & costs. Brian's mistake was more than I bargained for.

Call me picky… but would YOU be happy with these results?

You couldn’t pay me to go back to go back him [sic].

On February 1, 2019, she posted a similar review on Google Reviews adding these comments:

NOTHING WAS SUGGESTED in regards of a ‘different approach.’ The only advice I rejected of Peterson’s, is when I took Dr. Valniceks suggestion making one implant 30cc bigger, again I am so thankful I did not take Peterson's misguided advice or my breasts would still not be symmetrical like they are today.

. . . 

Also I have spoken to a number of people with similar experiences after my review went viral. Peterson constantly tries to take down my review and publicly bully me. I’d suggest taking note of the ‘5-star’ reviews all similar praise with Peterson being their own review. Why is it there is not one negative? If you write any other word then breast he has leverage to take down your post. Awareness. Don’t learn the painful way. My website has detailed pictures of his work.

(Collectively, the “Posts”).

In defence of her posts, the Defendant plead that her comments were protected by the new Public Participation Act, S.B.C. 2019, c. 3 [PPPA], which came into force and effect in 2019. With respect to the PPPA, the Court stated as follows:

[23]      The PPPA came into force in March 2019. The purpose of the PPPA is to protect public participation in matters of public interest. It is designed to screen out actions that have the effect of limiting a defendant’s participation in public debate, and seeks to balance the rights of individuals to protect their reputations against the benefit to society of protecting free speech and rigorous debate on issues of public interest.

[24]      The defendant relies in particular on s. 4 of the PPPA as a complete defence to the plaintiff’s claim. She asserts the Posts were expressions of public interest. Section 4 of the PPPA reads:

4(1) In a proceeding, a person against whom the proceeding has been brought may apply for a dismissal order under subsection (2) on the basis that

(a) the proceeding arises from an expression made by the applicant, and

(b) the expression relates to a matter of public interest.

(2) If the applicant satisfies the court that the proceeding arises from an expression referred to in subsection (1), the court must make a dismissal order unless the respondent satisfies the court that

(a) there are grounds to believe that

(i)  the proceeding has substantial merit, and

(ii)  the applicant has no valid defence in the proceeding, and

(b) the harm likely to have been or to be suffered by the respondent as a result of the applicant's expression is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression.

[25]      Section 4 of the PPPA creates a pre-trial procedure that allows a defendant to apply to the court for an order dismissing a claim arising out of an expression of public interest. The province’s stated intention in enacting the PPPA was to protect public participation in debates of the issues of the day and prevent strategic lawsuits brought by the wealthy and powerful to shut down public criticism: Neufeld v. Hansman, 2021 BCCA 222 at para. 3; Hobbs v. Warner, 2021 BCCA 290 at para. 6.

[26]      The defendant’s submissions supporting her PPPA Application rely heavily on the chambers decision in Neufeld v. Hansman, 2019 BCSC 2028, which was overturned on appeal just over one month prior to the hearing of this summary trial.

[27]      The PPPA creates a multi-step process for determining whether an action should proceed. It essentially acts as a “gatekeeper” to prevent defamation lawsuits from continuing where the impugned words arise out of an expression related to matters of public interest. The first step places the onus on the defendant to demonstrate on a balance of probabilities that: 1) the action arises from an expression made by the defendant; and 2) the expression relates to a matter of public interest (Hobbs, at paras. 11–12). The phrase “relates to a matter of public interest” is to be given a broad and liberal interpretation: Hobbs, at para. 11.

[28]      If the defendant meets the first step, the onus then shifts to the plaintiff to show that the action should not be dismissed by satisfying the court that there are grounds to believe the proceeding has substantial merit, has a real prospect of success, and that the defendant has no valid defence. In the end, the assessment requires that society’s interest in allowing meritorious lawsuits to proceed must outweigh society’s interest in protecting expression on matters of public interest: Hobbs, at paras. 13–15, citing 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22. As Justice Côté put it in Bent v. Platnick, 2020 SCC 23 at para. 139, this weighing process is the “crux” of the analysis and one consideration must outweigh the other. It requires more than just a balancing exercise: Hobbs, at paras. 66–67.

[29]      It is intended that a PPPA application be heard at an early stage in a defamation proceeding to “nip cases in the bud”. In my view, it is inappropriate in circumstances, such as here, where both parties have put their cases forward and have asked the Court to determine the case on the merits. Nevertheless, I will briefly dispense with the defendant’s PPPA Application.

[30]      In my view, a consumer review of a plastic surgeon’s skills is within the ambit of public interest. Consumer protection and reviews have long been held to be matters of public interest in defamation cases: see e.g., Subway Franchise Systems of Canada Ltd, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26; Level One Construction Ltd. v. Burnham, 2018 BCSC 1354 at para. 179. As Chief Justice McLachlin, as she then was, said in Grant v. Torstar Corp., 2009 SCC 61 at paras.105–106:

[105] The case law on fair comment ‘is replete with successful fair comment defences on matters ranging from politics to restaurant and book reviews’.

[106] The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion and morality. The democratic interest in such wide-ranging public debate must be reflected in the jurisprudence.

[31]      The defendant relies on New Dermamed Inc. v. Sulaiman, 2018 ONSC 2517, aff’d 2019 ONCA 141, which, in my view, is well-founded. The Court in that case made the following findings:

[25]           The Google reviews posted by Ms. Sulaiman that relate to the services she received from New Dermamed are, in my view, analogous to an online review that one may read of a person’s experience in respect of services provided to the public by, for example, a restaurant or a hotel, which often involve matters that are determined by one’s personal tastes and subjective experiences. Online reviews of goods or services offered to members of the public, such as those posted by Ms. Sulaiman, are commonplace on Google or other web sites. While much of the general public may not be interested in reviews such as those posted by Ms. Sulaiman, it is enough that some segment of the community would have a genuine interest in receiving information on the subject.

[26]           When I consider the statements posted by Ms. Sulaiman in their entireties, I regard them as expressions of Ms. Sulaiman’s experiences with the services that are offered to the public by New Dermamed. These statements, objectively viewed, reflect Ms. Sulaiman’s own perceptions of the outcomes of the treatments she received. In the first post, Ms. Sulaiman referred to how her face looked to her following the treatments. In the second and third posts, she specifically referred to photographs that were taken that, she wrote, showed the effect on her own appearance that she described as “volume loss”. I consider the use of this term, in context, to be a description of Ms. Sulaiman’s subjective perception rather than a statement of objectively measurable scientific fact that can be proven or disproven. For this reason, I do not accept that Ms. Sulaiman’s comments are properly characterized as “false” or “indefensible”, as New Dermamed submits I should.

[27]           In my view, the comments by Ms. Sulaiman in her Google reviews of her experience at New Dermamed qualify as expressions that relate to a matter of public interest. . . . 

            . . . 

[45] I conclude that Ms. Sulaiman’s statements in her published Google reviews are comments, and not statements of fact, expressing her views concerning her experience at New Dermamed that relate to a matter of public interest, namely, the quality of the consultation and treatment services that are offered to the public by New Dermamed.

[32]      I find that the Posts are expressions on a matter of public interest (i.e., the quality of the services offered by a plastic surgeon)…

[33]      However, in my view, the PPPA Application fails at the second and third stages of the analysis. My conclusion, as discussed below, is that the proceeding has substantial merit, the defendant has no valid defence, and the harm caused to the plaintiff by the Posts was serious enough that society’s interest in continuing the proceeding outweighs society’s interest in protecting the defendant’s expressions. As Justice Goepel aptly noted in Hobbs, at para. 18, the weighing exercise necessitates that some “defendants will occasionally have to defend against lawsuits claiming damages for expressions that relate to matters of public interest.” This is one of those cases.

[34]      This action was not brought to stifle or frustrate the defendant’s freedom of expression or prevent her from making reviews or participating in matters of public debate. Consumer reviews, as a general principle, ought to be encouraged and there is a very real danger of a chilling effect if they are curtailed. However, such reviews should not be left unbridled. Online review platforms are not a carte blanche to say whatever one wishes without potential consequences. This case was brought to vindicate the plaintiff’s reputation as a plastic surgeon in light of the Posts. As was stated by Justice Côté in Bent, at para. 1:

[1]     Freedom of expression and its relationship to the protection of reputation has been subject to an assiduous and judicious balancing over the course of this Court’s jurisprudential history. While in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, this Court recognizes the importance of freedom of expression as the cornerstone of a pluralistic democracy, this Court has also recognized that freedom of expression is not absolute — ‘[o]ne limitation on free expression is the law of defamation, which protects a person’s reputation from unjustified assault’: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 2, per McLachlin C.J. Indeed, ‘the right to free expression does not confer a licence to ruin reputations’: para. 58. That is because this Court has likened reputation to a ‘plant of tender growth [whose] blossom, once lost, is not easily restored’: People ex rel. Karlin v. Culkin, 162 N.E. 487 (N.Y. 1928), at p. 492, per Cardozo J., cited by Cory J. in Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3, at para. 92. Values, therefore, are not without countervailing considerations.

[35]      Accordingly, the PPPA Application is dismissed.