Kathy Tomlinson becomes part of a slowly growing list of Canadian defamation cases that are winning with the defence of “responsible communication”.
By Jonah Brunet for the Ryerson Review of Journalism
Six years after reporting on a B.C. surgeon whose patients had a troubling tendency to experience serious post-op complications, Kathy Tomlinson and CBC successfully invoked the relatively new defence of responsible communication to win a defamation lawsuit.
Dr. Fernando Casses, who had his medial license revoked in Arizona before moving to B.C. to work as a surgeon, initially sued three former patients who had been quoted in Tomlinson’s story. This is known as a Strategic Lawsuit Against Public Participation (or a SLAPP suit). The complainants in SLAPP cases don’t typically expect to win the case but instead target individuals without the money to defend themselves in a lengthy legal battle. The patients, who had been on the brink of death years earlier due to mistakes made by Casses during surgery, were particularly vulnerable targets.
“That was the hardest part for me—they put their trust in me and then they were sued,” Tomlinson says, expressing guilt at her role in exposing the patients to a lawsuit. “It was horrible,” she says.
Soon after Casses launched his suit against former patients, CBC became involved, using its legal resources to defend both Tomlinson and her sources. The resulting court battle was a gruelling experience for Tomlinson, who, over the course of long days on the stand, saw her story ripped apart and her character attacked. Roger McConchie, Casses’ lawyer, called Tomlinson’s story “a disgrace to journalism,” among other things.