Defamation Challenge to Transparency Fails

Should regulators go public with safety concerns before they are fully established? That was the issue facing a regulator, a hospital and the government in the spring of 2009. A review of the radiological interpretations by Dr. Tsatsi indicated serious concerns that placed the public at risk. The regulator decided to conduct a broader review. However, Dr. Tsatsi was suspended from his position in the meantime and a press release was issued so that the public could take appropriate measures to protect their health. A decision was made to name Dr. Tsatsi publicly (rather than just send private communications to affected patients) for a number of reasons including to better enable patients to take action, to protect the reputation of other radiologists who would otherwise be placed under suspicion and to demonstrate transparency in circumstances where the media would almost certainly identify Dr. Tsatsi in any event. Dr. Tsatsi sued for defamation.

In Tsatsi v College of Physicians and Surgeons of Saskatchewan, 2018 SKCA 53,, Saskatchewan’s highest court upheld the summary dismissal of the lawsuit. It held that the defence of justification applied in that, at the time that the statements were made by the regulator, the statements (namely that the public was at risk) were accurate. A subsequent investigation largely confirmed the accuracy of those statements as well. The Court also held that the defence of qualified privilege applied in that the regulator had a duty to protect the public and it acted without malice in deciding whether or not to publish Dr. Tsatsi’s name.

Regulators can take comfort that courts will be sympathetic to transparency initiatives taken in good faith.

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