Case Citation: Dr. Wiss v. Khan, 2025 BCSC 181

Dr. Ray Wiss, a practicing physician in Abbotsford, British Columbia, sought summary judgment under Rule 9-6 of the Supreme Court Civil Rules of British Columbia for a determination of liability in a defamation case against Dr. Zenab Khan and her daughter, Sherry Khan. 

Summary

Dr. Wiss supervised Dr. Khan in the Practice Ready Assessment Program (PRAP), a mentorship program for international medical graduates. At the end of the program, Dr. Wiss informed Dr. Khan that he would not recommend her continuation in the program. Shortly thereafter, negative Google reviews about him surfaced online, and subsequently, Sherry Khan, posted two TikTok videos containing serious allegations against Dr. Wiss, including claims of racism, sexual misconduct, and professional incompetence. 

An internal investigation by PRAP was carried out, which revealed no evidence to substantiate Dr. Khan's claims of misconduct. Nevertheless, Sherry Khan refused to remove the TikTok videos.

In this application, Dr. Wiss argued that the defendants have provided no evidence to support their defences. He asserted that the Response to Civil Claim merely denies the allegations without specifically addressing the facts. Additionally, he emphasized that the defendants depend on bald assertions in their affidavit, which should not be sufficient to defeat a summary judgment application.

The defendants opposed the application, they argued that key factual issues remain unresolved, particularly regarding the truth of Dr. Khan’s statements, her intent and the extent of her involvement in the social media posts. 

To succeed on summary judgment under Rule 9-6, with respect to an allegation of defamation, the plaintiff must establish that there is no genuine issue for trial. The court must first determine: a) Whether the statements were defamatory; b) Whether they referred to the plaintiff; and c) Whether they were communicated to others.

The TikTok videos accused Dr. Wiss of racism, sabotage, harassment, and sexual assault, statements that would harm his reputation, particularly in the medical field. The posts explicitly named him and reached over 300,000 views.

The court found that Dr. Wiss met the prima facie elements of defamation, shifting the burden to the defendants to establish a valid defence.

The defendants raised several defences, including the assertion of truth, stating that Dr. Khan’s statements accurately reflected her personal experiences. They also invoked the principal of fair comment, asserting that Sherry Khan’s TikTok posts were opinions on a matter of public interest. They claimed qualified privilege, stating that Dr. Khan’s statements were private conversations with her daughter, who had an interest in receiving them. Additionally, they argued that the posts were intended to raise awareness about misconduct in the medical field. Lastly, Dr. Khan denied any knowledge or involvement in posting the TikTok videos.

The central question on this application was whether there is a dispute as to facts or law which suggests a defence that deserves to be tried.

The court relied on principles outlined in Watson Island Development Corp. v. Prince Rupert (City), 2015 BCSC 1474 to assess whether the matter is appropriate for summary determination.
Justice Dley in Watson summarized the principles governing summary judgment under Rule 9-6 of the Supreme Court Civil Rules. The rule allows a court to dismiss a claim if there is no genuine issue for trial, with the burden on the applicant to prove this beyond a reasonable doubt.

Summary judgment is appropriate if the claim lacks factual merit or raises only legal issues. However, courts must not weigh evidence. If the evidence needs to be weighed and assessed, then the test of "plain and obvious" or "beyond a doubt" has not been satisfied and the application is to be dismissed. While summary judgment can eliminate unmeritorious claims to save time and costs, caution is needed when granting partial summary judgment to avoid fragmented litigation and inconsistent findings. 

The court held:
The court determined that while the plaintiff established a prima facie case of defamation, there were significant unresolved factual disputes that require trial. These include Dr. Khan’s credibility regarding her alleged unawareness of the defamatory posts, the intent behind her private statements, and whether those statements exceeded the scope of qualified privilege. Similarly, Sherry Khan’s actions raise questions about whether her TikTok posts were motivated by malice, particularly given her failure to moderate the defamatory comments. The court stated that these unresolved issues directly impact the availability of the defendants’ defences and preclude summary judgment at this stage. 

Key Takeaways

• Summary judgment is inappropriate if there are unresolved material facts or conflicting evidence requiring credibility assessments. The question is not whether there is a dispute as to facts or law but rather whether there is a dispute as to facts or law which suggests that there is a defence that deserves to be tried.
• Even if the opposing party has not provided any evidence to support their claim, if the case involved unresolved facts, the summary judgment application will likely be dismissed on the basis that the action has genuine issues that need to be tried.