Bent v. Platnick

Bent v. Platnick
Collection
Supreme Court Judgments
Date
2020-09-10
Neutral citation
2020 SCC 23
Report
[2020] 2 SCR 645
Case number
38374
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Ontario
Subjects
Courts
Evidence
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645
Appeals Heard: November 12, 2019 Judgment Rendered: September 10, 2020 Docket: 38374
Between:
Maia Bent
Appellant
and
Howard Platnick
Respondent
And Between:
Lerners LLP
Appellant
and
Howard Platnick
Respondent
- and -
British Columbia Civil Liberties Association, Greenpeace Canada, Canadian Constitution Foundation, Ecojustice Canada Society, West Coast Legal Education and Action Fund, Atira Women’s Resource Society, B.W.S.S. Battered Women’s Support Services Association, Women Against Violence Against Women Rape Crisis Center, Canadian Civil Liberties Association, Canadian Broadcasting Corporation, Barbra Schlifer Commemorative Clinic, Ad IDEM / Canadian Media Lawyers Association, Canadian Journalists for Free Expression, CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, Aboriginal Peoples Television Network and Postmedia Network Inc.
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 179)
Dissenting Reasons: (paras. 180 to 301)
Côté J. (Wagner C.J. and Moldaver, Brown and Rowe JJ. concurring)
Abella J. (Karakatsanis, Martin and Kasirer JJ. concurring)
bent v. platnick
Maia Bent Appellant
v.
Howard Platnick Respondent
‑ and ‑
Lerners LLP Appellant
v.
Howard Platnick Respondent
and
British Columbia Civil Liberties Association,
Greenpeace Canada,
Canadian Constitution Foundation,
Ecojustice Canada Society,
West Coast Legal Education and Action Fund,
Atira Women’s Resource Society,
B.W.S.S. Battered Women’s Support Services Association,
Women Against Violence Against Women Rape Crisis Center,
Canadian Civil Liberties Association,
Canadian Broadcasting Corporation,
Barbra Schlifer Commemorative Clinic,
Ad IDEM / Canadian Media Lawyers Association, Canadian Journalists for Free Expression, CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, Aboriginal Peoples Television Network and Postmedia Network Inc. Interveners
Indexed as: Bent v. Platnick
2020 SCC 23
File No.: 38374.
2019: November 12; 2020: September 10.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for ontario
Courts — Dismissal of proceeding that limits debate — Freedom of expression — Matters of public interest — Application of Ontario’s framework for dismissal of strategic lawsuits against public participation (SLAPPs) to defamation claim — Whether defamation claim against lawyer for statements made in email alleging that physician inappropriately altered medical reports should be dismissed under anti‑SLAPP legislation — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1.
Evidence — Fresh evidence — Motion seeking to adduce fresh evidence filed before Supreme Court of Canada — Whether fresh evidence should be admitted.
B is a lawyer and partner at an Ontario law firm. She is a member and, at the relevant time, was the president‑elect of the Ontario Trial Lawyers Association (“OTLA”). The OTLA is an organization comprised of legal professionals who represent persons injured in motor vehicle accidents. P is a medical doctor who is typically hired through insurance companies to review other medical specialists’ assessments of persons injured in motor vehicle accidents and to prepare a final report with an ultimate assessment of the accident victim’s level of impairment. Following two insurance coverage disputes in which B was acting as counsel for an accident victim, B sent an email to a Listserv (i.e. an email listing) of approximately 670 OTLA members in which she made two statements that specifically mention P by name and allege that, in the context of those disputes, P “altered” doctors’ reports and “changed” a doctor’s decision as to the victim’s level of impairment. B’s email was eventually leaked anonymously by a member of the OTLA and as a result, an article was published in a magazine which reproduced B’s email in its entirety and referred to testimony from B.
P commenced a lawsuit in defamation against both B and her law firm, claiming damages in the amount of $16.3 million. B filed a motion under s. 137.1 of the Courts of Justice Act (“CJA”) to dismiss the lawsuit. The motion judge allowed B’s motion and dismissed P’s defamation proceeding. The Court of Appeal set aside the motion judge’s determination, dismissed B’s motion, and remitted P’s defamation claim to the Superior Court for consideration.
Held (Abella, Karakatsanis, Martin and Kasirer JJ. dissenting): The appeals should be dismissed.
Per Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ.: While in 1704604 Ontario Ltd. v. Pointes Protection Association., 2020 SCC 22, [2020] 2 S.C.R. 589, the Court recognizes the importance of freedom of expression as the cornerstone of a pluralistic democracy, the right to free expression does not confer a licence to ruin reputations. Thus, in addition to protecting expression on matters of public interest, s. 137.1 of the CJA must also ensure that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to pursue it. Applying the s. 137.1 framework set out in Pointes Protection to these appeals, B’s s. 137.1 motion should be dismissed and P’s lawsuit in defamation should be allowed to continue. P’s claim is one that deserves to be adjudicated on its merits, and is not one that ought to be summarily screened out at this early stage.
First, B has met her threshold burden under s. 137.1(3) as B’s email constitutes an expression that relates to a matter of public interest and P’s defamation proceeding arises from that expression. B’s email is captured by the statutory definition of “expression” found in s. 137.1(2) which contemplates any communication, even if it is non‑verbal, and even if it is made privately. The underlying proceeding clearly “arises from” that expression, since B’s email is the foundation for P’s defamation proceeding. Moreover, B’s email raises concerns regarding the truthfulness, reliability, and integrity of medical reports filed on behalf of insurers in the arbitration process, which, in turn, raises concerns regarding the integrity of the arbitration process itself and the proper administration of justice. Whether B’s concerns are valid or not is beside the point at this stage. Further, the email is directed at a not insignificant number of individuals, who have a special interest, as part of their broader mandate as members of the OTLA, to steadfastly represent victims of motor vehicle accidents, a public interest in itself. Therefore, B’s email relates to a matter of public interest.
As B has met her burden on the threshold question, the burden shifts to P to show that there are grounds to believe that his defamation proceeding has substantial merit and that B has no valid defence to it under s. 137.1(4)(a) of the CJA. A “grounds to believe” standard requires a basis in the record and the law, taking into account the stage of the litigation, to support these findings. This means that any single basis in the record and the law will be sufficient as long as it is legally tenable and reasonably capable of belief.
P has discharged his burden under s. 137.1(4)(a)(i) and shown that there are grounds to believe that his defamation proceeding has substantial merit. Defamation is governed by a well‑articulated test requiring that three criteria be met and all three of these criteria are easily satisfied in the present case: the words complained of were published, as B wrote an email and sent it to 670 OTLA members; the words complained of explicitly refer to P; and the words complained of were defamatory, since an allegation of professional misconduct would tend to lower P’s reputation in the eyes of a reasonable person.
P has also discharged his burden under s. 137.1(4)(a)(ii) and shown that there are grounds to believe that B has no valid defence to his defamation proceeding. In other words, there is a basis in the record and the law, taking into account the stage of the proceedings, to support a finding that the defences B has put in play do not tend to weigh more in her favour.
First, there are grounds to believe that B’s defence of justification is not valid. To succeed on the defence of justification at trial, the burden is on the defendant to prove the substantial truth of the “sting”, or main thrust, of the defamation. Applied to the facts of this case, the “sting” of B’s email is an allegation of professional misconduct. In effect, B’s two allegations are constituent parts of the same sting of professional misconduct and the truth of just one will be insufficient for the defence to succeed because B’s two allegations are connected and inseverable. Thus, regardless of whether B’s first allegation of P altering a report is true, if B’s second allegation that P “changed” a doctor’s decision is not substantially true, then this is sufficient to foreclose her defence of justification under s. 137.1(4)(a)(ii). In the present case, there is a basis in the record and the law to support a finding that the allegation that P “changed the doctor’s decision” is not substantially true, and that therefore the defence of justification cannot be considered to weigh more in favour of B such that it may be considered “valid” under s. 137.1(4)(a)(ii).
Second, there are grounds to believe that B’s defence of qualified privilege is not valid. An occasion of qualified privilege exists if a person making a communication has an interest or duty to publish the information in issue to the person to whom it is published and the recipient has a corresponding interest or duty to receive it. However, the privilege is qualified in the sense that it can be defeated. This can occur particularly in two situations: where the speaker was reckless as to the truth of the words spoken; or where the scope of the occasion of privilege was exceeded. In the present case, even assuming without deciding the issue that qualified privilege does attach to the occasion upon which B’s email was sent, there is a basis in the record and the law to support a finding that the scope of B’s privilege was exceeded and that the defence therefore does not tend to weigh more in her favour. This is because the specific references made to P may not have been necessary to the discharge of the duty giving rise to the privilege. In other words, B could have communicated her concerns regarding the alteration of medical reports without naming P specifically. Further, the Listserv’s express prohibition on even potentially defamatory remarks suggests that the OTLA acknowledges that the posting of even potentially defamatory material is not necessary (or even relevant) to the duty encompassed within the particular occasion. Lastly, the record reveals a lack of investigation or reasonable due diligence by B prior to making her serious allegations. B took no investigative steps at all to corroborate an allegation of professional misconduct, and instead, relied on her recollection of a specific phrase, from a specific report, by a specific person, concerning a specific event, that had taken place three years earlier, without attempting to communicate with P or consulting her own notes. In light of the heightened expectation of reasonable due diligence that the Court has historically imposed on lawyers, B’s privilege may be defeated simply on the ground that she was indifferent or reckless as to the truth of her defamatory statements. Thus, even assuming that qualified privilege attaches to the occasion upon which B’s communication was made, there are grounds to believe that the defence is not valid under s. 137.1(4)(a)(ii) because it may be defeated by virtue of B having exceeded the scope of the privilege, and perhaps even by her reckless disregard for the truth (i.e. malice).
Finally, the public interest hurdle at s. 137.1(4)(b) is the crux of the s. 137.1 analysis. P must show on a balance of probabilities that the harm likely to be or have been suffered as a result of the expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. First, the harm to P here is extensive and quite serious. Not only does it include significant monetary harm that is more than just a bald assertion, but reputational harm is also eminently relevant to the harm inquiry, even if it is not quantifiable at this stage, and it is only amplified when one considers professional reputation. Second, P’s harm was suffered as a result of B’s expression. B can be held liable for harm that may have resulted from the subsequent leak and/or reproduction of her email in the magazine because republication was reasonably foreseeable to B and/or authorized by B, expressly or impliedly. Even if B cannot be held liable for republication, causation is not an all‑or‑nothing proposition, and there is a sufficient causal link between the initial email publication and harm suffered by P. No definitive determination of harm or causation is required at this stage. Therefore, the harm likely to be or have been suffered by P as a result of B’s expression lies close to the high end of the spectrum and, correspondingly, so too does the public interest in allowing his defamation proceeding to continue.
In determining the public interest in protecting B’s expression, it must be considered that she made a personal attack against P, which cast doubt on his professional competence, integrity, and reputation, without ever having met him and without any investigation into her allegations against him. Indeed, there will be less of a public interest in protecting a statement that contains gratuitous personal attacks and the motivation behind the expression will be relevant to the inquiry. The chilling effect on future expression and the broader or collateral effects on other expressions on matters of public interest must also be considered. Permitting P’s defamation claim to proceed will deter others not from speaking out against unfair and biased practices, but from unnecessarily singling out an individual in a way that is extraneous or peripheral to the public interest, and from making defamatory remarks against an individual without first substantiating, or attempting to substantiate, the veracity of their allegations. In this way, rather than disincentivizing people from speaking out against unfair and biased practices, it will incentivize them to act with reasonable due diligence. Thus, when considered as a whole, the public interest in protecting B’s expression lies somewhere in the middle of the spectrum: while B’s specific references to P fall at the low end of the protection‑deserving spectrum, her email interpreted broadly as pertaining to the administration of justice in Ontario falls closer to the high end.
P has established on a balance of probabilities that the harm likely to be or have been suffered as a result of B’s expression is sufficiently serious that the public interest in permitting his defamation proceeding to continue outweighs the public interest in protecting B’s expression. In light of the open‑ended nature of s. 137.1(4)(b), courts have the power to scrutinize what is really going on in the particular case before them. On its face, this is not a case in which one party is vindictively or strategically silencing another party; it is a case in which one party is attempting to remedy seemingly legitimate harm suffered as a result of a defamatory communication. This is not the type of case that comes within the legislature’s contemplation of one deserving to be summarily dismissed at an early stage, nor does it come within the language of the statute requiring such a dismissal.
Moreover, P’s motion to adduce fresh evidence pursuant to s. 62(3) of the Supreme Court Act should be allowed in part. This case is a transitional one: the considerable uncertainty surrounding s. 137.1 motions — due to a lack of judicial guidance with respect to both the test for withstanding a s. 137.1 motion, as well as the nature or comprehensiveness of the evidence required on a such a motion — militates in favour of granting the motion to adduce fresh evidence in part based on the test from Palmer v. The Queen, [1980] 1 S.C.R. 759.
Per Abella, Karakatsanis, Martin and Kasirer JJ. (dissenting): The appeal should be allowed and P’s defamation action should be dismissed under s. 137.1 of Ontario’s Courts of Justice Act. There is no dispute that P’s defamation action was based on expression that relates to a matter of public interest, as B’s email addressed questions of significance to the administration of justice, particularly the independence, accuracy and impartiality of experts and third‑party assessment companies retained by insurers. Section 137.1(3) is therefore satisfied and P’s defamation proceeding must presumptively be dismissed. Pursuant to s. 137.1(4), however, P’s proceeding may continue if he satisfies a judge that the following three criteria are met: there are grounds to believe that his case has substantial merit, B has no valid defence to the proceeding, and the likely harm suffered by him is serious enough that it outweighs the public interest in protecting B’s expression. Here, B has a valid defence of qualified privilege and is therefore entitled to the relief mandated by s. 137.1(3), namely the dismissal of P’s defamation action.
A defence is valid if it has a real prospect of success, meaning that it must be legally tenable, supported by evidence that is reasonably capable of belief, and have a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the person being sued. The burden of showing that the defence can be said to have no real prospect of success is on the plaintiff. The defence of qualified privilege applies where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. Qualified privilege can however be defeated if the communication exceeded the purpose of the privilege or if the communication was predominantly motivated by malice. A defendant will exceed the purpose of the privilege if the information communicated is not reasonably appropriate, that is, relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege. The question is not whether the statements were strictly necessary. A necessity‑based approach would have dangerous and restrictive implications for the defence of qualified privilege. It would effectively exclude from the defence statements containing specific examples of misconduct, since statements like that can almost always be stripped of detail and reconstructed without the unnecessary examples they previously contained. Qualified privilege exists to acknowledge the benefit of expression which is relevant to protecting the public interest, including protecting the public from the perpetuation of wrongdoing or injustice. Generic accounts of misconduct, which do not refer to specific persons, do not require the protection of qualified privilege. The defence is, necessarily, engaged only when someone is identified.
The conclusion that B sent her email in circumstances protected by qualified privilege is supported by evidence that is reasonably capable of belief and sufficiently compelling to give the defence the necessary likelihood of success. As president‑elect of the OTLA, B had a clear duty to inform its members about selective and misleading expert reports which disadvantage the very individuals they advocate for and represent, as well as a duty to advise OTLA members of ways to protect their clients’ interests against unfair practices by experts and assessment companies. B also had a professional duty as a lawyer to participate in improving the administration of justice and to share best practices. Members of the OTLA Listserv — all plaintiff‑side personal injury lawyers — unquestionably had a reciprocal duty as well as an interest in receiving B’s communication. Being alerted to questionable conduct by experts and assessment companies — and advised of ways to guard against such conduct — was of professional significance to them and especially to their clients. B or her colleagues did not waive their professional obligation to exchange such information by joining a Listserv. B’s communication, therefore, was made by a person with a professional interest and duty to share the information with her colleagues, who had a corresponding interest and duty to receive it. This supports the conclusion that her defence of qualified privilege has a real prospect of success based on both the facts and the law. It is also hard to see how B could have exceeded the bounds of her duty to inform OTLA members of selective and misleading expert reports, by identifying an expert who she reasonably believed to have engaged in precisely that conduct. It was clearly relevant and reasonably appropriate for B, in fulfilling her duty to protect her colleagues and their clients, to identify P, a frequently‑retained expert in whose cases it had proven to be especially important to obtain full disclosure of the insurer’s files. It would defeat the purpose of qualified privilege to withhold the defence from B because she chose to identify P by name.
Further, B sent her email while she was president‑elect of the OTLA through a Listserv restricted to members of the OTLA who practiced plaintiff‑side personal injury law. Members of the Listserv were bound by a wide‑ranging undertaking to keep the information strictly confidential. As lawyers, Listserv members were also required by the Rules of Professional Conduct to strictly and scrupulously fulfill their undertakings. There was no reason for B to expect that Listserv members would breach these undertakings and, in so doing, breach their professional obligations. There is also nothing in the record to support a finding of malice against B, either due to recklessness or on any other basis. Additionally, the motion judge concluded that there was no evidence to reasonably support the inference that B acted with malice in publishing her email, a conclusion fully supported by the record, and this conclusion is entitled to deference.
In this case, protecting B’s expression on matters of public interest outweighs the harm to P’s reputation. Any harm resulting from the leak of B’s email was caused by unforeseen and unforeseeable communication by others, not by B sending the email to its intended audience of lawyers on the Listserv. B’s email addressed matters of critical importance to the administration of justice and there is a broader public interest in protecting B’s expression, as permitting a defamation suit to proceed would produce a considerable chilling effect.
P’s motion to admit fresh evidence should be dismissed. Most of the material he seeks to admit is clearly irrelevant and inadmissible. What is left are two unsworn letters sent by email between counsel in a related matter. The emails relate to issues that were, from the day P brought his defamation action, live and in serious dispute but unchallenged and unexplored by him, and were rejected as fresh evidence four years ago by the motion judge. Admitting the emails would require the Court to overturn the exercise of discretion by the motion judge, ignore P’s demonstrable lack of due diligence, and accept unsworn, untested, hearsay evidence, all to obtain information that would not, in any event, have affected the result of B’s dismissal hearing. Such an outcome would not only frustrate the purposes of s. 137.1, it would inexplicably depart from the Court’s jurisprudence on the admission of fresh evidence.
Cases Cited
By Côté J.
Applied: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 589; referred to: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; People ex rel. Karlin v. Culkin, 162 N.E. 487 (N.Y. 1928); Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3; Palmer v. The Queen, [1980] 1 S.C.R. 759; R.P. v. R.C., 2011 SCC 65, [2011] 3 S.C.R. 819; May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809; United States of America v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44; R. v. Warsing, [1998] 3 S.C.R. 579; Platnick v. Bent (No. 2), 2016 ONSC 7474; Kuczera (Re), 2018 ONCA 322, 58 C.B.R. (6th) 227; Calaheson v. Gift Lake Metis Settlement, 2016 ABCA 185, 38 Alta. L.R. (6th) 30; R. v. 1275729 Ontario Inc. (2005), 205 O.A.C. 359; Elliott v. Sagl, 2019 ONSC 2490; R. v. Stolar, [1988] 1 S.C.R. 480; R. v. Moucho, 2019 ONSC 3463, 53 M.V.R. (7th) 131; R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; RTC Engineering Consultants Ltd. v. Ontario (Solicitor General) (2002), 58 O.R. (3d) 726; Adam v. Ward, [1917] A.C. 309; Rubin v. Ross, 2013 SKCA 21, 409 Sask. R. 202, leave to appeal refused, [2013] 3 S.C.R. x; Young v. Toronto Star Newspapers Ltd. (2005), 77 O.R. (3d) 680; Awan v. Levant, 2016 ONCA 970, 133 O.R. (3d) 401; Walker v. CFTO Ltd. (1987), 59 O.R. (2d) 104; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633.
By Abella J. (dissenting)
1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 589; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3; Adam v. Ward, [1917] A.C. 309; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182; MacDonald v. Sun Life Assurance Company of Canada, 2006 CanLII 41669; Burwash v. Williams, 2014 ONSC 6828; Daggitt v. Campbell, 2016 ONSC 2742, 131 O.R. (3d) 423; Douglas v. Tucker, [1952] 1 S.C.R. 275; Netupsky v. Craig, [1973] S.C.R. 55; McLoughlin v. Kutasy, [1979] 2 S.C.R. 311; Merit Consultants International Ltd. v. Chandler, 2014 BCCA 121, 60 B.C.L.R. (5th) 214; Wang v. British Columbia Medical Assn., 2014 BCCA 162, 57 B.C.L.R. (5th) 217; RTC Engineering Consultants Ltd. v. Ontario (Solicitor General) (2002), 58 O.R. (3d) 726; Chohan v. Cadsky, 2009 ABCA 334, 464 A.R. 57; Laufer v. Bucklaschuk (1999), 145 Man. R. (2d) 1; Board of Trustees of the City of Saint John Employee Pension Plan v. Ferguson, 2008 NBCA 24, 328 N.B.R. (2d) 319; Cush v. Dillon, [2011] HCA 30, 243 C.L.R. 298; Birchwood Homes Limited v. Robertson, [2003] EWHC 293; Tsatsi v. College of Physicians and Surgeons of Saskatchewan, 2018 SKCA 53; Foulidis v. Baker, 2014 ONCA 529, 323 O.A.C. 258; Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067; Jerome v. Anderson, [1964] S.C.R. 291; Hodgson v. Canadian Newspapers Co. (2000), 49 O.R. (3d) 161; Smith v. Cross, 2009 BCCA 529, 99 B.C.L.R. (4th) 214; Martin v. Lavigne, 2011 BCCA 104, 17 B.C.L.R. (5th) 132; Cimolai v. Hall, 2007 BCCA 225, 240 B.C.A.C. 53; Davies & Davies Ltd. v. Kott, [1979] 2 S.C.R. 686; Korach v. Moore (1991), 1 O.R. (3d) 275; Wells v. Sears, 2007 NLCA 21, 264 Nfld. & P.E.I.R. 171; Horrocks v. Lowe, [1975] A.C. 135; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Crookes v. Newton, 2011 SCC 47, [2011] 3 S.C.R. 269; Breeden v. Black, 2012 SCC 19, [2012] 1 S.C.R. 666; Platnick v. Bent (No. 2), 2016 ONSC 7474; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423; McDonald v. Brookfield Asset Management Inc., 2016 ABCA 375; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44; Bukshtynov v. McMaster University, 2019 ONCA 1027; R. v. M.(P.S.) (1992), 77 C.C.C. (3d) 402; Iroquois Falls Power Corp. v. Ontario Electricity Financial Corp., 2016 ONCA 271, 398 D.L.R. (4th) 652.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , s. 2( b ) .
Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 137.1, 137.2, 137.3.
Insurance Act, R.S.O. 1990, c. I.8.
Libel and Slander Act, R.S.O. 1990, c. L.12, s. 22.
Protection of Public Participation Act, 2015, S.O. 2015, c. 23.
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 30.10, 31.10.
Rules of Professional Conduct [made under the Law Society Act, R.S.O. 1990, c. L.8], rr. 2.1‑2, 3.1‑1, 5.1‑6, 5.6‑1, 7.2‑1, 7.2‑4, 7.2‑11, 7.5‑1.
Rules of the Supreme Court of Canada, SOR/2002‑156, r. 47.
Statutory Accident Benefits Schedule — Effective September 1, 2010, O. Reg. 34/10, s. 1.
Supreme Court Act , R.S.C. 1985, c. S‑26, s. 62(3) .
Authors Cited
Brown, Donald J. M., with the assistance of David Fairlie. Civil Appeals. Toronto: Thomson Reuters, 2019 (loose‑leaf updated December 2019, release 4).
Brown, Raymond E. Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed. Toronto: Thomson Reuters, 2019 (loose‑leaf updated 2020, release 2).
Downard, Peter A. The Law of Libel in Canada, 4th ed. Toronto: LexisNexis, 2018.
Ontario. Ministry of Finance. Ontario Automobile Insurance Dispute Resolution System Review: Final Report. Toronto, 2014.
Ontario. Ministry of the Attorney General. Anti‑Slapp Advisory Panel: Report to the Attorney General. Toronto, 2010.
Scott, Michaelin, and Chris Tollefson. “Strategic Lawsuits Against Public Participation: The British Columbia Experience” (2010), 19 RECIEL 45.
Underwood, Graham, and Jonathan Penner. Electronic Evidence in Canada. Toronto: Thomson Reuters, 2019 (loose‑leaf updated 2019, release 1).
Young, Hilary. “Rethinking Canadian Defamation Law as Applied to Corporate Plaintiffs” (2013), 46 U.B.C. L. Rev. 529.
APPEALS from a judgment of the Ontario Court of Appeal (Doherty, Brown and Huscroft JJ.A.), 2018 ONCA 687, 419 C.R.R. (2d) 61, 417 C.R.R. (2d) 350, 82 C.C.L.I. (5th) 191, 23 C.P.C. (8th) 275, 426 D.L.R. (4th) 60, [2018] O.J. No. 4445 (QL), 2018 CarswellOnt 14124 (WL Can.), setting aside a decision of Dunphy J., 2016 ONSC 7340, 136 O.R. (3d) 339, 369 C.R.R. (2d) 243, 405 D.L.R. (4th) 674, 62 C.C.L.I. (5th) 115, 95 C.P.C. (7th) 326, [2016] O.J. No. 6223 (QL), 2016 CarswellOnt 19079 (WL Can.). Appeals dismissed, Abella, Karakatsanis, Martin and Kasirer JJ. dissenting.
Howard Winkler and Eryn Pond, for the appellant Maia Bent.
Terrence J. O’Sullivan, Andrew Winton and Paul Michell, for the appellant Lerners LLP.
Timothy S. B. Danson and Marjan Delavar, for the respondent.
Peter Kolla, Amanda Bertucci and Maia Tsurumi, for the intervener the British Columbia Civil Liberties Association.
Nader R. Hasan and Priyanka Vittal, for the intervener Greenpeace Canada.
Adam Goldenberg and Simon Cameron, for the intervener the Canadian Constitution Foundation.
Julia Croome, Joshua Ginsberg and Sue Tan, for the intervener the Ecojustice Canada Society.
David Wotherspoon, Rajit Mittal and Amber Prince, for the interveners the West Coast Legal Education and Action Fund, the Atira Women’s Resource Society, the B.W.S.S. Battered Women’s Support Services Association and the Women Against Violence Against Women Rape Crisis Center.
Alexi N. Wood and Jennifer P. Saville, for the intervener the Canadian Civil Liberties Association.
Sean A. Moreman and Katarina Germani, for the intervener the Canadian Broadcasting Corporation.
Joanna Birenbaum and Alicja Putcha, for the intervener the Barbra Schlifer Commemorative Clinic.
Iain A. C. MacKinnon and Justin Linden, for the interveners the Ad IDEM / Canadian Media Lawyers Association, the Canadian Journalists for Free Expression, CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, the Aboriginal Peoples Television Network and Postmedia Network Inc.
The judgment of Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ. was delivered by
Côté J. —
I. Introduction
[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, [2020] 2 S.C.R. 589, 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] 3 S.C.R. 3, at para. 92. Values, therefore, are not without countervailing considerations.
[2] In these appeals, the Court must apply the framework set out in Pointes Protection in order to determine whether the respondent’s defamation claim against the appellants can proceed or whether it must be dismissed under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). In effect, this Court must consider the delicate equilibrium between two fundamental values in a democratic society, freedom of expression and the protection of reputation, vis-à-vis the Protection of Public Participation Act, 2015, S.O. 2015, c. 23.
[3] For the reasons that follow, I would dismiss the appeals before this Court, and accordingly, I would dismiss the s. 137.1 motion and allow the respondent’s lawsuit in defamation to continue. While the appellant Maia Bent (“Ms. Bent”) successfully meets her threshold burden under s. 137.1(3), the respondent, Dr. Howard Platnick (“Dr. Platnick”), successfully clears both the merits-based hurdle and the public interest hurdle under s. 137.1(4)(a) and s. 137.1(4)(b), respectively.
[4] Furthermore, and in order to avoid any misunderstanding, it is important to mention at the outset that a s. 137.1 motion is unequivocally not a determinative adjudication of the merits of a claim: Pointes Protection, at paras. 37, 50, 52 and 71. Instead, the implication of the findings that I set out herein is simple: Dr. Platnick deserves to have his day in court to potentially vindicate his reputation — “a fundamental value in its own right in a democracy” (para. 81). At trial, judicial powers of inquiry are broader, viva voce evidence can be given, and ultimate assessments of credibility can be made. Nothing in these reasons can, or should, be taken as prejudging the merits of Dr. Platnick’s underlying defamation claim either in fact or in law. Simply put, my resolution of this s. 137.1 motion means only that Dr. Platnick’s claim is one that deserves to be adjudicated on the merits, and is not one that ought to be summarily screened out at this early stage.
II. Background
A. Factual Overview
[5] The appellant Ms. Bent is a lawyer and partner at the law firm Lerners LLP (“Lerners”), which is also an appellant before this Court. Ms. Bent is a member and, at the relevant time, was the president-elect of the Ontario Trial Lawyers Association (“OTLA”). The OTLA is an organization comprised of lawyers, law clerks, and law students who represent persons injured in motor vehicle accidents; it consists of approximately 1,600 members.
[6] The respondent, Dr. Platnick, is a medical doctor of general practice who worked as a family physician from 1988 to 2011. Since 1991, he has typically been hired through insurance companies to review other medical specialists’ assessments of persons injured in motor vehicle accidents and to prepare a final report with an ultimate assessment himself — as in this case.
[7] Dr. Platnick has commenced a lawsuit against Ms. Bent and Lerners alleging defamation and damages in the amount of $16.3 million. That is the underlying proceeding at issue here, which Ms. Bent is asking this Court to dismiss pursuant to s. 137.1 of the CJA.
[8] Of critical importance to these appeals, the following email — sent by Ms. Bent to a Listserv (i.e. an email listing, the parameters of which I explain in detail later in these reasons) of approximately 670 OTLA members — is the basis for Dr. Platnick’s defamation action:
Subject: Sibley Alters Doctors’ Reports
Date: November 10, 2014[1]
. . .
Dear Colleagues,
I am involved in an [a]rbitration on the issue of catastrophic impairment where Sibley aka SLR Assessments did the multi-disciplinary assessments for TD Insurance. Last Thursday, under cross-examination the IE neurologist, Dr. King, testified that large and critically important sections of the report he submitted to Sibley had been removed without his knowledge or consent. The sections were very favourable to our client. He never saw the final version of his report which was sent to us and he never signed off on it.
He also testified that he never participated in any “consensus meeting” and he never was shown or agreed to the Executive Summary, prepared by Dr. Platnick, which was signed by Dr. Platnick as being the consensus of the entire team.
This was NOT the only report that had been altered. We obtained copies of all the doctor[s’] file[s] and drafts and there was a paper trail from Sibley where they rewrote the doctors’ reports to change their conclusion from our client having a catastrophic impairment to our client not having a catastrophic impairment.
This was all produced before the arbitration but for some reason the other lawyer didn’t appear to know what was in the file (there were thousands of pages produced). He must have received instructions from the insurance company to shut it down at all costs on Thursday night because it offered an obscene amount of money to settle, which our client accepted.
I am disappointed that this conduct was not made public by way of a decision but I wanted to alert you, my colleagues, to always get the assessor’s and Sibley’s files. This is not an isolated example as I had another file where Dr. Platnick changed the doctor’s decision from a marked to a moderate impairment. [Emphasis added.]
(A.R., vol. III, at pp. 31-32)
[9] As is clear on its face, Ms. Bent made two statements in her email that specifically mention Dr. Platnick by name. Each of them refers to a different factual matrix, but makes a similar allegation that Dr. Platnick “altered” reports. The first refers to what I will call the “Carpenter Matter”. The second pertains to a different matter, which I will refer to as the “Dua Matter”. I set out the relevant factual predicate for each matter below.
(1) Carpenter Matter, November 2014
[10] In November 2014, Ms. Bent was acting as counsel in an arbitration with respect to an insurance coverage dispute. The crux of that dispute depended on whether Ms. Bent’s client — Dr. Carpenter, who had been injured in a motor vehicle accident — had suffered a “catastrophic im