Maia Bent, et al. v. Howard Platnick, et al.
(Ontario) (Civil) (By Leave)
Judgments and orders - Judgments and orders — Anti-SLAPP legislation — Summary dismissal — Defamation — What is the proper scope of the court’s inquiry into the merits of claims and defences in the process for the mandatory summary dismissal of proceedings that arise from an expression on a matter of public interest — What is the scope of appellate review of the judge’s factual findings and his or her application of the findings to the grounds to believe standard — How is the court to weigh the seriousness of the harm to reputation and the importance of the public interest expression at stake — Under what circumstances is the Court of Appeal entitled to interfere with the motion judge’s exercise of discretion in deciding whether the public interest favours the dismissal of the proceeding — Whether s. 137.1(4)(a)(ii) permits the motion judge to weigh evidence or must the motion judge accept a plaintiff’s evidence if it “may be” accepted by judge or jury — Whether s. 137.1(4)(b) permits the motion judge to consider the issues of causation and foreseeability in respect of alleged harm to the plaintiff as a result of the defendant’s expression — What standard of review should an appellate court apply on appeals from anti-SLAPP suits — Whether the Protection of Public Participation Act, 2015, S.O. 2015, c. 23 and ss. 137.1 and 137.2 of the Courts of Justice Act, in particular, violate s. 7 of the Canadian Charter of Rights and Freedoms — Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 137.1 to 137.5.
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The respondent, Howard Platnick is a medical doctor who spends much of his professional time preparing and reviewing medical assessments done in the context of disputes between insurers and persons insured in motor vehicle accidents. He works mostly, but not exclusively for insurers. The applicant, Maia Bent is a lawyer and partner with the applicant law firm, Lerners LLP. She acts for individuals who have been injured in motor vehicle accidents and are seeking compensation from insurers. At the relevant time, Ms. Bent was also the president-elect of the Ontario Trial Lawyers Association (“OTLA”), an organization of lawyers, law clerks and law students who represent persons injured in motor vehicle accidents and who are involved in the automobile insurance dispute resolution process.
In November 2014, Ms. Bent was acting for a client who claimed to have suffered a catastrophic impairment as a result of a motor vehicle accident. Dr. Platnick was retained by the insurer to do an impairment calculation based on applicable criteria. The matter was eventually settled. A few days after the settlement, Ms. Bent posted an email on the OTLA members’ automated email service. Only OTLA members could subscribe and members who subscribed were obligated to undertake to maintain the confidentiality of the information provided. Ms. Bent’s email was however eventually leaked to the press. Ms. Bent’s email was entitled “Sibley Alters Doctors’ Reports” and made reference to two expert reports provided by Dr. Platnick in terms he claimed were defamatory. Dr. Platnick requested an apology and a retraction and when his requests went unanswered, he commenced a lawsuit.
Dr. Platnick sued Ms. Bent and Lerners for libel, claiming damages of more than $15 million. The applicants defend the claim, advancing several defences, including justification and qualified privilege. The applicants successfully moved for a dismissal of the action under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43. On appeal it was held that although the motion judge correctly determined that the expression in issue related to a matter of public interest, he erred in concluding that Dr. Platnick had failed to meet his onus under ss. 137.1(4)(a) and (b). The Court of Appeal found that on a proper application of those provisions, Dr. Platnick had met that onus. It was further held that s. 137.1 did not infringe s. 7 or s. 15 of the Canadian Charter of Rights and Freedoms. The appeal was allowed, the dismissal of the action was set aside and the matter remitted to the trial court.
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