Summary

38374

Maia Bent, et al. v. Howard Platnick, et al.

(Ontario) (Civil) (By Leave)

Keywords

Judgments and orders - Legislation - Interpretation - Anti-SLAPP legislation - Expression on matters of public interest - Dismissal of proceedings - Defamation - Whether the Court of Appeal erred in its interpretation of “grounds to believe” and its formulation of the merits test - Whether the Court of Appeal erred by restricting the factors that the motion judge could consider in assessing whether the alleged harm caused by the expression is sufficiently serious that it outweighs the public interest in protecting the expression - What is the proper interpretation of s. 137.1(4)(a)(ii) of the Courts of Justice Act, and in particular the standard for a motion judge’s “grounds to believe” that a defendant has no “valid defence” to the claim - Whether the motion judge is permitted to weigh evidence or must a motion judge accept a plaintiff’s evidence if it “may be” accepted by a judge or jury - When balancing the public interests under s. 137.1(4)(b), whether the motion judge should consider the issues of causation and foreseeability in respect of the alleged harm to the plaintiff, or is it sufficient for the plaintiff to establish a pecuniary loss, howsoever caused - What is the scope for appellate review of a motion judge’s findings of fact - Whether it is a hearing de novo or whether an appellate court should apply the “palpable and overriding error” standard applicable to findings of fact in other motions - Protection of Public Participation Act, 2015, S.O. 2015, c. 23 - Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 137.1 to 137.5.

Summary

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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 appellant, Maia Bent is a lawyer and partner with the appellant 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. Ms. Bent and Lerners defended the claim, advancing several defences, including justification and qualified privilege. They 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 the basis that the proceeding arose from a communication relating to a matter of public interest. 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.