Maia Bent Appellant v. Howard Platnick, 2020 SCC 23

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 canbe defeated. This can occur particularly in two situations: where the speaker was reckless as to the truth of the words spoken; or wherethe scope of the occasion of privilege was exceeded.

In the present case, even assuming without deciding the issue that qualifiedprivilege 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 thatthe scope of B’s privilege was exceeded and that the defence therefore does not tend to weigh more in her favour. This is because thespecific references made to P may not have been necessary to the discharge of the duty giving rise to the privilege. In other words, Bcould have communicated her concerns regarding the alteration of medical reports without naming P specifically.

Further, the Listserv’sexpress prohibition on even potentially defamatory remarks suggests that the OTLA acknowledges that the posting of even potentiallydefamatory material is not necessary (or even relevant) to the duty encompassed within the particular occasion. Lastly, the record revealsa lack of investigation or reasonable due diligence by B prior to making her serious allegations.

B took no investigative steps at all tocorroborate 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 orconsulting her own notes. In light of the heightened expectation of reasonable due diligence that the Court has historically imposed onlawyers, B’s privilege may be defeated simply on the ground that she was indifferent or reckless as to the truth of her defamatorystatements.

Thus, even assuming that qualified privilege attaches to the occasion upon which B’s communication was made, there aregrounds 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 thescope 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 ofprobabilities that the harm likely to be or have been suffered as a result of the expression is sufficiently serious that the public interest inpermitting the proceeding to continue outweighs the public interest in protecting that expression. First, the harm to P here is extensiveand quite serious.

Not only does it include significant monetary harm that is more than just a bald assertion, but reputational harm is alsoeminently relevant to the harm inquiry, even if it is not quantifiable at this stage, and it is only amplified when one considers professionalreputation. 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 thesubsequent leak and/or reproduction of her email in the magazine because republication was reasonably foreseeable to B and/orauthorized 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 orcausation 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 tothe 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 againstP, which cast doubt on his professional competence, integrity, and reputation, without ever having met him and without any investigationinto her allegations against him. Indeed, there will be less of a public interest in protecting a statement that contains gratuitous personalattacks and the motivation behind the expression will be relevant to the inquiry.

The chilling effect on future expression and the broaderor collateral effects on other expressions on matters of public interest must also be considered. Permitting P’s defamation claim toproceed will deter others not from speaking out against unfair and biased practices, but from unnecessarily singling out an individual in away that is extraneous or peripheral to the public interest, and from making defamatory remarks against an individual without firstsubstantiating, or attempting to substantiate, the veracity of their allegations.

In this way, rather than disincentivizing people fromspeaking out against unfair and biased practices, it will incentivize them to act with reasonable due diligence. Thus, when considered as awhole, the public interest in protecting B’s expression lies somewhere in the middle of the spectrum: while B’s specific references to Pfall at the low end of the protection-deserving spectrum, her email interpreted broadly as pertaining to the administration of justice inOntario 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 issufficiently serious that the public interest in permitting his defamation proceeding to continue outweighs the public interest in protectingB’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 theparticular case before them.

On its face, this is not a case in which one party is vindictively or strategically silencing another party; it is acase in which one party is attempting to remedy seemingly legitimate harm suffered as a result of a defamatory communication. This isnot the type of case that comes within the legislature’s contemplation of one deserving to be summarily dismissed at an early stage, nordoes 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.

Thiscase is a transitional one: the considerable uncertainty surrounding s. 137.1 motions — due to a lack of judicial guidance with respect toboth 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, (SCC), [1980] 1 S.C.R. 759. Per Abella, Karakatsanis, Martin and Kasirer JJ. (dissenting): The appeal should be allowed and P’s defamation actionshould be dismissed under s. 137.1 of Ontario’s Courts of Justice Act.

There is no dispute that P’s defamation action was based onexpression 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 hassubstantial merit, B has no valid defence to the proceeding, and the likely harm suffered by him is serious enough that it outweighs thepublic interest in protecting B’s expression. Here, B has a valid defence of qualified privilege and is therefore entitled to the reliefmandated 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 isreasonably capable of belief, and have a prospect of success that, while not amounting to a demonstrated likelihood of success, tends toweigh 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 ison 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 toreceive 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 informationcommunicated is not reasonably appropriate, that is, relevant and pertinent to the discharge of the duty or the exercise of the right or thesafeguarding of the interest which creates the privilege. The question is not whether the statements were strictly necessary. Anecessity-based approach would have dangerous and restrictive implications for the defence of qualified privilege.

It would effectivelyexclude from the defence statements containing specific examples of misconduct, since statements like that can almost always bestripped of detail and reconstructed without the unnecessary examples they previously contained. Qualified privilege exists toacknowledge the benefit of expression which is relevant to protecting the public interest, including protecting the public from theperpetuation of wrongdoing or injustice. Generic accounts of misconduct, which do not refer to specific persons, do not require theprotection 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 isreasonably capable of belief and sufficiently compelling to give the defence the necessary likelihood of success.

As president-elect of theOTLA, B had a clear duty to inform its members about selective and misleading expert reports which disadvantage the very individualsthey advocate for and represent, as well as a duty to advise OTLA members of ways to protect their clients’ interests against unfairpractices by experts and assessment companies. B also had a professional duty as a lawyer to participate in improving the administrationof justice and to share best practices.

Members of the OTLA Listserv — all plaintiff-side personal injury lawyers — unquestionably hada reciprocal duty as well as an interest in receiving B’s communication. Being alerted to questionable conduct by experts and assessmentcompanies — and advised of ways to guard against such conduct — was of professional significance to them and especially to theirclients. B or her colleagues did not waive their professional obligation to exchange such information by joining a Listserv.

B’scommunication, therefore, was made by a person with a professional interest and duty to share the information with her colleagues, whohad a corresponding interest and duty to receive it. This supports the conclusion that her defence of qualified privilege has a real prospectof 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 OTLAmembers of selective and misleading expert reports, by identifying an expert who she reasonably believed to have engaged in preciselythat conduct.

It was clearly relevant and reasonably appropriate for B, in fulfilling her duty to protect her colleagues and their clients, toidentify P, a frequently-retained expert in whose cases it had proven to be especially important to obtain full disclosure of the insurer’sfiles. 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 OTLAwho practiced plaintiff-side personal injury law.

Members of the Listserv were bound by a wide-ranging undertaking to keep theinformation strictly confidential. As lawyers, Listserv members were also required by the Rules of Professional Conduct to strictly andscrupulously 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 dueto recklessness or on any other basis.

Additionally, the motion judge concluded that there was no evidence to reasonably support theinference that B acted with malice in publishing her email, a conclusion fully supported by the record, and this conclusion is entitled todeference. In this case, protecting B’s expression on matters of public interest outweighs the harm to P’s reputation. Any harm resultingfrom the leak of B’s email was caused by unforeseen and unforeseeable communication by others, not by B sending the email to itsintended audience of lawyers on the Listserv.

B’s email addressed matters of critical importance to the administration of justice and thereis a broader public interest in protecting B’s expression, as permitting a defamation suit to proceed would produce a considerable chillingeffect. P’s motion to admit fresh evidence should be dismissed. Most of the material he seeks to admit is clearly irrelevant andinadmissible. 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 asfresh evidence four years ago by the motion judge. Admitting the emails would require the Court to overturn the exercise of discretionby the motion judge, ignore P’s demonstrable lack of due diligence, and accept unsworn, untested, hearsay evidence, all to obtaininformation that would not, in any event, have affected the result of B’s dismissal hearing.

Such an outcome would not only frustrate thepurposes 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 FreePress Publications Ltd., (SCC), [1995] 3 S.C.R. 3; Palmer v. The Queen, (SCC), [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 ofAmerica v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000SCC 2, [2000] 1 S.C.R. 44; R. v. Warsing, (SCC), [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), (ON CA), 205 O.A.C. 359; Elliott v. Sagl, 2019 ONSC 2490; R. v. Stolar, (SCC), [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] 2S.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, (SCC), [1995] 2 S.C.R. 1130; RTC Engineering Consultants Ltd. v. Ontario(Solicitor General) (2002), (ON CA), 58 O.R. (3d) 726; Adam v. Ward, [1917] A.C. 309; Rubin v. Ross, 2013 SKCA21, 409 Sask. R. 202, leave to appeal refused, [2013] 3 S.C.R. x; Young v. Toronto Star Newspapers Ltd. (2005), (ON CA), 77 O.R. (3d) 680; Awan v.

Levant, 2016 ONCA 970, 133 O.R. (3d) 401; Walker v. CFTO Ltd. (1987), (ONCA), 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, (SCC), [1995] 2 S.C.R. 1130; Botiuk v. Toronto Free Press Publications Ltd., (SCC), [1995] 3S.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, ; Burwash v. Williams, 2014 ONSC 6828; Daggitt v.Campbell, 2016 ONSC 2742, 131 O.R. (3d) 423; Douglas v. Tucker, (SCC), [1952] 1 S.C.R. 275; Netupsky v. Craig, (SCC), [1973] S.C.R. 55; McLoughlin v. Kutasy, (SCC), [1979] 2 S.C.R. 311; Merit ConsultantsInternational Ltd. v. Chandler, 2014 BCCA 121, 60 B.C.L.R. (5th) 214; Wang v.

British Columbia Medical Assn., 2014 BCCA 162, 57B.C.L.R. (5th) 217; RTC Engineering Consultants Ltd. v. Ontario (Solicitor General) (2002), (ON CA), 58 O.R. (3d)726; Chohan v. Cadsky, 2009 ABCA 334, 464 A.R. 57; Laufer v. Bucklaschuk (1999), (MB CA), 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 andSurgeons of Saskatchewan, 2018 SKCA 53; Foulidis v.

Baker, 2014 ONCA 529, 323 O.A.C. 258; Cherneskey v. Armadale PublishersLtd., (SCC), [1979] 1 S.C.R. 1067; Jerome v. Anderson, (SCC), [1964] S.C.R. 291; Hodgson v.Canadian Newspapers Co. (2000), (ON CA), 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 & DaviesLtd. v. Kott, (SCC), [1979] 2 S.C.R. 686; Korach v. Moore (1991), (ON CA), 1 O.R. (3d) 275; Wellsv. 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] 2S.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, (SCC),[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. McMasterUniversity, 2019 ONCA 1027; R. v.

M.(P.S.) (1992), (ON CA), 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 updatedDecember 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), 19RECIEL 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, 419C.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), 2018CarswellOnt 14124 (WL Can.), setting aside a decision of Dunphy J., 2016 ONSC 7340, 136 O.R. (3d) 339, 369 C.R.R. (2d) 243, 405D.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.). Appealsdismissed, 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 ViolenceAgainst 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, theCanadian Journalists for Free Expression, CTV, a Division of Bell Media Inc., Global News, a division of Corus Television LimitedPartnership, 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 andjudicious balancing over the course of this Court’s jurisprudential history.

While in 1704604 Ontario Ltd. v. Pointes ProtectionAssociation, 2020 SCC 22, [2020] 2 S.C.R. 589, this Court recognizes the importance of freedom of expression as the cornerstone of apluralistic democracy, this Court has also recognized that freedom of expression is not absolute — “[o]ne limitation on free expression isthe law of defamation, which protects a person’s reputation from unjustified assault”: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3S.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”: Peopleex 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 PressPublications Ltd., (SCC), [1995] 3 S.C.R. 3, at para. 92.

Values, therefore, are not without countervailingconsiderations. [2] In these appeals, the Court must apply the framework set out in Pointes Protection in order to determine whetherthe respondent’s defamation claim against the appellants can proceed or whether it must be dismissed under s. 137.1 of the Courts ofJustice Act, R.S.O. 1990, c. C.43 (“CJA”).

In effect, this Court must consider the delicate equilibrium between two fundamental values ina 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 thes. 137.1 motion and allow the respondent’s lawsuit in defamation to continue. While the appellant Maia Bent (“Ms. Bent”) successfullymeets 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. 137.1motion 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 hisreputation — “a fundamental value in its own right in a democracy” (para. 81).

At trial, judicial powers of inquiry are broader, viva voceevidence can be given, and ultimate assessments of credibility can be made. Nothing in these reasons can, or should, be taken asprejudging the merits of Dr. Platnick’s underlying defamation claim either in fact or in law. Simply put, my resolution of this s. 137.1motion means only that Dr. Platnick’s claim is one that deserves to be adjudicated on the merits, and is not one that ought to besummarily 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 appellantbefore 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 motorvehicle 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 1988to 2011.

Since 1991, he has typically been hired through insurance companies to review other medical specialists’ assessments of personsinjured 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 impairment”. A “catastrophic impairment” is a technical designation which would have entitled Dr. Carpenter to enhanced medical and other benefits from her insurer. The determination of such a designation is made on the basis of the criteria and guidelines set out in, or incorporated into, the Statutory Accident Benefits

Schedule — Effective September 1, 2010 , O. Reg. 34/10 (“ SABS ”), s. 1 , under the Insurance Act , R.S.O. 1990, c. I.8 . [ 11 ] To assess whether Dr. Carpenter should be given a catastrophic impairment designation, the insurer arranged for a series of independent medical examinations by various medical professionals through an assessment company named Sibley & Associates (“Sibley”). [2] While the medical professionals who perform such examinations have considerable expertise in their respective fields of practice, they have varying levels of understanding and expertise with regard to the SABS regime.

Here, none of the medical experts were from or practised in Ontario, and the record reveals that they were not familiar with Ontario’s SABS regime and its criteria and classifications for catastrophic impairment designations. They were nonetheless retained to conduct their own medical assessments of Dr. Carpenter and to forward those assessments to Sibley. [ 12 ] Sibley also retained Dr. Platnick as a “lead physician” in order to prepare a final report for it that would make an

ultimate determination of whether Dr. Carpenter warranted a catastrophic impairment designation. Dr. Platnick, an Ontario physician who had previously acted in this role on numerous occasions, had expertise with regard to the SABS — an Ontario regulation — and its classifications and calculations relating to catastrophic impairment designations. [ 13 ] Accordingly, Dr. Platnick’s report on Dr. Carpenter’s catastrophic impairment assessment was to be based on the applicable criteria in the SABS . Because it was not Dr. Platnick’s role to examine Dr.

Carpenter himself, nor did he do so, his report was based on the data from the team of medical experts retained by Sibley who had actually conducted the individual medical assessments of Dr. Carpenter. As mentioned above, those medical experts forwarded their assessments to Sibley, since they had been retained by Sibley — they did not correspond with Dr. Platnick. In turn, Sibley provided those medical assessments and expert reports to Dr. Platnick so that he could prepare his ultimate report to send to Sibley. [ 14 ] The contents of Dr. Platnick’s report are important to these appeals.

He titled his report “Catastrophic Impairment Determination” and began it with the following sentence written in bold: “My calculations detailed below incorporate and consider the findings of all assessors on this CAT [Catastrophic] Assessment Team” (A.R., vol. IV, at p. 187). Dr. Platnick’s five-page report examined the various criteria in the SABS that were relevant to Dr. Carpenter’s catastrophic impairment assessment, making extensive reference to the medical assessments done by the specialists retained by Sibley and periodically stating his own conclusions under the various criteria: indeed, Dr.

Platnick used the words “I would conclude that” or “I was not able to identify” (p. 189). On the final page of the report, under the heading “Impairment Calculation”, Dr. Platnick wrote that “I complete the following calculation” and then that, based on that calculation, “I would conclude” that Dr. Carpenter “does not meet the catastrophic level based upon the SABS and utilizing the OCF-19 Form”: p. 191. Crucial to this case is the fact that, after setting forth his conclusion, Dr. Platnick wrote that “[i]t is the consensus conclusion of this assessment that [Dr.

Carpenter] does not achieve the catastrophic impairment rating as outlined in the SABS ”: p. 191 (emphasis added). [ 15 ] Dr. Platnick sent his report to Sibley, as he was meant to do. Attached to the back of the report was an acknowledgment page, which had a place for the signatures of the four specialists who had assessed Dr. Carpenter to acknowledge that Dr. Platnick’s report reflected the “consensus conclusion of this assessment”: p. 192. Dr. Platnick sent the report to Sibley without any signatures. As mentioned above, the medical experts who had assessed Dr.

Carpenter had been retained by Sibley and were not in contact with Dr. Platnick at any point. In the normal course of events, Sibley was supposed to obtain those signatures. [ 16 ] Sibley did not obtain any signatures and, instead, provided the insurer and Ms. Bent with a document entitled “Catastrophic Determination Executive

Summary”: pp. 180-85. The document was identical to Dr. Platnick’s report, but did not affix the acknowledgement page and had a different title page. In due course, Ms. Bent received a copy of Dr. Platnick’s original report with the unsigned acknowledgment page, as well as the individual assessments conducted by the specialists. [ 17 ] On November 6, 2014, at the arbitration hearing before the Financial Services Commission of Ontario, testimony was given by Dr. King, one of the medical experts retained by Sibley who had conducted the neurological assessment of Dr. Carpenter. Of relevance, Dr.

King testified on cross-examination that portions of his final assessment report had been omitted, without his knowledge or consent, from Dr. Platnick’s final report, that he had not seen or signed Dr. Platnick’s final report, and that he had never been “part of [a] consensus opinion”: A.R., vol. V, at p. 35. [ 18 ] On November 7, 2014, the arbitration involving Dr. Carpenter was settled. The terms of the settlement involved Dr. Carpenter receiving a catastrophic impairment designation, a reinstatement of benefits, and payments of past medical and rehabilitative expenses with interest.

The insurer also agreed to indemnify Dr. Carpenter in full for fees and disbursements. [ 19 ] On November 10, 2014, Ms. Bent sent the alleged defamatory email through the OTLA Listserv. The foregoing factual context is particularly crucial to the following allegation made by Ms. Bent in her email: [Dr. King] 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 . [Emphasis added.]

(2) Dua Matter, November 2011 [ 20 ] As I mentioned above, Ms. Bent’s email of November 10, 2014 to the OTLA Listserv also made reference to another matter, which had taken place in November 2011, three years before she sent the email. [ 21 ] In that matter, much like the Carpenter Matter, Dr. Platnick had been retained to write a final “Catastrophic Determination” report on whether a victim of a motor vehicle accident should be given a catastrophic impairment designation. [ 22 ] Dr. Varinder Dua was one of the medical specialists retained to conduct an assessment of the victim. As with the Carpenter Matter, Dr.

Platnick’s ultimate report was to be informed by Dr. Dua’s assessment. Dr. Dua’s report found that “[o]verall, [victim] ha[d] Moderate impairment (Class 4)” and accordingly that a catastrophic impairment designation was warranted: A.R., vol. V, at p. 214. [ 23 ] I note here that it has been pointed out to this Court, and it is not disputed, that “ Moderate Impairment” carries a rating of “Class 3”, which does not constitute a catastrophic impairment designation. A “Class 4” rating corresponds to a “ Marked Impairment” and does constitute a catastrophic impairment designation. Therefore, Dr.

Dua’s assessment of “ Moderate impairment (Class 4 )” was, by definition, internally contradictory. [ 24 ] Dr. Dua issued a second version of the report in which she changed the SABS classification to “Moderate impairment (Class 3)”, which meant that a catastrophic impairment designation was not warranted. Even though the second report was prepared after the initial report, Dr. Dua gave it the same date as her first report. [ 25 ] Importantly, Dr. Platnick’s final report stated that “Dr.

Dua rated [victim] overall at moderate impairment (Class 3)”, which meant that a catastrophic impairment designation was not warranted: A.R., vol. V, at p. 219. In this sense, Dr. Platnick’s final

report appeared to be consistent with the conclusion in Dr. Dua’s second report, and it made no reference to the existence of the first version of the report. [ 26 ] Ms. Bent, who was acting in the matter on behalf of the victim, was served only with a copy of Dr. Dua’s first report and Dr. Platnick’s final report, which Ms. Bent believed to display a discrepancy. She had no reason to know of a second version of Dr. Dua’s report and did not take steps to investigate the discrepancy. [ 27 ] The parties do not dispute that Dr. Platnick communicated with Dr. Dua after she submitted her first report.

The parties also do not dispute that Dr. Dua prepared a second version of the report after Dr. Platnick spoke with her. What is in dispute is what caused Dr. Dua to change her assessment and prepare a second report. Dr. Platnick argues that, at the behest of the insurance assessment company (known as the “vendor company”), which was seeking clarification, he pointed out the internal inconsistency to Dr. Dua, and Dr. Dua did not so much change her assessment as clarify what she had really meant, of her own volition. According to Ms. Bent, however, Dr.

Platnick “changed the doctor’s decision from a marked to a moderate impairment” through inappropriate persuasion or otherwise. [ 28 ] The foregoing took place in November 2011 and provides an important factual context in considering the following excerpt from Ms. Bent’s November 2014 email making reference to that incident: 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.

(3) Leak and Republication [ 29 ] Although Ms. Bent’s email was sent only to the OTLA Listserv, the email was eventually leaked anonymously by a member of the OTLA despite a confidentiality undertaking required by the Listserv. [ 30 ] As a result, on December 29, 2014, an

article was published in Insurance Business Canada magazine, which reproduced Ms. Bent’s email in its entirety. The

article was titled “Medical files ‘routinely altered’ to suit insurers, claims FAIR”, and in reproducing Ms. Bent’s email in full, referred to “testimony from Maia L. Bent, a partner at the law firm of Lerners”: A.R., vol. XI, at pp. 28-30. [ 31 ] Dr. Platnick served KMI Publishing and Events Ltd. (“KMI”), the owners of Insurance Business Canada , with a libel notice on January 22, 2015. That claim is not at issue before this Court, but nonetheless shares part of its factual matrix with this case insofar as the issue of republication is concerned.

(4) Proceeding Against the Appellants [ 32 ] After his requests to Ms. Bent for an apology went unanswered, Dr. Platnick commenced a lawsuit in defamation against both Ms. Bent and Lerners on January 27, 2015. [ 33 ] After having filed a Statement of Defence, Ms. Bent filed a motion under s. 137.1 of the CJA to dismiss Dr. Platnick’s lawsuit in defamation against her. Lerners also filed a Statement of Defence, but it did not file, for its own part, a s. 137.1 motion. However, as the Court of Appeal explained, it is understood that if Ms.

Bent’s motion succeeds, then the action should also be dismissed against Lerners. The merits of Ms. Bent’s s. 137.1 motion are before this Court. B. Procedural History

(1) Ontario Superior Court of Justice (Dunphy J.), 2016 ONSC 7340 , 136 O.R. (3d) 339 [ 34 ] The motion judge, Dunphy J. of the Ontario Superior Court, allowed Ms. Bent’s s. 137.1 motion and dismissed Dr. Platnick’s defamation proceeding. [ 35 ] Dunphy J. found that the email communication in question related to a matter of public interest within the meaning of s. 137.1(3) but that Dr. Platnick had been unable to discharge his burden under s. 137.1(4) : paras. 61-79. [ 36 ] While Dunphy J. declined to determine whether Dr.

Platnick’s claim had substantial merit under s. 137.1(4) (a)(i), he found under s. 137.1(4) (a)(ii) that there was “credible and compelling” evidence that Ms. Bent’s defences of justification and qualified privilege were “reasonably likely . . . [to] succeed”: paras. 93-118. Dunphy J. added that he was not satisfied that the public interest in permitting Dr. Platnick’s defamation suit to proceed outweighed the public interest in protecting Ms. Bent’s expression under s. 137.1(4) (b): paras. 119-35.

(2) Court of Appeal for Ontario (Doherty, Brown and Huscroft JJ.A.), 2018 ONCA 687 , 426 D.L.R. (4th) 60 [ 37 ] Doherty J.A., writing for a unanimous Court of Appeal, set aside the motion judge’s determination, dismissed Ms. Bent’s s. 137.1 motion, and remitted Dr. Platnick’s defamation claim to the Superior Court for consideration: para. 127. [ 38 ] Doherty J.A. agreed with the motion judge’s assessment under s. 137.1(3) that the email communication related to a matter of public interest. However, he found that the motion judge had erred in his assessment of both s. 137.1(4)(

a) and s. 137.1(4)(b): para. 4. [ 39 ] With respect to substantial merit, Doherty J.A. had “no difficulty concluding that there [were] reasonable grounds to believe” that Dr. Platnick’s claim had substantial merit under s. 137.1(4)(a)(i), as Ms. Bent’s “defence to the claim is not that her comments were not potentially defamatory, but rather that they were true or protected by privilege”: paras. 53-54. With respect to s. 137.1(4)(a)(ii), Doherty J.A. found that there were grounds to believe that neither defence would succeed and concluded that

Dr. Platnick had met his burden of demonstrating “no valid defence”: paras. 56-93. More specifically, Doherty J.A. found that thedefence of justification was not valid because the sting, or the main thrust, of the two statements was not substantially true and that thedefence of qualified privilege was not valid because the second statement either “was made maliciously or with reckless disregard for thetruth, or because it was not appropriate to the legitimate purpose of the occasion attracting the privilege”: paras. 73, 84 and 90. Finally,the Court of Appeal was satisfied that the potential harm to Dr.

Platnick outweighed the public interest in protecting Ms. Bent’sexpression because this case bore none of the indicia of a SLAPP[3] and because there was sufficient harm attributable to the initialpublication irrespective of republication: paras. 95-110. C. Motion to Adduce Fresh Evidence [40] Prior to the hearing of these appeals, Dr. Platnick sought this Court’s leave to adduce fresh evidence pursuant tos. 62(3) of the Supreme Court Act, R.S.C. 1985, c. S-26, and Rule 47 of the Rules of the Supreme Court of Canada, SOR/2002-156. Themotion was deferred to the panel hearing the appeals. Dr.

Platnick’s motion contained the following evidence for which he soughtadmission for this Court’s consideration in these appeals. [41] Exhibit B (“Dua Letter”) is a letter from Dr. Dua bolstering Dr. Platnick’s evidence that the allegation that he“changed” her report is false: Motion to Adduce Fresh Evidence, at pp. 37-38. Specifically, Dr. Dua explains in her letter thatDr. Platnick called her to identify areas of concern that “required clarification”: p. 37. She says that she “corrected the typographicalerror from ‘Class 4’ to ‘Class 3’” of her own accord and that “at no time did Dr.

Platnick pressure me to change my report. Nor did heconduct himself in any inappropriate fashion”: pp. 37-38 (emphasis in original). Dr. Dua states pointedly that “[t]o suggest thatDr. Platnick changed my report is simply untrue. Further, to characterize the events in question as an attempt by Dr. Platnick tomanipulate the evidence is also completely inaccurate”: p. 38. [42] Exhibit G contains excerpts from an examination for discovery of Dr. King in a parallel proceeding in whichDr.

King admitted that he had been mistaken when he said that parts of his report had been removed without his knowledge and consentin the Carpenter Matter. [43] Exhibit H is Dr. Platnick’s pleadings in a parallel litigation between him and Dr. Carpenter. [44] Exhibit K is Dr. Platnick’s proposed Amended Statement of Claim for the underlying proceeding in this case. [45] Exhibit L is an excerpt from KMI’s Statement of Defence in the parallel defamation proceeding commenced byDr. Platnick against KMI. Approximately one week after Ms.

Bent’s cross-examination on this s. 137.1 motion, KMI delivered itsStatement of Defence, in which it pleaded that prior to publishing an

article that reproduced Ms. Bent’s email of November 10, 2014, ithad interviewed Ms. Bent, who had authorized republication. [46] Exhibits N and R (“KMI Letters”) are letters from counsel for the KMI defendants to Dr. Platnick’s counsel attestingto a telephone conversation that took place between Ms. Bent and Donald Horne, the Associate Editor of Insurance Business Canadamagazine, after the leak regarding a potential interview for publication. In those letters, the following information is stipulated by KMI:(i) “Ms. Bent did not object to or have any concerns” about the republication of her email; (ii) Ms.

Bent did not discourage therepublication, nor did she inform KMI that her email had been published on a private OTLA Listserv and that any leak was a seriousprofessional and ethical breach of the terms and conditions of that Listserv; (iii) had KMI been aware of the aforesaid, it would not haveproceeded with the republication; (iv) since Ms. Bent raised no objections or concerns, KMI believed it could proceed with therepublication (Motion to Adduce Fresh Evidence, at p. 156). [47] Prior to the hearing of these appeals, Dr. Platnick also sought leave to update his fresh evidence motion.

Inparticular, he sought leave to adduce evidence that the parallel Carpenter litigation had been abandoned by Dr. Carpenter with no costsagainst him. Since Dr. Platnick’s initial motion to adduce fresh evidence was deferred to the panel hearing the appeals, the decisionwhether to allow Dr. Platnick to update that fresh evidence was also deferred to the panel hearing the appeals. III. Analysis [48] In order to properly assess Ms. Bent’s s. 137.1 motion, it is first necessary to evaluate Dr. Platnick’s motion toadduce fresh evidence.

Indeed, the determination of the latter impacts the evidentiary record that ultimately informs the analysis of thes. 137.1 motion. Although I would admit part of Dr. Platnick’s fresh evidence, it is important to clarify that, just as a s. 137.1 motion isnot a determinative adjudication of the merits of a claim, my determination on admissibility or exclusion here does not bear on theevidence’s ultimate admissibility at trial — in other words, my conclusions with respect to Dr. Platnick’s motion to adduce freshevidence are limited to considering admissibility in the context of this s. 137.1 motion. A.

Motion to Adduce Fresh Evidence [49] This Court has relied on and affirmed the test from Palmer v. The Queen, (SCC), [1980] 1 S.C.R.759, at p. 775, as the proper test for assessing the admissibility of fresh evidence on appeal: see R.P. v. R.C., 2011 SCC 65, [2011] 3S.C.R. 819, at para. 50; May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 107; United States of America v.Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616, at paras. 43-44; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General),2000 SCC 2, [2000] 1 S.C.R. 44; R. v.

Warsing, (SCC), [1998] 3 S.C.R. 579. [50] For fresh evidence to be admitted, the Palmer test requires consideration of the following four factors:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases . . . .

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [p. 775] [51] In Pointes Protection, this Court expressly contemplates the “potentiality of future evidence arising”: para. 37. Thisis based on the expedited nature of s. 137.1 motions, which are required to be heard in a statutorily imposed short time frame. That isexemplified in this case, where Dr. Platnick had to submit his evidentiary record within 25 days after the notice of motion was filed. Inthis sense, as recognized in Pointes Protection, s. 137.1 motions are unlike

summary judgment motions, where parties are expected toput their best foot forward; in other words, on a s. 137.1 motion, it is acknowledged that parties are under a mandated time constraint andare consequently limited in the evidentiary record they can put forward. [52] This does not, however, give parties carte blanche to file motions to adduce fresh evidence. Palmer must be adheredto, and for this reason, as I note below, I would not admit all of the fresh evidence.

It is important to note here, however, that this case isa transitional one: the considerable uncertainty surrounding s. 137.1 motions — due to a lack of judicial guidance with respect to both thetest for withstanding a s. 137.1 motion, as well as the nature or comprehensiveness of the evidence required on a such amotion — militates in favour of granting this particular motion to adduce fresh evidence in part. [53] Accordingly, I would admit both the Dua Letter (Exhibit

B) and the KMI Letters (Exhibits N and R), and I woulddecline to admit the rest of the evidence that Dr. Platnick included with his motion. Below, I briefly explain why I would specificallyadmit the Dua Letter and the KMI Letters in light of Palmer. I find that the other evidence is either not relevant to the decisive issues inthese appeals or is non-probative; therefore, I need not elaborate any further on its exclusion.

(1) Due Diligence [54] The Dua Letter could not have been adduced at an earlier time and is not being submitted now as a result of a lack ofdue diligence. Dr. Platnick’s evidentiary record was filed in May 2016. The Dua Letter is dated November 15, 2017 and was received onNovember 20, 2017, well after the initial hearing on the motion, and five months after the oral argument at the Court of Appeal. Further,Dr. Platnick’s affidavit (dated May 20, 2016) concerning the s. 137.1 motion demonstrates his due diligence in trying to obtain thisevidence earlier. According to that affidavit, Dr.

Dua did not respond to his telephone messages until May 17, 2016. While this allowedDr. Platnick to enter Dr. Dua’s final report in the record at the eleventh hour, it was an insufficient amount of time to obtain a letter fromDr. Dua herself akin to the one submitted to this Court. [55] Likewise, the KMI Letters could not have been adduced at an earlier time and are not being submitted now as aresult of a lack of due diligence. The Letters were exchanged well after the hearing of the s. 137.1 motion which took place onJune 27, 2016 — indeed, the Letters from KMI are dated August 30, 2016, and September 20, 2016.

Of course, the admissibility of theLetters does not depend merely on when they came into Dr. Platnick’s possession, but rather, depends on whether they could have beenobtained prior to the hearing as a result of due diligence. In my view, they could not have been, for the reasons I explain below. [56] In her Statement of Defence, Ms. Bent denied having ever given an interview to KMI’s magazine. Thus, Dr. Platnickhad no foundation for cross-examining her further on the subject on June 6, 2016. Following Ms.

Bent’s cross-examination, however,KMI filed its Statement of Defence on June 13, 2016, in which it stipulated that Ms. Bent had in fact given an interview to its magazinein some capacity. With this newly conflicting evidence, Dr. Platnick pursued the matter further through prompt correspondence withKMI (i.e. due diligence). It was that correspondence that finally gave rise to the KMI Letters. [57] This state of affairs belies the motion judge’s concluding observation that Dr.

Platnick offered no “reasonableexplanation for the failure to place” the KMI Letters “before the court prior to conducting his cross-examination of Ms. Bent”: Platnickv. Bent (No. 2), 2016 ONSC 7474, at para. 71 . This constitutes an error in principle on the part of the motion judge. [58] Although Dr. Platnick did not mention the reference to the interview in KMI’s Statement of Defence at the hearingbefore the motion judge on June 27, 2016, the record reveals that Dr.

Platnick’s counsel was out of the country from June 19 untilJune 25, 2016, and had asked repeatedly for an adjournment of the hearing on account of his unavailability on those crucial datesimmediately in advance of the hearing (as well as on other grounds): see Platnick v. Bent (No. 2), at paras. 3 and 6; Motion to AdduceFresh Evidence, at pp. 22-23. Thus, I am not willing to hold this against Dr. Platnick. [59] Dr. Platnick had only 25 days to put forward his record, yet the motion judge faulted him for not adducing thisevidence earlier because, according to the judge, Dr.

Platnick “knew a ‘showdown’ was imminent when the plaintiff announced [an]intention to bring

summary judgment proceedings in January”: Platnick v. Bent (No. 2), at para. 40. I note immediately that the motionjudge erred here, as it was Ms. Bent, the defendant, who announced an intention to bring a

summary judgment motion. Regardless, thepoint is still not valid. A

summary judgment motion involves due process and procedural protections on which Dr. Platnick may haverelied, and which are unavailable on s. 137.1 motions. This Court makes it clear in Pointes Protection that s. 137.1 motions do not havethe evidentiary protections associated with

summary judgment motions. Moreover, the motion judge’s evidentiary expectation wascommensurate with requiring information that might only have been able to be elicited through examinations for discovery, such asrule 31.10 motions (discovery of non-parties) or rule 30.10 motions (production from non-parties) of the Rules of Civil Procedure,R.R.O. 1990, Reg. 194, but examinations for discovery are also necessarily unavailable on expedited s. 137.1 motions. [60] To the extent that the motion judge’s findings were inconsistent with the foregoing, then they were in error.

It mustnot be forgotten that the due diligence factor specifically is “not a rigid one” (Kuczera (Re), 2018 ONCA 322, 58 C.B.R. (6th) 227, at

para. 16) and has been held to be a “practical concept” (Calaheson v. Gift Lake Metis Settlement, 2016 ABCA 185, 38 Alta. L.R. (6th)30, at para. 14) that is “context sensitive” (R. v. 1275729 Ontario Inc. (2005), (ON CA), 205 O.A.C. 359, atpara. 29; see also: Elliott v. Sagl, 2019 ONSC 2490, at paras. 36-38 ; D. J. M. Brown, with the assistance of D. Fairlie, CivilAppeals (loose-leaf), at pp. 10-19 to 10-21. As I discussed above, Dr.

Platnick had to assemble his motion record within 25 days at a timewhen there was significant ambiguity surrounding s. 137.1 motions due to a lack of judicial guidance on the standard that must be met, aswell as the nature or comprehensiveness of the record that must be filed, in order to withstand such a motion. This factors into myassessment. [61] In light of the above, I am of the view that both the Dua Letter and the KMI Letters could not have been adduced atan earlier time and are not being adduced now as a result of a lack of due diligence.

(2) Relevance [62] All three Letters are eminently relevant to the case at bar. [63] The Dua Letter bears directly upon the defence of justification and whether that defence is valid. It also bears onwhether Ms. Bent was reckless as to the allegation she made, insofar as it speaks to her failure to investigate an incident that hadoccurred three years earlier. This bears on Ms. Bent’s defence of qualified privilege.

Accordingly, the Dua Letter is directly relevant tothe s. 137.1(4)(a)(ii) inquiry. [64] Similarly, the KMI Letters bear directly upon the defence of qualified privilege and whether that defence isundermined by the fact that Ms. Bent authorized the republication of her allegations. Further, the KMI Letters bear on whether Ms. Bentcan properly be held liable for the harm caused by republication by virtue of its foreseeability or her authorization, under the harmanalysis required by s. 137.1(4)(b).

(3) Credibility [65] The Letters are reasonably capable of belief and sufficient for consideration at what is a preliminary screening of Dr.Platnick’s claim. This does not preclude Ms.

Bent, however, from testing this evidence at trial, for example through cross-examination,as the ultimate determination of credibility is deferred to trial on a s. 137.1 motion: Pointes Protection, at para. 52. [66] This Court has agreed with the proposition that, on a motion to adduce fresh evidence, an assessment of credibility isto be carried out against the whole background of the case and is not restricted to the motion itself; in other words, evidence may becredible in the sense that it is reasonably capable of belief when viewed in the context of other evidence relevant to that issue: R. v.Stolar, (SCC), [1988] 1 S.C.R. 480; Warsing, at para. 52; R. v.

Moucho, 2019 ONSC 3463, 53 M.V.R. (7th) 131, atpara. 36. [67] That is the case here, as the Dua Letter and the KMI Letters bolster a pre-existing predicate of facts, rather than raisethe risk of manufacturing a new predicate not previously under consideration. More specifically, what I mean is that the Dua Letterconfirms Dr. Platnick’s narrative that he never “changed” Dr. Dua’s report but only communicated with Dr. Dua to point out the internaldiscrepancy in her report. Likewise, the KMI Letters help to confirm Dr. Platnick’s allegation that Ms.

Bent gave an interview toInsurance Business Canada and thereby authorized republication. [68] Lastly, “there is nothing to indicate that [this evidence] is not reasonably capable of belief, even though it wasprepared at the respondent’s request”: R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, at para. 43.

(4) Probative Value [69] If believed, the Letters could reasonably, when taken with the other evidence adduced, be expected to have affectedthe result. This is clear as they all relate directly to, and even contradict, the motion judge’s findings. Further, they bolster the evidentiaryrecord, such that the “basis in the record and the law” that Dr. Platnick must establish in order to succeed against a s. 137.1 motionbecomes sufficiently legally tenable and reasonably capable of belief. [70] For example, the Dua Letter is highly probative. The motion judge characterized Dr. Platnick’s call to Dr.

Dua as aninappropriate “intervention” (Sup. Ct. reasons, at paras. 44 and 111), saying that Dr. Platnick “succeeded in persuading [Dr. Dua] toproduce an amended ‘final’ report”: para. 22 (emphasis added). Therefore, the motion judge found that Ms. Bent’s allegation thatDr. Platnick had “changed” Dr. Dua’s decision from a marked impairment to a moderate one was substantially true and that the defenceof justification was valid under s. 137.1(4)(a)(ii). However, the Dua Letter directly contradicts this finding: Dr. Dua says thatDr.

Platnick called her seeking “clarification” and that she advised him that she had made a “typographical error”. In fact, Dr. Duaexpressly states that Dr. Platnick did not “pressure” her, “[n]or did he conduct himself in any inappropriate fashion”. While the motionjudge had the different reports before him, they showed only that a change had in fact been made. However, the reports did not indicatewhy Dr. Dua had changed her assessment. The Dua Letter illuminates why — while the motion judge characterized Dr.

Platnick’s actionsas improper persuasion, the Dua Letter, written by the person who was supposedly the victim of that persuasion, says exactly theopposite. Thus, the Dua Letter, if believed, is highly probative regarding whether Dr. Platnick will be able to meet his burden of showingthat there are grounds to believe that Ms. Bent’s defence of justification is not valid. [71] Likewise, the KMI Letters are highly probative. The motion judge found that Dr. Platnick’s allegation that Ms. Benthad given an interview “was supported by no evidence whatsoever and appears on its face to be manifestly untrue”: Sup.

Ct. reasons, atparas. 24-25. This was based on Ms. Bent’s Statement of Defence, in which she “denie[d] providing an interview to Insurance Business[Canada] in respect of the Confidential Communication and/or authorizing the publication of the Confidential Communication to DonaldHorne for an article”: A.R., vol. II, at p. 22. The KMI Letters directly contradict this evidence and bolster the allegation thatrepublication was either implicitly authorized by Ms. Bent or was reasonably foreseeable to her. Given this point, she could properly beheld liable for republication.

This is dispositive of the issues of whether Ms. Bent’s defence of qualified privilege is undermined,rendering the defence not “valid”, for the purposes of s. 137.1(4)(a)(ii), and of whether the harm suffered by Dr. Platnick was suffered

“as a result” of Ms. Bent’s expression under s. 137.1(4)(b).

(5) Conclusion on the Motion to Adduce Fresh Evidence [ 72 ] Before concluding, I hasten to clarify that the motion judge’s assessment of Dr. Platnick’s fresh evidence in Platnick v. Bent (No. 2) (his decision addressing the admissibility of some of this evidence) is not entitled to deference here. Quite simply, the motion judge decided the motion for fresh evidence on the basis of an incorrect understanding of the nature of a s. 137.1 motion, as explained by this Court in Pointes Protection .

Accordingly, to the extent that his assessment of the evidence was dependent on an incorrect understanding of s. 137.1, it is not entitled to deference. Even if it were, however, as I indicated above, his assessment was, with respect, in error. [ 73 ] Thus, for all the foregoing reasons, I would admit the Dua Letter and the KMI Letters, as all of them satisfy the Palmer criteria for granting a motion to adduce fresh evidence. I will discuss these pieces of evidence at greater length in the reasons that follow. B.

Section 137.1 Motion [ 74 ]

Section 137.1 of the CJA is intended “to function as a mechanism to screen out lawsuits that unduly limit expression on matters of public interest through the identification and pre-trial dismissal of such actions”: Pointes Protection , at para. 16. However, in addition to protecting expression on matters of public interest, s. 137.1 must also “ensur[e] that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to pursue it”: para. 46.

Applying the framework that this Court unanimously adopts in Pointes Protection , I ultimately reach the same conclusion as the Court of Appeal for Ontario: Ms. Bent’s s. 137.1 motion should be dismissed and Dr. Platnick’s defamation claim should be allowed to proceed. [ 75 ] The relevant portions of s. 137.1 are reproduced for convenience below:

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that, (

a) there are grounds to believe that, (

i) the proceeding has substantial merit, and (ii) the moving party has no valid defence in the proceeding; and (

b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. [ 76 ] As I explain in Pointes Protection , at para. 18: In brief, s. 137.1 places an initial burden on the moving party — the defendant in a lawsuit — to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest.

Once that showing is made, the burden shifts to the responding party — the plaintiff — to satisfy the motion judge that there are grounds to believe the proceeding has substantial merit and the moving party has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If the responding party cannot satisfy the motion judge that it has met its burden, then the s. 137.1 motion will be granted and the underlying proceeding will be consequently dismissed.

It is important to recognize that the final weighing exercise under s. 137.1(4)(

b) is the fundamental crux of the analysis: as noted repeatedly above, the APR [ Anti-Slapp Advisory Panel: Report to the Attorney General ] and the legislative debates emphasized balancing and proportionality between the public interest in allowing meritorious lawsuits to proceed and the public interest in protecting expression on matters of public interest.

Section 137.1(4)(

b) is intended to optimize that balance. [ 77 ] A motion judge’s determination on a s. 137.1 motion will typically be entitled to deference upon appeal, absent reviewable error. Here, the motion judge’s initial determination of Ms. Bent’s s. 137.1 motion is entitled to no deference. This is on account of the fact that the motion judge committed three broad errors: he applied the wrong legal test on a s. 137.1 motion, misconstrued the law on defamation and its defences, and misapprehended the evidence.

Accordingly, as in Pointes Protection , I proceed on a standard of correctness unless the motion judge’s findings are not tainted by such errors: para. 97; Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235, at paras. 8 and 36 .

(1) Section 137.1(3) — Threshold Burden [ 78 ] Ms. Bent’s email communication constitutes an expression that relates to a matter of public interest, and Dr. Platnick’s defamation proceeding arises from that expression. Therefore, I am in agreement with the motion judge and the Court of

Appeal that Ms. Bent has met her threshold burden under s. 137.1(3). [ 79 ] First, Ms. Bent’s email is captured by the statutory definition of “expression” found in s. 137.1(2): “In this section, ‘expression’ means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.” As I say in Pointes Protection , this is an “expansiv[e]” definition: para. 25.

Section 137.1(2) contemplates any communication, even if it is non -verbal, and even if it is made privately . Ms. Bent’s email falls within this statutory definition. [ 80 ] Second, the underlying proceeding clearly “arises from” that expression, since Ms. Bent’s email is the foundation for Dr. Platnick’s defamation proceeding. As in Pointes Protection , there is a “clear nexus” here between the proceeding and the expression: para. 102. [ 81 ] The only real question for consideration is whether Ms. Bent’s email relates to a matter of public interest. Here, I am of the view that it does. As stated in Pointes Protection , this Court favours a “broad and liberal

interpretation” of public interest: para. 26. [ 82 ] In a narrow sense, Ms. Bent’s email is ostensibly about potential professional misconduct in insurance arbitrations and about ensuring that her OTLA colleagues “get the assessor’s and Sibley’s files”. [ 83 ] In a broader sense, how

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