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DEFAMATION - Defamatory statements - Professional misconduct - Defences - Justification or truth - Qualified privilege

Thursday, September 10, 2020 @ 1:09 PM  

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Appeals by Bent and Lerners LLP from a Court of Appeal decision that dismissed Bent’s motion under s. 137.1 of the Courts of Justice Act to dismiss the respondent’s defamation action. Motion by the respondent to adduce fresh evidence. The respondent physician claimed damages of $16.3 million against the appellants for defamation based on an e-mail that Bent, a lawyer, sent to an e-mail listing of approximately 670 Ontario Trial Lawyers Association members that alleged the respondent had twice altered medical reports to change other doctors’ catastrophic impairment designations. The e-mail was leaked and reproduced in an insurance industry magazine. The respondent sought to adduce evidence from two physicians that confirmed he had not changed their reports as alleged and evidence that Bent had authorized the republication of her e-mail in the magazine. Within weeks of the e-mail, the respondent received mass cancellations from insurance companies. He alleged a direct financial impact of $578,949. The Court of Appeal had set aside the motion judge’s decision dismissing the action under s. 137.1.

HELD: Appeals dismissed. Motion to adduce fresh evidence allowed in part. The letters from one of the doctors and the magazine could not have been adduced earlier, were eminently relevant to Bent’s defences, highly probative and were reasonably capable of belief. The motion judge applied the wrong legal test on a s. 137.1 motion, misconstrued the law on defamation and its defences, and misapprehended the evidence. Bent had met her threshold burden under s. 137.1(3) of the Act as her e-mail constituted an expression that related to a matter of public interest. The respondent had shown grounds to believe his defamation proceeding had substantial merit and that Bent had no valid defence. The words were published, explicitly referred to the respondent, and were defamatory in the sense that they would tend to lower the respondent’s reputation in the eyes of a reasonable person. There were grounds to believe that neither justification nor qualified privilege were valid defences. There was a basis to support a finding that the allegation was not substantially true. Assuming qualified privilege attached to the occasion, there was a basis to support a finding that the scope of Bent’s privilege was exceeded. Bent could have communicated her concerns regarding alterations to medical reports without specifically naming the respondent. The respondent had demonstrated substantial monetary and reputational harm as a result of the expression and its republication. The harm suffered as a result of Bent’s expression was sufficiently serious that the public interest in permitting the respondent’s defamation proceeding to continue outweighed the public interest in protecting Bent’s expression. The respondent’s defamation action was allowed to continue. Dissenting reasons were provided.

Bent v. Platnick, [2020] S.C.J. No. 23, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., September 10, 2020. Digest No. TLD-September72020011-SCC