Focus On

Tort Law - DEFAMATION - Defences - Justification or truth - Qualified privilege - Practice

Thursday, December 22, 2016 @ 7:00 PM  


Motion by the defendant, Bent, to dismiss a libel action by the plaintiff, Platnick, pursuant to s. 137.1 of the Courts of Justice Act (CJA). The defendant was a lawyer who was the president-elect of the Ontario Trial Lawyers Association (OTLA), an association of plaintiff-side personal injury lawyers. OTLA members were able to subscribe to a confidential automated electronic mailing list. The defendant sent an email to the list’s subscribers describing an incident that occurred during her representation of a client in a catastrophic injury claim, and providing guidance for the conduct of similar future claims. The email referred to two expert reports provided by the plaintiff, a physician retained by the claimant’s insurer to provide an executive summary report of the individual assessments conducted by other independent medical examiners. The plaintiff alleged the defendant’s email referred to his work in terms he claimed were defamatory. The email was subsequently leaked by one of the recipients to a broader audience within the industry, with the result that certain insurance companies chose to no longer retain the plaintiff. The plaintiff commenced a libel action against the defendant and her firm seeking substantial damages. The defendant sought dismissal of the plaintiff’s action pursuant to s. 137.1 of the CJA on the basis that the proceeding arose from a communication related to a matter of public interest. The plaintiff took the position that if s. 137.1 was applicable, its application violated his ss. 7 and 15(1) Charter rights.

HELD: Motion allowed. The email by the defendant related to a matter of public interest within the meaning of s. 137.1(3) of the CJA, as the proper role of expert witnesses was of importance to the administration of justice and to the accident benefits scheme. There was credible and compelling evidence that the defences of justification and qualified privilege were reasonably likely to succeed, as the portions of the email referring to the plaintiff appeared to be substantially true and correct, or were fair and reasonable comment. The public interest in permitting the plaintiff’s suit to proceed did not outweigh the public interest in protecting the communication. The plaintiff’s suit had a substantial chilling effect on discussion and debate about the proper use and utility of a derivative expert’s report in the accident benefit claims process. The losses alleged by the plaintiff likely arose from the leak of the email and manner it was communicated to the plaintiff’s clients rather than the defendant’s conduct. The plaintiff failed to establish that the operation of s. 137.1 of the CJA infringed his s. 7 or s. 15(1) Charter rights. The plaintiff’s reputation did not engage a freestanding right under s. 7 and thus the application of s. 137.1 did not deprive him of any liberty or security interest protected by s. 7. The timeline imposed by a s. 137.1 motion was not contrary to principles of fundamental justice. The plaintiff’s role as an individual who sought access to the courts to protect his reputation did not engage s. 15 of the Charter. His action was accordingly dismissed as against both defendants. Platnick v. Bent<br/>[2016] O.J. No. 6223,<br/>Ontario Superior Court of Justice,<br/>S.G. Dunphy J.,<br/>December 1, 2016.<br/>Digest No. 3632-016