The appellants sought dismissal of a defamation action under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act, arising from an email sent by the appellant lawyer to a professional listserv alleging that the respondent physician had improperly altered medical assessors' reports and changed a doctor's impairment classification in the context of statutory accident benefits disputes.
The motion judge allowed the anti-SLAPP motion and dismissed the defamation proceeding; the Court of Appeal reversed that decision and remitted the defamation claim to the Superior Court.
A five-justice majority of this Court dismissed the appeals, holding that the respondent had discharged his burden under s. 137.1(4) by demonstrating grounds to believe his defamation claim had substantial merit, that the appellants had no valid defence of justification or qualified privilege, and that the public interest in permitting the defamation action to continue outweighed the public interest in protecting the impugned expression.
The majority also partially admitted fresh evidence tendered by the respondent, including a letter from the assessed specialist and letters from counsel for the magazine that republished the email.
Four justices dissented, concluding that the appellant lawyer had a valid defence of qualified privilege that gave her expression a real prospect of success at trial, and that the public interest in protecting her communication to fellow plaintiff-side personal injury lawyers outweighed the harm to the respondent's reputation.
