Court File and Parties

CITATION: Platnick v. Bent, 2024 ONSC 3943

DIVISIONAL COURT FILE NOs.: 653/23 and 655/23

DATE: 20240711

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Howard Platnick, Appellant

AND:

Maia Bent and Lerners LLP, Respondents

BEFORE: Sachs, Davies and O’Brien JJ.

COUNSEL: Timothy Danson and Marjan Delavar, for the Appellant Andrea Gonsalves, for the Respondent Maia Bent Andrew Winton, for the Respondent Lerners LLP

HEARD at Toronto: July 8, 2024

ENDORSEMENT

[1] Dr. Platnick has sued Ms. Bent and Lerners LLP for libel arising from a message Ms. Bent posted on the Ontario Trial Lawyers’ Association listserv about Dr. Platnick in November 2014.

[2] Ms. Bent is a partner at Lerners LLP. She acted for Dr. Carpenter who was injured in a car accident. Dr. Carpenter claimed to have suffered a catastrophic impairment from the accident. Dr. Platnick was one of the experts retained by the insurance company to assess Dr. Carpenter. Dr. Carpenter’s case went to arbitration before the Financial Services Commission of Ontario. The insurer relied on Dr. Platnick’s report in which he opined that Dr. Carpenter did not meet the test for a catastrophic impairment under the Statutory Accident Benefits Schedule.

[3] Dr. Carpenter’s case settled and after the settlement, Ms. Bent posted a message to the listerv that was highly critical of Dr. Platnick. Ms. Bent’s post was leaked to the media.

[4] Dr. Platnick sued Ms. Bent and Lerners LLP for libel. In a separate proceeding, Dr. Platnick has also sued the media outlets that reported on Ms. Bent’s listserv post. Dr. Platnick has also been sued by Dr. Carpenter.

[5] This case has a long and protracted procedural history that is relevant to the current appeal from the decision of Associate Justice Brown denying part of Dr. Platnick’s motion for leave to amend his statement of claim. In brief, Ms. Bent and Lerners LLP brought a motion to dismiss Dr. Platnick’s libel claim, arguing that his claim was an attempt to limit their freedom of expression on matters of public interests: Courts of Justice Act, s. 137.1. That motion was heard by Justice Dunphy in 2016. Justice Dunphy granted the motion and dismissed Dr. Platnick’s action. Dr. Platnick appealed Justice Dunphy’s decision. The Court of Appeal granted Dr. Platnick’s appeal and sent the matter back for a trial. In September 2020, the Supreme Court of Canada upheld the Court of Appeal’s decision.

[6] Dr. Platnick then brought a motion to substantially amend his statement of claim. Associate Justice Brown heard that motion in March 2023. Associate Justice Brown granted most of the relief Dr. Platnick claimed in that motion. However, Associate Justice Brown denied Dr. Platnick leave to amend his statement of claim in three respects. First, Associate Justice Brown denied Dr. Platnick leave to add Platnick Medical Professional Corporation as a plaintiff. Associate Justice Brown found that Justice Dunphy had already decided whether Platnick Medical Professional Corporation could be added as a plaintiff and the doctrines of issue estoppel and res judicata precluded Dr. Platnick from re-litigating that issue. Second, Associate Justice Brown denied Dr. Platnick’s request to add a claim for the production of Ms. Bent’s file related to Dr. Carpenter’s claim. Associate Justice Brown found that the proper procedure for Dr. Platnick to pursue that request is a motion for production of documents, not an amendment to the statement of claim. Third, Associate Justice Brown denied Dr. Platnick’s request for leave to add three paragraphs to the statement of claim because they contained inflammatory information about Dr. Carpenter.

[7] Dr. Platnick argues Associate Justice Brown erred in relation to all three issues. We disagree. Associate Justice Brown gave very thorough reasons on each issue. We see no reversible error with any of his findings.

Issue estoppel and res judicata

[8] Associate Justice Brown found that Justice Dunphy had already decided whether Dr. Platnick could add his professional corporation as a plaintiff and, as a result, the doctrines of issue estoppel and res judicata preclude him from re-litigating that issue.

[9] Associate Justice Brown accurately stated the test for invoking issue estoppel. He considered whether Ms. Bent and Lerners LLP had established (1) that the issue raised by Dr. Platnick on the motion was the same issue Justice Dunphy decided, (2) that Justice Dunphy’s order was final, and (3) the parties to both proceedings are the same.

[10] Dr. Platnick concedes that Justice Dunphy had ruled on a motion to amend his pleadings to add his professional corporation as a plaintiff. But Dr. Platnick argues Justice Dunphy decided that issue in a different context, applying a different test than now applies. As a result, Dr. Platnick argues that the issues are not the same as the issues Justice Dunphy decided. We disagree.

[11] Dr. Platnick sought leave to amend his claim against Ms. Bent and Lerners LLP while their motion to dismiss his action under s. 137.1 of the Courts of Justice Act (the anti-SLAPP regime) was outstanding. As a result, Justice Dunphy had to consider whether to grant leave to amend under the ordinary Rules of Civil Procedure or under the special rules that apply when an anti-SLAPP motion is brought.

[12] Under the ordinary Rules of Civil Procedure, the presumption is in favour of granting leave to amend the pleadings. Leave to amend shall be granted unless it would cause prejudice that could not be compensated: Rule 26.01. Leave to amend can also be denied if the proposed amendments do not disclose a reasonable or tenable cause of cation: 16884444 Ontario Ltd. v. State Farm Fire and Casualty Co, 2017 ONCA 42 at para. 25.

[13] That presumption is effectively reversed once an anti-SLAPP motion is brought. Section 137.1(6) of the Courts of Justice Act states that a party responding to an anti-SLAPP motion (which Dr. Platnick was before Justice Dunphy) shall not be permitted to amend his pleading in a way that would frustrate the motion without leave of the court.

[14] Dr. Platnick argues that Justice Dunphy only decided his motion to amend his pleadings in the context of the anti-SLAPP motion and did not rule on whether the amendment should be permitted under Rule 26.01. That is not a fair reading of Justice Dunphy’s decision.

[15] Justice Dunphy understood that he had discretion under both s. 137.1(6) of the Courts of Justice Act and under Rule 26.01 to grant Dr. Platnick leave to amend his pleadings. Justice Dunphy expressly asked himself whether he should exercise his discretion under either provision. Justice Dunphy considered whether leave should be granted under Rule 26.01 and decided the proposed amendment disclosed no tenable cause of action because, based on the facts pleaded by Dr. Platnick, the corporation did not contract with the insurer in Dr. Carpenter’s case and had no independent interest in any of his earnings. Justice Dunphy, therefore, decided not to exercise his discretion under Rule 26.01. In doing so he made specific reference to the presumption in favour of granting leave under Rule 26.01. Justice Dunphy then considered s. 137.1(6) of the Courts of Justice Act and concluded that leave should also not be granted under those provisions.

[16] Contrary to the submissions of Dr. Platnick on this appeal, Justice Dunphy did decide whether to grant leave to amend his pleadings under Rule 26.01. Associate Justice Brown made no error in concluding Dr. Platnick’s motion to amend raised the same issue that Justice Dunphy had already decided.

[17] Associate Justice Brown made no error in finding Justice Dunphy’s ruling on that issue was final. Dr. Platnick appealed Justice Dunphy’s decision to the Court of Appeal. Dr. Platnick’s main argument on appeal was that Justice Dunphy erred in dismissing his action because it arose from expression that relates to a matter of public interest under s. 137.1 of the Courts of Justice Act. However, Dr. Platnick’s appeal was not limited to that issue. In his amended Notice of Appeal, Dr. Platnick also asked the Court of Appeal to set aside Justice Dunphy’s decision and “allow the plaintiff/appellant’s motion requesting, inter alia, leave to amend his Statement of Claim.” The Court of Appeal allowed Dr. Platnick’s appeal on his main argument and sent the matter back for a trial. The Court of Appeal dealt summarily with Dr. Platnick’s other arguments. Nonetheless, the Court ruled, “the motion judge’s order involved the exercise of his discretion to control the proceedings before him and the appellant offers no basis upon which this court could properly interfere with the exercise of that discretion.” Associate Justice Brown did not err in finding Justice Dunphy’s ruling was final.

[18] Associate Justice Brown made no error in finding that the third criterion for the application of issue estoppel was met in this case – the motion before Justice Dunphy and the motion before him involved the same parties in the context of the same proceedings.

[19] Finally, Dr. Platnick argued that Associate Justice Brown erred by not addressing whether it was in the interests of justice and fairness to allow his motion for leave to amend even though the criteria for the application of the doctrine of issue estoppel were met. Associate Justice Brown had discretion to refuse to apply the doctrine of issue estoppel. But that discretion is “very limited in its application”: Danyluk v. Ainsworth Technologies, 2001 SCC 44 at para. 62. Given Justice Dunphy’s finding that the proposed amendment disclosed no tenable cause of action, there is no basis on which Associate Justice Brown could reasonably have found that it is in the interests of justice to exercise his limited discretion to grant leave to amend.

[20] There is no basis for this court to interfere with Associate Justice Brown’s decision to apply the doctrine of issue estoppel to dismiss Dr. Platnick’s motion for leave to amend the pleadings to add his professional corporation.

[21] Dr. Platnick made an alternative argument if his motion for leave to amend his existing statement of claim to add his professional corporation was dismissed. In November 2016, Dr. Platnick issued a separate Notice of Action against Ms. Bent and Lerners LLP in which both Dr. Platnick and Platnick Medical Professional Corporation are named as plaintiffs. No statement of claim was issued in that action. On the motion before Associate Justice Brown, Dr. Platnick sought an extension of time to issue a statement of claim. If granted, Dr. Platnick and his professional corporation intended to file the same amended statement of claim as in the original action in which only Dr. Platnick was named.

[22] Associate Justice Brown denied the extension of time. He found that the request for an extension of time was, in effect, a collateral attack on and an attempt to circumvent Justice Dunphy’s finding that the proposed amendments to include the professional corporation disclosed no tenable cause of action. Associate Justice Brown did not err in denying the extension of time. Justice Dunphy had found that Platnick Medical Professional Corporation had no viable cause of action against Ms. Bent or Lerners LLP. Permitting an extension is inconsistent with that finding and would be an abuse of process as Associate Justice Brown found.

Request to add details about Dr. Carpenter’s medical condition and character

[23] Dr. Platnick sought leave to add several paragraphs to the statement of claim and to amend other paragraphs in the statement of claim. Associate Justice Brown granted Dr. Platnick leave to add most of the requested paragraphs but denied his request for leave in relation to three paragraphs which he found to be scandalous and irrelevant. First, Associate Justice Brown refused to allow Dr. Platnick to add a paragraph detailing findings made by other doctors about Dr. Carpenter. Second, Associate Justice Brown refused to allow Dr. Platnick to add a paragraph describing Dr. Carpenter’s drug use after the accident. Third, Associate Justice Brown refused to allow Dr. Platnick to add a paragraph suggesting that, with the assistance of her lawyer, Dr. Carpenter “worked the system” and obtained “benefits that she was not legally entitled to.”

[24] Associate Justice Brown gave detailed reasons for his findings in respect of each paragraph. We see no error in any of his findings.

[25] Dr. Platnick argues that these paragraphs cannot be irrelevant or scandalous because they have been included, with Dr. Carpenter’s consent, in Dr. Platnick’s statement of defence to Dr. Carpenter’s action. This argument is not persuasive. Something can be irrelevant and scandalous in one proceeding but relevant and not scandalous in another. Associate Justice Brown was considering amendments to Dr. Platnick’s claim against Ms. Bent and Lerners LLP. That proceeding will focus exclusively on whether Ms. Bent’s listserv post was libelous. To the extent Ms. Bent or Lerners LLP advance a defence of truth or some other justification for the post, the focus will be on whether the statements Ms. Bent made in her post about Dr. Platnick are true. The focus of Dr. Platnick’s case against Ms. Bent and Lerners LLP will not be on the accuracy or veracity of Dr. Platnick’s opinion that Dr. Carpenter was catastrophically impaired by the accident. The paragraphs Associate Justice Brown refused to allow Dr. Platnick to add deal only with the accuracy of his finding that Dr. Carpenter was not catastrophically impaired. Those facts may be very relevant in the context of Dr. Carpenter’s action against Dr. Platnick. But Associate Justice Brown did not err in finding that the accuracy of Dr. Platnick’s opinion about the extent of Dr. Carpenter’s injuries and whether she was deserving of the benefits she received is not relevant to his libel case against Ms. Bent and Lerners LLP.

[26] There is no basis for us to interfere with Associate Justice Brown’s ruling denying Dr. Platnick leave to add the three paragraphs about Dr. Carpenter.

Claim for document production

[27] Dr. Platnick sought leave to amend his pleadings to add a paragraph in which he requested an order requiring the defendant to produce “the entirety of their file relating to Dr. Carpenter.” Associate Justice Brown correctly concluded that it is improper to include a request for interlocutory relief in a statement of claim. Associate Justice Brown made no error in dismissing that portion of Dr. Platnick’s motion.

[28] Associate Justice Brown’s decision does not prevent Dr. Platnick from seeking production of the records mentioned in his proposed amendment. There are several ways Dr. Platnick might be able to seek production of the records that are physically in the possession of Ms. Bent or Lerners LLP. Associate Justice Brown mentioned a motion for third party records under Rule 30.10. There may be other viable ways for Dr. Platnick to request the records. We do not read Associate Justice Brown’s reasons as prohibiting Dr. Platnick from pursuing his request for the documents through a different route so long as Dr. Carpenter is given notice of his request. Dr. Carpenter has a right to claim privilege over the content of her former lawyer’s file. She may also have a separate privacy interest in the records in her former lawyer’s file. Whatever procedure is followed, Dr. Carpenter must be given notice of the request and must be given an opportunity to participate in any hearing about the release of those documents to Dr. Platnick.

Conclusion and costs

[29] Dr. Platnick’s appeal is dismissed.

[30] Ms. Bent and Lerners LLP each seek costs on the appeal. Ms. Bent seeks $18,731.45 in partial indemnity costs and Lerners LLP seeks $21,713.69 in costs.

[31] Dr. Platnick argued that even if his appeal is dismissed, we should make no costs order for two reasons. First, Dr. Platnick argued that he should not be required to pay costs on this appeal because he was not granted costs by Associate Justice Brown even though he was largely successful on the motion to amend his pleadings. We would not give effect to this argument. To challenge Associate Justice Brown’s costs decision, Dr. Platnick was required to seek leave: Courts of Justice Act, s. 133(b) and Rules of Civil Procedure, Rule 61.03(7). Dr. Platnick did not seek leave to appeal the costs decision. Dr. Platnick’s argument that we should decline to order costs because he was not granted costs below is, in effect, a collateral attack on Associate Justice Brown’s decision.

[32] Second, Dr. Platnick argued that we should make no order as to costs because he was precluded by s. 137.1(8) of the Courts of Justice Act from seeking costs on the motion to dismiss before Justice Dunphy or on the subsequent appeals from Justice Dunphy’s decision to the Court of Appeal and Supreme Court of Canada. This argument also has no merit. The fact that the statutory regime prevents an award of costs against the Respondents on their motion to dismiss does not mean they should be denied costs as the successful parties on this appeal.

[33] Dr. Platnick is ordered to pay Ms. Bent and Lerners LLP $15,000 each in costs (inclusive of HST and disbursements).

Sachs J.

Davies J.

O’Brien J.

Date: July 11, 2024