Bent v. Platnick

2020 SCC 23

Supreme Court of Canada

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

Interveners: 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.

Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Reasons for Judgment (paras. 1 to 179): Côté J. (Wagner C.J. and Moldaver, Brown and Rowe JJ. concurring)

Dissenting Reasons (paras. 180 to 301): Abella J. (Karakatsanis, Martin and Kasirer JJ. concurring)

Indexed

Indexed as: Bent v. Platnick

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.

Headnotes

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 can be defeated. This can occur particularly in two situations: where the speaker was reckless as to the truth of the words spoken; or where the scope of the occasion of privilege was exceeded. In the present case, even assuming without deciding the issue that qualified privilege 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 that the scope of B's privilege was exceeded and that the defence therefore does not tend to weigh more in her favour. This is because the specific references made to P may not have been necessary to the discharge of the duty giving rise to the privilege. In other words, B could have communicated her concerns regarding the alteration of medical reports without naming P specifically. Further, the Listserv's express prohibition on even potentially defamatory remarks suggests that the OTLA acknowledges that the posting of even potentially defamatory material is not necessary (or even relevant) to the duty encompassed within the particular occasion. Lastly, the record reveals a lack of investigation or reasonable due diligence by B prior to making her serious allegations. B took no investigative steps at all to corroborate 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 or consulting her own notes. In light of the heightened expectation of reasonable due diligence that the Court has historically imposed on lawyers, B's privilege may be defeated simply on the ground that she was indifferent or reckless as to the truth of her defamatory statements. Thus, even assuming that qualified privilege attaches to the occasion upon which B's communication was made, there are grounds 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 the scope 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 of probabilities that the harm likely to be or have been suffered as a result of the expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. First, the harm to P here is extensive and quite serious. Not only does it include significant monetary harm that is more than just a bald assertion, but reputational harm is also eminently relevant to the harm inquiry, even if it is not quantifiable at this stage, and it is only amplified when one considers professional reputation. 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 the subsequent leak and/or reproduction of her email in the magazine because republication was reasonably foreseeable to B and/or authorized 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 or causation 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 to the 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 against P, which cast doubt on his professional competence, integrity, and reputation, without ever having met him and without any investigation into her allegations against him. Indeed, there will be less of a public interest in protecting a statement that contains gratuitous personal attacks and the motivation behind the expression will be relevant to the inquiry. The chilling effect on future expression and the broader or collateral effects on other expressions on matters of public interest must also be considered. Permitting P's defamation claim to proceed will deter others not from speaking out against unfair and biased practices, but from unnecessarily singling out an individual in a way that is extraneous or peripheral to the public interest, and from making defamatory remarks against an individual without first substantiating, or attempting to substantiate, the veracity of their allegations. In this way, rather than disincentivizing people from speaking out against unfair and biased practices, it will incentivize them to act with reasonable due diligence. Thus, when considered as a whole, the public interest in protecting B's expression lies somewhere in the middle of the spectrum: while B's specific references to P fall at the low end of the protection‑deserving spectrum, her email interpreted broadly as pertaining to the administration of justice in Ontario 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 is sufficiently serious that the public interest in permitting his defamation proceeding to continue outweighs the public interest in protecting B'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 the particular case before them. On its face, this is not a case in which one party is vindictively or strategically silencing another party; it is a case in which one party is attempting to remedy seemingly legitimate harm suffered as a result of a defamatory communication. This is not the type of case that comes within the legislature's contemplation of one deserving to be summarily dismissed at an early stage, nor does 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. This case is a transitional one: the considerable uncertainty surrounding s. 137.1 motions — due to a lack of judicial guidance with respect to both 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, 1979 8 (SCC), [1980] 1 S.C.R. 759.

Per Abella, Karakatsanis, Martin and Kasirer JJ. (dissenting): The appeal should be allowed and P's defamation action should be dismissed under s. 137.1 of Ontario's Courts of Justice Act. There is no dispute that P's defamation action was based on expression 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 has substantial merit, B has no valid defence to the proceeding, and the likely harm suffered by him is serious enough that it outweighs the public interest in protecting B's expression. Here, B has a valid defence of qualified privilege and is therefore entitled to the relief mandated 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 is reasonably capable of belief, and have a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh 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 is on 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 to receive 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 information communicated is not reasonably appropriate, that is, relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege. The question is not whether the statements were strictly necessary. A necessity‑based approach would have dangerous and restrictive implications for the defence of qualified privilege. It would effectively exclude from the defence statements containing specific examples of misconduct, since statements like that can almost always be stripped of detail and reconstructed without the unnecessary examples they previously contained. Qualified privilege exists to acknowledge the benefit of expression which is relevant to protecting the public interest, including protecting the public from the perpetuation of wrongdoing or injustice. Generic accounts of misconduct, which do not refer to specific persons, do not require the protection 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 is reasonably capable of belief and sufficiently compelling to give the defence the necessary likelihood of success. As president‑elect of the OTLA, B had a clear duty to inform its members about selective and misleading expert reports which disadvantage the very individuals they advocate for and represent, as well as a duty to advise OTLA members of ways to protect their clients' interests against unfair practices by experts and assessment companies. B also had a professional duty as a lawyer to participate in improving the administration of justice and to share best practices. Members of the OTLA Listserv — all plaintiff‑side personal injury lawyers — unquestionably had a reciprocal duty as well as an interest in receiving B's communication. Being alerted to questionable conduct by experts and assessment companies — and advised of ways to guard against such conduct — was of professional significance to them and especially to their clients. B or her colleagues did not waive their professional obligation to exchange such information by joining a Listserv. B's communication, therefore, was made by a person with a professional interest and duty to share the information with her colleagues, who had a corresponding interest and duty to receive it. This supports the conclusion that her defence of qualified privilege has a real prospect of 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 OTLA members of selective and misleading expert reports, by identifying an expert who she reasonably believed to have engaged in precisely that conduct. It was clearly relevant and reasonably appropriate for B, in fulfilling her duty to protect her colleagues and their clients, to identify P, a frequently‑retained expert in whose cases it had proven to be especially important to obtain full disclosure of the insurer's files. 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 OTLA who practiced plaintiff‑side personal injury law. Members of the Listserv were bound by a wide‑ranging undertaking to keep the information strictly confidential. As lawyers, Listserv members were also required by the Rules of Professional Conduct to strictly and scrupulously 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 due to recklessness or on any other basis. Additionally, the motion judge concluded that there was no evidence to reasonably support the inference that B acted with malice in publishing her email, a conclusion fully supported by the record, and this conclusion is entitled to deference.

In this case, protecting B's expression on matters of public interest outweighs the harm to P's reputation. Any harm resulting from the leak of B's email was caused by unforeseen and unforeseeable communication by others, not by B sending the email to its intended audience of lawyers on the Listserv. B's email addressed matters of critical importance to the administration of justice and there is a broader public interest in protecting B's expression, as permitting a defamation suit to proceed would produce a considerable chilling effect.

P's motion to admit fresh evidence should be dismissed. Most of the material he seeks to admit is clearly irrelevant and inadmissible. 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 as fresh evidence four years ago by the motion judge. Admitting the emails would require the Court to overturn the exercise of discretion by the motion judge, ignore P's demonstrable lack of due diligence, and accept unsworn, untested, hearsay evidence, all to obtain information that would not, in any event, have affected the result of B's dismissal hearing. Such an outcome would not only frustrate the purposes 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 Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3; Palmer v. The Queen, 1979 8 (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 of America v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616; Public School Boards' Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44; R. v. Warsing, 1998 775 (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), 2005 47589 (ON CA), 205 O.A.C. 359; Elliott v. Sagl, 2019 ONSC 2490; R. v. Stolar, 1988 65 (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] 2 S.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, 1995 59 (SCC), [1995] 2 S.C.R. 1130; RTC Engineering Consultants Ltd. v. Ontario (Solicitor General) (2002), 2002 14179 (ON CA), 58 O.R. (3d) 726; Adam v. Ward, [1917] A.C. 309; Rubin v. Ross, 2013 SKCA 21, 409 Sask. R. 202, leave to appeal refused, [2013] 3 S.C.R. x; Young v. Toronto Star Newspapers Ltd. (2005), 2005 35775 (ON CA), 77 O.R. (3d) 680; Awan v. Levant, 2016 ONCA 970, 133 O.R. (3d) 401; Walker v. CFTO Ltd. (1987), 1987 126 (ON CA), 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, 1995 59 (SCC), [1995] 2 S.C.R. 1130; Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.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, 2006 41669; Burwash v. Williams, 2014 ONSC 6828; Daggitt v. Campbell, 2016 ONSC 2742, 131 O.R. (3d) 423; Douglas v. Tucker, 1951 54 (SCC), [1952] 1 S.C.R. 275; Netupsky v. Craig, 1972 19 (SCC), [1973] S.C.R. 55; McLoughlin v. Kutasy, 1979 39 (SCC), [1979] 2 S.C.R. 311; Merit Consultants International Ltd. v. Chandler, 2014 BCCA 121, 60 B.C.L.R. (5th) 214; Wang v. British Columbia Medical Assn., 2014 BCCA 162, 57 B.C.L.R. (5th) 217; RTC Engineering Consultants Ltd. v. Ontario (Solicitor General) (2002), 2002 14179 (ON CA), 58 O.R. (3d) 726; Chohan v. Cadsky, 2009 ABCA 334, 464 A.R. 57; Laufer v. Bucklaschuk (1999), 1999 5073 (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 and Surgeons of Saskatchewan, 2018 SKCA 53; Foulidis v. Baker, 2014 ONCA 529, 323 O.A.C. 258; Cherneskey v. Armadale Publishers Ltd., 1978 20 (SCC), [1979] 1 S.C.R. 1067; Jerome v. Anderson, 1964 71 (SCC), [1964] S.C.R. 291; Hodgson v. Canadian Newspapers Co. (2000), 2000 14715 (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 & Davies Ltd. v. Kott, 1979 42 (SCC), [1979] 2 S.C.R. 686; Korach v. Moore (1991), 1991 7367 (ON CA), 1 O.R. (3d) 275; Wells v. 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] 2 S.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, 1979 8 (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. McMaster University, 2019 ONCA 1027; R. v. M.(P.S.) (1992), 1992 2785 (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 updated December 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), 19 RECIEL 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, 419 C.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), 2018 CarswellOnt 14124 (WL Can.), setting aside a decision of Dunphy J., 2016 ONSC 7340, 136 O.R. (3d) 339, 369 C.R.R. (2d) 243, 405 D.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.). Appeals dismissed, 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 Violence Against 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, the Canadian Journalists for Free Expression, CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, the Aboriginal Peoples Television Network and Postmedia Network Inc.

Reasons for Judgment

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 and judicious balancing over the course of this Court's jurisprudential history. While in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 589, this Court recognizes the importance of freedom of expression as the cornerstone of a pluralistic democracy, this Court has also recognized that freedom of expression is not absolute — "[o]ne limitation on free expression is the law of defamation, which protects a person's reputation from unjustified assault": Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.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": People ex 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 Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3, at para. 92. Values, therefore, are not without countervailing considerations.

[ 2 ] In these appeals, the Court must apply the framework set out in Pointes Protection in order to determine whether the respondent's defamation claim against the appellants can proceed or whether it must be dismissed under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA"). In effect, this Court must consider the delicate equilibrium between two fundamental values in a 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 the s. 137.1 motion and allow the respondent's lawsuit in defamation to continue. While the appellant Maia Bent ("Ms. Bent") successfully meets 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. 137.1 motion 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 his reputation — "a fundamental value in its own right in a democracy" (para. 81). At trial, judicial powers of inquiry are broader, viva voce evidence can be given, and ultimate assessments of credibility can be made. Nothing in these reasons can, or should, be taken as prejudging the merits of Dr. Platnick's underlying defamation claim either in fact or in law. Simply put, my resolution of this s. 137.1 motion means only that Dr. Platnick's claim is one that deserves to be adjudicated on the merits, and is not one that ought to be summarily 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 appellant before 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 motor vehicle 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 1988 to 2011. Since 1991, he has typically been 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 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 the defence of justification was not valid because the sting, or the main thrust, of the two statements was not substantially true and that the defence of qualified privilege was not valid because the second statement either "was made maliciously or with reckless disregard for the truth, 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's expression because this case bore none of the indicia of a SLAPP [3] and because there was sufficient harm attributable to the initial publication 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 to s. 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. The motion was deferred to the panel hearing the appeals. Dr. Platnick's motion contained the following evidence for which he sought admission 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 that Dr. Platnick called her to identify areas of concern that "required clarification": p. 37. She says that she "corrected the typographical error 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 he conduct himself in any inappropriate fashion": pp. 37-38 (emphasis in original). Dr. Dua states pointedly that "[t]o suggest that Dr. Platnick changed my report is simply untrue. Further, to characterize the events in question as an attempt by Dr. Platnick to manipulate 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 which Dr. King admitted that he had been mistaken when he said that parts of his report had been removed without his knowledge and consent in 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 by Dr. Platnick against KMI. Approximately one week after Ms. Bent's cross-examination on this s. 137.1 motion, KMI delivered its Statement of Defence, in which it pleaded that prior to publishing an article that reproduced Ms. Bent's email of November 10, 2014, it had 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 attesting to a telephone conversation that took place between Ms. Bent and Donald Horne, the Associate Editor of Insurance Business Canada magazine, 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 the republication, nor did she inform KMI that her email had been published on a private OTLA Listserv and that any leak was a serious professional and ethical breach of the terms and conditions of that Listserv; (iii) had KMI been aware of the aforesaid, it would not have proceeded with the republication; (iv) since Ms. Bent raised no objections or concerns, KMI believed it could proceed with the republication (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. In particular, he sought leave to adduce evidence that the parallel Carpenter litigation had been abandoned by Dr. Carpenter with no costs against him. Since Dr. Platnick's initial motion to adduce fresh evidence was deferred to the panel hearing the appeals, the decision whether 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 to adduce fresh evidence. Indeed, the determination of the latter impacts the evidentiary record that ultimately informs the analysis of the s. 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 is not a determinative adjudication of the merits of a claim, my determination on admissibility or exclusion here does not bear on the evidence's ultimate admissibility at trial — in other words, my conclusions with respect to Dr. Platnick's motion to adduce fresh evidence 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, 1979 8 (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] 3 S.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, 1998 775 (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 general principle 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 have affected the result. [p. 775]

[ 51 ] In Pointes Protection, this Court expressly contemplates the "potentiality of future evidence arising": para. 37. This is based on the expedited nature of s. 137.1 motions, which are required to be heard in a statutorily imposed short time frame. That is exemplified in this case, where Dr. Platnick had to submit his evidentiary record within 25 days after the notice of motion was filed. In this sense, as recognized in Pointes Protection, s. 137.1 motions are unlike summary judgment motions, where parties are expected to put their best foot forward; in other words, on a s. 137.1 motion, it is acknowledged that parties are under a mandated time constraint and are 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 adhered to, 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 is a transitional one: the considerable uncertainty surrounding s. 137.1 motions — due to a lack of judicial guidance with respect to both 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 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 would decline to admit the rest of the evidence that Dr. Platnick included with his motion. Below, I briefly explain why I would specifically admit 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 in these 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 of due diligence. Dr. Platnick's evidentiary record was filed in May 2016. The Dua Letter is dated November 15, 2017 and was received on November 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 this evidence earlier. According to that affidavit, Dr. Dua did not respond to his telephone messages until May 17, 2016. While this allowed Dr. 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 from Dr. 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 a result of a lack of due diligence. The Letters were exchanged well after the hearing of the s. 137.1 motion which took place on June 27, 2016 — indeed, the Letters from KMI are dated August 30, 2016, and September 20, 2016. Of course, the admissibility of the Letters does not depend merely on when they came into Dr. Platnick's possession, but rather, depends on whether they could have been obtained 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. Platnick had 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 magazine in some capacity. With this newly conflicting evidence, Dr. Platnick pursued the matter further through prompt correspondence with KMI (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 "reasonable explanation for the failure to place" the KMI Letters "before the court prior to conducting his cross-examination of Ms. Bent": Platnick v. 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 hearing before the motion judge on June 27, 2016, the record reveals that Dr. Platnick's counsel was out of the country from June 19 until June 25, 2016, and had asked repeatedly for an adjournment of the hearing on account of his unavailability on those crucial dates immediately in advance of the hearing (as well as on other grounds): see Platnick v. Bent (No. 2), at paras. 3 and 6; Motion to Adduce Fresh 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 this evidence 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 motion judge erred here, as it was Ms. Bent, the defendant, who announced an intention to bring a summary judgment motion. Regardless, the point is still not valid. A summary judgment motion involves due process and procedural protections on which Dr. Platnick may have relied, and which are unavailable on s. 137.1 motions. This Court makes it clear in Pointes Protection that s. 137.1 motions do not have the evidentiary protections associated with summary judgment motions. Moreover, the motion judge's evidentiary expectation was commensurate with requiring information that might only have been able to be elicited through extensive examination processes unavailable in the context of a s. 137.1 motion.

[The majority reasons continue at paragraphs 60 to 179, addressing the s. 137.1(3) threshold question, the s. 137.1(4)(a) merits-based hurdles including analysis of the defences of justification and qualified privilege, and the s. 137.1(4)(b) public interest balancing test.]

Dissenting Reasons

Abella J. (Karakatsanis, Martin and Kasirer JJ. concurring) —

[Dissenting reasons at paragraphs 180 to 301, concluding that the appeal should be allowed and the defamation action dismissed under s. 137.1, that the appellant lawyer had a valid defence of qualified privilege with a real prospect of success at trial, that the public interest in protecting expression on matters critical to the administration of justice outweighed the harm to the respondent's reputation, and that the motion to admit fresh evidence should be dismissed for lack of due diligence and insufficient credibility of the tendered material.]

Disposition

Appeals dismissed, Abella, Karakatsanis, Martin and Kasirer JJ. dissenting.

Solicitors

Solicitors for the appellant Maia Bent: Winkler Dispute Resolution, Toronto.

Solicitors for the appellant Lerners LLP: Lax O'Sullivan Lisus Gottlieb, Toronto.

Solicitors for the respondent: Danson Recht, Toronto.

Solicitors for the intervener the British Columbia Civil Liberties Association: Goodmans, Toronto; Maia Tsurumi, Vancouver.

Solicitors for the intervener Greenpeace Canada: Stockwoods, Toronto; Greenpeace Canada, Toronto.

Solicitors for the intervener the Canadian Constitution Foundation: McCarthy Tétrault, Toronto.

Solicitors for the intervener the Ecojustice Canada Society: Ecojustice Canada Society, Toronto; Ecojustice Environmental Law Clinic at the University of Ottawa, Ottawa.

Solicitors 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 Violence Against Women Rape Crisis Center: Dentons Canada, Vancouver.

Solicitors for the intervener the Canadian Civil Liberties Association: St. Lawrence Barristers, Toronto.

Solicitor for the intervener the Canadian Broadcasting Corporation: Canadian Broadcasting Corporation, Toronto.

Solicitors for the intervener the Barbra Schlifer Commemorative Clinic: Birenbaum Law, Toronto; Torys, Toronto.

Solicitors for the interveners the Ad IDEM / Canadian Media Lawyers Association, the Canadian Journalists for Free Expression, CTV, a Division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, the Aboriginal Peoples Television Network and Postmedia Network Inc.: Linden & Associates Professional Corporation, Toronto.

Footnotes

[1] Dunphy J. of the Ontario Superior Court referred to the date of the email as November 14, 2014, in his reasons: 2016 ONSC 7340, 136 O.R. (3d) 339. The correct date is November 10, 2014.

[2] Sibley & Associates has also been referred to as Sibley SLR and SLR Assessments.

[3] Strategic Lawsuit Against Public Participation.

[4] Dr. Platnick has provided this Court with evidence that the term "consensus" is a misnomer because the requirement to obtain a "consensus" and the signatures of the medical assessors is a vestige of an antiquated statutory regime that was legislatively repealed in 2006. The current SABS regime no longer requires a consensus, and Ms. Bent — being the president-elect of the OTLA and familiar with the SABS — would have known that Dr. Platnick was not actually mispresenting the existence of a medical consensus. In fact, it might have been plainly understood that no medical consensus on SABS classification could have possibly existed given the unfamiliarity of the four medical assessors from Nova Scotia with Ontario's SABS regime (one of the medical assessors even stated that the SABS criteria he was mandated to use were "outdated" and not "appropriate"): A.R., vol. V, at p. 182. Thus, there are grounds to believe that Ms. Bent's statement that Dr. Platnick misrepresented a medical consensus is not substantially true.

[5] Section 22 of the Libel and Slander Act provides that "[i]n an action for libel or slander for words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges".

[6] The motion judge referred to Dr. Platnick's "client" in making this argument. It is unclear whether the motion judge was referring to the vendor company or the insurer, which are different companies. While the insurer has an economic interest in a non-catastrophic impairment designation, the vendor company has no such economic interest, as it is not a party to an insurance arbitration. Dr. Platnick is retained by the vendor company, not by the insurer. Further, the company might be more appropriately characterized as Dr. Platnick's employer rather than as his "client". It is therefore unclear whether the motion judge's characterization is accurate in any sense, which evidences a misapprehension of the evidence that I hope to clarify by means of this footnote.

[7] At trial, a judge or jury might reasonably come to the conclusion that privilege does attach to the occasion upon which Ms. Bent's communication was made. However, it is not necessary to decide this point on this s. 137.1 motion, so I do not endeavour to do so, and therefore I do not foreclose either conclusion.

[8] The motion judge found that Dr. Platnick's allegation that Ms. Bent gave an interview "was supported by no evidence whatsoever and appears on its face to be manifestly untrue": Sup. Ct. reasons, at paras. 24-25. While he did not have the KMI Letters before him, to the extent that his s. 137.1(4)(b) analysis depended on that finding, it cannot be given deference.

[9] These timelines are set out in s. 137.2.

[10] The letter from Dr. Dua has no relevance to whether Ms. Bent has a valid defence of qualified privilege.