COURT FILE NO.: CV-15-520683; CV-16-563804

DATE: 2023-10-17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Platnick v. Bent et al; PMCO et al v. Bent et al

BEFORE: ASSOCIATE JUSTICE D. MICHAEL BROWN

HEARD: 2023-03-02 (in person), 2023-03-21 (written submissions – costs)

COUNSEL: T. Danson for the plaintiffs/moving parties Howard Platnick and Platnick Medicine Professional Corporation (plaintiff in CV-16-563804, proposed plaintiff in CV-15-520683)

H. Winkler and E. Pond for responding party/defendant Maia Bent

A. Winton for responding party/defendant Lerners LLP

A. Wood and S. Gaya for the non-party, Dr. Laura Carpenter

E N D O R S E M E N T

[1] The plaintiff, Dr. Howard Platnick, brings a motion in the action commenced under court file no. CV-15-520683 (the main action) for leave to amend the Statement of Claim and to add Platnick Medicine Professional Corporation (“PMPC”) as a plaintiff. In the alternative, if PMPC is not added as a plaintiff to the main action, Dr. Platnick and PMPC bring a motion in the proceeding commenced by Notice of Action under court file no. CV-16-563804 (the placeholder action) for an order extending the time to issue a Statement of Claim in that action. The defendants, who are the same in both actions, oppose both motions. The non-party, Dr. Laura Carpenter, opposes the motion to amend in the main action and seeks standing on that motion through a preliminary motion to intervene.

[2] At a case conference on February 10, 2023, I directed that Dr. Carpenter’s motion to intervene be heard immediately before the plaintiffs’ motions on the same day. At the conclusion of the motion to intervene I granted the motion, with reasons to follow, and went on to hear the plaintiffs’ motions, which I took under reserve. These are my reasons for granting Dr. Carpenter’s motion to intervene and my decision on the plaintiffs’ motions in the main action and the placeholder action.

Background

[3] Although it has not progressed beyond the pleadings stage, this action has a long procedural history. The main action was commenced by Dr. Platnick on January 17, 2015 seeking damages for defamation. On June 27, 2016, the defendant, Maia Bent, brought a motion in this court pursuant to s. 137.1 of the Courts of Justice Act (commonly referred to as the “anti-SLAPP” provision) to dismiss the plaintiff’s libel suit against her on the basis that the proceeding arises from a communication relating to a matter of public interest. In a decision released on December 1, 2016, Justice Dunphy granted Bent’s motion and dismissed Dr. Platnick’s action against both defendants: Platnick v. Bent, 2016 ONSC 7340.

[4] Dr. Platnick appealed the dismissal under s. 137.1 to the Ontario Court of Appeal. In its decision released on August 30, 2018, the Court of Appeal allowed Dr. Platnick’s appeal and quashed the order dismissing the action, remitting the case back to the Superior Court: Platnick v. Bent, 2018 ONCA 687. The defendants sought and obtained leave to appeal to the Supreme Court of Canada, which appeal was heard on November 12, 2019. On September 10, 2020, the Supreme Court released its majority decision dismissing the defendants’ appeal and allowing Dr. Platnick’s action in defamation against the defendants to proceed: Bent v. Platnick, 2020 SCC 23.

[5] The facts giving rise to Dr. Platnick’s defamation claim against the defendants are succinctly summarized in the headnote to the Supreme Court of Canada’s decision (I have substituted the initials with the names of the parties for clarity):

The defendant, Maia Bent, is a lawyer and partner at an Ontario law firm [the defendant, Lerner’s LLP]. 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. The plaintiff, Dr. Platnick, 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 Bent was acting as counsel for an accident victim, Bent 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 Dr. Platnick by name and allege that, in the context of those disputes, Dr. Platnick “altered” doctors’ reports and “changed” a doctor’s decision as to the victim’s level of impairment. Bent’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 Bent’s email in its entirety …

[6] The text of Bent’s email is reproduced in Dr. Platnick’s Statement of Claim:

Dear Colleagues,

I am involved in an Arbitration on the issue of catastrophic impairment where Sibley[^1] 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 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.

Maia

[text bolded as in the pleading]

[7] In his Statement of Claim, Dr. Platnick alleges that as a result of the publication/broadcast of the defamatory communication in Bent’s email to the OTLA Listserv, he has been “severely injured in his credit, character, reputation, and in the way of his profession, business, occupation and personal life, and has been brought into public scandal, ridicule, odium and contempt.” He seeks damages of $15 million plus punitive and aggravated damages totaling $1.3 million.

[8] Dr. Laura Carpenter is the motor vehicle accident victim and client of Bent referred to in the first paragraph of the Bent email. The doctors’ reports referenced in the first four paragraphs of the email are reports assessing Dr. Carpenter’s injuries and level of impairment resulting from the motor vehicle accident. Although Dr. Carpenter is not identified by name in Bent’s email, she was repeatedly identified on the record and in court filings in the anti-SLAPP motion and appeals. The Supreme Court of Canada refers to Dr. Carpenter by name more than 50 times in its September 2020 decision.

[9] On August 5, 2015, Dr. Carpenter commenced her own action in this court against Dr. Platnick, Sibley and other defendants alleged to have been involved in the assessment of her level of impairment on behalf of her insurer. She sought general damages of $750,000 relating to the initial denial of accident benefits resulting from the allegedly false assessments, plus punitive and aggravated damages totaling $7,000,000. The allegations of wrongdoing against Dr. Platnick in Dr. Carpenter’s statement of claim are similar to the assertions in Bent’s email, and include allegations that Dr. Platnick:

a) “stated in the Executive Summary that there was consensus of opinion amongst the Defendant Assessors when there was none whatsoever”;

b) “included in the Executive Summary selective findings of the Defendant Assessors which suggested that the Plaintiff did not meet the criteria to be designated catastrophically impaired”;

c) “excluded and omitted from the Executive Summary findings of the Defendant Assessors which were favourable to the Plaintiff's application to be designated catastrophically impaired”;

d) “edited and changed the Defendant Assessors' reports without the Assessors' knowledge or consent”.

[10] Dr. Platnick defended Dr. Carpenter’s action and brought a crossclaim against Sibley and certain other defendants. The Carpenter action proceeded through documentary production in 2017, and examinations for discovery in April through August of 2018. On September 11, 2018, Dr. Platnick obtained an order for leave to deliver an Amended Statement of Defence and Crossclaim in the Carpenter action, which order was on consent of all parties, including Dr. Carpenter. The Amended Statement of Defence and Crossclaim was filed on September 27, 2018. Dr. Carpenter’s action was eventually settled at mediation in May of 2019.

Motion to intervene

[11] Dr. Carpenter seeks to intervene as an added party to Dr. Platnick’s motion to amend his Statement of Claim. In particular, she seeks standing to oppose certain of the proposed amendments primarily on two grounds: 1) that certain of the facts pleaded are based on information obtained by Dr. Platnick from Dr. Carpenter on discovery in Dr. Carpenter’s action in violation of the deemed undertaking under Rule 30.1.01; and, 2) that certain of the proposed amendments unnecessarily include Dr. Carpenter’s highly personal and sensitive medical information and are scandalous, frivolous or vexatious. Dr. Platnick opposes the motion to intervene.

[12] Rule 13.01 gives broad discretion to the court to grant leave to intervene as an added party:

13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.

[13] The three-part test under Rule 13.01 is disjunctive. Intervention may be granted if any of the conditions under subrules (a), (b) or (c) is met. Although Rule 13.01 provides for adding a party to a “proceeding” (defined in Rule 1.03 as an action or an application), this court has interpreted it to permit the addition of a person as a party to a motion: Trempe v. Reybroek, 2002 CanLII 49410 (ON SC), para 22. Dr. Carpenter seeks to intervene as an added party to the amendment motion only.

[14] Dr. Platnick raises a number of arguments in opposition to the intervention motion, most of which may be fairly characterized as going to the merits of Dr. Carpenter’s opposition to the amendment motion, as opposed to the merits of the motion to intervene. For example, Dr. Platnick submits that the deemed undertaking rule does not apply given that the records on which he relied come from the proceedings before the Financial Services Commission of Ontario (FSCO), and not from the Carpenter action. He further submits that the limited disclosure of Dr. Carpenter’s personal medical information in the proposed amended pleading is far less than is already in the public record in other proceedings, including the public disclosure in her own action which she consented to.

[15] Dr. Platnick’s arguments misconstrue the test to be met under Rule 13.01. The Rule only requires that the person seeking intervention “claims” an interest in the subject matter of the proceeding or that they will be affected by the outcome. A person seeking intervention need not demonstrate that the proceeding they are seeking to intervene in will ultimately be resolved in their favour.

[16] I find that the Dr. Carpenter’s claims with respect to the breach of the deemed undertaking rule and the disclosure of her personal medical information constitute an interest in the subject matter of Dr. Platnick’s amendment motion. I also find that, in light of these claims, Dr. Carpenter may be adversely affected by the result of the motion.

[17] Having found that Dr. Carpenter has met the requirements under subrule 13.01(1), subrule 13.01(2) requires that I consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding. Dr. Platnick submits that “Dr. Carpenter’s intervention will unduly delay the action, unfairly obfuscate the issues, and prejudice the determination of the rights of the immediate parties to these proceedings, including Dr. Platnick’s ability to frame his action as he sees fit – a right consistently recognized by our courts.” I disagree. Dr. Carpenter’s limited intervention in the amendment motion will not unduly delay the hearing and determination of the motion, let alone the action as a whole. The amendment motion is already opposed by both defendants. At a case conference on February 10, 2023, I directed that the intervention motion be heard immediately before the amendment motion on the day scheduled for that motion. The parties agreed that the amendment motion could still be argued within the time allotted, notwithstanding Dr. Carpenter’s potential participation.

[18] For all of these reasons, at the conclusion of the argument on the amendment motion, I exercised my discretion to grant leave to Dr. Carpenter intervene as a responding party on the motion to amend only.

Motion to amend

[19] Dr. Platnick brings his motion for leave to amend under Rule 26.01. Pursuant to Rule 26.02, absent consent of all parties, Dr. Platnick requires leave of the court for the proposed amendments both because pleadings in the action have closed and because the proposed amendments include the addition of PMPC as a party.

[20] Rule 26.01 of the Rules of Civil Procedure provides as follows:

On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[21] The principles that apply on a motion for leave to amend under Rule 26.01 are well established. The rule is mandatory. The court must allow the amendment, unless the responding party would suffer non-compensable prejudice, the proposed pleading is scandalous, frivolous or vexatious, or the proposed pleading fails to disclose a reasonable cause of action: Klassen v. Beausoleil, 2019 ONCA 407, para 25.

[22] Notwithstanding the mandatory language of Rule 26.01, the court also retains the discretion to deny leave for pleading amendments that do not comply with the general rules of pleading under Rule 25.06(1), which states that every pleading “shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved”: Dunning v. Intercity Realty Inc., et al., 2021 ONSC 7398, para 12; York Region Vacant Land Condominium v. Marcello et al, 2019 ONSC 4085, para 6.

[23] The amendments sought by Dr. Platnick are expansive. If granted, they would more than double the length of his pleading, from 12 pages to 30 pages. For the purpose of this endorsement, I have separated the proposed amendments into the following three different categories, each of which gives rise to different objections by the respondents on the motion:

1. The amendments relating to the addition of PMPC as a plaintiff;
2. The amendment to add a claim for document production; and
3. The remaining amendments to the facts section of the pleading that are not included in categories 1 and 2.

1. Addition of PMPC

[24] The defendants’ primary objection to the amendments to add PMPC as a plaintiff is that the amendments are prohibited by issue estoppel as a result of an earlier ruling by Justice Dunphy in this action. The defendants further argue that the addition of PMPC as a party to the action is barred by the expiry of the limitation period and by s. 21(1) of the Limitations Act, 2022 and that the claim of PMPC as pleaded in the proposed amended statement of claim is not tenable at law.

[25] The proposed Amended Statement of Claim makes the same $15 million claim for damages for defamation as in the current Statement of Claim, but asserts this claim on behalf of both Dr. Platnick and PMPC. The proposed Amended Statement of Claim also makes the following alternative claim on behalf of PMPC only:

“1. (b) In the alternative, as it relates to Platnick Medicine Professional Corporation ("PMPC") damages in the amount of Fifteen Million Dollars ($15,000,000.00) for intentional and/or negligent interference with economic, commercial and contractual relations;”

[26] The proposed amended pleading includes the following description of the business of PMPC and its relationship to Dr. Platnick:

“The plaintiff, PMPC is an Ontario corporation with Dr. Platnick as its sole director and shareholder. PMPC serves no other purpose than to act as a corporate vehicle through which Dr. Platnick bills insurers, vendor companies and lawyers for the preparation of medical reports. All of the income earned by PMPC is the income of Dr. Platnick.”

[27] This is not the first time that Dr. Platnick has sought leave to amend his Statement of Claim to add PMPC as a plaintiff. On November 8, 2016, Dr. Platnick brought a motion before Justice Dunphy for various orders, including an order for leave to amend his statement of claim to add PMPC as a plaintiff to the action. As in the motion before me, the proposed amended claim before Justice Dunphy asserted a claim in defamation on behalf of both PMPC and Dr. Platnick as well an alternative claim on behalf of PMPC for damages for “intentional and/or negligent interference with economic and commercial relations and damage to reputation”. The only notable difference from the claim before me is the addition of “and damage to reputation” in the proposed claim before Justice Dunphy.

[28] The proposed amended pleading before Dunphy J also included a similar description of the business of PMPC:

“The plaintiff PMPC is the corporate entity through which Dr. Platnick bills insurers, vendor companies and lawyers for the preparation of medical reports. All of the income earned by PMPC is the income of Dr. Platnick.”

[29] As in the present motion, in the 2016 amendment motion Dr. Platnick required leave to amend because pleadings had closed and he was seeking to add a party. Further, the 2016 amendment motion was brought as a preliminary motion to the main motion before Justice Dunphy to dismiss the plaintiff’s action under the anti-SLAPP provision in s. 137.1 of the CJA. The plaintiff’s motion therefore engaged s. 137.1(6) of the CJA which provides as follows:

137.1(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,

(a) in order to prevent or avoid an order under this section dismissing the proceeding; or

(b) if the proceeding is dismissed under this section, in order to continue the proceeding.

[30] In deciding the 2016 amendment motion, Dunphy J considered whether leave should be granted both under Rule 26.01/26.02 and under s. 137.1(6) of the CJA, as explained in his decision on the motion released on December 1, 2016; Platnick v. Bent (No. 2), 2016 ONSC 7474 at para 21:

“[21] I therefore have discretion both under Rule 26.02 of the Rules of Civil Procedure and s. 137.1(6) of the CJA to permit the pleadings to be amended as requested. Motions seeking leave required by Rule 26.02 of the Rules of Civil Procedure are governed by Rule 26.01 that provides that leave shall be granted on terms that are just unless there is non-compensable prejudice. Section 137.1(6) of the CJA is not so constrained and other considerations, including the purpose of the statute and the timelines prescribed by s. 137.2(2) of the CJA may also enter into consideration.”

[31] Justice Dunphy denied leave to amend under both provisions. He denied leave under Rule 26.02 based on a finding that the proposed amended pleading did not state a tenable cause of action on behalf of PMPC:

“[28] The proposed amended statement of claim contains the following allegation supporting the necessity for the addition of PMPC as a plaintiff:

“The plaintiff PMPC is the corporate entity though which Dr. Platnick bills insurers, vendor companies and lawyers for the preparation of medical reports. All of the income of PMPC is the income of Dr. Platnick” (emphasis added).

[29] As pleaded, the corporate plaintiff is a mere agent or flow through vehicle with no interest in the underlying business at all. If the income is that of Dr. Platnick, it is not that of PMPC. It does not contract with insurers, vendor companies or lawyers. It is simply the company “through which” bills are sent. While I suspect that Dr. Platnick’s admissions in this civil case have rather thoroughly undone whatever tax planning his accountants sought to accomplish with PMPC, the pleading effectively denies that PMPC has any beneficial interest in the income that it bills.

[30] Based on the facts as alleged by Dr. Platnick, I can see no basis whatsoever for his personal services corporation having standing in its own right to pursue Ms. Bent for damages arising from her alleged defamation of Dr. Platnick personally. An amendment must at least state a tenable cause of action. In my view, there is no tenable cause of action stated for which PMPC can claim to have suffered discrete damages separate and apart from those alleged to have been suffered by Dr. Platnick.”

[32] Dunphy J then went on to deny leave to amend under s. 137.1(6) of the CJA on the basis that the proposed amendments were a transparent attempt to prevent the court from issuing an order under s. 137.1 of the CJA:

“[31] Whatever the standing of PMPC to be added as a plaintiff viewing the matter solely through the lens of Rule 26.02 of the Rules of Civil Procedure, it is clear that leave ought not to be granted pursuant to s. 137.1(6) of the CJA. The corporation is not alleged to have suffered any damages or to have been involved in the facts of the claim except as an alter ego of Dr. Platnick. The cause of action is the same. Given my finding that the claim of Dr. Platnick is to be dismissed, it is clear that an amendment to add his alter ego to pursue the very same claim would frustrate the purpose and intent of s. 137.1 of the CJA. In my view, leave ought not to be granted pursuant to s. 137.1(6) of the CJA except in cases where granting the amendment sought would not directly or indirectly frustrate the purposes of the enactment.

[32] Adding a new party to the proceeding on the eve of its dismissal based and after full argument on the merits (of s. 137.1 of the CJA) has already taken place premised upon facts that the plaintiff has had before it for more than a year would be an abuse of process. It represents a transparent attempt to prevent this court from issuing an order under s. 137.1 of the CJA at the last minute. The language of s. 137.1(6) of the CJA is mandatory and I am satisfied that no satisfactory grounds exist for me to order otherwise in this case.

[33] I would therefore deny the motion to add PMPC as a party plaintiff to this action pursuant to Rule 26.02 of the Rules of Civil Procedure and pursuant to s. 137.1(6) of the CJA.”

[33] In the motion before Justice Dunphy, Dr. Platnick sought other amendments to the Statement of Claim in addition to adding PMPC as a party plaintiff, some of which are included in the amendments sought on the motion before me. Although Justice Dunphy also denied leave for those other amendments, he did so under s. 137.1(6) of the CJA and did not consider leave for those amendments under Rule 26.02.

[34] Dr. Platnick submits that Justice Dunphy did not decide the 2016 motion to amend to add PMPC under Rule 26.01/26.02. He argues in his factum that Justice Dunphy’s decision dismissing the plaintiff’s action under s. 137.1 of the CJA, which was released simultaneously with his decision on the 2016 amendment motion, rendered the decision on the amendment motion moot. In oral submissions, Dr. Platnick’s counsel argued that Justice Dunphy’s finding that the amended statement of claim failed to plead a tenable cause of action on behalf of PMPC is therefore obiter dicta. In my view, Justice Dunphy’s decision cannot reasonably be interpreted in the manner proposed by Dr. Platnick. Justice Dunphy considered and applied Rules 26.01 and 26.02 and very clearly denied leave to amend to add PMPC as a party plaintiff “pursuant to Rule 26.02” (at paras 33 and 74 of his decision).

[35] Dr. Platnick appealed the decisions of Justice Dunphy on both the preliminary motion (which included the motion to amend) and the main motion to dismiss under s. 137.1 of the CJA. However, it is not clear on the record before me whether Dr. Platnick specifically appealed the denial of leave to add PMPC as a plaintiff. The Court of Appeal notes that Dr. Platnick appealed only from “certain aspects” of the preliminary motion decision. I have not been provided with a copy of the Notice of Appeal that would identify which aspects were appealed. In any event, although the Court of Appeal overturned Justice Dunphy’s decision to dismiss the action pursuant to s. 137.1 of the CJA, it declined to disturb any of his findings on the preliminary motion. In a footnote to its decision dated August 30, 2018, the Court of Appeal noted that Justice Dunphy’s decision “involved the exercise of his discretion to control the proceedings before him” and that Dr. Platnick had “offered no basis upon which this court could properly interfere with the exercise of that discretion.”: Platnick v. Bent, 2018 ONCA 687, Para 29, FN1.

[36] The defendants submit that Justice Dunphy’s decision denying leave to amend to add PMPC as a plaintiff gives rise to an issue estoppel that precludes Dr. Platnick from seeking to add PMPC as a plaintiff on the motion before me. The doctrine of issue estoppel was described by the Supreme Court of Canada in Toronto (City) v. CUPE., Local 79, 2003 SCC 63 at para. 23, per Arbour J:

Issue estoppel is a branch of the res judicata doctrine, which precludes the re-litigation of issues previously decided in another proceeding. To successfully invoke issue estoppel, a party must establish that (1) the issue raised is the same as the one decided in a prior decision; (2) the prior judicial decision was final; and (3) the parties to both proceedings are the same.

[37] With respect to the first requirement described by the Supreme Court , the issues raised on this motion in relation to the addition of PMPC as a plaintiff are the same as those decided by Justice Dunphy. As in this motion, in the 2016 amendment motion Dr. Platnick sought to add PMPC as a plaintiff to the action, asserting a joint claim with Dr. Platnick in defamation and an alternative claim on behalf of PMPC only in intentional and/or negligent interference with economic and commercial relations. Importantly, the proposed Amended Statement of Claim before me includes the exact same statement regarding income flow - “All of the income earned by PMPC is the income of Dr. Platnick” - that was highlighted by Justice Dunphy and was central to his determination that the claim asserted by PMPC was not tenable.

[38] The second requirement for issue estoppel is satisfied in that Justice Dunphy’s decision denying leave to add PMPC was final. The decision is final regardless of whether it was appealed to the Ontario Court of Appeal. If it wasn’t appealed it became final when the time for appeal expired. If it was appealed, it became final when Court of Appeal held that there was no basis to interfere Justice Dunphy’s decision.

[39] The third requirement for issue estoppel is also met in this case. The parties on this motion are the same as those before Justice Dunphy. While I have allowed Dr. Carpenter to intervene on this motion, she takes no position on the amendments to add PMPC and has no stake in that issue.

[40] The Ontario Court of Appeal recently confirmed that an order an order denying leave to amend a pleading is final order that can give rise to issue estoppel. In National Industries Inc. v. Kirkwood, 2023 ONCA 63 the court considered an appeal of judge’s order striking portions of a plaintiff’s Reply and Response to Request for Particulars on the grounds that the pleadings included claims that had been denied by a Master on an earlier motion to amend the Statement of Claim. The Court of Appeal dismissed the appeal and held that the motions judge properly relied on the doctrines of res judicata and issue estoppel.

[41] The Court of Appeal went on to explain the importance of the re-litigation doctrines to pleadings motions generally, per Paciocco J.A. for the court:

[26] Moreover, the motion judge explained persuasively, and correctly, why the re-litigation doctrines must, legally and practically, extend to pleadings motions. “Pleadings set the issues from the very outset of the case”, define the scope of production and discovery and define the issues that have to be proved at trial. If parties could disregard pleadings rulings in the expectation that they can be re‑litigated later, it would unsettle the efficient and fair administration of justice and render pleadings rulings and appeals from those rulings pointless.

[42] I find that the doctrines of issue estoppel and res judicata apply on this motion and that Dr. Platnick is precluded from seeking the amendments to add PMPC as a party plaintiff as it constitutes an attempt to re-litigate issues finally decided by Justice Dunphy in Platnick v. Bent (No. 2), 2016 ONSC 7474. Having decided that the plaintiff’s motion to add PMPC as a party plaintiff is precluded by issue estoppel, I need not decide whether the claims of PMPC are barred by the Limitations Act, 2002 or are tenable at law. The plaintiff’s motion to amend the Statement of Claim as it relates to the addition of PMPC as a party plaintiff is dismissed.

2. Claim for document production

[43] The proposed Amended Statement of Claim appended to Dr. Platnick’s Notice of Motion includes the following added prayer for relief at subparagraph 1(c):

1(c) An Order that the defendants produce the entirety of their file relating to Dr. Carpenter in preparation for and use at Dr. Carpenter's Financial Services Commission of Ontario ("FSCO") arbitration and all communications and documents/files in relation to Dr. Carpenter's $7.75 million action against Dr. Platnick (Milton Court File No. 3334/15) and Dr. Carpenter's complaint against Dr. Platnick to The College of Physicians and Surgeons of Ontario;

[44] At the hearing of the motion Dr. Platnick’s counsel handed up the following modified and narrower version of subparagraph 1(c) that he now proposes in its stead:[^2]

1(c) An Order that the defendants produce their complete accident benefits file as It relates to Dr. Carpenter's claim arising from a motor vehicle accident occurring on April 12, 2007, Including all documents relating to any and all disputes filed with the Financial Services Commission of Ontario ( "FSCO").

[45] Although not specified in either version of subparagraph 1(c), the relief sought is plainly interlocutory. The production of these documents would be of no use to Dr. Platnick at the conclusion of trial. Further, while the requested order seeks production of the documents from the defendants, the documents sought under either iteration of the subparagraph are the property of Dr. Carpenter, a non-party.

[46] I agree with the responding parties that the request in subparagraph 1(c) is improper in a number of key respects. If the plaintiff seeks production of these documents he should be seeking them from Dr. Carpenter, not from her former lawyers, using the proper discovery channels; in this case a motion under Rule 30.10 on notice to Dr, Carpenter. On such a motion the court could then assess the relevance of the requested documents and determine issues relating to privilege or privacy concerns as needed.

[47] A pleading is not the proper place for a discovery request. Relevance on discovery is determined by reference to the pleadings. Allowing the inclusion of discovery requests in a pleading would open the door to abuse by parties seeking to artificially expand the scope documentary production by bootstrapping relevance to the request itself. I agree with the submission of the defendant, Lerners LLP, that Dr. Platnick’s inclusion of a broad production order in the Statement of Claim serves no legitimate purpose.

[48] Leave to amend as it relates to the prayer for relief in subparagraph 1(c) of the proposed Amended Statement of Claim is therefore denied.

3. Remaining proposed amendments

[49] The remaining amendments proposed by Dr. Platnick include 35 new paragraphs added to the Statement of Claim and revisions to several others. As described by Dr. Platnick in his factum, these proposed amendments plead additional facts in relation to a number of issues relevant to his claim. Most of the additionally pleaded facts can be grouped into one of the following two categories:

a) Facts relating to the further dissemination of the alleged defamatory communication beyond the OTLA Listserv and whether such dissemination was reasonably foreseeable by the defendants. These include facts relating to the republication of the alleged defamatory communication by KMI Publishing in Insurance Business Magazine/Newsletter and facts relating to the defence assertion that the dissemination was the result of an unauthorized “leak”.

b) Facts relating to the truth or falsity of the alleged defamatory communication. These include facts relating to the relating to the contents and conclusions of the assessing doctors’ reports that Dr. Platnick was alleged to have misrepresented or changed.

[50] The defendants do not take the position that these proposed amendments will cause them non-compensable prejudice. Instead, they oppose certain of the amendments on the grounds that they fail to comply with the rules of pleading in accordance with Rule 25.06(1) in that they plead evidence as opposed to material facts.[^3] The defendants and Dr. Carpenter also oppose certain amendments on the grounds that they are scandalous, frivolous or vexatious. In addition, Dr Carpenter opposes certain amendments on the basis that they are in breach of the deemed undertaking rule. In her factum filed on the motion, Dr. Carpenter also seeks, in the alternative, the redaction of certain information from the proposed amended pleading based on privacy concerns.

(a) Pleading evidence

[51] Rule 25.06(1) requires that every pleading “shall contain a concise statement of the material facts … but not the evidence by which those facts are to be proved.” In considering whether pleading amendments comply with the rules of pleading, the court should read the amendments generously with allowance for deficiencies in drafting: Plante v. Industrial Alliance Life Insurance Co., 2003 CanLII 64295 at para 21(b). The courts have acknowledged that there is a significant grey area when it comes to distinguishing properly pleaded material facts (and the particulars pleaded in support of such material facts) from improperly pleaded evidence. Master McLeod (as he then was) described the approach to be taken by the court in Toronto (City) v. MFP Financial Services Ltd., 2002 CanLII 45516 (ON SC) at para 15:

The distinction between material facts, particulars and evidence is not a bright line and there will be situations in which the level of detail required to provide adequate particulars sets out material facts that might also be regarded as evidence. Furthermore, pleadings motions should not be approached in an overly technical manner. Generally speaking a party should be at liberty to craft a pleading in the manner it chooses providing the rules of pleading are not violently offended and there is no prejudice to the other side.

[52] The defendants identify 20 paragraphs in the proposed Amended Statement of Claim which they submit improperly plead evidence (paragraphs 5, 20-27, 32-33, 36, 40, 42 44 and 47-52). Having reviewed these paragraphs through the lens as described by Master McLeod (as he then was), I am satisfied that all of the allegations contained therein can reasonably be construed as pleadings of fact or particulars of such facts and are not solely evidence.

(b) Scandalous, frivolous or vexatious

[53] No amendment should be allowed which, if originally pleaded, would have been struck: Marks v. Ottawa (City), 2011 ONCA 248, para 19. Rule 25.11 provides, among other things, that the court may strike out or expunge all or part of a pleading, with or without leave to amend on the ground that the pleading is scandalous, frivolous or vexatious. The responding parties submit that certain of the proposed amendments are scandalous, particularly those amendments that plead personal facts relating to Dr. Carpenter.

[54] I have identified the following principles from the case law that are relevant to the determination as to whether a pleading should be struck as scandalous:

• Pleadings inserted solely for colour or to embarrass an individual, particularly one who is a not a party to the action, are scandalous. York Region Vacant Land Condominium v. Marcello et al, 2019 ONSC 4085, at paras 12-13.
• If the only purpose of a pleaded fact is for atmosphere or to cast the opposing party in a bad light, it must be struck: Curnew v Loo et al, 2021 ONSC 2720, at para 24.
• A pleaded fact cannot be "scandalous" if it is relevant: Quizno's Canada Restaurant Corporation v. Kileel Developments Ltd., 2008 ONCA 644.

[55] The defendants and Dr. Carpenter identify six paragraphs in the proposed Amended Statement of Claim, (paragraphs 47-52) which they say are scandalous. They submit that these paragraphs contain excessive details regarding Dr. Carpenter’s medical history and financial entitlements that are irrelevant to this action and appear to serve no purpose other than to embarrass Dr. Carpenter, and unjustifiably expand the scope of any eventual non-party discovery.

[56] I agree with the responding parties that Dr. Carpenter’s financial entitlements are irrelevant to the plaintiff’s claim. I do not agree, however, that that Dr. Carpenter’s medical history is entirely irrelevant.

[57] True statements cannot be defamatory. Truth or justification is an absolute defence to a claim in defamation. The essence of the alleged defamatory statement in this case was that Dr. Platnick’s 2009 assessment of Dr. Carpenter’s level of impairment resulting from her 2007 motor vehicle accident did not fairly or accurately reflect the findings in the reports of the other medical assessors that he reviewed. The determination of the truth or falsity of this statement will necessarily involve a review of the findings and conclusions regarding Dr. Carpenter’s medical history contained in the reports of the medical assessors reviewed by Dr. Platnick. So, while Dr. Carpenter’s actual medical history is not relevant to Dr. Platnick’s claim, the medical history contained in the reports that were reviewed and relied on by Dr. Platnick in 2009 is relevant.

[58] The defendant’s knowledge of the contents of the reports reviewed by Dr. Platnick, including the medical history contained therein, is also potentially relevant, as it goes to whether the defendant was reckless in publishing or broadcasting the defamatory communication, and is potentially relevant to the existence of malice and the availability of punitive damages.

[59] The pleading of Dr. Carpenter’s medical history in paragraph 47 of the proposed amended Statement of Claim is not scandalous. Dr. Platnick pleads that this was the history he relied on in rendering his opinion and it is therefore relevant. Paragraphs 49 and 51 are also not scandalous. They both relate directly to Dr. Platnick’s reliance on medical evidence for his assessment and neither paragraph includes any specific details of Dr. Carpenter’s medical history.

[60] Conversely, paragraph 48 as pleaded does not appear to relate to reports of other assessors that were relied on by Dr. Platnick in rendering his assessment of Dr. Carpenter’s level of impairment. These reports are therefore not relevant to his claim. The quotes excerpted from the reports also appear to be directed at attacking Dr. Carpenter’s integrity, suggesting that Dr. Carpenter was unreliable or even dishonest in reporting her own symptoms. Paragraph 48 is scandalous and I would deny leave for the amendments contained in that paragraph.

[61] Paragraph 50 of the proposed Amended Statement of claim is also scandalous. There is no pleaded connection of the statements pleaded here to any report relied on by Dr. Platnick in providing his assessment. The allegation that Dr. Carpenter was taking “massive” dosages of addictive drugs is inflammatory and clearly designed to embarrass Dr. Carpenter and has been added solely for colour. I would deny leave to make the amendments in this paragraph.

[62] Paragraph 52 is particularly problematic in my view. This paragraph provides details of Dr. Carpenter’s pre-accident income and her post-accident benefits that are entirely irrelevant to Dr. Platnick’s claim. The allegation that Dr. Carpenter and the defendants “worked the system” to obtain benefits to which she was not entitled is intended to embarrass Dr. Carpenter and the defendants and to cast them all in a bad light. Paragraph 52 is scandalous. I would deny leave to make the amendments in Paragraph 52.

(c) Objection based on deemed undertaking rule

[63] Dr. Carpenter submits that leave should not be granted for the amendments contained in subparagraph 1(c) and paragraphs 47-52 of the proposed Amended Statement of Claim because the allegations contained in these paragraphs were “extrapolated” from information that was obtained by Dr. Platnick on discovery in Dr. Carpenter’s action and are therefore in breach of Rule 31.1.01 (the deemed undertaking rule). As I have already denied leave for the amendments in subparagraph 1(c) and paragraphs 48, 50 and 52 of the proposed amended pleading, I will consider the application of the deemed undertaking rule only in respect of paragraphs 47, 49 and 51.

[64] Rule 30.1.01 provides as follows:

(1) This Rule applies to,

(a) evidence obtained under,

(i) Rule 30 (documentary discovery),

(ii) Rule 31 (examination for discovery),

(iii) Rule 32 (inspection of property),

(iv) Rule 33 (medical examination),

(v) Rule 35 (examination for discovery by written questions); and

(b) information obtained from evidence referred to in clause (a).

(2) This Rule does not apply to evidence or information obtained otherwise than under the rules referred to in subrule (1).

Deemed Undertaking

(3) All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained.

Exceptions

(4) Subrule (3) does not prohibit a use to which the person who disclosed the evidence consents.

(5) Subrule (3) does not prohibit the use, for any purpose, of,

(a) evidence that is filed with the court;

(b) evidence that is given or referred to during a hearing;

(c) information obtained from evidence referred to in clause (a) or (b).

(6) Subrule (3) does not prohibit the use of evidence obtained in one proceeding, or information obtained from such evidence, to impeach the testimony of a witness in another proceeding.

(7) Subrule (3) does not prohibit the use of evidence or information in accordance with subrule 31.11 (8) (subsequent action).

[65] The allegations in paragraphs 47, 49, 51 of the proposed Amended Statement of Claim all relate to medical reports regarding Dr. Carpenter’s level of impairment that were provided to Dr. Platnick for his review in preparing his assessment. Paragraphs 49 and 51 reference these medical reports without discussing their contents. Paragraph 47 includes allegations regarding Dr. Carpenter’s medical history as contained in those reports.

[66] Dr. Carpenter has filed evidence from the lawyer who represented her in her own action stating generally that the proposed Amended Statement of Claim contains information that was provided to Dr. Platnick on discovery in that action. Although the lawyer’s affidavit points to the inclusion of personal medical information in paragraphs 47 to 52 of the proposed pleading that is said to be distressing to Dr. Carpenter, there is no evidence on the record before me as to specifically which information in the proposed amended pleading is alleged to have been obtained on discovery in Dr. Carpenter’s action. Further, to the extent that any information in paragraphs 47, 49 and 51 was included in the evidence obtained on discovery, there is no evidence that such discovery evidence is the only possible source of that information.

[67] Dr. Carpenter does not deny that Dr. Platnick received medical reports in 2009 that included details of her pre-accident medical history. Dr. Carpenter’s 2015 action against Dr. Platnick was based on an allegation that Dr. Platnick misrepresented the contents and conclusions of those reports in 2009. Dr. Carpenter disputes Dr. Platnick’s description of the content and conclusion of those reports, including the descriptions contained in paragraph 47, 49 and 51 of the proposed Amended Statement of Claim. However, Dr. Carpenter does not dispute that the reports referenced in these paragraphs were provided to Dr. Platnick in 2009, six years before Dr. Carpenter commenced her action.

[68] The medical reports provided to Dr. Platnick in 2009 were not provided to him on discovery or in the context of civil litigation. As such, information obtained by Dr. Platnick from those reports is not subject to the deemed undertaking rule. The fact that those reports or the information contained within them was again provided to Dr. Platnick on discovery in litigation many years later does not give rise to a deemed undertaking not to use information that was originally obtained by Dr. Platnick in 2009.[^4] For this reason alone, I find that the deemed undertaking rule does not prohibit Dr. Platnick from pleading the allegations contained in paragraphs 47, 49 and 51 of the proposed Amended Statement of Claim.

[69] I also find that the deemed undertaking rule does not apply to the allegation in paragraphs 47, 49 and 51 because those allegations are a matter of public record and subject to the exemption in subrule 30.1.01(5)(c). In 2018, Dr. Platnick delivered an Amended Statement of Defence and Crossclaim in the Carpenter action that was filed in the public court file with the consent of Dr. Carpenter. All of the information regarding the 2009 medical reports and Dr. Carpenter’s medical history that is contained in paragraphs 47, 49 and 51 of the proposed Amended Statement of Claim is contained in the Dr. Platnick’s Amended Statement of Defence and Crossclaim filed in the Carpenter action.

(d) Alternative request for redactions

[70] In her factum, Dr. Carpenter requests in the alternative that in the event that any of the amendments in subparagraph 1(c) or paragraphs 47-52 are granted, that this court make an order redacting her name, any identifying information (address, telephone number, email address), and any and all information that discloses or would tend to disclose her personal health information from the proposed Amended Statement of Claim. In support of this request, Dr. Carpenter relies on the Supreme Court of Canada’s decision in Sherman Estate v Donovan, 2021 SCC 25.

[71] Dr. Carpenter’s alternative request for redactions is, in effect, a request for a partial sealing order over Dr. Platnick’s pleading. A sealing order is not relief that is available on a motion for leave to amend. It requires a separate motion. No motion for a sealing order has been served or filed by Dr. Carpenter.[^5] Dr. Platnick’s alternative request for redactions to the pleading is denied.

Motion for leave to extend time for service of Statement of Claim in the placeholder action

[72] As I have denied leave to Dr. Platnick to add PMPC as a plaintiff to this action, I will consider Dr. Platnick’s motion to extend time to issue a Statement of Claim in the placeholder action commenced under court file no. CV-16-563804. The Notice of Action in the placeholder action names the same defendants as in the main action but includes both Dr. Platnick and PMPC as plaintiffs. If Dr. Platnick is granted the requested extension of time, he intends to issue a Statement of Claim in the placeholder action that is identical to the Amended Statement of Claim he has proposed in his amendment motion in the main action. After delivering that Statement of Claim in the placeholder action, Dr. Platnick intends to discontinue the main action and proceed to litigate his claims (and the claims of PMPC) in the placeholder action. The defendants oppose Dr. Platnick’s motion and submit that it amounts to a collateral attack on an earlier decision of this court and an abuse of this court’s process. I agree.

[73] The doctrine of abuse of process was described by Justice Arbour on behalf of the majority of the Supreme Court of Canada in Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, at para 35:

Judges have an inherent and residual discretion to prevent an abuse of the court's process. This concept of abuse of process was described at common law as proceedings "unfair to the point that they are contrary to the interest of justice", and as "oppressive treatment".

[74] The doctrine of abuse of process seeks to promote judicial economy and to prevent a multiplicity of proceedings. The doctrine engages the inherent power of the court to prevent the misuse of its procedures in order to uphold the integrity of the administration of justice: Living Water (Pressure Wash Services) Ltd. v. Dyballa, 2011 ONSC 5695 at para. 9.

[75] Collateral attack and abuse of process are related, but distinct, doctrines. A collateral attack is an impermissible attempt to nullify the result of another proceeding outside of the proper channels for the review of that decision. The purpose of the doctrine is to prevent attempts to overturn decisions made in other courts. Mancuso v Canada (National Health and Welfare), 2015 FCA 227 at para 39.

[76] In 2016 Justice Dunphy denied Dr. Platnick’s motion to add PMPC as a plaintiff to the action on the basis that PMPC’s claims were not tenable at law. I have denied leave to amend to add PMPC on the basis that the issue is res judicata as a result of Justice Dunphy’s decision. The plaintiffs’ intended course of action in the placeholder action would have them issue a Statement of Claim asserting claims by PMPC that Justice Dunphy held were not tenable. Such a course of action would effectively render Justice Dunphy’s decision in the main action a nullity. In that sense, it is a collateral attack on his decision.

[77] I also find that the plaintiff’s use of the placeholder action to circumvent both Justice Dunphy’s decision and my decision on the motion to amend is an abuse of this court’s process. What the plaintiffs are essentially proposing is a “do over”. By seeking an extension of time to issue an identical Statement of Claim in the placeholder action, the plaintiffs are effectively asking to start again from the position they would have been in in 2016 if the present motion and the motion before Justice Dunphy for leave to add PMPC had never been heard and determined.

[78] In his 2016 decision, Justice Dunphy considered the placeholder action and alluded to the possibility that the issuance of a Statement of Claim in that action might constitute an abuse of process:

“In order to preserve his position vis-à-vis a potentially expiring limitation period before his motion could be hear {sic}, Dr. Platnick caused a Notice of Action to be issued on November 8, 2016 that, though spare in particulars, appears to be a duplicate of the existing statement of claim.

[24] My leave was neither sought nor required to issue that Notice of Action. Whether that action – if perfected by issuing a statement of claim and serving it within the time limits prescribed – would be struck as an abuse of process is not before me. The fact that it is an apparent duplicate of an existing (and now dismissed) action rather speaks for itself.” (Platnick v. Bent (No. 2), 2016 ONSC 7474 at paras 23-24)

[79] Dr. Platnick now asks this court to extend the time for the issuance of a Statement of Claim that is an exact duplicate of the pleading proposed on his motion to amend. For the reasons given above, I would deny the motion on the grounds that it is an abuse of process and that it amounts to a collateral attack on a prior decision of this court.

Disposition

[80] Dr. Platnick is granted leave to make the amendments reflected in the proposed Amended Statement of Claim appended as Schedule “A” to his Notice of Motion except for the following amendments in the proposed Amended Statement of Claim for which leave to amend is denied:

a) amendments adding Platnick Medicine Professional Corporation as a plaintiff to the action, including the related amendment to the style of cause, the amendments pluralizing “plaintiff” to “plaintiffs”, all of subparagraph 1(b), the second, third and fourth sentences of paragraph 2, and all of paragraph 28;

b) all of subparagraph 1(c) (for greater certainty, leave to amend is denied for both the version of subparagraph 1(c) that appears in the proposed amended pleading appended to the Notice of Motion and the revised version of the subparagraph that was handed up at the hearing); and,

c) the entirety of paragraphs 48, 50 and 52.

[81] The amendments for which leave has been granted shall be underlined in the Amended Statement of Claim in accordance with Rule 26.03(2). These amendments are not so extensive so as to make the amended pleading difficult to read or understand. The plaintiff shall not issue a “Fresh as Amended” pleading.

[82] The motion by Dr. Platnick and PMPC to extend the time to issue a Statement of Claim in the action bearing court file no. CV-16-563804 is dismissed.

Costs

[83] The parties each provided a costs outline together with the submissions on costs they would seek if successful on the motions. Dr. Carpenter does not seek costs on the motions and asks that no costs be ordered against her. Dr. Platnick seeks full indemnity costs of $88,270.16 against the defendants and Dr. Carpenter if successful on the motions or, in the alternative, partial indemnity costs of $55,597.34. The defendants collectively seek approximately $55,000 in partial indemnity costs on the motions if successful ($35,185.44 for Bent and $20,554.64 for Lerners). The costs outlines filed by the plaintiff and the defendants do not distinguish between motion to amend and the motion to extend time in the placeholder action – each provides a lump sum total for fees associated with both motions. This is not surprising given the substantial overlap on issues between the two motions.

[84] Success on the motions before me was divided. While leave was granted for most of the amendments proposed by the plaintiff, the defendants were successful on the central issues of the addition of PMPC and the related motion to extend time and the issue of pleading of a discovery request, which issues collectively took up about half of the hearing time. Dr. Carpenter was successful in opposing leave to amend in respect of 3 of the 6 paragraphs which she opposed. In my view, when the result of the motions is viewed as a whole, no party was clearly more successful than any other. I therefore exercise my discretion to award no costs on the motions.

D. Michael Brown, Associate Judge

DATE: 2023-10-17

[^1]: Sibley is an insurance assessment firm that retained services Dr. Platnick and other medical professionals. [^2]: Although this revised subparagraph was not included in the plaintiff’s motion materials, I have considered it on this motion on the basis that it was emailed by the plaintiff to the responding parties the week before the hearing and that the request for FSCO records was included in the prior iteration of the subparagraph such that the responding parties had adequate notice of this request to respond at the hearing. I have not considered an additional three paragraphs to the proposed Amended Statement of Claim relating to PMPC’s claim in intentional interference that were not provided by the plaintiff to the responding parties or the court until the morning of the hearing. The responding parties had insufficient notice of those additional paragraphs and they were not properly before the court. [^3]: The defendants also argued in their factums that the amendments improperly plead “argument”. However, I was not provided with any authority for the prohibition on pleading argument nor any definition of what constitutes prohibited argument. Further, this point was not addressed in the defendants’ oral submissions at the hearing. Accordingly, I have not considered this issue in my decision. [^4]: I note that on this motion I have only considered the application of the deemed undertaking rule to the information contained in the proposed amended pleading. I have not considered the application of the deemed undertaking rule to the evidence provided on discovery in the Carpenter action and my decision should not be interpreted as deciding that issue. In particular, I have not determined whether or not the deemed undertaking rule would preclude Dr. Platnick in this action from producing and relying on the copies of the 2009 medical reports that he received on discovery in the Carpenter action. [^5]: Since hearing this motion, I heard a motion brought by the defendant Maia Bent, seeking various relief, including a publication ban and sealing order in relation to certain information, including Dr. Carpenter’s medical information. Dr. Carpenter did not appear or make submissions on that motion. My decision on that motion is under reserve.