SLAPPed Around—Defamation, Anti-SLAPP Legislation and the Defence of Qualified Privilege

September 14, 2020

Written By Munaf Mohamed QC, Brynne Harding and Michael A. Eizenga

On September 10, 2020, the Supreme Court of Canada rendered judgment in Bent v Platnick, 2020 SCC 23, the first case interpreting the provisions under s. 137.1 of the Courts of Justice Act (CJA)—Ontario's "anti-SLAPP" legislation.

The stated purpose of anti-SLAPP legislation (which stands for "strategic litigation against public participation") is to remove from the court system meritless matters that have the intended effect of silencing commentary on matters of public interest. Section 137.1 of the CJA permits the court to dismiss a lawsuit in defamation where, among other things, the defence of qualified privilege is "reasonably likely… [to] succeed". Interpreting anti-SLAPP legislation thus requires a court to balance the fundamental values of protection of reputation against freedom of expression.

In Bent v Platnick, Bent, a plaintiff-side accident and injury lawyer sent an email to the listserv (i.e., an email listing) of the Ontario Trial Lawyers' Association (OTLA), in which she mentioned Platnick (a medical doctor) by name and alleged that he "altered" doctors' reports and "changed" a doctor's decision as to a victim's level of impairment. Platnick commenced a lawsuit in defamation against Bent and her firm. Bent filed a motion under s. 137.1 of the CJA to dismiss the lawsuit based on the recently enacted anti-SLAPP legislation.

The Supreme Court of Canada split 5-4. The majority sided with Platnick, holding that his lawsuit in defamation deserves to be adjudicated on its merits and may continue.

British Columbia has enacted provisions that are substantively identical to the Ontario CJA provisions, and other Canadian jurisdictions are expected to follow. The first anti-SLAPP decision of the SCC is thus significant for all Canadian jurisdictions legislating to stop proceedings that unduly limit freedom of expression on matters of public interest.

The SCC majority preferred the value of protection of reputation over the value of free expression on a matter of public interest, and has arguably narrowed the scope of the qualified privilege defence. Such interpretation leaves open the question whether anti-SLAPP legislation in Canada will achieve its stated purposes. 

Facts

Bent, the defendant/appellant, is a lawyer who represents persons injured in motor vehicle accidents. She is also a member of the OTLA and, at the relevant time, was its president-elect. In 2014, she sent an email to the listserv of the OTLA concerning issues she had encountered with one of the insurers' medical assessment company, Sibley.

Platnick, a Toronto family physician, had been retained by Sibley to summarize reports of various specialists who had assessed the victims of motor vehicle accidents. Bent named Platnick in her email to the OTLA listserv and alleged that Platnick had "altered" or removed important sections of medical specialists' reports, and had "changed" a specialist's decision that a victim was markedly impaired to a decision that they were moderately impaired. In her email, Bent wrote:

"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."

Despite a confidentiality undertaking required by the OTLA listserv, Bent's email was anonymously leaked and was published in its entirety in an industry magazine. Platnick commenced a $16.3-million lawsuit in defamation against Bent and her firm.

Bent filed a motion under s. 137.1 of the CJA to dismiss the lawsuit in defamation against her. 

Legislative Framework

Subsection 137.1(3) of the CJA provides that the motion judge shall dismiss the proceeding if the defendant satisfies the judge that the proceeding arises from an expression made by the defendant that relates to a matter of public interest.

Subsection 137.1(3) is qualified by subsection 137.1(4), which provides that the motion judge shall not dismiss the proceeding if the plaintiff satisfies the judge that: 

1. there are grounds to believe that,
   1. the proceeding has substantial merit, and
   2. the moving party has no valid defence in the proceeding (“the merits test”); and
2. the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression (the “balancing test”).

As emphasized in the appellant's factum, the three-part test in s. 137.1(4) is conjunctive, so that a lawsuit must be dismissed if the plaintiff cannot meet any one part.

Majority Reasons

Côté J., writing for the five-member majority of the Supreme Court, strongly preferred the value of protection of reputation over Bent's freedom of expression.

On the threshold question under s. 137.1(3), the majority held that Bent's email constitutes an expression that relates to a matter of public interest. However, Platnick had discharged his burden to show that all three elements of subsection 137.1(4) were met, so his suit could proceed to an adjudication on the merits.

In the majority's view, Platnick easily established that the defamation proceeding had substantial merit: the email was published, having been sent to all members of the OTLA listserv, and its content, which named Platnick, would tend to lower Platnick’s reputation in the eyes of a reasonable person.

With respect to Bent's valid defences, the majority held that the justification defence (i.e., substantial truth) did not "weigh more in her favour", as Bent was mistaken about one of the occasions on which she had alleged professional misconduct against Platnick. Further, she had not made any efforts to investigate the incident before alleging professional misconduct in her email to the OTLA listserv.

Second, the majority held that there were grounds to believe that Bent’s defence of qualified privilege was not valid. 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.

The majority found that Bent had exceeded the scope of the occasion of privilege because Bent did not need to refer specifically to Platnick, by name, in order to discharge the duty giving rise to the privilege. In other words, in their view, Bent could have communicated her concerns regarding the alteration of medical reports without naming Platnick specifically, and this would have served as sufficient warning to the lawyers of the OTLA. In the majority's view, it was relevant to the qualified privilege defence that Bent had not investigated her claims before writing the email, suggesting that such conduct may even show a "reckless disregard for the truth (i.e., malice)". The law has historically imposed a heightened expectation of reasonable due diligence on lawyers, which also weighed against the qualified privilege defence.

Finally, on the public interest hurdle at s. 137.1(4)(b), the Court preferred the plaintiff's interests. Characterizing Bent's email as a "gratuitous personal attack" on Platnick, the Court found a lower public interest in protecting the expression. The Court found low risk of a chilling effect on future expression: others can speak out against unfair or biased practices without "unnecessarily singling out an individual" culprit.

The Court characterized s. 137.1(4)(b) as "open-ended", allowing courts to scrutinize what is "really going on" in the particular case before them. The Court held that Platnick was not vindictively or strategically silencing Bent, and so does not come within the legislature’s contemplation of one deserving to be summarily dismissed at an early stage. Rather, Platnick's suit attempts to remedy seemingly legitimate harm suffered as a result of a defamatory communication. 

Dissent Reasons

In dissent, Abella J., for Karakatsanis, Martin and Kasirer JJ., departed from the majority's view in respect of the defence of qualified privilege.

While the majority emphasized the question as to whether a defence weighs "more" in the defendant's favour, the dissent emphasized that the plaintiff bears the burden of showing that a defence can be said to have no real prospect of success.

As president‑elect of the OTLA, Bent had a clear duty to inform its members about selective and misleading expert reports, and a duty to warn OTLA members about unfair practices by experts and assessment companies. Bent 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 had reciprocal duties and interest. Further, members of the listserv were bound by an undertaking to keep the information strictly confidential.

As to the majority's contention that naming Platnick in the circumstances was "gratuitious" and exceeded the scope of the privilege, the dissent reasoned that 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 most statements of that nature can be stripped of detail. Crucially, the dissenting justices recognize that generic accounts of misconduct, which do not refer to specific persons, do not require the protection of qualified privilege: the defence is engaged only when someone is identified. Thus, it would defeat the purpose of qualified privilege to withhold the defence from Bent because she chose to identify Platnick by name.

Finally, on the "balancing" element of the test, the dissent would have preferred Bent’s expression on matters of public interest over harm to Platnick’s reputation. In their view, permitting a defamation suit to proceed would produce a considerable chilling effect.

Comment

As the intervener the B.C. Civil Liberties Association argued, s. 137.1(4)(b), the "balancing" element of the anti-SLAPP test, is "the heart of" the Ontario legislation. The provision requires a responding party (i.e., the plaintiff alleging harm arising from an expression) to demonstrate that “the harm likely to be or have been suffered by the [plaintiff] as a result of the [defendant’s] expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”

The decision in Bent v Platnick, by a narrow majority of the Court, suggests that defamation suits may only be dismissed under statutes like the CJA if they lack merit and are brought vindictively or strategically. Yet s. 137.1, by its conjunctive structure, expressly contemplates dismissal of meritorious suits, either where there is a valid defence, or where the public interest in the expression is high.

Finally, there is reason to believe that after Bent v Platnick, the qualified privilege defence has been substantially narrowed to protect only communications that are strictly necessary to discharge a duty, not those that may be relevant to protecting the public interest. One must walk a fine line in deciding whether, when raising questionable conduct, an individual responsible for the conduct should be identified. The question now is whether this potential narrowing of the privilege will place a chill on what might be said under the umbrella of public interest.

Authors