Platnick v Bent 2016 ONSC 7340

The defendant Maia Bent has brought this motion pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 to dismiss the plaintiff’s libel suit against her on the basis that the proceeding arises from a communication – in this case an email – relating to a matter of public interest.

The plaintiff disputes the motion but has also served a Notice of Constitutional Question and takes the position that, in the event s. 137.1 of the CJA applies in this situation, its application violates his rights under s. 7 and s. 15(1) of the Charter of Rights and Freedoms pursuant to the Constitution Act, 1982.

The email communication giving rise to this litigation was made by Ms. Bent – then president-elect of the Ontario Trial Lawyers Association – to a confidential “Listserve” accessible only by those OTLA members who subscribed to it. The email alerted subscribers to an incident that had occurred during the course of her representation of a client in a catastrophic injury claim and provided them with advice for the conduct of similar claims in future. The email made reference to two expert reports provided by the plaintiff in terms he claims were defamatory. The email was subsequently leaked by one of its recipients to a broader audience resulting, according to the plaintiff, in his being dropped as a service-provider by many of the insurance companies for whom he had worked over the years developing along the way a lucrative practice. He claims substantial damages arising.

After an analysis of the factors that must be considered under s. 137.1 of the CJA, Justice Dunphy states:

…I am allowing this motion and dismissing this action. I have found that the email communication in question related to a matter of public interest within the meaning of s. 137.1(3) of the CJA. …The plaintiff’s suit has in fact had a substantial chilling effect on discussion and debate about the proper use and utility of this type of derivative expert’s report in the accident benefit claims process whereas substantially all of the damages alleged by the plaintiff arise either from the unauthorized and unanticipated leak of the email communication to a broader audience by others and the “broken telephone” manner by which its contents were conveyed to some of the plaintiff’s clients, neither of which avenues of damage appear reasonably likely to be shown to have been caused by the defendant. Finally, the plaintiff has failed to satisfy me that the operation of s. 137.1 of the CJA infringes any of his rights under s. 7 or s. 15(1) of the Charter.

As to damages, Dunphy J. states:

Section 137.1(7) of the CJA entitles Ms. Bent to substantial indemnity costs both for the (successful) motion and for the proceeding itself now that the action has been dismissed unless I order otherwise. Dr. Platnick pleads that newness of the legislation and the harshness of the result – depriving him of a suit in light of what he claims has been a drastic impact on his professional career – ought to move the court to lessen the harshness of the costs sanction the statute presumptively imposes. I disagree. The harm he claims to have suffered is objectively due in whole or in very substantial part to the leaking and republishing of the email by person other than Ms. Bent. Ms. Bent’s defences are objectively very strong ones and that fact ought to have been well-known to Dr. Platnick who knew or ought to have known of all of the details of her justification defence…Ms. Bent shall be entitled to an award of substantial indemnity costs for both the motion and the proceeding.