August 30, 2018
Platnick v Bent 2018 ONCA 687

The appellant sued the respondents for libel, claiming damages of more than $15 million. The respondents defended the claim, advancing several defences, including justification and qualified privilege.

The respondents had successfully moved for a dismissal of the action under s. 137.1 of the Court of Justice Act, R.S.O. 1990, c. C.43 (“CJA”).

The appellant, Howard Platnick, is a medical doctor. He spends much of his professional time preparing and reviewing medical assessments done in the context of disputes between insurers and persons injured in motor vehicle accidents. Dr. Platnick works mostly, but not exclusively, for insurers.

The respondent, Maia Bent, is a lawyer and partner with the respondent law firm, Lerners LLP. She acts for individuals who have been injured in motor vehicle accidents and are seeking compensation from insurers. At the relevant time, Ms. Bent was also the president-elect of the Ontario Trial Lawyers Association.

In November 2014, Ms. Bent was acting for Dr. Laura Carpenter, who had been injured in a motor vehicle accident. Dr. Carpenter claimed to have suffered a catastrophic impairment as a result of the accident. That designation would entitle her to claim enhanced medical and other insurance benefits from the insurer.

The determination of whether an individual has suffered a catastrophic impairment is made using criteria and guidelines set out in, or incorporated into, the Statutory Accidents Benefits Schedule, O. Reg 34/10 under the Insurance Act, R.S.O. 1990, c. I.8 (“SABS”). The scheme contemplates a variety of medical assessments using a scoring system for various kinds of impairments and a ranking of levels of impairment for various activities or bodily functions.

In Dr. Carpenter’s case, the insurer retained SLR Assessments (“Sibley”). Sibley retained the experts with the necessary specialities to perform Dr. Carpenter’s assessment. Those experts provided their reports to Sibley. Sibley corresponded directly with those experts in respect of issues raised by their assessments.

Sibley also retained Dr. Platnick. Dr. Platnick is not a specialist. He was not asked to examine Dr. Carpenter or to assess her medical condition from a clinical perspective. Dr. Platnick was retained to do an impairment calculation based on the application of the applicable criteria in the SABS to the entirety of the medical information available, including the assessments prepared by the various experts.

Dr. Platnick’s report examined the various criteria in the SABS that were relevant to Dr. Carpenter’s catastrophic impairment assessment. In his report, Dr. Platnick made extensive reference to the assessments of the other specialists, including the neurologist, Dr. King. At the end of the report under the heading “Impairment Calculation”, Dr. Platnick set out his conclusions based on the specialists’ reports. He concluded that Dr. Carpenter did not meet the catastrophic impairment requirements under any of the criteria.

In his report, Dr. Platnick wrote that “it is the consensus conclusion of this assessment that [Dr. Carpentar] does not achieve the catastrophic impairment rating as outlined in the SABS…”

Dr. Platnick had not spoken to any of the other experts who had assessed Dr. Carpenter when he wrote his report. He sent the report only to Sibley. The report Dr. Platnick sent to Sibley had an acknowledgement page attached to the back. That acknowledgement page indicated that Dr. Platnick’s executive summary was a “consensus conclusion of this assessment”. The acknowledgment page had a place for the signature of each of the other specialists who had assessed Dr. Carpenter. There were no signatures on that document when Dr. Platnick returned it to Sibley. In Dr. Carpenter’s case, no acknowledgement was ever signed by the other experts and, as it turned out, there was not a consensus of opinion among them.

Sibley provided Ms. Bent with a document entitled “Catastrophic Determination Executive Summary Report”. That document was identical to the report prepared by Dr. Platnick, except that it did not have the acknowledgment page on the back. Ms. Bent did, however, receive a copy of Dr. Platnick’s report with the unsigned acknowledgment. She also obtained the reports from the other specialists and related documentation.

The dispute proceeded to arbitration before the Financial Services Commission of Ontario. The insurer relied on Dr. Platnick’s report and his opinion that Dr. Carpenter did not meet the catastrophic impairment rating criteria.

Dr. King, who had done Dr. Carpenter’s neurological assessment for the insurer’s catastrophic impairment evaluation, testified at the arbitration. He indicated that he had not participated in any “consensus” meeting of the experts, that he had not seen or signed Dr. Platnick’s report, and that portions of his report had been omitted without his knowledge or consent.

After Dr. King testified, the insurer offered to settle. An initial offer was refused, but a second offer was accepted. Under the settlement, Dr. Carpenter received a catastrophic designation, reinstatement of benefits, and payments of past medical and rehabilitative expenses with interest. The insurer also agreed to fully indemnify Dr. Carpenter for fees and disbursements, even though successful parties in the arbitration process normally receive only nominal costs.

Ms. Bent was convinced that the insurer settled the arbitration on terms very favourable to her client to avoid public scrutiny of the insurer’s conduct in respect of the medical evidence produced at the arbitration. Ms. Bent believed that Dr. King’s evidence, combined with her own examination of the relevant documents, revealed an attempt to misrepresent the opinions of the medical experts who had examined Dr. Carpenter and mislead the arbitrator as to Dr. Carpenter’s entitlement to a catastrophic impairment designation.

A few days after the settlement, Ms. Bent posted an email on the OTLA member “Listserv”, an automated email service. Only OTLA members could subscribe to the Listserv. Some members subscribed and some did not. There were about 670 subscribers. Members who subscribe are obligated to undertake, in writing, to maintain the confidentiality of the information provided on the Listserv. However, Ms. Bent’s email was “leaked”, first to an advocacy organization and shortly thereafter to the press.

The first four paragraphs of the email refer to Dr. Carpenter’s arbitration. The last sentence of the fifth paragraph refers to a Catastrophic Determination Report prepared by Dr. Platnick about two years earlier in an unrelated case. The reference to Dr. Platnick changing another doctor’s “decision from a marked to a moderate impairment” is a reference to a psychiatric assessment report done by another doctor.

Dr. Platnick became aware of the email shortly after it was sent. He requested an apology and a retraction. When his requests went unanswered, he commenced this lawsuit.

In consideration of whether the motion judge erred in his interpretation of s. 137.1(3) (matter of public interest), the ONCA found that:

…the motion judge properly defined the term “public interest” in s. 137.1(3). The evidence before the motion judge fully supported his conclusion that the email constituted expression in relation to a matter of public interest.

On the issue of whether the motion judge erred in his interpretation of s. 137.1(4)(a) (merits of the claim), the ONCA found that:

As is evident from the analysis in Pointes, I agree with several aspects of the motion judge’s analysis. Like him, I reject the “no genuine issue for trial” test as applicable to s. 137.1(4)(a): see paras. 81-82 of his reasons. I also agree that the merits inquiry dictated by s. 137.1(4)(a) must be approached having regard to the summary nature of the motion and the point in the proceedings in which the motion is brought: para. 83.

However, the ONCA goes on to say:

…the issue for the motion judge is not the ultimate strength of the claim or the believability of the plaintiff, but only whether the record provides a reasonable basis for believing the claim has substantial merit and that there is no valid defence.

Dr. Platnick met his onus of presenting reasonable grounds to believe that the justification defence advanced by Ms. Bent could not succeed in respect of her allegation that Dr. Platnick had changed the decision of another doctor.

The applicability of the defence of qualified privilege to the assertion that Dr. Platnick changed another doctor’s opinion is reasonably open to different interpretations based on the evidence adduced on the motion. A reasonable trier could conclude that Ms. Bent went beyond the occasion of qualified privilege when she made that allegation. In other words, there are reasonable grounds to believe that the defence would not succeed at trial and is therefore not a “valid defence” within the meaning of s. 137.1(4)(a)(ii).

On the issue of whether the motion judge erred in his interpretation of s. 137.1(4)(b)(harm outweighed by public interest), the ONCA states:

Dr. Platnick’s lawsuit against Ms. Bent does not bear the indicia of a SLAPP. There is no evidence of a power imbalance between the parties to this lawsuit. There is no suggestion that Dr. Platnick routinely resorts to litigation or threats of litigation to silence critics. Nor does it seem sensible that Dr. Platnick would set out to punish or silence Ms. Bent, a partner in one of Canada’s most prominent personal injury litigation law firms, by suing her.

Without diminishing the public interest in protecting comments made to promote the effective administration of justice, I am satisfied that the potential harm to Dr. Platnick outweighs the public interest in protecting Ms. Bent’s expression. Dr. Platnick’s allegation, if eventually made out, is a very serious one, both in terms of the financial harm caused and the damage to his reputation. For the reasons set out above, he has cleared the “merits” hurdle in s. 137.1(4)(a). The public interest requires that he be allowed to pursue his claim in the normal course.

I would hold that although the motion judge correctly determined that the expression in issue related to a matter of public interest, he erred in concluding that the appellant had failed to meet his onus under ss. 137.1(4)(a) and (b). I would hold that on a proper application of those provisions to the motion record, the appellant met that onus. I would further hold that s. 137.1 does not infringe s. 7 or s. 15 of the Canadian Charter of Rights and Freedoms.