Weighing the Public Interest: SCC Applies the Pointes Anti-SLAPP Analysis in Bent v Platnick
Does protecting an individual’s freedom of expression supersede protecting those harmed by it? Where does the public interest lie within this analysis? These are the questions that the Supreme Court of Canada (“SCC”) grappled with in the recent decision of Bent v Platnick, 2020 SCC 23 [Platnick], decided alongside 1704604 Ontario Ltd. v Pointes Protection Association, 2020 SCC 22 [Pointes]. This is the first time the SCC outlined the interpretation of section 137.1 of the Ontario Courts of Justice Act, RSO 1990, c C.43 [CJA], the province’s “anti-SLAPP” (Strategic Lawsuits Against Public Participation) legislation.
SLAPP lawsuits are brought upon by plaintiffs who have been subjected to public criticism as a means to intimidate, dissuade their critics. The purpose of anti-SLAPP legislation is to provide relief from the burdens of a retaliatory defamation lawsuit at the preliminary stage of a litigation proceeding by filing a motion to have the action dismissed. Using the anti-SLAPP analysis from the SCC’s interpretation of section 137.1 in Pointes, the 5-4 majority in Platnick found that there was a greater public interest in protecting reputational harm than protecting freedom of expression.
Maia Bent, the appellant, is a lawyer and partner at Lerners LLP, a major Toronto law firm, and was also the president-elect of the Ontario Trial Lawyers Association (“OTLA”) in 2015 (Platnick, para 5). The respondent, Dr. Howard Platnick, is a family physician hired through insurance companies to review and submit reports on medical specialists’ assessments of individuals injured in motor vehicle accidents (Platnick, para 6). To this effect, Bent sent an email to a listserv of approximately 670 members of the OTLA, indicating that Platnick had altered important sections of the medical specialists’ reports and changed a report to indicate that an individual was more impaired than what the medical specialist had determined (Platnick, para 8).
Whilst the OTLA listserv required members to agree to confidentiality guidelines, Bent’s email regarding Platnick’s alleged misconduct was anonymously leaked to the public, resulting in an article being published about the allegations in a prominent insurance business magazine (Platnick, paras 29-30). Platnick sought a public apology and retraction statement from Bent, but after Bent refused, Platnick commenced a $16.3-milion defamation lawsuit against her. Bent then filed a motion to dismiss the lawsuit pursuant to s. 137.1 (Platnick, para 33).
Section 137.1 of the CJA outlines the parameters of Ontario’s anti-SLAPP legislation. SLAPP suits are brought by individuals who have been subjected to defamation, to dissuade, intimidate, and silence those who have scrutinized them in a public forum. S. 137.1 allows for defendants of a SLAPP suit to file a motion to dismiss the proceeding after it has commenced. For a successful application of s. 137.1, the defendant must first meet the threshold requirement pursuant to s. 137.1(3), by proving that “the proceeding arises from an expression made by the [defendant] that relates to a matter of public interest.”
Once the threshold requirement has been met, the onus shifts to the plaintiff to pass both a merits-based hurdle and a public interest hurdle. The merits-based hurdle requires the plaintiff to satisfy the judge that there are reasonable grounds to believe that “the proceeding has substantial merit” under s. 137.1(4)(a)(i), and that the defendant “has no valid defence in the proceeding” under s. 137.1(4)(a)(ii). The public interest hurdle under s. 137.1(4)(b) requires the plaintiff to show that “the harm likely to be or have been suffered by the [plaintiff] as a result of the [respondent’s] expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”
At the Ontario Superior Court of Justice, the motion judge, Dunphy J, allowed the dismissal under s. 137.1 to proceed. Dunphy J found that there was “credible and compelling” evidence pursuant to determine Bent’s defences of justification and qualified privilege were “reasonably likely to succeed” (Bent v Platnick, 2016 ONSC 7340, paras 93-118 [ONSC Judgement]), as per s. 137.1(4)(a)(ii). While Dunphy J did not making a finding as to whether Platnick’s claim had substantial merit pursuant to s. 137.1(4)(a)(i), he determined that the public interest in permitting Platnick’s defamation suit did not outweigh the public interest in Bent’s freedom of expression, pursuant to s. 137.1(4)(b) (ONSC Judgement, paras 119-35).
However, the motion judge’s decision was overturned at the Court of Appeal for Ontario (“ONCA”) where Doherty JA, writing on behalf of an unanimous Court, refused Bent’s request to dismiss the motion under s. 137.1 (Bent v Platnick, 2016 ONCA 687, para 127) [ONCA Judgement]. Doherty JA found that while there is a public interest in protecting Bent’s expression under s. 137.1(3), Dunphy J made an error in assessing both sections 137.1(4)(a) and 137.1(4)(b) (ONCA Judgement, para 4).
SCC Majority Decision
The majority held that Bent met the threshold burden under s. 137.1(3), as the “email communication constitutes an expression that relates to a matter of public interest” and “Platnick’s defamation proceeding arises from that expression” (Platnick, para 78). The Court finds that the email raises several concerns relating to the public interest, including “the truthfulness, reliability, and integrity of medical reports filed on behalf of insurers in the arbitration process,” and the “integrity of the arbitration process itself and the proper administration of justice writ large” (Platnick, para 83). Furthermore, the SCC indicated that the email was directed to a group of individuals that have a special interest in the matters addressed in the email, all being members of the OTLA representing victims of motor vehicle accidents, which they determine to be “a public interest in itself” (Platnick, para 83).
(a) Substantial Merit
The SCC held that Platnick succeeded in demonstrating on a balance of probabilities that his defamation proceeding had substantial merit, as the three-criteria test for defamation was met. The three criteria are that the expressed words were: 1) made public to at least one person notwithstanding the plaintiff, 2) referred directly to the plaintiff, and 3) were defamatory (Platnick, para 92). The majority found that Bent’s expressed words were public as her email was sent to 670 OTLA members, that Bent referred directly to Platnick in the email three times, and that the words were defamatory in that they lowered the reputation of Platnick in the eyes of a reasonable person (Platnick paras 94-96). Due to Bent’s role as a lawyer, the SCC also expressed that the “allegations of professional misconduct must be taken especially seriously,” as they do not see a reason why the legal profession should heed more reputational protection than Platnick’s medical profession (Platnick, para 97).
(b) No Valid Defence
The SCC also held that Platnick was able to satisfy the judges that Bent had no valid defence to his defamation proceeding. Bent raised the defence of justification, which relies on the defendant’s inability to prove that the substantial truth of the “sting” in their defamatory words were factual (Platnick, para 107). The majority determined the “sting” in this case to be Bent’s allegations of Platnick’s professional misconduct and found that while Bent’s statement that Platnick misrepresented a medical report was factual, her second statement indicating that Platnick altered a specialist’s decision was not factual (Platnick, para 110). The Court concluded that Bent failed in her defence of justification under s. 137.1(4)(a)(ii), as the statements she made that constituted the “sting” of Platnick’s professional misconduct were not both substantially factual.
Bent also raised the defence of qualified privilege in a broad scope, indicating that she was “educating fellow plaintiff side personal injury lawyers about the need to obtain full documentary disclosure and advocating for MVA victims and the integrity of the automobile insurance dispute process by highlighting particular instances where insurer assessors have not provided independent and unbiased opinions” (Platnick, para 123). However, the majority found that Bent had exceeded her scope of qualified privilege and, therefore, this was not a valid defence under s. 137.1(4)(a)(ii).
Public Interest Hurdle
Harm Caused by Expression
The SCC determined that Platnick successfully demonstrated the existence of significant financial harm as a result of being blacklisted by insurance companies, with a monetary impact of $578 949, and a harm to his reputation as a medical professional. Both harms were a direct result of Bent’s expression (Platnick, paras 142-151). Although all members of the OTLA listserv required a confidentiality agreement which was breached when a member republished Bent’s email in the Insurance Business Canada magazine, the majority still held that Bent was responsible for this republication (Platnick, para 157). However, regardless of whether Bent is held liable for the republication, the SCC stated that there remains a public interest in allowing Platnick’s proceeding to continue, as Platnick still suffered causal harm from the initial email and would still have suffered harm to his professional reputation (Platnick, paras 159-161).
Weighing the Public Interest
The SCC determined that the public interest in allowing Platnick’s defamation proceeding to continue outweighed the public interest in protecting Bent’s expression, due to the harms he was likely to suffer or had suffered already (Platnick, para 174). The Court found that Platnick’s defamation lawsuit was not “motivated by a punitive or retributory purpose” and, as a “successful, highly paid doctor,” Bent’s expression caused significant harm to his professional reputation (Platnick, para 171). The SCC also determined that “rather than disincentivizing people from speaking out against unfair and biased practices,” their decision will “incentivize them to act with reasonable due diligence and to tailor their expression so as to avoid needlessly defaming an individual who depends on their reputation for their livelihood” (Platnick, para 167).
Implications for the Public Interest
The SCC determined that the reputational harms Platnick faced as a medical professional is of greater importance to the public interest than protecting Bent’s expression. However, this may create an added barrier to professionals like Bent from coming forward to scrutinize their peers, who may be causing harm to the public. Professionals are held to a higher ethical standard than the general public, and they must meet the fiduciary duties of their respective professions to serve the public interest. Bent was fulfilling her duty as a personal injury lawyer and president-elect of the OTLA by expressing concerns about Platnick to OTLA members. The reputational harms to Platnick as a result of this expression is a mere by-product of Bent acting on behalf of the public interest.
Interestingly, the majority’s decision does not acknowledge the power imbalance existing between Bent and Platnick. Platnick, a medical professional who works for insurance companies, has a vested interest in protecting the companies that employ him. However, Bent, a plaintiff-side personal injury lawyer, is an advocate for those injured in motor vehicle accidents, and has a vested interest in advocating on the behalf of her clients. Bent’s email to the members of the OTLA was an expression of concern for those who would be most adversely impacted by the alleged wrongdoing. Its purpose was to prevent the administration of justice in personal injury cases from being brought into disrepute.
The SCC’s dismissal of the anti-SLAPP motion may inadvertently demonstrate that protecting a powerful individual’s professional reputation is more important than preserving the public’s right to know what may cause harm to them and the opportunity to hold them accountable. A particular concern could be lawyers who specifically work with marginalized clients, who become privy to knowledge that other professionals are failing to meet the standards of their profession. Lawyers and other professionals may become hesitant to come forward in fear of retaliation with a SLAPP lawsuit for defamation.
The Court’s finding that individuals should do their due diligence to avoid defaming individuals and affecting their reputation may be tenuous. Many professionals have institutional safeguards that protect them from personal liability. It seems this decision added yet another safeguard for professionals to evade liability for professional misconduct, rather than paving pathways for more public transparency. While anti-SLAPP legislation exists in Ontario, the SCC’s 5-4 split decision affirms that the parameters to its application and who it can truly hold accountable remains unclear for future SLAPP cases.