The end to abusive nondisparagement clauses in employment law releases is on the horizon thanks in part to Uber’s attempt to enforce the over-reaching arbitration provision in its agreement with its drivers.
A $15-million defamation lawsuit by a doctor who examines accident benefits claims on behalf of auto insurers is headed to the Supreme Court of Canada.
The top court announced Thursday it will hear an appeal of Platnick v. Bent, released Aug. 30, 2018 by the Court of Appeal for Ontario.
Dr. Howard Platnick is a general practitioner whose work is comprised mainly of preparing and reviewing medical assessments for insurers in auto claims disputes. He is suing Maia Bent, a London, Ont.-based personal injury lawyer with Lerners LLP and past president of the Ontario Trial Lawyers Association.
In 2014, Bent was representing a woman insured by TD and injured in 2007 in an auto accident. Dr. Platnick was retained by SLR Assessments (Sibley) to assess whether or not the claimant should be considered catastrophically impaired.
Specifically, Sibley hired Platnick to write an “executive summary report” of individual assessments prepared by independent medical examiners who assessed the claimant. Dr. Platnick concluded that the claimant did not meet the criteria for catastrophic impairment.
Bent represented the claimant before arbitration with the Financial Services Commission of Ontario. Ultimately the insurer settled, allowing the claimant to be considered catastrophically impaired.
Dr. Platnick filed his defamation lawsuit against Bent in 2015, following comments Bent made in 2014 on a listserv – an automated email service for members of the Ontario Trial Lawyers Association. Although subscribers are required to keep listserv comments confidential, the comments Bent made about Dr. Platnick were leaked to the press. In her listserv post, Bent had made comments about two different arbitration proceedings, involving two different disputed claims, in which Dr. Platnick wrote reports for insurers.
The 2018 Court of Appeal for Ontario decision, which Canada’s top court will review, was not on the merits of the lawsuit. Rather, the Court of Appeal for Ontario ruled that the lawsuit will go to trial. This overturned a 2016 decision by Justice Sean Dunphy of the Ontario Superior Court of Justice. Dunphy had thrown Dr. Platnick’s lawsuit out of court. Lerners was also a named defendant.
So, the Supreme Court of Canada could conceivably restore the original ruling that dismissed the lawsuit, or it could uphold the order that sends the lawsuit to trial.
Defamation is when a person publishes allegations that harms the reputation of another. Several defences are available – a key one being the defendant can prove the allegations are true. Another defence is qualified privilege, which is a fair and accurate report on proceedings of a public authority, such as a court or legislature.
A key issue in appeal in Platnick v. Bent is whether anti-SLAPP (strategic lawsuit against public participation) legislation passed in Ontario in 2015 has the effect of quashing Dr. Platnick’s defamation lawsuit. The four-year-old amendment to the Courts of Justice Act, also known as the “gag proceeding” section, was intended to stop lawsuits designed to dissuade people from freely expressing and participating in matters of public interest. Bent asked the court in 2016 to dismiss Dr. Platnick’s lawsuit under the gag proceedings law.
The Supreme Court of Canada plans to hear Bent’s appeal along with a different case – 1704604 Ontario Ltd. v. Pointes Protection Association – that does not involve auto insurance but does involve the gag proceedings legislation. The Pointes Protectioncase arose from a dispute between land developers and a group of people opposed to a proposed subdivision in Sault Ste. Marie.
Dr. Platnick’s lawsuit against Bent has “had a substantial chilling effect on discussion and debate about the proper use and utility of (insurers’ examiner reports) in the accident benefit claims process,” Justice Dunphy wrote in 2016.
But Ontario appeal court Justice David Doherty noted that indicators of SLAPP lawsuits include a financial or power imbalance that strongly favours the plaintiff, and a plaintiff suffering minimal or nominal damages. “There is no evidence of a power imbalance between the parties to this lawsuit,” Justice Doherty wrote in the unanimous ruling. “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.”
The Court of Appeal for Ontario agreed with Dunphy’s finding that the topic of insurers’ assessment reports is a matter of public interest.
In the 2014 report that led to Bent’s listserv posting, Dr. Platnick said it was the “consensus conclusion of this assessment” that the claimant “does not achieve the catastrophic impairment rating.”
But that was actually Dr. Platnick’s own conclusion, Justice Dunphy wrote in his 2016 ruling. “Dr. Platnick had not spoken to or even contacted any of the other physicians whose reports formed the basis of his own report. He did not ever see the patient. His review was strictly a desk review.”
Although Dr. Platnick acknowledged that the use of the word “consensus” in the report was a misnomer, he argued that an informed reader should not be misled by the use of the word consensus.
Bent cited Dr. Platnick’s report, among others, in her 2014 email.
“The ‘sting’ or ‘main thrust’ of the allegations in the email, when read in the context of the email’s entirety, is the assertion that, on two occasions, Dr. Platnick misrepresented or altered the opinions of other medical experts with a view to depriving a claimant of a catastrophic impairment classification to which the claimant was entitled,” as Justice Doherty summarized the situation in his 2018 decision. “They are allegations of dishonesty and serious professional misconduct.” The appeal court found that the potential harm to Dr. Platnick’s reputation outweighed the public interest in protecting Bent’s freedom of expression.
A four-year old section (137) of the Courts of Justice Act stipulates that a judge shall not dismiss a case under the anti-SLAPP section if the plaintiff convinces the court that:
- there are grounds to believe the lawsuit “has substantial merit”
- that the defendant has no valid defence; and
- that the harm suffered by the plaintiff “is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”
In 2016, Justice Dunphy ruled that Dr. Platnick did not meet this onus. That finding was overturned on appeal in 2018.
The “justification defence” in a libel suit is when the defendant proves the allegations are true. Dr. Platnick presented “reasonable grounds” to believe that Bent might not be able to use the justification defence, Justice Doherty wrote. This, he reasoned, is because Bent might not be able to convince a court that Dr. Platnick had changed the decision of another doctor.
Justice Doherty also ruled that Bent can use the defence of qualified privilege for some but not all of the comments she made in the 2014 email.