Defamation

Judge tosses airline’s $10M libel suit against pilot, saying importance of safety debate outweighed harm

June 4, 2019 by Tom Blackwell, National Post

An Ontario judge has thrown out a major regional airline’s $10-million libel action against one of its former pilots, ruling the lawsuit had an unduly chilling effect on discussion of air safety.

Alan Eugeni’s book about his experiences at Air Georgian — where his starting salary as a pilot was $32,000 — was at times provocative and sensationalist and lacked input from the airline, said Justice Shaun O’Brien.

But she found the public importance of debate about the company’s safety record outweighed any damage done to the firm, an Air Canada sub-contractor.

“Mr. Eugeni spoke out on a matter of significant public importance,” concluded the judge in a 16-page written decision released this week. “He caused limited harm to Air Georgian with his self-published book, but was silenced by a much more intimidating litigant … I consider the balance to weigh in favour of protecting the expression.”

The pilot had asked that the case be dismissed before trial under the province’s relatively new anti-SLAPP legislation, designed to combat defamation suits that suppress important public discourse. (SLAPP stands for “strategic lawsuit against public participation.”)

Eugeni criticized Air Georgian’s approach to safety and maintenance in a book and in interviews with the National Post, criticisms that were echoed by other current and former crew members with whom the Post spoke as part of a 2017 investigation into the airline’s safety record. A Transportation Safety Board report last year also raised systemic concerns about the airline’s maintenance practices.

Georgian, which carries 1.5 million passengers a year on 63,000 short-haul flights under the Air Canada Express banner, has strenuously rejected the complaints, noting it is one of just a handful of Canadian carriers that have passed a rigorous international safety audit.

Air Canada ended its contract with Georgian after the Post’s investigation. Their deal is slated to end next February as another company — Jazz Aviation — takes over its flights. Both Air Georgian and Air Canada have denied the end of the contract is connected to the Post’s investigation or to Georgian’s safety record.
In the wake of the Post’s reporting Georgian threatened to sue both the newspaper and another pilot, but proceeded only with a suit against Eugeni.

The airline said that while the ruling validates some of its concerns, it disagrees with the bottom line and plans to appeal.

The judge’s assessment of Eugeni’s book “confirms the position (Georgian) has taken from the outset — that Mr. Eugeni has been pursuing his own agenda with little regard to the objective facts,” said Air Georgian lawyer Matthew Law.

The ruling should also give “considerable pause” to the Post in repeating such allegations, Law said.

Eugeni said Wednesday it felt “wonderful” for the case to be dismissed, and that he stands by everything he has said about his former employer.

Under the SLAPP process, the judge first had to decide if the airline had a reasonable case, and if there was a reasonable possibility that Eugeni’s defences could fail at a trial.

One of those defences was that the statements were true, but the judge noted that Air Georgian had submitted evidence contradicting some of Eugeni’s allegations, including claims he experienced four emergency landings and that all his simulator training was in the middle of the night.

“His wording at times is provocative and sensationalized,” said O’Brien. “While Mr. Eugeni’s focus was on telling his own story, he appears to have made minimal efforts to verify his serious allegations.”

Regardless, the pilot’s lawyer, Howard Winkler, conceded for the purpose of the pre-trial motion that a reasonable trier could rule Eugeni had no valid defence.

That meant the case came down to whether the public’s interest in hearing Eugeni’s views about air safety outweighed any harm done to Georgian’s reputation.

O’Brien said that possible harm — mostly an increased turnover in the company’s staff — seemed minimal and was more likely to stem from other reasons, like an industry-wide shortage of pilots and articles in the Post. Eugeni’s book sold only 247 copies before Georgian convinced Amazon to remove its listing, and the libel suit prompted the pilot to take down his own website selling it.

Meanwhile, the book’s disappearance suggests the suit impeded the pilot’s ability to express himself, said the judge.

“He has said he does not feel free to pursue an important conversation about the safety of regional airlines and, in particular, Air Georgian,” wrote O’Brien. “In other words, actual libel chill is in issue here.”

Winkler said the ruling is among about a dozen so far under Ontario’s 2015 SLAPP law, which will be further tested in two Supreme Court of Canada appeals this November.

“It’s a victory for freedom of expression,” he said of the decision. “Its application was exactly as the legislation intended, and that is to end costly, protracted litigation by those in a superior power position against those who are speaking out in the public interest.”

Originally published by National Post on May 30, 2019.

No harm in free speech

May 29, 2019 by Carrie Swiggum

Two cases that will be argued before the Supreme Court of Canada could have far-reaching implications for media organizations and anyone willing to make comments in the public interest.

At issue in both appeals, granted leave from the Court of Appeal for Ontario last month, is the scope of Ontario’s Protection of Public Participation Act, which came into force in 2015.

The law was passed following an advisory panel’s recommendations aimed at reducing the incidence of lawsuits aimed at stifling public participation, known as strategic lawsuits against public participation – or SLAPP – effective in that they silence critics by threatening to burden them with the costs of maintaining a legal defence. Defamation lawsuits, which can be hard to defend, make an ideal vehicle for SLAPPS.

“The Supreme Court has the opportunity to interpret the new legislation in a way that recognizes the importance of free speech and protects the press and others from litigation—including the significant expense of litigation—that threatens to silence their voices,” said defamation and media lawyer Julia Lefebvre.

Neither case involves media organizations directly. The first case, Platnick v. Bent, arose from a defamation lawsuit launched by a medical practitioner against a lawyer in an insurance matter. The second, 1704604 Ontario Ltd. v. Pointes Protection, deals with a dispute between a land developer and a group of Sault Ste. Marie residents, opposed to a residential development.

And for the most part, media companies have made limited use of anti-SLAPP laws in Ontario. According to Justin Safayeni, a litigator at Stockwoods in Toronto, of the two dozen cases that have been brought forward under the law in Ontario, only a couple have involved the media.

Even so, the ability of defendants to successfully bring forward anti-SLAPP motions is very much in question.

“The legislation on its face seems like a powerful tool for defendants,” says Safayeni. “But as the courts decided how to interpret and apply the legislation, it became increasingly clear that it would be difficult to win anti-SLAPP motions.”

The language of the act, he says, was meant to be straightforward. “For this legislation to be effective, it has to have teeth,” Safayeni said. “And with the language that was used in drafting this legislation, it certainly suggests that there was an intention for there to be a pretty high bar before plaintiffs can proceed with defamation claims against defendants that have made expressions on a matter of public interest.”

But the courts are still struggling, according to both Safayeni and Lefevbre, with how to protect individuals and organizations from spurious defamation claims. One of the challenges the courts face is that motions are brought early in the life of the case. It’s hard at that stage to determine the merit of the allegedly defamatory speech or whether the moving party really has no valid defence in the proceeding.

“I’m hoping that there is a tilt back in favour of what I think the language of the statute supports and requires,” Safayeni says. He hopes that the Supreme Court will recognize that the legislative remedy needs to be applied rigorously to be effective. That means that courts “need to have some comfort in ending the right case at an early juncture,” he says.

The key question for the Supreme Court will be to determine whether the approach taken by the appellate court approach drifted too far from achieving the law’s purpose.

The Court of Appeal for Ontario also raised other issues, namely that “public interest” is not defined in the legislation.

That’s important because, in identifying the merit of an anti-SLAPP motion, the court must weigh the harm suffered by the plaintiff against the value of freedom of expression in the public interest. That requirement to strike a balance is an equation that’s unique to this legislation, says Safayeni.

For now, he sees a trend where courts willing are inclined to tilt the balance in favour of the plaintiff, even where the expression is highly defamatory, but without any evidence of damages or harm suffered.

Originally published by National Magazine on May 14, 2019.

Supreme Court to consider insurer’s medical examiner defamation suit against lawyer

May 1, 2019 by Greg Meckbach

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.

Originally published by Canadian Underwriter on April 26, 2019.

Trudeau’s gift to Google

October 29, 2018 by Howard Winkler

With little fanfare or consultation, the Trudeau government with its commitment to the USMCA proposes to significantly alter the existing common law in Canada related to the law of defamation. The winners are Google, Facebook and other services that facilitate the communication of online information. The loser is the common law protection of reputation and victims of anonymous false and defamatory online statements, such as untraceable comments on rate-my-professional types of sites or Google business reviews.

This should be of particular concern to all Ontario lawyers whose reputations are so important and so easily destroyed, as well as to their clients, whose livelihood often depends on their online presence.

The importance of the right to protect one’s reputation cannot be understated. As the Supreme Court of Canada noted in Hill v. Scientology, “to most people, their good reputation is to be cherished above all.

“A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society’s laws,” said the ruling.

For generations, common law countries, Canadian courts and provincial legislators have grappled with the fine balance between the competing interests of the constitutionally protected right to freedom of expression and the quasi-constitutional right to the protection of one’s reputation.

This fine balance will be fundamentally altered due to a clause in the USMCA. In plain language, this provision will provide absolute immunity to content providers no matter what the nature of the content is that they facilitate.

“No Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information,” says clause 19.17.

Some say this provision is a victory for freedom of expression. I disagree. I believe that this is one more nail in the coffin of the right to protect one’s reputation from the proliferation of anonymous, false and defamatory content published on the internet and made readily available by search engines such as Google.

One of the greatest challenges to business and individuals today is dealing with the proliferation of fake, false and defamatory content on the internet. Anyone with access to a public computer terminal can, with the push of a keystroke, anonymously, immediately and permanently damage the hard-earned reputation of a business or individual.

Consider this not uncommon occurrence: With the encouragement of the business review facility provided by Google, individuals with anonymity can post a fake, false and defamatory review of a business or its services. Anonymity can be achieved through the use of a fake name from a public terminal, such as at a public library or from a jurisdiction outside the reach of Canadian courts. This includes, by the way, the United States.

In the U.S., under the provisions of the Communications Decency Act, “no provider . . . of an interactive computer service shall be treated as the publisher . . . of any information provided by another information content provider.” In other words, the law in the U.S. provides absolute immunity to providers such as Google, Facebook and Twitter even when they knowingly provide a vehicle for the publication of demonstrably anonymous, false and defamatory content.

In contrast to the proposed USMCA provision, countries such as Australia are leading the way among common-law jurisdictions in imposing liability on service providers as secondary publishers of defamatory material once given notice of the defamatory nature of the content they are publishing.

In the case of Duffy v. Google [2017] SASCFC 130, the Supreme Court of South Australia ruled that, once on notice, Google must either remove the material or face liability as a secondary publisher. In Duffy, snippets contained in search results of Dr. Janice Duffy’s name suggested that she was a stalker, which the court found to be defamatory. Duffy complained to Google, but they refused to remove the material. The court awarded general damages against Google in the amount of AUD$115,000 (approximately $106,000) for loss of reputation and hurt feelings. The award was upheld on appeal.

“The ignorant should not be allowed to wreck reputations with impunity. Once knowledge . . . of the words is proved, the secondary publisher who persists in dissemination of the material carries the risk of the ultimate findings as to their meaning . . . ” said the ruling.

In my view, the common law approach makes perfect sense and imposes an appropriate degree of responsibility on providers such as Google, once put on notice, to exercise some control over the content they encourage and facilitate.

There is no reason to believe, absent the USMCA, that Ontario courts would not follow the same common law principles.

Finally, the law of defamation is a provincial power. While the enactment of paragraph 2 of clause 19.17 of the USMCA may be within federal powers as it relates to intellectual property, it is arguable that only the provinces can enact legislation affecting the law of defamation.

The provinces should take heed and not be unwilling participants in such an ill-conceived provision. It is ultimately up to our provincial legislators and courts to modify the fine balance between freedom of expression and the protection of one’s reputation. The matter should not be left to the whim of Prime Minister Justin Trudeau or U.S. President Donald Trump.

While Trudeau may have intentionally or unwittingly given Google an early holiday gift, one can only hope that, with the passage of time, it amounts to nothing more than a lump of coal.

Originally published by Law Times on October 29, 2018.

Australian courts lead the way in fighting online defamation: Winkler

October 3, 2018 by AdvocateDaily.com Staff

Australian courts continue to lead the way when it comes to online defamation and the liability of secondary publishers, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

In a recent decision, the District Court of South Australia held the author of a defamatory Facebook posting liable for subsequent slanderous comments on the post by other social media users.

“At first blush, it seems extreme, but what the decision really does is it recognizes the importance of reputation and imposes a responsibility on those using social media to take care with what they write,” says Winkler, principal and founder of Winkler Dispute Resolution.

“This will have a far-reaching impact,” he adds, noting that its significance extends beyond Australia’s borders because the country — like Canada — is a common-law jurisdiction.

Read the full article on AdvocateDaily.com.

Vital to pick right forum for multi-jurisdictional defamation cases

July 13, 2018 by AdvocateDaily.com Staff

A recent Supreme Court of Canada decision in a case involving an alleged multi-jurisdictional internet defamation reinforces the fact that for Ontario to be regarded as the appropriate forum, the statement of claim must sufficiently focus on the plaintiff’s Canadian reputation and damage to it in Ontario, Toronto lawyer and mediator Howard Winkler and lawyer Eryn Pond write in the Toronto Law Journal.

In the matter, a newspaper that publishes in print in Israel and online worldwide appealed the lower court decisions that allowed a Canadian resident and business owner to sue the paper for libel in Ontario, the article says.

As Winkler, principal and founder of Winkler Dispute Resolution, and Pond, a lawyer with the firm, explain, while almost all judges agreed that Ontario courts had jurisdiction over the proceeding, the majority allowed the Israeli defendant’s appeal, finding that Israel was clearly the more appropriate forum.

Read the full article on AdvocateDaily.com.

Aussie’s successful bid to sue Google may inform Canadian courts

June 27, 2018 by AdvocateDaily.com Staff

The case of an Australian man who recently won his battle to sue Google puts the search engine giant on notice it may be liable for any defamatory content it facilitates, Toronto lawyer and mediator Howard Winkler tells Newstalk 610.

In a matter that dates back to 2004, the Australian High Court unanimously ruled in favour of the man, supporting his allegation that a Google search of his name might suggest he was associated with the Melbourne criminal underworld, reports CBS.

Winkler, principal and founder of Winkler Dispute Resolution, says doing a search of a new friend or potential business partner has become a routine way of researching people in modern society.

Read the full article on AdvocateDaily.com.

Vindication for ‘Scud Stud’ comes at a cost: Winkler

June 14, 2018 by AdvocateDaily.com Staff

While a former war correspondent achieved vindication in his defamation suit against one of Canada’s biggest media companies, it came at a great expense, Toronto lawyer and mediator Howard Winkler tells The Lawyer’s Daily.

The legal publication reports the Alberta Court of Appeal increased the costs awarded to journalist Arthur Kent in his successful defamation case against Postmedia, “saying the trial judge erred when she said allegations of intentional concealment of documents were unproven.”

Kent, who gained notoriety in 1991 as the ‘Scud Stud’ while reporting on the first Persian Gulf War, ran as a Progressive Conservative candidate in the Alberta legislature in 2008.

During his bid for office, a reporter wrote a critical article about Kent. At trial, Justice Jo’Ann Strekaf noted, “the overall tenor of the article is that Arthur Kent is a politically naïve arrogant has-been journalist with a huge ego whose election campaign is in disarray and who is doomed to become an ineffective MLA if elected.”

Read the full article on AdvocateDaily.com.

Winkler backs Brown’s effort to ‘expose the truth’ in new book

May 23, 2018 by AdvocateDaily.com Staff

Toronto lawyer and mediator Howard Winkler tells the Globe and Mail he supports former provincial Progressive Conservative leader Patrick Brown’s plan to set the record straight in a new book about his ‘sensational political assassination.”

…

“I support Mr. Brown’s initiative, especially in light of the fact that the legal system does not provide the kind of timely disclosure of the truth that can be achieved through his proposed book,” Winkler says, adding he expects the book will be reviewed prior to publication to ensure the content can be defended.

Read the full article on AdvocateDaily.com.

‘Unprecedented’ damages sought in historic defamation case: Winkler

April 27, 2018 by AdvocateDaily.com Staff

Toronto lawyer and mediator Howard Winkler tells various news outlets that in his view CTV’s reporting on former provincial conservative Leader Patrick Brown represents the “most egregious” defamation in Canadian history. See Global News, Sun Media, Toronto Star, Yahoo News

Brown has launched an $8-million action against CTV, claiming the broadcaster defamed him by airing a news report detailing allegations of sexual misconduct by two women. Brown denied the claims but was forced to resign his leadership of the Ontario Progressive Conservative party.

“Regrettably, it is unlikely that the harm done by CTV will ever be fully repaired,” Winkler told Global News.

Read the full article on AdvocateDaily.com.