Defamation

By Paul Russell, LegalMatters Staff • Proposals to update Ontario’s defamation laws to reflect social and technological changes in communications brought about by the internet are mostly sound, says Toronto lawyer Howard Winkler.

In March, the Law Commission of Ontario (LCO) released its final report titled Defamation Law in the Internet Age, with its terms of reference noting, “Ontario courts and, indeed, courts throughout the world, have been gradually adapting defamation law principles to contemporary circumstances. However, legislative reform in Ontario has been limited and Ontario’s Libel and Slander Act is now significantly outdated.”

The Yukon Court of Appeal has sent a defamation case back to trial because of the inadequacy of the judge’s instruction to the jury, with a lawyer characterizing it as a “results-driven” decision as he felt the court did not like the original verdict.

The case in Senft v. Vigneau 2020 YKCA 8 deals with a defamation action brought forward by Angela and Michael Senft for allegedly defamatory comments made by Audrey Vigneau and Susan Herrmann. The Senfts had been involved in a dispute with a former friend, Daniele McRae, over the title to her house. The defendants claimed the Senfts were trying to force McRae out of her home and move her into a seniors’ residence, allegations which were posted on Facebook and in flyers sent out to the Dawson City community, as well as a GoFundMe page.

The Senfts commenced an action against Vigneau and Herrmann, who both later publicly apologized. At trial, Vigneau and Herrmann defended their comments by saying they were fair comment, but the Senfts replied by saying they had acted with malice in publishing the comments; a successful claim of malice would defeat any successful defence of fair comment.

The jury awarded damages to the Senfts, finding Vigneau and Herrmann had made the allegedly defamatory comments and acted with malice when publishing them. The jury made no finding with respect to the fair comment defence, and awarded the Senfts approximately $377,000 against Vigneau and approximately $432,000 against Herrmann.

But Justice Daphne Smith, writing for a unanimous Court of Appeal, set the awards aside and ordered a new trial. She ruled the trial judge erred in failing to determine whether the evidence adduced at trial raised a probability of malice before putting the question to the jury, and also failed to instruct the jury that express malice could not be considered unless they first determined Vigneau and Herrmann had established the defence of fair comment on a balance of probabilities and if established, in order to defeat the defence, that malice was Vigneau and Herrmann’s dominant motive in publishing the defamatory comments.

“In my opinion, as a matter of law, the judge was required to make a determination on whether the evidence adduced raised a probability of malice before instructing the jury on the issue,” she wrote in her March 27 decision. “His failure to do so constituted an error of law reviewable on a standard of correctness. In the circumstances of this case, this error could not be rectified after- the-fact on appeal.”

Justice Smith noted the lower court judge “properly recognized that, months after the trial had been completed, he could not undertake a detailed review and weighing of the evidence in order

to remedy the oversight of failing to make the required ruling.”

“This court is faced with the same problem. Where the issue of express malice raises a question of fact, an appellate court is generally not well-suited to step in and undertake a detailed evidentiary analysis as a matter of first instance in order to determine if the evidence raised a probability of malice,” she wrote. “This court is in no position to undertake a detailed review and analysis of the evidence for the purpose of determining if it raised a probability of malice, where the trial judge himself found the delay had made it impossible for him to undertake the task. In my view, the only way the error in this case can be rectified is to order a new trial.”

Howard Winkler of Winkler Dispute Resolution said the lesson of the decision is that “close attention has to be paid to the technical requirements of the law, and that if you fail to appreciate those technical aspects of the law then the decisions of the court are going to be open for review.”

“In terms of remitting it back for consideration [the Court of Appeal] had two choices — they could have sent it back to the trial judge or ordered a new trial. Given the statement by the trial judge that he could no longer, given the length of time, undertake a detailed review in weighing the evidence they were incapable of sending it back to the trial judge for reconsideration, so they were forced therefore to order a new trial,” he said. “However, the question remains of whether the Court of Appeal could have substituted its own decision and brought an end to the litigation, but I think given the circumstances of this case, given that it was a jury trial and jury verdict it probably would have been very difficult for them to do that.”

But Winkler said he was of the view that the Court of Appeal’s decision was very results-driven, in that he felt the court didn’t like the jury verdict and was inclined to find a basis to allow the appeal.

“You never know the decision-making process for a jury and that is why they are very difficult to overturn,” he said. “So, when I read this case, it was likely the jury was wrong in finding the

defendants were motivated by malice, which is why on the face of it, it appears to be an unfortunate decision. But what the court needed to do was find technical deficiencies in the judge’s decision-making and instructions to the jury to open the door to the opportunity of allowing the appeal.”

Counsel in the case did not respond to a request for comment. The Yukon Court of Appeal is made up of justices of the British Columbia Court of Appeal and justices from the Yukon Territory, Northwest Territories and Nunavut.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.

The Technical deficiencies opened door for Yukon Appeal Court to overturn defamation verdict: lawyer was published by The Lawyer’s Daily on April 9, 2020

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.

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.