Anti-SLAPP law to be tested at Ontario Court of Appeal

The Ontario Court of Appeal is being asked for the first time to interpret the province’s so-called anti-SLAPP law, which came into effect in the fall of 2015.

The court will hear arguments tomorrow in a case where a Toronto doctor is appealing a Superior Court decision that dismissed his libel action against a former head of the Ontario Trial Lawyers Association and ordered him to pay more than $310,000 in costs. Dr. Howard Platnick has also filed a Charter challenge against the Protection of Public Participation Act, in part on the grounds that it favours freedom of expression over damage to reputation.

“Protection of reputation should be declared a stand-alone constitutional right under section 7 of the Charter, subject to the same vicissitudes as freedom of expression, namely, the further removed from its core value, the less worthy of protection,” states Timothy Danson, lead counsel for the doctor, in written submissions filed with the Court of Appeal.

“Protecting a person’s reputation strikes at the quintessential core of the ‘liberty’ and ‘security of the person’ interests protected by section 7,” writes Danson, a partner at Danson Recht LLP in Toronto.

The legal action stems from an email posting that Maia Bent made in the fall of 2014 to the “listserve” that members of the trial lawyers group can access.
Bent, a personal injury lawyer and partner at Lerners LLP in London, Ont., questioned the conduct of Platnick in the drafting of medical reports in two cases. At the time, Bent was president-elect of the association, which is made up of plaintiff-side personal injury lawyers. There were about 670 subscribers to the listserve when the email was posted.

The contents of the email were allegedly “leaked” by someone on the ListServe to a public-interest advocacy group and republished in an industry trade publication. Ontario Superior Justice Sean Dunphy concluded in his ruling dismissing the action last December that the doctor “laid no credible foundation” to attribute the leak of the email to Bent. As well, the judge found that the contents of the email were made in the public interest.

“The fact that the e-mail itself was made in a private forum with a restricted audience does not preclude the subject matter from being considered to be one in the public interest,” wrote Dunphy. “It is the subject matter of the communication that must be scrutinized and not the medium of communication itself,” he added. The content of the email was intended as professional advice to colleagues and to remind others to obtain production of an entire file to scrutinize expert reports, the judge found.

The provincial statute was introduced by the Ontario government as a means to try to reduce so-called SLAPP (strategic litigation against public participation) actions against individuals or groups making comments in the public interest.

The relevant provisions state that a proceeding can be dismissed if the defendant “satisfies the judge” that the action arises from an expression that relates to a matter of public interest. A court should not dismiss an action if it has “substantial merit” and there is “no valid defence” in the proceeding. Also, the harm suffered as a result of the expression must be sufficient that there is a greater public interest in the action continuing.

If a defendant is successful in having a libel action dismissed on this basis, there is a presumption of costs being awarded on a full indemnity basis, the statute says.

In the written arguments filed on appeal, Danson is alleging that his client has been “blacklisted” by the insurance industry since the contents of the email became public. As well, the doctor has lost nearly $900,000 in business and professional income as of the end of 2016, states Danson.

In response, lawyers for Bent state that there were no errors made by Dunphy in finding that the email comments were in the public interest. “The subject matter of the e-mail involved the independence of experts, an issue of considerable importance to the administration of justice generally,” wrote Howard Winkler and Eryn Pond, lawyers at Winkler Dispute Resolution, and Andrew Lokan, a partner at Paliare Roland Rosenberg Rothstein LLP.

On the constitutional issues, they argue that the doctor is asking the Court of Appeal to overturn the Supreme Court of Canada decision. “The Supreme Court in Blencoe v. British Columbia specifically rejected the proposition that reputation is independently protected by section 7. Lower courts have also consistently rejected the proposition that reputational interests are projected by section 7. This is settled law,” write Winkler and Pond.

Terrence O’Sullivan, a partner at Lax O’Sullivan Scott Lisus Gottlieb LLP, is lead counsel for Lerners, which is also a defendant in the appeal. The Ontario Ministry of the Attorney General is an intervener and represented by Hart Schwartz.

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