Civil Procedure: Anti-SLAPP Legislation; Fresh Evidence

Bent v. Platnick2020 SCC 23 (38376)

“B is a lawyer and partner at an Ontario law firm. She is a member and, at the relevant time, was the president‑elect of the Ontario Trial Lawyers Association (“OTLA”). The OTLA is an organization comprised of legal professionals who represent persons injured in motor vehicle accidents. P is a medical doctor who is typically hired through insurance companies to review other medical specialists’ assessments of persons injured in motor vehicle accidents and to prepare a final report with an ultimate assessment of the accident victim’s level of impairment. Following two insurance coverage disputes in which B was acting as counsel for an accident victim, B sent an email to a Listserv (i.e. an email listing) of approximately 670 OTLA members in which she made two statements that specifically mention P by name and allege that, in the context of those disputes, P “altered” doctors’ reports and “changed” a doctor’s decision as to the victim’s level of impairment. B’s email was eventually leaked anonymously by a member of the OTLA and as a result, an article was published in a magazine which reproduced B’s email in its entirety and referred to testimony from B.

P commenced a lawsuit in defamation against both B and her law firm, claiming damages in the amount of $16.3 million. B filed a motion under s. 137.1 of the Courts of Justice Act (“CJA”) to dismiss the lawsuit. The motion judge allowed B’s motion and dismissed P’s defamation proceeding. The Court of Appeal set aside the motion judge’s determination, dismissed B’s motion, and remitted P’s defamation claim to the Superior Court for consideration.”

The SCC (5:4) dismissed the appeals.

Justice Côté wrote as follows (at paras. 1-4, 49-53, 72-73, 175):

“Freedom of expression and its relationship to the protection of reputation has been subject to an assiduous and judicious balancing over the course of this Court’s jurisprudential history. While in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, this Court recognizes the importance of freedom of expression as the cornerstone of a pluralistic democracy, this Court has also recognized that freedom of expression is not absolute — “[o]ne limitation on free expression is the law of defamation, which protects a person’s reputation from unjustified assault”: Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 2, per McLachlin C.J. Indeed, “the right to free expression does not confer a licence to ruin reputations”: para. 58. That is because this Court has likened reputation to a “plant of tender growth [whose] blossom, once lost, is not easily restored”: People ex rel. Karlin v. Culkin, 162 N.E. 487 (N.Y. 1928), at p. 492, per Cardozo J., cited by Cory J. in Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, at para. 92. Values, therefore, are not without countervailing considerations.
In these appeals, the Court must apply the framework set out in Pointes Protection in order to determine whether the respondent’s defamation claim against the appellants can proceed or whether it must be dismissed under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). In effect, this Court must consider the delicate equilibrium between two fundamental values in a democratic society, freedom of expression and the protection of reputation, vis-à-vis the Protection of Public Participation Act, 2015, S.O. 2015, c. 23.

For the reasons that follow, I would dismiss the appeals before this Court, and accordingly, I would dismiss the s. 137.1 motion and allow the respondent’s lawsuit in defamation to continue. While the appellant Maia Bent (“Ms. Bent”) successfully meets her threshold burden under s. 137.1(3), the respondent, Dr. Howard Platnick (“Dr. Platnick”), successfully clears both the merits-based hurdle and the public interest hurdle under s. 137.1(4)(a) and s. 137.1(4)(b), respectively.

Furthermore, and in order to avoid any misunderstanding, it is important to mention at the outset that a s. 137.1 motion is unequivocally not a determinative adjudication of the merits of a claim: Pointes Protection, at paras. 37, 50, 52 and 71. Instead, the implication of the findings that I set out herein is simple: Dr. Platnick deserves to have his day in court to potentially vindicate his reputation — “a fundamental value in its own right in a democracy”: para. 81. At trial, judicial powers of inquiry are broader, viva voce evidence can be given, and ultimate assessments of credibility can be made. Nothing in these reasons can, or should, be taken as prejudging the merits of Dr. Platnick’s underlying defamation claim either in fact or in law. Simply put, my resolution of this s. 137.1 motion means only that Dr. Platnick’s claim is one that deserves to be adjudicated on the merits, and is not one that ought to be summarily screened out at this early stage.

This Court has relied on and affirmed the test from Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775, as the proper test for assessing the admissibility of fresh evidence on appeal: see R.P. v. R.C., 2011 SCC 65, [2011] 3 S.C.R. 819, at para. 50; May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 107; United States of America v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616, at paras. 43‑44; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44; R. v. Warsing, [1998] 3 S.C.R. 579.

For fresh evidence to be admitted, the Palmer test requires consideration of the following four factors:

  • (1)   The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases . . . .
  • (2)   The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
  • (3)   The evidence must be credible in the sense that it is reasonably capable of belief, and
  • (4)   It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [p. 775]

In Pointes Protection, this Court expressly contemplates the “potentiality of future evidence arising”: para. 37. This is based on the expedited nature of s. 137.1 motions, which are required to be heard in a statutorily imposed short time frame. That is exemplified in this case, where Dr. Platnick had to submit his evidentiary record within 25 days after the notice of motion was filed. In this sense, as recognized in Pointes Protection, s. 137.1 motions are unlike summary judgment motions, where parties are expected to put their best foot forward; in other words, on a s. 137.1 motion, it is acknowledged that parties are under a mandated time constraint and are consequently limited in the evidentiary record they can put forward.

This does not, however, give parties carte blanche to file motions to adduce fresh evidence. Palmer must be adhered to, and for this reason, as I note below, I would not admit all of the fresh evidence. It is important to note here, however, that this case is a transitional one: the considerable uncertainty surrounding s. 137.1 motions — due to a lack of judicial guidance with respect to both the test for withstanding a s. 137.1 motion, as well as the nature or comprehensiveness of the evidence required on a such a motion — militates in favour of granting this particular motion to adduce fresh evidence in part.

Accordingly, I would admit both the Dua Letter (Exhibit B) and the KMI Letters (Exhibits N and R), and I would decline to admit the rest of the evidence that Dr. Platnick included with his motion. Below, I briefly explain why I would specifically admit the Dua Letter and the KMI Letters in light of Palmer. I find that the other evidence is either not relevant to the decisive issues in these appeals or is non-probative; therefore, I need not elaborate any further on its exclusion.

Before concluding, I hasten to clarify that the motion judge’s assessment of Dr. Platnick’s fresh evidence in Platnick v. Bent (No. 2) (his decision addressing the admissibility of some of this evidence) is not entitled to deference here. Quite simply, the motion judge decided the motion for fresh evidence on the basis of an incorrect understanding of the nature of a s. 137.1 motion, as explained by this Court in Pointes Protection. Accordingly, to the extent that his assessment of the evidence was dependent on an incorrect understanding of s. 137.1, it is not entitled to deference. Even if it were, however, as I indicated above, his assessment was, with respect, in error.

Thus, for all the foregoing reasons, I would admit the Dua Letter and the KMI Letters, as all of them satisfy the Palmer criteria for granting a motion to adduce fresh evidence. I will discuss these pieces of evidence at greater length in the reasons that follow.

As these reasons have established, while Ms. Bent successfully meets her threshold burden under s. 137.1(3), Dr. Platnick successfully clears both the merits-based hurdle and the public interest hurdle under s. 137.1(4)(a) and s. 137.1(4)(b), respectively. For these reasons, I would dismiss Ms. Bent’s s. 137.1 motion and allow Dr. Platnick’s lawsuit in defamation against Ms. Bent and Lerners to proceed to trial.”