2018 August 30

Platnick v. Bent, 2018 ONCA 687, appeal dismissed SCC 23

The Ontario Court of Appeal set aside the lower court order dismissing this action as a SLAPP pursuant to s. 137.1 of the Ontario Courts of Justice Act, R.S.O. 1990, c. C 43.  The claims by the plaintiff medical doctor against the defendant lawyer concerned an email posted on a “Listserv” which had about 670 subscribers.  The email was “leaked” to an advocacy organization and thereafter to the news media.  Although the email related to a matter of public interest,  the plaintiff had proven on a balance of probabilities that “there are reasonable grounds to believe both that the plaintiff’s claim has substantial merit and that the defendant … has no valid defence.”  The question for the court in this case was as follows:  “Could a reasonable trier of fact conclude that [the plaintiff] had a real chance of establishing that he was libelled and could a reasonable trier of fact conclude that [the defendant] had no valid defence to the allegation?  If affirmative answers to both questions were within the range of conclusions reasonably available on the motion record, the plaintiff had met his onus under s. 137.1(4)(a).”  In answering this question, the court is not making finds of fact but assessing, at a preliminary stage, and through the “reasonableness lens,” the merits of the plaintiff’s claim and the validity of any defences advanced.

A valid defence is a defence that would succeed at trial.  In the instant case, the Court of Appeal considered that the  plaintiff had met his onus of showing reasonable grounds to believe that the pleaded justification defence would not succeed and was therefore not a “valid defence.”   The same applied to the pleaded defence of qualified privilege: “The applicability of the defence of qualified privilege … is reasonably open to different interpretations based on the evidence adduced on the motion.  A reasonable tried could conclude that [the defendant] went beyond the occasion of qualified privilege … In other words, there are reasonable grounds to believe that the defendant would not succeed at trial …”

Balancing the harm to reputation versus the public interest in free speech as required by s. 137.(4)(b), the Court of Appeal held in favour of the plaintiff.  Section 137.(4)(b) “requires the court to a consider, among other things, the motives of both the plaintiff in commencing the action and the defendant in making the impugned statement.”  A motion judge may begin by asking: “Does this claim have the hallmarks of a classic SLAPP?   The indicia of a SLAPP suit include: – a history of the plaintiff using litigation or the threat of litigation to silence critics; – a financial or power imbalance that strongly favours the plaintiff; – a punitive or retributory purpose animating the plaintiff’s bringing of the claim; and – minimal or nominal damage suffered by the plaintiff.”  In  this case, the general damages are potentially significant and the plaintiff had given “extensive evidence in his affidavit about the negative impact of the email on his professional reputation.”