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Defamation in the Case of a Leaked Email

September 23, 2020

Bent v. Platnick 2020 SCC 23

A case before the Supreme Court of Canada, Bent v. Platnick, 2020 SCC 23, dealt with an accusation of defamation against another civil lawyer, Bent. Bent was representing an accident victim in two insurance coverage disputes, where Platnick, a doctor often hired by insurance companies to review medical assessments of those injured in accidents. 
Following the cases, Bent, who was a member and president-elect of the Ontario Trial Lawyers Association, sent an email to the OTLA group (containing 670 members) that mentioned Platnick by name and accused him of changing medical reports and doctor’s decisions. This email was linked anonymously where an article about it was subsequently published. 

This launched a defamation suit against Bent and her law firm. The claim was initially dismissed, with Bent citing s. 137.1 of the Courts of Justice Act: 

137.1 (1) The purposes of this section and section 137.2 to 137.5 are, 
(a) to encourage individuals to express themselves on matters of public interest;
(b)  to promote broad participation in debates on matters of public interest;
(c)  to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
(d)  to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action. 2015, c. 23, s. 3.
The Court of Appeal disagreed with the decision to dismiss, and moved the trial to the Superior Court, after which it was appealed to the Supreme Court of Canada.  

The Supreme Court of Canada dismissed the appeal. 

From the court document:

“Section 137.1 of the CJA is intended “to function as a mechanism to screen out lawsuits that unduly limit expression on matters of public interest through the identification and pre-trial dismissal of such actions”: Pointes Protection, at para. 16. However, in addition to protecting expression on matters of public interest, s. 137.1 must also “ensur[e] that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to pursue it”: para. 46. Applying the framework that this Court unanimously adopts in Pointes Protection, I ultimately reach the same conclusion as the Court of Appeal for Ontario: Ms. Bent’s s. 137.1 motion should be dismissed and Dr. Platnick’s defamation claim should be allowed to proceed….

A motion judge’s determination on a s. 137.1 motion will typically be entitled to deference upon appeal, absent reviewable error. Here, the motion judge’s initial determination of Ms. Bent’s s. 137.1 motion is entitled to no deference. This is on account of the fact that the motion judge committed three broad errors: he applied the wrong legal test on a s. 137.1 motion, misconstrued the law on defamation and its defences, and misapprehended the evidence. Accordingly, as in Pointes Protection, I proceed on a standard of correctness unless the motion judge’s findings are not tainted by such errors: para. 97; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8 and 36.” [para. 74-77]. 

Fight Defamation with a Civil Lawyer in Toronto

When your reputation is under attack because of slander or libel in a way that causes you financial loss or other damages, you can seek action with a trusted civil lawyer. If false information or misrepresentations of the truth result in serious law, you may consider filing a civil lawsuit. To learn more about what the best course of action is, book a complimentary legal consultation with the Karrass Law team.


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