Insurers’ medical examiner gets his day at Supreme Court of Canada

The Supreme Court of Canada is considering whether or not to send an insurance medical examiner’s libel case to trial, based on comments made by a personal injury lawyer about the examiner’s work in a closed forum that got leaked to the general public.

In Maia Bent, et al. v. Howard Platnick, et al, the Supreme Court heard arguments on Nov. 12, 2019 that deal with a whole host of legal issues around libel. The Supreme Court of Canada is not ruling on the merits of the libel lawsuit, but rather on whether or not the medical examiner’s libel lawsuit will be allowed to proceed to trial. The top court has not released its decision in the case.

Dr. Howard Platnick wants to sue personal injury lawyer Maia Bent in Ontario for about $16 million over comments Bent made in 2014 about Platnick on a listserv or closed email service for members of the Ontario Trial Lawyers Association, of which Bent was president-elect. The comments pertained to files Plantnick reviewed in auto accident benefits claims in which Bent’s clients were the claimants. The aim of those reviews was to determine whether or not an auto injury claimant met the criteria for catastrophic impairment.

Bent’s email became a problem for both her and Platnick after it was leaked to news media, with Platnick alleging his reputation was damaged.

The case engages libel law rather than any particular aspect of insurance law. For example, the Supreme Court is considering the factors that a motion judge might consider in assessing whether the alleged harm caused by the expression is sufficiently serious that it outweighs the public interest in protecting the expression.

The personal injury lawyer, for example, argues that her comments were in the public interest and therefore her comments are protected. “There is a legion of cases … that demonstrate [The Supreme Court of Canada] acknowledging the serious problem with respect to the hired gun expert witnesses in these kinds of proceedings,” said Howard Winkler, who is representing Bent. Winkler was asked by Supreme Court of Canada Justice Russell Brown to explain how Bent’s listserv comments are on a matter of public interest.

There is public interest in ensuring the accident benefits dispute system remains fair and unbiased to those injured in motor vehicle accidents, replied Winkler.

After Bent’s comments were made public, Platnick initially asked Bent for a retraction. He filed his libel lawsuit in 2015.

The following year, Ontario Superior Court Justice Sean Dunphy dismissed Dr. Platnick’s lawsuit. In doing so, he cited recent changes to the Courts of Justice Act, which are intended to prevent strategic lawsuits against public participation (SLAPPs). Dunphy’s ruling was reversed in 2018, when the Court of Appeal for Ontario said Platnick’s libel lawsuit could proceed to trial.

Bent is asking Canada’s top court to restore Dunphy’s original decision. Should the court rule against Bent, it means Dr. Platnick’s libel lawsuit can proceed to trial, as decided by the Appeal Court.

Under the province’s anti-SLAPP legislation, Ontario judges now have the power to dismiss libel lawsuits if the defendants convince the court that the proceeding arises from an expression made by the person that relates to a matter of public interest. On the other hand, people suing for libel can have their day in court if they can convince a judge there is “substantial merit” to their lawsuit, and that the defendant has no valid defence. Defences to defamation can include justification and qualified privilege.

The purpose of the anti-SLAAP law is to prevent strategic lawsuits that are abusive and intended to bully and intimidate people into silence, said Tim Danson, who is representing Dr. Plantick. By contrast, Dr. Platnick’s lawsuit is a “genuine, good faith, bona fide libel action,” Danson argued.

A key question before the Supreme Court of Canada is how much and what type of evidence is sufficient to show grounds to believe that no valid defences exist. Another question is whether Bent is responsible for the fact that her comments were made public. Bent says the Court of Appeal for Ontario erred in ruling it was pretty much inevitable that her comments would make their way to the media.

Supreme Court of Canada Justice Andromache Karakatsanis noted Tuesday that members of the OTLA listserv agreed to keep the emails confidential. She asked Danson why the court should conclude Bent’s message was likely to be made public simply because it was on the web.

“I am not trying to be facetious or sarcastic,” Danson replied. “If you want to keep a secret, the last thing you do is tell 670 plaintiffs’ personal injury lawyers [about negative comments made] against a respected defence expert who they would like nothing better than to get rid of,” said Danson.

Then Supreme Court of Canada Justice Russell Brown weighed in, expressing some skepticism. “As a former occasional plaintiff lawyer, I do think you may be underplaying the significance that they have all given an undertaking,” he said. “I am struggling with this point. We all know what we learned in the bar courses about undertakings.”

Danson said Bent’s comments “went viral” within days; within weeks, Dr. Plantick was black-listed by insurers. “His business was decimated,” he said. “You couldn’t have greater harm.”

In asking whether the lawsuit might proceed, a judge should ask whether a “reasonable trier” would conclude that Dr. Platnick had a “real chance of establishing that he was libeled,” and whether that reasonable trier would conclude that Bent had no valid defence, Justice David Doherty wrote for the Court of Appeal for Ontario in 2018.

But that is not the actual language of the law, Winkler argued Tuesday. “Instead, it mandates that the judge hearing the case make a decision and decide whether or not her or she is satisfied” that there is no valid defence, said Winkler. As such, it was open to Justice Dunphy to make the ruling that he did and it should not have been reversed on appeal.

The anti-SLAPP law Ontario passed in 2015 says a judge shall not dismiss a lawsuit as a SLAPP if the person suing for libel satisfies the judge that there are grounds to believe that:

• the proceeding has substantial merit
• the moving party has no valid defence in the proceeding; and
• “the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”

How exactly the judge decides there is “no valid defence” is now before the Supreme Court of Canada.