Supreme Court of Canada paves way for insurers’ medical examiner’s lawsuit

A $15-million defamation lawsuit by an insurers’ medical examiner against an Ontario-based personal injury lawyer is going to trial, the Supreme Court of Canada announced in a divided ruling released Thursday.

Dr. Howard Platnick “deserves to have his day in court to potentially vindicate his reputation,” Justice Suzanne Côté wrote for the majority in Bent v. Platnick.

The plaintiff is a general practitioner whose work is comprised mainly of preparing and reviewing medical assessments for insurers in auto claims disputes.

Dr. Platnick is suing Lerners LLP lawyer Maia Bent over comments Bent made about Dr. Platnick in 2014 on a Listserv, which is an automated email service for members of the Ontario Trial Lawyers Association. Those comments were not supposed to be released to non-subscribers but were leaked to the press. The comments were about two different arbitration proceedings, involving two different disputed auto accident benefits claims, in which Dr. Platnick wrote reports for insurers.

In Ontario, plaintiffs can sue for defamation about comments defendants make “that would tend to lower the plaintiff’s reputation in the eyes of a reasonable person,” noted Justice Côté.

The ruling does not mean that Dr. Platnick has won his lawsuit. It does mean that a 2016 Ontario Superior Court of Justice ruling — which threw the lawsuit out of court — is now overturned. In 2018, it was the Court of Appeal for Ontario that overturned the 2016 ruling. The Sept. 10, 2020 ruling means Bent has lost her appeal to Canada’s top court.

Related: Supreme Court to consider insurer’s medical examiner defamation suit against lawyer

In Ontario defamation lawsuits, a variety of defences are available — for example, if the defendant proves the defamatory allegations are true. Other defences include qualified privilege.

In 2015, Ontario passed legislation intended to stop lawsuits that are designed to dissuade people from freely expressing and participating in matters of public interest. The interpretation of that legislation is the main impact of Thursday’s ruling. Plaintiffs’ defamation lawsuits can still proceed if the court believes: There are grounds to believe the lawsuit “has substantial merit;” that the defendant has no valid defence; and that the harm suffered by the plaintiff “is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”

“Dr. Platnick’s claim quite clearly satisfies the three criteria for making out a claim for defamation. His claim is legally tenable and supported by evidence that is reasonably capable of belief, such that it can be said to have a real prospect of success,” Justice Côté wrote for five of the nine Supreme Court of Canada judges who heard Bent’s appeal.

The other four would have restored the 2016 ruling dismissing lawsuit on the grounds of qualified privilege. Key to the dissenting argument was that the Listserv comments were not supposed to have been released to the general public. Any harm resulting from the leak of the email was caused by unforeseen and unforeseeable communication by others, not by Bent sending the email to its intended audience of lawyers on the Listserv, Justice Rosalie Silberman Abella wrote for the dissenting judges.

The email that the spawned the lawsuit was titled “Sibley Alters Doctors’ Reports.”

Dr. Platnick was retained by SLR Assessments (Sibley) to assess whether or not a claimant represented by Bent should be considered catastrophically impaired. Specifically, Sibley hired Platnick to write an “executive summary report” of individual assessments prepared by independent medical examiners who assessed the claimant.

Feature image via iStock.com/alexsl