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A Word to the Wise: Lawyers, Use Yours Carefully or Risk a Finding of Malice in Defamation Actions

The SCC updates the law on qualified privilege and malice, holding lawyers to higher standards when making alleged defamatory statements.

In its first of two companion decisions on anti-SLAPP suit motions, the Supreme Court of Canada in Pointes Protection confirmed the test to be applied (as set out in our first blog here).

In Bent v Platnick, 2020 SCC 23 the SCC applied that test to a defamation action—and split 5-4 on the issue of the defence of qualified privilege—the majority finding that defamatory statements must be “necessary” to the occasion rather than, as the minority held, simply be “relevant”. The majority put further due diligence obligations on lawyers to verify their statements—even in situations where they have a duty to make those statements and there is a public interest in doing so. As a result, the underlying lawsuit claiming $16.3 million in damages against a lawyer may see its day in court.

It is ironic that the legislature brought about anti-SLAPP motions to, inter alia, discourage the stifling of debate on matters in the public interest, yet the SCC’s first decision on the legislation changed the law on qualified privilege and may do exactly that.

The alleged defamation in a lawyers’ Listserv

The appellant Ms. Bent is a partner at a law firm, with her practice focused on representing those injured in motor vehicles accidents. She was at the time, the president-elect of the Ontario Trial Lawyers Association (“OTA”) which had approximately 1,600 members that also represented people injured in motor vehicle accidents.

The respondent, Dr. Platnick is a medical doctor who was hired by insurance companies to review the medical assessments of those injured in motor vehicle accidents completed by other medical experts, and to prepare a final report of those medical experts’ assessments and complete his own assessment based on those reports.

Dr. Platnick’s complaint centred on an email Ms. Bent sent to a listserv of about 670 OTA members in which she mentioned two situations involving her experiences with Dr. Platnick. She alleged that two of his reports had been “altered” and was bringing it to the attention of her colleagues since the conduct would not be made public by way of a decision (both cases settled). Her email was leaked to an advocacy group (despite the Listserv containing a confidentiality clause). It then made its way to a journalist and was published in an article about medical files being altered to suit insurers in “Insurance Business” magazine.

Dr. Platnick sued Ms. Bent and her law firm for $16.3 million in damages (he also sued other defendants, with his damages claim totalling nearly $50 million). She brought a s 137.1 motion to dismiss his lawsuit.

The SCC majority changes the defence of Qualified Privilege—requiring that the impugned words be “necessary”

The respondent easily established that his claim had “substantial merit”: in Canada, defamation is easy to prove, with the plaintiff needing only to establish three things: that the impugned statement referred to the plaintiff, that it was published to someone other than the plaintiff, and that it was defamatory in the sense it lowered the reputation of the plaintiff in the eyes of reasonable people. Once those elements are established, the law presumes the impugned statement was false, so the burden shifts to the defendant to prove truth or another defence.

As Ms. Bent had “put in play” the defences of justification (which means truth) and qualified privilege, Dr. Platnick had to establish that “there are grounds to believe that the defences do not tend to weigh more in favour of Ms. Bent”.

Justification is notoriously difficult for a defendant to prove (for anyone interested, look up the film “Denial”). If the defendant does prove truth, they will not be liable for the defamatory statement. A defamatory statement may also be protected by qualified privilege based on the occasion upon which it was made. It applies to an occasion where the person who makes a communication has an interest or a duty, legal social or moral, to make it to the person to whom it has made, who has a corresponding interest or duty to receive it. It can be lost if the statement exceeds the occasion, or if it was made with malice (malice being ill will, spite, or knowing or reckless disregard for the truth).

The SCC had to ask whether Ms. Bent’s statements that Dr. Platnick “altered reports” was protected by an occasion of qualified privilege.

Here is where the facts become key.

In regards to the first matter that led Ms. Bent to think Dr. Platnick had “altered reports”, Ms. Bent had received two conflicting reports: the first report identified that Dr. Dua, one of the medical experts who assessed Ms. Bent’s client, found the client suffered a “catastrophic impairment”, but in another report, had concluded there was “no catastrophic impairment”. Dr. Platnick’s report did not mention that he spoke with Dr. Dua, or that she had prepared a second report.

In the second matter, Dr. Platnick’s report had not found a “catastrophic impairment” designation for Ms. Bent’s client, describing that finding as a “consensus conclusion” of four experts who had examined her client. Ms. Bent sought an order for disclosure of the entire file, which included the four original medical expert reports, which disclosed that four experts had originally concluded her client suffered a “catastrophic impairment”. Dr. Platnick’s summary reports did not, however, include the diverging conclusions of the experts or other findings in their reports favourable to Ms. Bent’s client It also did not note the insurance company’s efforts to have some medical experts revise their opinions so they were in line with Dr. Planick’s finding of a “consensus” (two experts adamantly refused to change their reports, while one actually did revise his report and changed his finding of impairment, deciding to “defer” to the conclusions of Dr. Platnick). At the arbitration, one of the medical experts testified that he did not participate in a “consensus conclusion”, he had not seen Dr. Platnick’s report, and parts of his own report had been omitted without his knowledge or consent from Dr. Platnick’s report. Later that day, the insurer settled with Ms. Bent’s client on very generous terms.

Dr. Platnick argued that in the first matter, he accurately summarized a second follow-up report where Dr. Dua changed her conclusion as it was a typographical error and he did not pressure her to change her report in any way, and for the second matter, he used the term “consensus conclusion” in the expectation that a consensus would emerge after he completed his report.

The majority found that it was not “necessary” for Ms. Bent to have referred to Dr. Platnick by name, and she could have simply alerted her colleagues to always get the assessor and insurer’s files, and therefore she exceeded the privileged occasion upon which her statement was made.

The majority therefore put the onus on Ms. Bent, when presented with two conflicting reports, to have made inquiries as to why that was the case, and to have taken investigative steps to corroborate her allegations rather than assume and then write in the Listserv that Dr. Platnick had “altered” reports. Since she had not, her statements likely exceeded the defence and were perhaps even motivated by malice.

Rejecting that view, the minority found “relevance” was the test, noting that a stringent requirement of necessity would chill expression and turn judges into editorial arbiters, quoting the British Columbia Court of Appeal:

 “…a person speaking on a privileged occasion should not be regarded as a tightrope walker without a safety net, with the judge waiting underneath with bated breath hoping for a tumble”. 

Additional due diligence requirements for lawyers?

The majority’s decision has two key messages for lawyers: a lawyer has additional due diligence obligations in determining the veracity of the statements they make, otherwise they risk losing the defence of qualified privilege, or risk a finding of having acted with malice in the sense they had a reckless indifference to the truth. Clearly, the majority is of the view that lawyers have extra due diligence requirements prior to making any potentially defamatory statements—even those statements made in the pursuit of justice for clients and that are in the public interest.

Importantly, the majority made a number of statements that lawyers should pay particular heed to:

  • “the law is manifestly clear that courts will strictly scrutinize a lawyer’s conduct because ‘lawyers are duty-bound to take reasonable steps to investigate;’”
  • “The more serious the allegation in issue, the more weight a court will give to a failure by the defendant to verify it prior to publication as evidence of malice, in the sense of indifference to the truth…This is particularly true of lawyers, who are ‘more closely scrutinized’ than a layperson;” and
  • “Lawyers are ‘duty-bound’ to undertake a ‘reasonable investigation as to the correctness’ of a defamatory statement, and ‘actions which might be characterized as careless behaviour in a lay person could well become reckless behaviour in a lawyer.” (para 136)

The majority ultimately concluded that as a result of “the heightened expectation of reasonable due diligence that this Court has historically imposed on lawyers, Ms. Bent’s privilege may be defeated simply on the ground that she was indifferent or reckless as to the truth of her defamatory statements”.

Since there was “a basis in the record and law” to support a finding that her statements may not have been necessary or were motivated by malice, Dr. Platnick met his burden of showing Ms. Bent “had no valid defence”.

The minority found that Ms. Bent had a duty to inform her colleagues of her concerns, particularly in an era where there were significant public concerns about the neutrality of experts retained by insurance companies and assessors producing selective and misleading reports, and that the OTLA had a corresponding duty in being alerted to questionable conduct by experts and assessment companies. Departing form the majority on the law, the minority held that the occasion can be exceeded if the information communicated is “not reasonably appropriate to the legitimate purposes of the occasion”, with “reasonably appropriate” meaning “relevant and pertinent to the discharge of the duty of the exercise of the right or the safeguarding of the interest which creates the privilege.”

The great fissure in the court is evidence when Abella J, writing for the dissent, held: “Dr. Platnick’s lawsuit—and the exorbitant amount of damages he is seeking—is precisely the kind of claim that has the effect of stifling expression on matters of public interest.”

Notable takeaways from the decision:

  • The Court equated the words “no valid defence” in s 137.1 with whether the defence “weighs” more in favour of the plaintiff or defendant—which appears to be a dilution of the legislature’s chosen words. As pointed out in the previous blog post, the meandering language is ripe for a lawyer’s attack;
  • Qualified privilege may be exceeded where aspects of the defamatory statement were not “necessary” to fulfilling the duty;
  • A lawyer is held to a higher standards and must complete due diligence before making potentially defamatory statements, otherwise risk losing access to the defence of qualified privilege or be held to have been acting with malice;
  • A decision on a motion to adduce fresh evidence on a s. 137 motion is limited to that motion and not determinative of whether that evidence will be admitted at trial;
  • The majority and minority agreed on the test for a s 137.1 motion—they disagreed, however, on the defence of qualified privilege; and
  • A decision rejecting an anti-SLAPP motion is, of course, preliminary, meant to indicate that the claim is one worth adjudicating on the merits and should not be summarily screened out at the initial stage.
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This blog is authored by members of the Litigation and Dispute Resolution Department. We follow new and interesting issues emerging in the legal and business communities. The wide range of experience among the members of our litigation group will provide a diverse and insightful examination of current legal trends and topics. Our goal is to provide a source of valuable information and insight on a wide variety of matters for our readers.

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