2020 September 10

Bent v. Platnick, 2020 SCC 23

The Supreme Court of Canada, dismissing an appeal from the Ontario Court of Appeal, ruled that a medical doctor was entitled to pursue his defamation lawsuit against a lawyer over an email sent via a Listserve to approximately 670 members of the Ontario Trial Lawyers Association. The allegedly defamatory email was also republished in a magazine, after someone leaked it anonymously.

Writing the majority judgment of Canada’s highest Court, Côté J. (Wagner C.J. and Moldaver, Brown and Rowe JJ concurring) held that the claim deserved to be adjudicated on its merits, and was not one that ought to be summarily screened out pursuant to Ontario’s SLAPP law (s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43). “Dr. Platnick deserves to have his day in court to potentially vindicate his reputation – ‘a fundamental value of its own right in a democracy’ … At trial, judicial powers of inquiry are broader, viva voce evidence can be given, and ultimate assessments of credibility can be made.” “Permitting Dr. Platnick’s defamation claim to proceed will deter others not from speaking out against unfair and biased practices … but from unnecessarily singling out an individual in a way that is extraneous or peripheral to the public interest. It will also deter others from making defamatory remarks against an individual without first substantiating, or attempting to substantiate, the veracity of their allegations. In this way, rather than disincentivizing people from speaking out against unfair and biased practices, it will incentivize them to act with reasonable due diligence and to tailor their expression so as to avoid needlessly defaming an individual who depends on their reputation for their livelihood.” “On its face, this is not a case in which one party is vindictively or strategically silencing another party; it is a case in which one party is attempting to remedy a seemingly legitimate harm suffered as a result of a defamatory communication.”

Côté J. emphasized, however, that this ruling dismissing the defendant’s SLAPP motion is not a determinative adjudication of the merits of the plaintiff’s claim. “Nothing in these reasons can, or should, be taken as prejudging the merits of the action.”