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Rethinking Ontario’s Anti-SLAPP Law After Bent v. Platnick

In 2015, Ontario passed legislation aimed at protecting defendants from lawsuits stifling expressions made in the public interest. One aspect of this law is that it allows defendants to successfully bring an expedited motion to dismiss even in circumstances where the plaintiff’s action has substantial merit and there are no valid defences that could reasonably be advanced at trial.

This is known as the “public interest hurdle” analysis and, more exactly, provides that an action will not be dismissed if the plaintiff can show

the harm likely to be or have been suffered by the responding party [plaintiff] as a result of the moving party’s [defendant’s] expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.[1]

This provision recognizes that valuable public interest expressions should be protected even in certain situations where a defendant is otherwise exposed to substantial liability through a valid cause of action.

This post is a short analysis and critique of the “weighing of the public interest” (permitting the action to proceed v. protecting the expression) part of the public interest hurdle analysis in the recent Supreme Court case of Bent v. Platnick.

Facts

Ms. Bent, a personal injury lawyer, was sued in defamation by Dr. Platnick, a family doctor, related to a post she made on the Ontario Trial Lawyers Association listserv. In that post, she accused the plaintiff of misrepresenting the reports of medical experts relating to two insured persons (the defendant’s clients) seeking compensation for meeting the catastrophic impairment threshold under Ontario’s SABS regime. Dr. Platnick was regularly retained by insurers[2] to interpret expert medical reports for the purpose of making these assessments – but without ever examining the patient himself.

In one case, he misrepresented the opinions of medical experts stating that it was the “consensus conclusion” of those involved in the assessment that the insured did not meet the threshold of catastrophic impairment – when in fact, that was not the case.

In another prior case, an expert made an “internally contradictory” finding by referencing class 4 (the catastrophic impairment category) but calling it “moderate impairment.” Dr. Platnick sought clarification from the expert and found that it was the class 4 ranking that was incorrect. However, Ms. Bent received the first report of the expert, and Dr. Platnick’s report (which did not explain why the change was made), and presumed the discrepancy was due to Platnick misrepresenting the expert’s assessment.

Weighing the Public Interest

In Pointes Protection, the companion case to Bent, Cote J. states that the public interest weighing exercise may include indicia tethered to the text of the statute and considerations contemplated by the Legislature. This includes “quality of the expression, and the motivation behind it….” (at para. 74) as well as:

“the importance of the expression, the history of the litigation between the parties, broader or collateral effects on other expressions on matters of public interest, the potential chilling effects on future expression either by the party or by others, the defendant’s history of activity or advocacy in the public interest, any disproportion between the resources being used in the lawsuit and harm caused or the expected damages awarded, and the possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group…” (para. 80)

While sensible, it is critical to note that these indicia are not in fact found in the text nor are they referenced to legislative history of the law. In the absence of legislative direction, it is reasonable for courts to develop indicia to guide the balancing exercise.

The majority opinion in Bent validated the importance of the expression to the administration of justice (i.e. Ms. Bent warning other lawyers to always check assessment reports against the expert reports they are based on) and, to that extent, the expression was worthy of high protection. But the opinion also noted that Dr. Platnick allegedly experienced serious harm as a result of the expression. The determining factor seemed to be Ms. Bent made serious accusations of professional misconduct against Dr. Platnick without reaching out “to confront him or to investigate her allegations against him.” (at para. 164; see also para 167). To make her point, in other words, Ms. Bent did not have to name names.

Critique

In my opinion, the majority decision failed to consider the context in which the expression occurred. The dissenting opinion understood this much better.

Insurance litigation is highly adversarial and biases in medical reports of go-to physicians for insurers is a real problem (paras. 182, 224-5). I would venture to guess that it would not be realistic to expect a doctor regularly retained by an insurer to be forthcoming in explaining (perhaps not even allowed by the insurer to explain) the process of preparing reports.[3] Yet the majority opinion assumes he would. And if he did not explain the discrepancy, then was Ms. Bent suppose to bite her lip? And, if so, would that not be the self-censorship and libel chill that this legislation – and the public interest hurdle in particular (see indicia above) – is aimed at reducing.

The perspective of the majority seemed skewed in another way. Given the discrepancies that appear to arise in these assessments, and the fact that none of these reports appear confidential, why is the onus on the opposing lawyer to investigate rather than on the insurer to explain, at the very least, discrepancies that arise regarding critical and determinative findings in the medical reports? Had Dr. Platnick and the insurer been proactive in explaining the discrepancies the reports, none of this would likely have occurred.

The duty to explain (rather than investigate) is reinforced by the highly questionable practices through which the medical assessments were made. As highlighted by the dissenting opinion, Platnick – in the face of conflicting medical reports – acted unilaterally in using “consensus assessment” language, while after the fact the insurer attempted to have dissenting doctors change their assessment (which two of the experts refused to do).

Where these kinds of games are happening in an adversarial setting leading to conflicting medical evidence upon which everything hinges, is commentary that criticizes it not a self-inflicted wound? Should the onus really be on the defendant to find out what is really going on before warning others about what she is experiencing?

The dissent, more realistically, judged the value of the expression in light of what Ms. Bent “reasonably believed” rather than what in a perfect world she might have found out through further investigation. The standard of “reasonably believed” is used in whistleblowers protection laws in recognition of the fact that complete information is rarely accessible or available to substantiate suspicious and apparent wrongdoing. In other words, whistleblowers are protected when making public interest disclosures about wrongdoing in the workplace according to a “reasonably believed” standard even if it turns out they were wrong.

Whistleblower protection is, like anti-SLAPP, legislation that encourages those who know something to speak out in the public interest in the face of systemic barriers to accessing full information.

Going Forward

The Ontario law is balanced and well drafted and appears to be a template for anti-SLAPP legislation in Canada now that BC has adopted essentially the same law. The Supreme Court has provided some needed guidance on how the broad language of the public interest hurdle should be interpreted. Going forward, Ontario and BC might wish to consider amending the legislation to codify non-exhaustive factors for courts to consider in a public interest hurdle analysis.

These factors should include those noted by the Supreme Court. But mention must also be made of the context in which the expression arises, specifically what the moving party “reasonably believed” in making the expression perhaps even based on what they “reasonably could have expected to find out through further inquiry” and the “whether the plaintiff’s conduct gave rise to the actionable expression”.

A duty to investigate before commenting in circumstances where there are real barriers to accessing that information could have the effect of eviscerating the purpose of protecting public participation and expression under this law.

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[1] Section 137.1(4) Courts of Justice Act (Ontario).

[2] For ease of reference I refer to the insurer as hiring Dr. Platnick. In fact, the insurer hires a medical assessment firm to conduct assessments.

[3] I wonder too if it is even ethical to even contact the doctor directly rather than through the insurer’s counsel.

 

Comments

  1. The SCC’s charitable tunnel vision required overlooking a lot of “context”:

    * for decades lawyers and judges have been lamenting the “proliferation” of medico-legal “hired gun” experts who have become the ON auto insurers’ “preferred vendors” of “independent” medical assessments. (eg. Justice Osborne Report)

    * Former legal columnist Alan Shanoff (Toronto Sun) wrote countless columns covering ONSC, ONCA and FSCO cases in which insurer medico-legal assessors were recipients of harsh judicial rebukes for all manner of substandard IMEs.

    * This “context” has been covered multiple times in a wide array of investigative reports by mainstream media: CBC Fifth Estate (which gave rise to AssesMed v CBC); the Globe & Mail (Kathy Tomlinson); and the National Post (health reporter Tom Blackwell. Long ago, n an in-depth series of columns into the issue of ON auto insurers medico-legal second opinion vendors, the Medical Post called this IME bizz “underbelly of medicine).

    This is only some of the IME “context” from which this case arose. Is the SCC really going to pretend well chronicled questionable practices in the IME industry ought not be called out and that that a “reasonable person” would be out of line to warn others?

  2. Thank you for providing even better context for what should have been protected expression.

  3. There is another element of “context” in this case which seems highly relevant and that arguably, ought to have been considered by the SCC. Namely, the extent and nature of any prior adverse judicial commentary aimed toward this (or any) vendor of insurer commissioned medico-legal evidence/testimony.

    The Ontario Civil Justice Rules Committee has said that lawyers have a professional duty to check the qualifications and impartiality of opposing medico-legal experts and to challenge opposing experts whenever appropriate to do so. This includes checking for any/all prior adverse judicial comments/critiques of their work product. (http://www.fairassociation.ca/ime-providers-adverse-comments).

    The importance of attending to prior adverse judicial findings regarding medical experts found its way into the Dr. Charles Smith Inquiry when in his Executive Summary Justice Goudge wrote that the “first mistake” of the Courts was the failure of judges/lawyers to hear/heed Justice Dunn’s early warning (in the form of adverse commentary re Dr. Smith) in one of Smith’s early cases. Had that been raised in subsequent cases Dr. Smith would never have achieved his God-like, infallible expert status.

    So the question not addressed by the SCC is whether Ms. Bent’s decision to warn her colleagues
    was influenced by her knowledge of prior critical judicial findings aimed toward this IME vendor. Surely we/she can trust the judges and should hear/heed their warnings.

    Further, it would have been Ms. Bents professional duty to be aware of such “contextual” information. And only a fool would argue that the presence (or absence) of prior judicial critiques of the work product of a vendor of medico-legal assessments/testimony couldn’t help but influence a reasonable person’s decision on whether or not to warn colleagues to watch out for similar issues in their own cases.

    By omitting “prior judicial commentary” from its consideration the SCC has rejected a key finding in the Goudge Report which was intended to curb problematic medico-legal assessments/testimony which might lead to wrongful convictions in the criminal justice context and, by extension, wrongful decisions in the civil justice context.

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