A Personal Injury of Reputation to a Lawyer

Defamation is an injury of sorts. Granted, it’s not a bodily harm exactly of the type we see in motor vehicle collisions, or the other types of intangible harms we see in non-pecuniary damages. Instead, defamation deals with a harm to a reputation.

The issue has come to a head in Ontario, with one of the most prominent players in the personal injury industry claiming foul against the Ontario Trial Lawyers Association (OTLA) over a CPD they conducted on marketing and the Rules of Professional Conduct,

Personal injury law firm Diamond & Diamond has lashed out at organizers of a recent webinar on legal ethics who referenced the firm in promotional materials…

An ad for the webinar distributed to OTLA’s members contained the headline, “Media hits hard on personal injury lawyers — you read the D + D story.”

Organizers say the event was held to teach lawyers best practices when it comes to advertising their services.

Of course the reputation of a lawyer is something special, something the courts do take special consideration of. However, a recent Ontario Superior Court of Justice decision could give insight into how this particular case may be decided in light of recent legislative changes.

In Platnick v Bent, the court was again dealing with OTLA, this time of their Listserve, an invaluable resource for those who practice in the area of personal injury. This Listserve is accessible only by members, through use of a password, though members can opt to receive updates by email as well. Members of the plaintiff bar frequently use this resource to exchange strategic information about cases, including evaluating experts, submissions to judges, and other pertinent tactics.

The objectionable materials in question were written by the President-elect of OTLA on this Listserve, containing references to expert reports that the defendant considered to be defamatory. These Listserve postings were then leaked to a broader audience, which the defendant claimed led several insurance companies to discontinue using his services, resulting in significant damages. Clients were cancelling appointments, new meetings were not scheduled, and he claimed he was told he was being “blacklisted” in the industry.

The defendant brought a motion under s. 137.2(1) of the Courts of Justice Act, one of the new anti-SLAPP amendments brought about through Bill 52, Protection of Public Participation Act, 2015. The purpose of this process is to dismiss a defamation claim if the defendant can demonstrate that the communication arises out of an expression related to a matter of public interest.

Justice Dunphy found that it is the subject matter of the communication that should be scrutinized to determine if it is in the public interest, and not the medium. The fact that the communication was made in a private forum to a restricted audience was not determinative of the public interest.

He drew on paras 101-103, 106 of Grant v. Torstar Corp. to support this interpretation of public interest, and concluded,

[66] The email was directed at members of the OTLA who specialize in plaintiff-side representation of accident victims. The questions addressed in the email include the role of claims assessment companies retained by insurance companies to examine claims, the role of IME’s producing expert reports (especially “Executive Summary Reports”) in connection with that process and the use made of those expert reports in catastrophic impairment arbitrations before FSCO. The primary object of the email was to underscore to other plaintiff-side lawyers the importance of obtaining production of the entire file in order to scrutinize expert reports filed in light of the experience gained in that case.

[67] At a high level, the question of the relationship between insured and insurer and the role of IME’s and assessment companies in that system was found to be a matter of public interest in Assessmed Inc. v. Canadian Broadcasting Corp., (ON SC) at paras. 268-271; aff’d (ON CA).

Warning other lawyers about the dangers of various strategies and practices does more than just help these lawyers win more cases or make more money. It improves the administration of justice, and that in of itself is a great matter of public interest (para 71).

Justice Dunphy also assessed the procedural fairness and constitutional issues around the new anti-SLAPP provisions. He adopted his decision earlier this year in Able Translations Ltd. v Express International Translations Inc., rejecting that a reverse-onus existed here.

Instead, the standard here, imported from Mugesera v. Canada (Minister of Citizenship and Immigration) at para 114, is that there is a “reasonable grounds to believe.” This was a more appropriate manner to apply the first part of the 2-part anti-SLAPP test,

[87] In my view, the responding party under s 137.1(4)(a) bears the burden of establishing on objective evidence that shows beyond mere suspicion and based on “compelling and credible information” both that the claim has ”substantial merit” and that there is “no valid defence”. How high a probability of success in establishing the claim or the affirmative defence must be made out is something that will have to be worked out on a case-by-case basis.

He found that the jurisprudence around the air of reality test for setting aside default judgment under Rule 19.08 to be instructive, without importing those decisions into the anti-SLAPP procedures, leaving the exact balance for the defence raised in these proceedings to be determined by subsequent cases.

Of course, if a statement is true it also enjoys the defence of justification. As President-elect of the OTLA, the defendant also claimed the defence of qualified privilege. In this case, Justice Dunphy also found these defences to be reasonably likely to succeed at trial.

For the second part of the 2-part test under s. 137.1(4)(b), Justice Dunphy conducted a public interest weighing of allowing the proceeding to continue versus the merits of the communication, a very new area of law with little guidance.

In this particular case, it appeared that the harm suffered or likely to be suffered by the plaintiff was rather low, and suffered before the alleged distribution to third-parties occurred,

[128] If the plaintiff’s harm is slight, might there nonetheless be a public interest in allowing the plaintiff whose reputation has been harmed an opportunity to clear his name, if only for nominal damages? It seems hard to imagine how this might be so given that general damages might normally be expected to be assessed for a serious and unfounded assault on reputation. However, I need not decide the point here.

Instead, he emphasized the importance of freedom of expression, particularly to engage in robust discussions that involve the public interest. This interest was even stronger when connected to the administration of justice, as described above,

[133] There is evidence that the law suits that followed this email had the effect of chilling to a material degree the ability of the president-elect of the OTLA to participate freely in debates on the subject-matter of the email.

Freedom of expression created an important backdrop when Justice Dunpnhy in his analysis of any relevant Charter principles. The plaintiff attempted to “read down” the anti-SLAPP provisions, to have them interpreted narrowly, due to vagueness, over breadth, and denial of due process.

This submission was rejected, in place of the principled approach of statutory interpretation,

[143] In my view, inserting the concept of “Charter principles” into the process of statutory construction before determining the intentions of Parliament in the first place… places the remedial cart before the interpretation horse. The Charter represents the borders of the canvass upon which Parliament is constitutionally authorized to paint its laws. Those borders have not been placed there to deflect Parliament’s brush before it has gone past them. The plaintiff would have the court steer Parliament’s hand clear of approaching the line instead of deciding when it has actually done so. The latter is my proper role; the former is not. Charter-values do not govern the task of interpreting legislation when no breach of the Charter exists.

Justice Dunphy then rejected the plaintiff’s s. 7 argument, that he was deprived of procedural fairness and a the principles of fundamental justice. The tight time deadlines, the cost sanctions, and what the plaintiff termed a “reverse onus,” did not violate the principles of fundamental justice.

Although the Court in Blencoe v. British Columbia (Human Rights Commission) held the liberty interest in s. 7 is no longer restricted to a freedom from physical constraint, this still required a nexus between security of the person and reputation where it is state-imposed and the stress is “serious,” and even then, these cases would be exceptional. There was no evidence in this case to substantiate the type of psychological harm claimed by the plaintiff.

At para 97, the Court in Blencoe explicitly rejected the proposition that dignity or reputation could themselves become a protected Charter right, even when these values often underlie many of the rights in the Charter.

Justice Dunphy awarded full indemnity costs against the plaintiff, for the motion and the proceedings as a whole, because the defendant’s defences were objectively strong and ought to have been well-known to the plaintiff, especially as it related to the defence of justification.

Although Platnick dealt with a plaintiff who served the legal industry, rather than being a member of it, the principles are still important when considering claims of defamation, especially between lawyers. Ezra Levant’s unsuccessfully defended cases in Vigna (and costs) and Awan are still instructive on this point of the type of conduct that does rise to this level, although the anti-SLAPP provisions will modify this analysis entirely.

As one of the early anti-SLAPP decisions, Platnick provides significant guidance as to how these new provisions will be applied, while signalling that some issues, like the weighing of the public interest, will still need to be explored.

For example, Justice Dunphy wondered at para 128 whether there would be a public interest in allowing a matter to proceed where there were only nominal damages, because if there was a serious and unfounded assault on a reputation, then larger general damages would be expected. This question will be likely be explored further in subsequent cases.

The decision also dealt with some creative and unusual constitutional arguments around these provisions (a s. 15 argument was also raised, as was a preliminary motion, but are not worth commenting on).

Reputational torts like slander and libel are likely to be subject to a far greater weighing of the broader context, whereas the newer frontiers of growth are likely to be in the are of privacy torts, protecting other aspects of reputation which have a far less significant public interest component.