Professor Hilary Young reacts to SCC defamation decisions

Author: Professor Hilary Young

Posted on Sep 16, 2020

Category: Faculty

On Thursday, the Supreme Court of Canada released its decisions in two companion cases—the first on Ontario's anti-SLAPP legislation, the Protection of Public Participation Act. 1704604 Ontario Ltd v Pointes Protection involved an alleged breach of contract and was notable for affirming the interpretation of statutory language such as "substantial merit" and "grounds to believe."

The second case, Bent v Platnick, was more contentious. It involved a personal injury defence lawyer, Ms. Bent, who warned other such lawyers, via a closed listserv, about the allegedly dishonest practices of a physician. She alleged that Dr. Platnick, who was frequently hired by insurance companies to review medical assessments of injured plaintiffs, had changed doctors’ reports in a way favourable to insurance companies. Someone leaked the allegations outside the listserv and Dr. Platnick lost virtually all his consulting income. He sued in defamation. Ms. Bent responded with an anti-SLAPP motion.

The court split 5/4 on whether the case could proceed. While the majority ultimately said it could, the Court’s decision is nevertheless a strong endorsement of Ontario’s anti-SLAPP law and of freedom of expression. After all, the statements were clearly (prima facie) defamatory, at least some of the allegations were not strictly true, and the parties were sophisticated. Nevertheless, a four-person minority would have dismissed the case without a trial.

Bent is also notable for its narrow interpretation of the scope of the qualified privilege defence. A majority of the Court concluded that Ms. Bent exceeded the scope of any privilege because it wasn't necessary to mention the doctor's name or to make the second of two allegations, about which the lawyer didn't have much direct knowledge. The dissent thought that too narrow a scope for qualified privilege since very little is strictly necessary to say, and it was important to name the doctor.

The Majority’s approach in Platnick appears to narrow the scope of qualified privilege and is, in my view, problematic for many of the reasons set out in the dissent.

A final interesting issue raised by Bent is responsibility for republication. The email containing the allegations against Dr. Platnick was sent to members of a closed listserv who were explicitly prohibited from sharing the contents of posts outside of the group. The Majority would have found Ms. Bent responsible for the broader, explicitly-prohibited re-publication because it was foreseeable. The dissenting judges would not. They would have limited any damages to those for injury caused by publication only to members of the original closed group. This has implications for people who post online. Where you communicate to a small group, but the post goes viral, you may be responsible for other people’s republications of your words.

Ontario enacted its anti-SLAPP law in 2015 and British Columbia enacted virtually identical legislation in 2019. They represent an important development in the law. In Pointes Protection and Bent, the Supreme Court of Canada endorsed the need to dismiss proceedings at an early stage when they unjustifiably threaten expression. While access to the trial process must not be unduly restricted, anti-SLAPP motions are a powerful tool for protecting speech on matters of public interest. More provinces should consider adopting similar legislation.

Professor Young’s research focuses on defamation, privacy, tort, and health law. Read more about her research.