by Written on behalf of Wise Health Law September 20, 2018 8 min read

The Ontario Court of Appeal has released a series of decisions interpreting Ontario's new anti-gagging legislation known as the SLAPP provisions. SLAPP is the acronym for "a strategic lawsuit against public participation." The goal of the legislation is to encourage public debate without the fear of legal reprisal. In the case discussed here a lawyer who had allegedly defamed a physician sought to use the provisions to end the lawsuit and was successful at first instance. The physician appealed the decision and was successful before the OCA. Background: The physician at issue spends most of his professional time working for liability insurers. They retain him to review and prepare medical assessments of tort plaintiff’s when they are pursuing claims for benefits and damages following primarily motor vehicle accidents. The lawyer at issue acts primarily for those injured plaintiff’s and was also then the President of the Ontario Trial Lawyers Association (OTLA) organized and exclusively dedicated to lawyers, clerks and law students advocating for plaintiffs in the automobile insurance dispute resolution process. The tale is emblematic of the war between automobile insurers and the plaintiffs who make claims against them. The lawyer acted for such a claimant. One of the claims was for a "designation of catastrophic impairment" which allowed for greater first party benefits. That designation is achieved through a scoring system of the impairments due to injury under the Insurance Act. Here, the insurer sought an independent evaluation using various medical specialists who performed their own clinical examinations and reported back to the insurer. The insurer then retained the physician to do an impairment calculation using all of the collected reports. The physician’s report referred to the reports of all the medical specialists he reviewed and then concluded that the lawyer's client was not catastrophically impaired based on the consensus opinion of all the medical specialists. The physician's report contained a signing page for all of the experts. The insurer was to obtain those signatures. They could not as in fact there was no consensus of opinion. The insurer served the physician's report without the signing page. The lawyer, however, received the full, but an unsigned report, and the reports of the other specialists. Arbitration followed to resolve the catastrophic impairment issue. At the hearing, another doctor, a neurologist testified that he had never seen the physician's report, did not agree with its conclusion and that portions of his own report had been redacted without his permission. As a result, the insurer “caved” and the lawyer's client was given her benefits and her full indemnity costs. The Alleged Libellous Email: The lawyer although happy with the result was concerned with the process and its lack of public awareness. She posted an email on the supposedly confidential OTLA email list. The email was made public by unknown recipients from among the 670 members of OTLA. It read:
<1> I am involved in an arbitration on the issue of catastrophic impairment where did the multi-disciplinary assessments for . Last Thursday, under cross-examination the IE neurologist, < > testified that large and critically important sections of the report he submitted to had been removed without his knowledge or consent. The sections were very favourable to our client. He never saw the final version of his report which was sent to us and he never signed off on it. <2> He also testified that he never participated in any “consensus meeting” and he never was shown or agreed to the Executive Summary, prepared by which was signed by as being the consensus of the entire team. <3> This was NOT the only report that had been altered. We obtained copies of all the doctor’s file and drafts and there was a paper trail from where they rewrote the doctors’ reports to change their conclusion from our client having a catastrophic impairment to our client not having a catastrophic impairment. <4> This was all produced before the arbitration but for some reason the other lawyer didn’t appear to know what was in the file (there were thousands of pages produced). He must have received instructions from the insurance company to shut it down at all costs on Thursday night because it offered an obscene amount of money to settle, which our client accepted. <5> I am disappointed that this conduct was not made public by way of a decision but I wanted to alert you, my colleagues, to always get the assessor’s and files. This is not an isolated example as I had another file where Dr. Platnick changed doctor’s decision from a marked to a moderate impairment.
The Lawsuit: When the physician became aware of the email he sued the lawyer and her law firm for defamation. The claim had substantial merit and this was not disputed. It had a real chance of success. The lawyer, however, relied on the affirmative defenses of justification (truth) and qualified privilege (the right to do so). Freedom of Expression on Matters of Public Interest (SLAPP): The lawyer brought a motion under the new Ontario SLAPP rules found in the Courts of Justice Act. Section 137 allows for a motion to dismiss an action at an early stage where the proceeding arises from an expression (the email) that relates to the public interest. If the expression does so relate, the judge shall dismiss the claim, unless the plaintiff (the physician) establishes that there are grounds to believe that the proceeding has substantial merit, and, there is no valid defence. Public Interest: The meaning of “public interest” had been more thoroughly dealt with in the concurrently released decision of the Ontario Court of Appeal (OCA) in 1704604 Ontario Ltd. V. Pointes Protection Association at paras 50-66. This followed closely on the reasoning of the Supreme Court of Canada (SCC) in Grant v. Torstar Corp. The lawyers email clearly satisfied the test. It was sent in a concern over the integrity of the insurance benefits process which impacted a significant portion of the public. Further, it was received by persons with a legitimate and important interest in that process. That would lead to a dismissal of the physician's action unless he could satisfy the saving tests of substantial merit and there being no valid defences. The Merit Tests: Liability: Substantial Merit to the Claim: The OCA in Pointes made it clear that the onus to satisfy both tests is on the plaintiff. Here they refined the test to be: “Could a reasonable trier conclude that had a real chance of establishing that he was libeled and could a reasonable trier conclude that the lawyer had no valid defence to the allegation”? If there was a reasonable positive answer to both tests the onus was met. On deciding the “substantial merit” issue the analysis must not be “is there a genuine issue for trial” as is the case for motions for summary judgment as it is a step brought early in the process and given the summary nature of the proceeding. The judge is to wear the lens of reasonableness which is a less demanding inquiry. As discussed the claim was conceded to have substantial merit so the outcome of the motion hinged on whether the physician could establish on reasonable grounds that the lawyer had no valid defences. Defences: Justification- I told the Truth: The substance of the lawyer's email was to claim that on two occasions that the physician had misrepresented or altered the opinions of other doctors to deprive qualified insureds from receiving the benefits they were due. These were allegations of dishonesty and serious professional misconduct. Therefore, despite the word consensus, the lawyer would have to establish as true, that the physician had deliberately misrepresented the opinions of other experts. The physician said he had not and explained the process used in his work. It was not the function of the court at this stage to accept or reject the explanation offered. It was the lawyers onus at trial to prove her defence of truth and the explanation, if accepted, would rebut the truth of the expression. The physician had, therefore, met the onus. Qualified Privilege-The Right to Do So: This defence deals with the occasion on which the lawyer's email was sent. The communication is privileged if the sender had a moral, legal or social duty to send it and the recipients had a corresponding duty to accept it. This is a question of law, the onus being on the lawyer. If it is such an occasion, her bona fidesis presumed and the libel is excused. The presumption can be rebutted by the physician by showing that the lawyer sent the email maliciously, dishonestly or with a reckless disregard for the truth. Further, the communication must be confined to the discharge of the duty said to lead to the privilege. Accordingly, the first four paragraphs of the email appear to meet the test. The firth paragraph, however, does not. The comment refers to an event two years in the past. The comment was not necessary to the lawyer’s duty and purpose in warning fellow OTLA members to thoroughly check and investigate medical reports from insurers. The allegation could be seen as a gratuitous and inaccurate attack by the lawyer on the character of the physician. It is also reasonable to infer that the lawyer was reckless when she sent her email. One More Test- A Balancing of Competing Interests: If the physician had not met the merits tests he still could save his action by showing that the impact on him of the expression (the email) was sufficiently serious such that the weight of that finding outweighed the public interest in protecting the expression contained in the lawyers email. The court must examine the motives of both parties to the action. Does this claim have the hallmarks of a classic SLAPP? The indicia of a SLAPP include:
  • a history of the plaintiff using litigation or the threat of litigation to silence critics;
  • a financial or power imbalance that strongly favours the plaintiff;
  • a punitive or retributory purpose animating the plaintiff’s bringing of the claim; and
  • minimal or nominal damages suffered by the plaintiff.
None of the criteria applied to the physician's claim. In particular, his claim to damages would be significant. He was the subject of a serious allegation made by the lawyer, a prominent member of the plaintiff’s bar and a partner in one of Canada’s most prominent personal injury firms. The evidence showed both significant general and pecuniary damages were suffered by the physician casually connected to the publication of the expression. Conclusion: The physician will have his day in court. The OCA has laid out the groundwork for the action. This should help him in his cause. The action will be expensive and time consuming for both parties. Perhaps the lesson is patience, to not jump to action based on assumptions and to carefully consider what, and how, you deliver your message. Acting recklessly, even with the best of intentions and firmly believing it to be true, will not save you. The lawyers at Wise Health Law, are passionate about helping health professionals and healthcare organizations understand and protect their legal rights. We monitor trends and developments in the health sector so that we can provide consistently forward-thinking legal advice and risk management guidance to all of our clients. Our lawyers have significant trial and appellate experience and will skillfully represent clients whenever litigation is required. Contact us online, or at 416-915-4234 for a consultation.

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