Dear Colleagues;

I was interested to see that the Supreme Court of Canada handed down a divided opinion on the qualified privilege defence in defamation in Bent v. Platnick, 2020 SCC 23 (Sept 10, 2020) https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18459/index.do . The case was one half of a pair of decisions on Ontario’s so-called “anti-SLAPP legislation”, aimed at stopping litigation the purpose of which is to stifle public debate on important public policy issues. (The other decision was 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, handed down at the same time. I won’t comment on that one, but contract law colleagues may want to. That case seemed to be much more the sort of case that the legislation should apply to.)

On the defamation issues, in Bent there was a 5-4 majority which held that a qualified privilege defence ought to be allowed to go to full trial. The plaintiff P was a medical practitioner who had been named by the defendant B, a senior lawyer, on an email list used by lawyers, as behaving unprofessionally (it was alleged that “P “altered” doctors’ reports and “changed” a doctor’s decision as to the victim’s level of impairment”). The defendant, when sued for defamation, then tried to invoke the SLAPP legislation to claim that the defamation case should be dismissed without a full hearing.

A majority of the court (Côté J writing the judgment) held that while Bent was able to invoke the statute because the case had important public interest elements, P was able to discharge his obligation to show that “there are grounds to believe that his defamation proceeding has substantial merit and that B has no valid defence to it”.

I won’t go into the details, but I must confess to being surprised by the fact that the legislation in this sort of case ends up with the court having to conduct what seems to be a “trial before the trial” of the defamation case (in the absence of full evidence), and P came very close to not being able to even fully challenge B’s qualified privilege defence.

To quote part of the court’s summary:

 

“P has established on a balance of probabilities that the harm likely to be or have been suffered as a result of B’s expression is sufficiently serious that the public interest in permitting his defamation proceeding to continue outweighs the public interest in protecting B’s expression. In light of the open-ended nature of s. 137.1(4)(b), courts have the power to scrutinize what is really going on in the particular case before them. 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 seemingly legitimate harm suffered as a result of a defamatory communication. This is not the type of case that comes within the legislature’s contemplation of one deserving to be summarily dismissed at an early stage, nor does it come within the language of the statute requiring such a dismissal.”

 

The dissenters would have ruled that B had a fully established defence of qualified privilege and hence the claim should not have been allowed to proceed.

Regards

Neil

 

 

NEIL FOSTER

Associate Professor, Newcastle Law School

Acting Program Convener, LLB(Hons)

Faculty of Business and Law

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