



COURT OF APPEAL FOR ONTARIO

CITATION: Platnick v. Bent, 2018 ONCA 687

DATE: 20180830

DOCKET: C63103

Doherty, Brown and Huscroft JJ.A.

BETWEEN

Howard Platnick

Plaintiff (Appellant)

and

Maia Bent and Lerners LLP

Defendants (Respondents)

Timothy S. B. Danson and Marjan Delavar, for the
    appellant

Howard Winkler, Eryn Pond and Andrew K. Lokan, for the
    respondent, Maia Bent

Terrence J. OSullivan and Laura M. Wagner, for the
    respondent, Lerners LLP

Hart Schwartz, for the intervener, the Attorney General
    of Ontario

Heard: June 28, 2017

On appeal from the order of Justice Sean F. Dunphy of the
    Superior Court of Justice, dated December 1, 2016, with reasons reported at
    2016 ONSC 7340, 136 O.R. (3d) 339, and from the costs order, dated January 24,
    2017, with reasons reported at 2017 ONSC 585.

Doherty J.A.:



I



A.

overview

[1]

The appellant sued the respondents for libel, claiming damages of more
    than $15 million. The respondents defended the claim, advancing several
    defences, including justification and qualified privilege.

[2]

The respondents successfully moved for a dismissal of the action under
    s. 137.1 of the
Court of Justice Act
, R.S.O. 1990, c. C.43 (
CJA
).
    The motion judge awarded the respondent, Maia Bent, her costs on a full
    indemnity basis, fixed at $282,943.42. He awarded the respondent, Lerners LLP,
    its costs on a partial indemnity basis, fixed at $30,000.

[3]

The appellant appeals from the dismissal of the action. If that appeal
    is dismissed, the appellant seeks leave to appeal from the costs order.

[4]

For the reasons that follow, I would hold that although the motion
    judge correctly determined that the expression in issue related to a matter of
    public interest, he erred in concluding that the appellant had failed to meet
    his onus under ss. 137.1(4)(a) and (b). I would hold that on a proper
    application of those provisions to the motion record, the appellant met that
    onus. I would further hold that s. 137.1 does not infringe s. 7 or s. 15 of the
Canadian Charter of Rights and Freedoms
.

[5]

I would allow the appeal, set aside the dismissal of the action, and
    remit the matter to the trial court. Given my disposition of the main appeal,
    it is unnecessary to consider the application for leave to appeal the costs
    order.

B.

the facts

[6]

The appellant, Howard Platnick (Dr. Platnick), is a medical doctor. He
    spends much of his professional time preparing and reviewing medical
    assessments done in the context of disputes between insurers and persons injured
    in motor vehicle accidents. Dr. Platnick works mostly, but not exclusively, for
    insurers.

[7]

The respondent, Maia Bent (Ms. Bent), is a lawyer and partner with the
    respondent law firm, Lerners LLP (Lerners). She acts for individuals who have
    been injured in motor vehicle accidents and are seeking compensation from
    insurers. At the relevant time, Ms. Bent was also the president-elect of the
    Ontario Trial Lawyers Association (OTLA), an organization of lawyers, law
    clerks, and law students who represent persons injured in motor vehicle
    accidents and who are involved in the automobile insurance dispute resolution
    process.

[8]

In November 2014, Ms. Bent was acting for Dr. Laura Carpenter, who had
    been injured in a motor vehicle accident. Dr. Carpenter claimed to have
    suffered a catastrophic impairment as a result of the accident. That
    designation would entitle her to claim enhanced medical and other insurance
    benefits from the insurer.

[9]

The determination of whether an individual has suffered a catastrophic
    impairment is made using criteria and guidelines set out in, or incorporated
    into, the
Statutory Accidents Benefits Schedule
, O. Reg 34/10 under
    the
Insurance Act
, R.S.O. 1990, c. I.8 (SABS). The scheme
    contemplates a variety of medical assessments using a scoring system for various
    kinds of impairments and a ranking of levels of impairment for various
    activities or bodily functions.

[10]

The
    insurer can request a catastrophic impairment evaluation. That evaluation involves
    assessments by various medical professionals with different specialities. Some
    are very familiar with the criteria set out in the SABS and others are not. Insurers
    generally retain someone to obtain the necessary medical evaluations and to prepare
    the necessary reports and assessments.

[11]

In
    Dr. Carpenters case, the insurer retained SLR Assessments (Sibley). Sibley retained
    the experts with the necessary specialities to perform Dr. Carpenters
    assessment. Those experts provided their reports to Sibley. Sibley corresponded
    directly with those experts in respect of issues raised by their assessments.

[12]

Sibley
    also retained Dr. Platnick. Dr. Platnick is not a specialist. He was not asked
    to examine Dr. Carpenter or to assess her medical condition from a clinical perspective.
    Dr. Platnick was retained to do an impairment calculation based on the application
    of the applicable criteria in the SABS to the entirety of the medical
    information available, including the assessments prepared by the various experts.

[13]

Sibley
    provided the medical records and expert reports to Dr. Platnick. Dr. Platnick prepared
    a report, which he sent to Sibley.

[14]

Dr.
    Platnicks report entitled Catastrophic Impairment Determination begins with
    the following observation:

My calculations detailed below incorporate and consider the
    findings of all assessors on this CAT assessment team.

[15]

Dr.
    Platnicks report proceeds to examine the various criteria in the SABS that
    were relevant to Dr. Carpenters catastrophic impairment assessment. In his report,
    Dr. Platnick makes extensive reference to the assessments of the other
    specialists, including the neurologist, Dr. King. At the end of the report
    under the heading Impairment Calculation, Dr. Platnick sets out his
    conclusions based on the specialists reports. He concludes that Dr. Carpenter
    does not meet the catastrophic impairment requirements under any of the
    criteria.

[16]

After
    setting out his conclusion based on the information provided by the other
    experts, Dr. Platnick writes:

It is the consensus conclusion of this assessment that [Dr.
    Carpenter] does not achieve the catastrophic impairment rating as outlined in
    the SABS.

[17]

Dr.
    Platnick had not spoken to any of the other experts who had assessed Dr.
    Carpenter when he wrote his report. Following his usual practice, he sent the
    report only to Sibley.

[18]

The
    report Dr. Platnick sent to Sibley had an acknowledgement page attached to the
    back. That acknowledgement page indicated that Dr. Platnicks executive summary
    was a consensus conclusion of this assessment. The acknowledgment page had a
    place for the signature of each of the other specialists who had assessed Dr.
    Carpenter. There were no signatures on that document when Dr. Platnick returned
    it to Sibley. In the normal course, Sibley would obtain those signatures. In
    Dr. Carpenters case, no acknowledgement was ever signed by the other experts
    and, as it turned out, there was not a consensus of opinion among them.

[19]

Sibley
    provided Ms. Bent with a document entitled Catastrophic Determination
    Executive Summary Report. That document was identical to the report prepared
    by Dr. Platnick, except that it did not have the acknowledgment page on the
    back. Ms. Bent did, however, receive a copy of Dr. Platnicks report with the
    unsigned acknowledgment. She also obtained the reports from the other
    specialists and related documentation.

[20]

The
    dispute proceeded to arbitration before the Financial Services Commission of
    Ontario. The insurer relied on Dr. Platnicks report and his opinion that Dr.
    Carpenter did not meet the catastrophic impairment rating criteria.

[21]

Dr.
    King, who had done Dr. Carpenters neurological assessment for the insurers catastrophic
    impairment evaluation, testified at the arbitration. He indicated that he had not
    participated in any consensus meeting of the experts, that he had not seen or
    signed Dr. Platnicks report, and that portions of his report had been omitted
    without his knowledge or consent.

[22]

After
    Dr. King testified, the insurer offered to settle. An initial offer was
    refused, but a second offer was accepted. Under the settlement, Dr. Carpenter
    received a catastrophic designation, reinstatement of benefits, and payments of
    past medical and rehabilitative expenses with interest. The insurer also agreed
    to fully indemnify Dr. Carpenter for fees and disbursements, even though
    successful parties in the arbitration process normally receive only nominal
    costs.

[23]

Ms.
    Bent was convinced that the insurer settled the arbitration on terms very
    favourable to her client to avoid public scrutiny of the insurers conduct in
    respect of the medical evidence produced at the arbitration. Ms. Bent believed
    that Dr. Kings evidence, combined with her own examination of the relevant
    documents, revealed an attempt to misrepresent the opinions of the medical experts
    who had examined Dr. Carpenter and mislead the arbitrator as to Dr. Carpenters
    entitlement to a catastrophic impairment designation.

[24]

A
    few days after the settlement, Ms. Bent posted an email on the OTLA member Listserv,
    an automated email service. Only OTLA members could subscribe to the Listserv. Some
    members subscribed and some did not. There were about 670 subscribers. Members
    who subscribe are obligated to undertake, in writing, to maintain the confidentiality
    of the information provided on the Listserv. However, Ms. Bents email was leaked,
    first to an advocacy organization and shortly thereafter to the press.

[25]

Ms.
    Bents email, dated November 10, 2014, bears the subject line Sibley Alters Doctors
    Reports. As the contents of the email are the basis for the defamation claim,
    I have set it out in full below. I have numbered each paragraph for the
    purposes of subsequent references in this judgment to parts of the email.

[1] I am involved in an arbitration on the issue of
    catastrophic impairment where Sibley aka SLR Assessments did the multi
    disciplinary assessments for TD Insurance. Last Thursday, under
    cross-examination the IE neurologist, Dr. King, testified that large and critically
    important sections of the report he submitted to Sibley 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
    Dr. Platnick, which was signed by Dr. Platnick 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 doctors file[s] and drafts and there was a paper trail from
    Sibley 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 didnt 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
    assessors and Sibleys files. This is not an isolated example as I had another
    file where Dr. Platnick changed the doctors decision from a marked to a
    moderate impairment.

[26]

The
    first four paragraphs of the email refer to Dr. Carpenters arbitration. The
    last sentence of the fifth paragraph refers to a Catastrophic Determination Report
    prepared by Dr. Platnick about two years earlier in an unrelated case. The
    reference to Dr. Platnick changing another doctors decision from a marked to
    a moderate impairment is a reference to a psychiatric assessment report done
    by a Dr. Dua. I will refer to that incident in more detail when considering the
    justification defence.

[27]

Dr.
    Platnick became aware of the email shortly after it was sent. He requested an
    apology and a retraction. When his requests went unanswered, he commenced this
    lawsuit.

C.

the motions

[28]

Ms.
    Bent brought a motion under s. 137.1 of the
CJA
to dismiss Dr.
    Platnicks claim against her. Although Lerners did not bring a similar motion, it
    was common ground that if Ms. Bents motion succeeded, the action should also
    be dismissed against Lerners.

[29]

In
    the course of the s. 137.1 motion, the appellant brought a motion seeking
    various orders in relation to the conduct of the s. 137.1 motion.
[1]
He also brought a motion for a declaration that s. 137.1 infringed ss. 7 and/or
    15 of the
Charter
and was therefore of no force or effect.

[30]

The
    motion judge rejected the constitutional arguments. The appellant renews those
    arguments on appeal.

[31]

In
    allowing Ms. Bents s. 137.1 motion, the motion judge reached three significant
    conclusions. He held that:

·

Ms. Bent had established that her email constituted expression in
    respect of a matter of public interest (s. 137.1(3));

·

Dr. Platnick had failed to satisfy him that there were grounds to
    believe that Ms. Bent did not have a valid defence to Dr. Platnicks libel
    claim (s. 137.1(4)(a)(ii)); and

·

Dr. Platnick had not satisfied him that the harm suffered or likely
    to be suffered by Dr. Platnick as a result of the email was sufficiently
    serious that the public interest in allowing Dr. Platnick to proceed with his
    claim outweighed the public interest in protecting Ms. Bents expression (s.
    137.1(4)(b)).

[32]

The
    appellant challenges all three holdings. To succeed on the appeal, he must
    demonstrate either that the motion judge erred in his s. 137.1(3) determination
    that the expression in the email related to a matter of public interest, or
    that he erred both in his determination under s. 137.1(4)(a)(ii), concerning
    the validity of the defences advanced, and his s. 137.1(4)(b) assessment of the
    competing public interests. In addition, to succeed on the appeal, Dr. Platnick
    must establish, as required by s. 137.1(4)(a)(i), that there are grounds to
    believe that his claim has substantial merit. The motion judge found it
    unnecessary to decide this point in light of his conclusions outlined above.

[33]

I
    will first examine the arguments that turn on the interpretation of the
    relevant provisions of s. 137.1. I will then consider the constitutional
    arguments.

D.

the interpretation of section 137.1

(i)

Did the Motion Judge Err in his Interpretation of s. 137.1(3)?

[34]

Section
    137.1(3) provides:

On a motion by a person against whom a proceeding is brought, a
    judge shall, subject to subsection (4), dismiss the proceeding against the
    person if the person satisfies the judge that the proceeding arises from an
    expression made by the person that relates to a matter of public interest.

[35]

This court considered the purpose of s. 137.1 in
1704604
    Ontario Ltd. v. Pointes Protection Association
,
2018 ONCA 685, at paras. 27-49 (released concurrently
    with these reasons), at length. I need not repeat that analysis. This court
    also considered the meaning of public interest in s. 137.1(3) in
Pointes
, at paras. 50-66. This courts analysis of that
    provision is consistent with the motion judges analysis in this case: see paras.
    61-79 of his reasons. Both lean heavily on the description of public interest
    set out in
Grant v. Torstar Corp.
, 2009 SCC 61, [2009] 3 S.C.R. 640.

[36]

Like
    the motion judge, I view the email as relating to a matter of importance to the
    proper administration of justice in Ontario. The email relates to the process
    put in place by the legislature for the determination of claims made by persons
    injured in motor vehicle accidents. The email raises concerns about the
    integrity of that process and, in particular, the honesty and reliability of
    medical reports filed on behalf of insurers in the arbitration process. The
    integrity and reliability of that process has a direct impact on a significant
    segment of the public.

[37]

The
    email is also directed at persons with a vital interest in ensuring the honesty
    and integrity of the arbitration process. That interest is part of their greater
    responsibility to fully and effectively represent the interests of clients advancing
    claims under the scheme.

[38]

It
    is important to emphasize that a finding that expression relates to a matter of
    public interest says nothing about the merits of Dr. Platnicks claim that the
    email libelled him. An expression may be defamatory, false, and malicious and
    still relate to a matter of public interest:
Pointes
, at para. 55. Similarly,
    a finding that expression relates to a matter of public interest does not
    determine the outcome of a s. 137.1 motion. The outcome depends on the analysis
    required under s. 137.1(4).

[39]

In
    arguing for a very narrow reading of s. 137.1(3) that would limit the section
    to a very serious societal or public interest, Dr. Platnick submits that constitutional
    values, which include the protection of reputation, must inform the
    interpretation. The relationship between
Charter
principles and
    statutory interpretation is explained in
R. v. Rodgers
, 2006 SCC 15, [
2006] 1 S.C.R. 554, at
    paras. 18-19:

It has long been accepted that courts should apply and develop
    common law rules in accordance with the values and principles enshrined in the
Charter
.
    However, it is equally well settled that, in the interpretation of a statute,
Charter
values as an interpretative tool can
only
play a role where there is a
    genuine ambiguity in the legislation. In other words, where the legislation
    permits two different, yet equally plausible, interpretations, each of which is
    equally consistent with the apparent purpose of the statute, it is appropriate
    to prefer the interpretation that accords with
Charter
principles.
    However, where a statute is not ambiguous, the court must give effect to the
    clearly expressed legislative intent and not use the
Charter
to
    achieve a different result.

If this limit were not imposed on the use of the
Charter
as an interpretive tool, the application of
Charter
principles as an
    overarching rule of statutory interpretation could well frustrate the legislators
    intent in the enactment of the provision. Moreover, it would deprive the
Charter
of its more powerful purpose  the determination of the constitutional validity
    of legislation. [Citations omitted; emphasis in original.]

[40]

Dr.
    Platnick approaches the interpretation of s. 137.1 in the manner rejected in
Rodgers
.
    He sets out the constitutional values that he says must guide the balancing of
    the competing interests of protecting reputation and freedom of expression and
    then urges this court to read the statute, regardless of what it actually says,
    to accord with the proper balancing of those competing interests. As the motion
    judge put it in rejecting this argument, at para. 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 [
sic
] upon which Parliament is constitutionally authorized to
    paint its laws. Those borders have not been placed there to deflect
    Parliaments brush
before
it has gone past them. The plaintiff would
    have the court steer Parliaments 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 [
sic
] do not govern the task of
    interpreting legislation when no breach of the
Charter
exists.
    [Emphasis in original.]

[41]

In
    my view, the motion judge properly defined the term public interest in s.
    137.1(3). The evidence before the motion judge fully supported his conclusion
    that the email constituted expression in relation to a matter of public interest.

(ii)

Did the Motion Judge Err in his Interpretation of s. 137.1(4)(a)?

[42]

Sections
    137.1(4)(a) and (b) set out the criteria upon which the motion judge must
    decide whether the claim should proceed. Section 137.1(4)(a) addresses the
    merits of the claim. It reads:

A judge shall not dismiss a proceeding under subsection (3) if
    the responding party [plaintiff] satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party [defendant] has no valid defence in
    the proceeding;

[43]

As
    explained in
Pointes
, at paras. 69-70 and 75, s. 137.1(4)(a) puts the
    onus on the plaintiff (responding party) to establish on the balance of
    probabilities that there are reasonable grounds to believe both that the
    plaintiffs claim has substantial merit and that the defendant (moving party) has
    no valid defence. Broadly speaking, the section provides a mechanism whereby
    claims that have little apparent merit and that potentially undermine freedom
    of expression can be screened out of the litigation process at an early stage.

[44]

Placed
    in the context of this case, the question raised by s. 137.1(4)(a) becomes:

Could a reasonable trier conclude that Dr. Platnick had a real
    chance of establishing that he was libelled and could a reasonable trier
    conclude that Ms. Bent had no valid defence to the allegation?

If affirmative answers to both questions were within
    the range of conclusions reasonably available on the motion record, Dr.
    Platnick had met his onus under s. 137.1(4)(a).

[45]

As is evident from the analysis in
Pointes
, I agree with several aspects of the motion judges
    analysis. Like him, I reject the no genuine issue for trial test as
    applicable to s. 137.1(4)(a): see paras. 81-82 of his reasons. I also agree
    that the merits inquiry dictated by s. 137.1(4)(a) must be approached having
    regard to the summary nature of the motion and the point in the proceedings in
    which the motion is brought: para. 83.

[46]

I would not, however,
    adopt the compelling and credible information standard taken by the motion
    judge from
Mugesera v. Canada (Minister of Citizenship and
    Immigration)
, 2005 SCC 40, [2005] 2
    S.C.R. 100. In
Mugesera
,
    the court was concerned with s. 19(1) of the
Immigration Act
, R.S.C. 1985, c. I-2, which provided that a person should
    not be granted admission into Canada if there were reasonable grounds to
    believe that the person had committed a war crime or a crime against
    humanity outside of Canada. In interpreting the provision, the court said, at
    para. 114:

In essence, reasonable grounds will exist where there is an
    objective basis for the belief which is based on compelling and credible
    information.

[47]

The kind of determination under consideration in
Mugesera
was very different from the determination a motion
    judge must make on a s. 137.1 motion. In
Mugesera
, the Immigration and Refugee Board (Appeal Division),
    after hearing 24 days of evidence, had to decide whether there were reasonable
    grounds to believe that Mr. Mugesera had committed war crimes and crimes
    against humanity. This involved determining whether there were reasonable
    grounds to believe that certain facts existed which, as a matter of law, would
    constitute such crimes. The description of the reasonable grounds to believe
    standard as requiring compelling and credible information was made in the
    context of a fact-finding exercise carried out after a hearing that lasted over
    three weeks. Mr. Mugeseras right to stay in the country hinged on that
    fact-finding.

[48]

A motion judge
    conducting a s. 137.1 motion does not make findings of fact under s.
    137.1(4)(a). Instead, the motion judge assesses, at a preliminary stage and
    through the reasonableness lens, the merits of the plaintiffs claim and the
    validity of any defences advanced. The motion judge does so for the purpose of
    determining whether the lawsuit should be allowed to proceed through the normal
    process. In my view, the phrase reasonable grounds to believe used in the context
    of s. 137.1 calls for a less demanding inquiry than s. 19 of the
Immigration
    Act
required.

[49]

Nor,
    in my view, is it simply a matter of word choice. I think the phrase
    compelling and credible information can easily lead a motion judge into an
    assessment of the ultimate merits of the case and the credibility of the
    claimants. As explained in
Pointes
, at paras. 78-82, the issue for the
    motion judge is not the ultimate strength of the claim or the believability of
    the plaintiff, but only whether the record provides a reasonable basis for
    believing the claim has substantial merit and that there is no valid defence.

(a)

Section 137.1(4)(a)(i)

[50]

Section
    137.1(4)(a)(i) requires Dr. Platnick to establish reasonable grounds to believe
    that his libel action has substantial merit. In the context of libel actions,
    the substantial merit requirement refers to the facts that the plaintiff must
    establish to prove the claim: see
Pointes
, at para. 72. Affirmative
    defences, which the defendant must advance in either the pleadings or the
    materials on the s. 137.1 motion, are addressed under s. 137.1(4)(a)(ii): see
Pointes
,
    at para. 83.

[51]

To
    succeed in a libel case, a plaintiff must establish three things in addition to
    establishing that the defendant made the statement complained of:

·

the words complained of were published to at least one other
    person;

·

the words complained of referred to the plaintiff; and

·

the words complained of, in their natural and ordinary meaning or
    in some other meaning pled by the plaintiff, are defamatory:
Grant v.
    Torstar
, at para. 28.

[52]

If
    the plaintiff establishes the three facts set out above, the falsity of the
    statements and the damages caused to the plaintiff are presumed:
WIC Radio
    Ltd. v. Simpson
, 2008 SCC 40, [
2008]
    2 S.C.R. 420, at para. 1. The libel claim will succeed unless the defendant can
    successfully advance a defence such as justification or qualified privilege.

[53]

I
    have no difficulty concluding that there are reasonable grounds to believe that
    Dr. Platnicks claim has substantial merit. Indeed, I do not understand Ms.
    Bent to suggest in her affidavit that her email was not published, did not in
    part refer to Dr. Platnick, and could not be understood in its natural and
    ordinary meaning as defamatory of Dr. Platnick. She relies on various affirmative
    defences, including justification and qualified privilege.
[2]

[54]

Ms.
    Bent makes it clear in her affidavit that, in her email, she alleged that Dr.
    Platnick deliberately altered or misrepresented assessments made by other
    doctors for the purpose of denying claimants a catastrophic impairment
    classification and the benefits that flowed from that classification. Ms. Bent
    specifically alleges that Dr. Platnick misrepresented the findings and opinions
    of other doctors and committed professional malpractice. As I read Ms. Bents
    affidavit and cross-examination, her defence to the claim is not that her
    comments were not potentially defamatory, but rather that they were true or
    protected by privilege.

[55]

The
    motion judge concluded that it was reasonably likely that Dr. Platnick could
    satisfy his burden in respect of the facts essential to support the libel claim
    (para. 92). The motion judge declined to determine whether Dr. Platnick was
    required to go further under s. 137.1(4)(a)(i) (para. 93). As explained in
Pointes
,
    at para. 80, Dr. Platnick had to satisfy the motion judge that, defences aside,
    his claim had a real chance of success. In my view, this claim clears that
    hurdle.

(b)

Section 137.1(4)(a)(ii)

[56]

The
    second part of the merits analysis described in s. 137.1(4)(a) focuses on the
    defences offered in response to the claim. Under s. 137.1(4)(a)(ii), Dr.
    Platnick had to satisfy the motion judge that there were reasonable grounds to
    believe that Ms. Bent had no valid defence. A valid defence is a defence that
    would succeed at trial:
Pointes
, at para. 84.

[57]

The
    motion judge considered the defences of justification and qualified privilege.
    He concluded that Dr. Platnick had failed to meet his onus on both.

[58]

The
    defence of justification is concisely described in Peter A. Downard,
The
    Law of Libel in Canada
,
4th
    ed. (Markham: LexisNexis, 2018), at paras. 6.2-6.3:

The burden on the defendant is to prove the substantial truth
    of the sting, or main thrust, of the defamatory words. The sting of the words
    includes the expressed defamatory meaning of the words and any implication that
    is found to have been a correct defamatory meaning of them.

If the sting of the words is justified on the evidence, minor
    inaccuracies will not prevent the defendant from establishing a defence of
    justification. The defendant is not required to justify every word, or
    statements that do not add to the sting or introduce any new actionable matter.
    [Footnotes omitted.]

[59]

There
    are two statements in Ms. Bents email that refer to Dr. Platnick. She asserts
    that:

·

Dr. Platnick prepared an executive summary report for the Dr. Carpenter
    arbitration, that purported to be a consensus report, when in fact it did not
    reflect the consensus of the other experts who had examined Dr. Carpenter (para.
    2); and

·

In a different proceeding, Dr. Platnick had changed a doctors
    decision from a marked to a moderate impairment (para. 5).

[60]

The
    sting or main thrust of the allegations in the email, when read in the context
    of the emails entirety, is the assertion that, on two occasions, Dr. Platnick misrepresented
    or altered the opinions of other medical experts with a view to depriving a claimant
    of a catastrophic impairment classification to which the claimant was entitled.
    They are allegations of dishonesty and serious professional misconduct.

[61]

I
    will address the two comments separately. In respect of the consensus
    comment, the motion judge indicated that Dr. Platnick described his report as a
    consensus opinion when it plainly was not: para. 103. In his affidavit, Dr.
    Platnick acknowledged that the word consensus was inappropriate, describing
    it as a misnomer and misleading and a vestige of an earlier SABS regime.

[62]

To
    establish the justification defence, however, Ms. Bent had to do more than show
    that Dr. Platnick had wrongly used the word consensus. She had to show that
    the allegations of dishonesty and professional misconduct implicit in her
    allegations were true.

[63]

Dr.
    Platnick offered a detailed explanation of how his reports were prepared. That
    explanation involved a description of his role, the coordinating role of
    Sibley, and the interaction among Dr. Platnick, Sibley, and the other medical assessors.
    Dr. Platnick explained that Sibley was responsible for coordinating and
    finalizing the reports prepared by the experts. He further explained that
    Sibley would send his report to each of the other assessors. The assessors
    would have to decide whether they agreed with Dr. Platnicks report. If they did,
    they would sign off on his report by signing the acknowledgement page
    attached to the back. Dr. Platnick expected that if there were any problems
    with the report he provided to Sibley, that Sibley would contact him about
    those problems before forwarding his report to the claimants lawyer.

[64]

In
    Dr. Carpenters case, the other experts did not sign off on Dr. Platnicks
    report. The acknowledgement page attached to his report did not contain the other
    assessors signatures. Dr. Platnick and Ms. Bent offered different explanations
    for the failure of the other experts to sign off on Dr. Platnicks report.

[65]

In
    his affidavit and cross-examination, Dr. Platnick took the position that no lawyer
    reading the report would be misled by the use of the word consensus. In his
    cross-examination, Dr. Platnick insisted that, while there were several
    different levels of consensus, his use of the word could not mislead Ms. Bent
    or any other lawyer who received all of the medical assessments and relevant documentation,
    including the blank acknowledgement page. To support this contention, Dr.
    Platnick pointed out that Ms. Bent was certainly not misled by the use of the
    word consensus in his report. She knew there was no consensus.

[66]

The
    motion judge rejected outright Dr. Platnicks explanation for the word
    consensus. He said, at para. 105:

Dr. Platnicks explanation is nonsensical and amounts to saying
    that he hoped the report would be true by the time it was used even though he
    knew it was not true when he delivered it.

[67]

The
    motion judge erred in narrowly focusing on whether the use of the word consensus
    was literally accurate. The motion judge should have focused on whether the
    allegation that Dr. Platnick had deliberately misrepresented the opinions of
    other experts who had examined Dr. Carpenter was true.

[68]

More
    importantly, the motion judge misstated Dr. Platnicks position. Dr. Platnick
    did not assert that he knew the word consensus was not true when he delivered
    his report. Nor did he indicate that he hoped it would somehow be true by the
    time the report was used. The motion judges description of Dr. Platnicks
    evidence is actually a description of the position put to Dr. Platnick on
    cross-examination by counsel for Ms. Bent.

[69]

Dr.
    Platnick acknowledged that the use of the word consensus in the report sent
    to Sibley was a misnomer and at least potentially misleading. He explained how
    the word appeared in his report, and further why, in his opinion, it would not
    mislead the informed reader. Whatever the merits of Dr. Platnicks explanation,
    the motion judge never came to grips with it.

[70]

Having
    rejected Dr. Platnicks explanation entirely, the motion judge accepted Ms.
    Bents evidence and concluded that there was credible and compelling evidence
    to support the justification defence: para. 110. That finding necessarily
    implies that Dr. Platnick had failed to show reasonable grounds to believe that
    there was no valid justification defence.

[71]

It
    was not the motion judges function to decide whether Dr. Platnicks
    explanation for the use of the word consensus should be accepted. The motion
    judges description of Dr. Platnicks explanation as nonsensical was, in my
    view, unreasonable and based on a misunderstanding of his evidence.

[72]

The
    explanation offered by Dr. Platnick was premised on his description of his role
    in the catastrophic impairment assessment process and the nature of the
    relationship among Dr. Platnick, Sibley and the other medical experts. I think
    a proper assessment of Dr. Platnicks explanation for the word consensus can
    only be made after both sides have had an opportunity to present evidence on
    the process and relationships described by Dr. Platnick in his evidence. There
    is nothing inherently nonsensical about Dr. Platnicks explanation. It may or
    may not be ultimately accepted by a judge or jury.

[73]

Bearing
    in mind that Ms. Bent has the onus of establishing the justification defence on
    the balance of probabilities at trial, I think a reasonable trier could find Dr.
    Platnicks explanation sufficiently credible to conclude that Ms. Bent had not
    established that the sting of the consensus allegation was true. Consequently,
    Dr. Platnick had met his onus of showing reasonable grounds to believe that the
    justification defence in respect of the consensus comment would not succeed
    and was therefore, in the language of s. 137.1(4)(a)(ii), not a valid
    defence.

[74]

The
    motion judge also found that there were no reasonable grounds to believe that
    Ms. Bent did not have a valid justification defence to the second allegation
    made against Dr. Platnick in the email. For convenience, I repeat that
    allegation:

I had another file where Dr. Platnick changed the doctors
    decision from a marked to a moderate impairment.

[75]

Ms.
    Bents allegation that Dr. Platnick changed the doctors decision can be read
    in at least two ways. First, it can be read as an allegation that Dr. Platnick
    physically changed another doctors report from a finding of a marked impairment
    to a finding of a moderate impairment. Second, it can be understood as an allegation
    that Dr. Platnick misrepresented another doctors opinion as to the level of
    impairment that that doctor had found. On either view, this was an unambiguous allegation
    of dishonesty and professional misconduct.

[76]

This
    allegation related to a psychiatric report prepared by Dr. Dua in an
    arbitration proceeding that was some two years before the Dr. Carpenter
    arbitration. By the time the s. 137.1 motion was argued, there was no
    suggestion that Dr. Platnick had physically altered Dr. Duas opinion. Dr. Dua
    had prepared a second assessment in which she had changed, in at least one
    respect, her assessment of the patients level of impairment. She had prepared
    her second report after speaking with Dr. Platnick, who had contacted her concerning
    her first report at the request of the assessment company coordinating the
    preparation of the expert reports on behalf of the insurer. Ms. Bent received
    only the first report prepared by Dr. Dua. The case settled before arbitration.

[77]

The
    exact role played by Dr. Platnick in Dr. Duas preparation of her second report
    and the propriety of his involvement in the preparation of that report is a matter
    of dispute between the parties. It is, however, undisputed that Dr. Dua chose
    to change her assessment and prepare a second report. The references in Dr.
    Platnicks report are to Dr. Duas second report. He makes no reference to the
    existence of the first report. Dr. Platnicks report does not misrepresent the
    contents of Dr. Duas second report.

[78]

In
    considering Ms. Bents justification defence as it related to the allegation
    that Dr. Platnick changed another doctors opinion, the motion judge said, at
    para. 111:

Firstly, the description of Ms. Bent is quite accurate at least
    in the narrow sense. Dr. Dua did change her recommendation after the
    intervention of Dr. Platnick.

[79]

The
    motion judge misreads Ms. Bents allegation in the last paragraph of the email.
    The email does not allege that Dr. Dua changed her opinion after an improper
    intervention by Dr. Platnick. The email alleges either that Dr. Platnick physically
    changed the doctors [Dr. Duas] decision, or that he misrepresented that
    decision. The evidence on the motion establishes that the allegation in the
    email that Dr. Platnick changed the doctors [Dr. Duas] decision is not
    accurate in any sense.

[80]

By
    the time of the motion, Ms. Bent had changed her allegation from her allegation
    in the email to an allegation that Dr. Platnick had improperly persuaded Dr.
    Dua to change her report, and had failed to make full disclosure of Dr. Duas
    reports in his own report. Those are very different allegations from the
    allegation made in the email. To successfully advance a defence of
    justification, Ms. Bent had to justify the allegations actually made in the
    email.

[81]

The
    motion judge went on to observe, at para. 111, that even if Dr. Dua, after
    consultation with Dr. Platnick, changed her opinion for good reasons, it was still
    important for Ms. Bent to alert her colleagues to the need to fully review the entire
    medical file in catastrophic impairment arbitration proceedings. No one would
    disagree with this observation. With respect, however, it has nothing to do with
    whether Ms. Bent had a defence of justification to the allegation she made
    against Dr. Platnick in the email.

[82]

Also
    at para. 111, the motion judge criticized Dr. Platnick for not disclosing in
    his report that Dr. Dua had provided two different reports to him. The motion
    judge implies that Dr. Platnicks failure to make that disclosure may have
    precipitated the subsequent allegation in the email. Again, even if Dr.
    Platnick should have disclosed that Dr. Dua had provided two reports, his
    failure to do so has nothing to do with the truth of the allegation that he physically
    changed or misrepresented another doctors opinion. An allegation, even if
    justified, that Dr. Platnick failed to make full disclosure in his own report,
    cannot justify an allegation that he changed someone elses report.

[83]

The
    motion judge erred in law when addressing the justification defence by considering
    the justification for allegations other than the allegations made in the email.
    It may be that Dr. Platnick can be properly criticized for his interaction with
    Dr. Dua and his failure to refer to both of her reports in his report. To
    succeed with a justification defence, however, Ms. Bent had to show that her
    allegation that he changed Dr. Duas report was true.

[84]

In
    my view, Dr. Platnick met his onus of presenting reasonable grounds to believe
    that the justification defence advanced by Ms. Bent could not succeed in
    respect of her allegation that Dr. Platnick had changed the decision of another
    doctor.

[85]

The
    motion judge also considered the defence of qualified privilege, holding at
    para. 118:

The record suggests that it is quite likely that Ms. Bent would
    be able to establish each of the elements of the defence of qualified
    privilege. There are therefore no grounds for me to believe that the moving
    partys qualified defence privilege is not valid.

[86]

Qualified
    privilege applies to the occasion upon which a communication is made. An
    occasion is privileged if the person making the communication has an interest
    or duty  legal, social, or moral  in making the communication to the person
    to whom it is made, and if that person has a corresponding interest or duty in
    receiving the communication:
Hill v. Church of Scientology of Toronto
,
    [1995] 2 S.C.R. 1130, at para. 143. The onus is on the defendant to establish
    qualified privilege. The question of whether the occasion on which the communication
    was made is properly the subject of qualified privilege is a question of law
    for the trial judge: Downard, at paras. 9.10-9.11.

[87]

When
    the defendant establishes that the comment was made on an occasion of
    privilege, the
bona fides
of the defendant is presumed and the
    defendant may publish the comment even though it may be defamatory or untrue.
    However, the plaintiff can rebut the presumption of
bona fides
by
    showing that the communication was made maliciously, dishonestly, or with reckless
    disregard for the truth. Similarly, qualified privilege protects only
    communications that are reasonably appropriate to the discharge of the duty
    said to create the occasion of privilege. The communication of allegations or
    information not reasonably appropriate to the legitimate purpose of the
    occasion attracting the privilege will not be protected by the defence:
Botiuk
    v. Toronto Free Press Publications Ltd.
, [1995] 3 S.C.R. 3, at paras.
    78-80;
Hill
, at paras. 144-47.

[88]

The
    motion judges treatment of the qualified privilege defence is relatively brief:
    see paras. 115-18. When considering the defence, he does not distinguish
    between the two references to Dr. Platnick in the impugned email. In my view,
    he had to do so in order to properly assess whether there were grounds to
    believe that the qualified privilege defence would fail.

[89]

I
    will accept, for the purpose of these reasons, that Ms. Bents communication to
    her fellow OTLA members in which she outlined her concerns about the medical
    reports provided by the insurer in the Dr. Carpenter arbitration and cautioned
    her colleagues to always get the assessors and Sibleys files met the
    criteria for an occasion of qualified privilege. Ms. Bent arguably had a duty
    or interest in making the disclosure and giving the advice, and her colleagues
    had a corresponding interest or duty in receiving that information and advice.

[90]

The
    second reference to Dr. Platnick in para. 5 of the email, in which Ms. Bent
    accuses him of changing another doctors opinion in another case, arguably
    falls outside of the privileged occasion, either because it was made
    maliciously or with reckless disregard for the truth, or because it was not
    appropriate to the legitimate purpose of the occasion attracting the privilege.

[91]

The
    allegation that Dr. Platnick changed another doctors opinion refers to an
    arbitration that happened about two years earlier. The comment was certainly
    not necessary to make her point that lawyers representing claimants must be
    wary of medical reports presented on behalf of insurers and must check the entirety
    of the medical evidence available on the arbitration.

[92]

I
    have examined the truth of the allegation that Dr. Platnick changed another
    doctors decision in my consideration of the defence of justification. Based on
    the evidence adduced on the motion, I think the allegation could reasonably be
    seen as a gratuitous and inaccurate attack on Dr. Platnicks character. There
    is also a reasonable basis to infer that Ms. Bent was reckless as to the truth
    of her allegation. She acknowledged that when she sent the email, she was
    referring to something that had happened over two years ago, and yet she took
    no steps to verify her recollection of the events before sending the email. We
    now know that Dr. Dua changed her own report. It is also apparent from the
    motion record that because the case involving Dr. Dua did not go to
    arbitration, Ms. Bent had no knowledge of the interactions between Dr. Dua and
    Dr. Platnick and no knowledge of the contents of Dr. Duas other report. It
    would appear that Ms. Bent was really in no position to know what had gone on
    between Dr. Dua and Dr. Platnick, nor how Dr. Duas opinion may have changed.
    In the absence of that information, it is arguably reckless to declare that Dr.
    Platnick changed Dr. Duas opinion.

[93]

The
    applicability of the defence of qualified privilege to the assertion that Dr.
    Platnick changed another doctors opinion is reasonably open to different
    interpretations based on the evidence adduced on the motion. A reasonable trier
    could conclude that Ms. Bent went beyond the occasion of qualified privilege
    when she made that allegation. In other words, there are reasonable grounds to
    believe that the defence would not succeed at trial and is therefore not a valid
    defence within the meaning of s. 137.1(4)(a)(ii).

[94]

There
    were other defences advanced in the Statement of Defence. They were not
    considered by the motion judge and they were not put forward on appeal as a
    basis for dismissing Dr. Platnicks claim. I do not propose to address those
    defences.

(iii)

Did the Motion Judge Err in his Interpretation of s. 137.1(4)(b)?

[95]

Section 137.1(4)(b) reads:

A judge shall not dismiss a
    proceeding under subsection (3) if the responding party [plaintiff] satisfies
    the judge that,



(b) the harm likely to be or have been
    suffered by the responding party as a result of the moving partys [defendants]
    expression is sufficiently serious that the public interest in permitting the
    proceeding to continue outweighs the public interest in protecting that expression.

[96]

In
Pointes
, at para. 86, this court described s. 137.1(4)(b) as the
    heart of Ontarios Anti-SLAPP legislation.
[3]
The section recognizes that some claims that target expression on matters of
    public interest, including defamation allegations, should not be allowed to
    proceed to trial even though the claims have technical merit. In explaining the
    reach of s. 137.1(4)(b) in
Pointes
, this court referred to the
    Anti-SLAPP Advisory Panel Report, which stated, at para. 37:

If an action against expression on a matter of public interest
    is based on a technically valid cause of action but seeks a remedy for only
    insignificant harm to reputation, business or personal interests, the actions
    negative impact on freedom of expression may be clearly disproportionate to any
    valid purpose the litigation might serve. The value of public participation
    would make any remedy granted to the plaintiff an unwarranted incursion into
    the domain of protected expression. In such circumstances, the action may also
    be properly regarded as seeking an inappropriate expenditure of the public
    resources of the court system. Where these considerations clearly apply, the
    court should have the power to dismiss the action on this basis:
Anti-SLAPP Advisory Panel,
Report to the
    Attorney General
(Ontario: Ministry of
    the Attorney General, 2010).

[97]

The
    inquiry mandated by s. 137.1(4)(b) requires an evaluation of competing
    interests. It requires the court to consider, among other things, the motives
    of both the plaintiff in commencing the action and the defendant in making the
    impugned statement.

[98]

In
    considering the competing public interests described in s. 137.1(4)(b), a
    motion judge may well begin by asking, Does this claim have the hallmarks of a
    classic SLAPP? In suggesting this approach, I do not adopt the appellants position
    that s. 137.1 applies only to litigation that meets the criteria of a SLAPP:
    see
Pointes
, at paras. 102-103. Rather, I suggest this approach as a
    way of focusing the harm analysis required under s. 137.1(4)(b).

[99]

The
indicia
of a SLAPP suit 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 plaintiffs bringing
    of the claim; and

·

minimal or nominal damages suffered by the plaintiff.

[100]

Dr. Platnicks
    lawsuit against Ms. Bent does not bear the
indicia
of a SLAPP. There
    is no evidence of a power imbalance between the parties to this lawsuit. There
    is no suggestion that Dr. Platnick routinely resorts to litigation or threats of
    litigation to silence critics. Nor does it seem sensible that Dr. Platnick
    would set out to punish or silence Ms. Bent, a partner in one of Canadas most prominent
    personal injury litigation law firms, by suing her.

[101]

This is also not
    a case in which Dr. Platnicks potential general damages, should he establish
    the libel, would be minimal or nominal. General damages are presumed from the
    publication of the libel:
Hill
, at para. 164;
Grant v. Torstar
    Corp.
, at para. 28
. Given
    that the allegations are made by a prominent member of the plaintiffs bar, and
    attack Dr. Platnicks professional honesty and integrity, general damages are
    potentially significant: see Downard, at paras. 14.10 and 14.13-14.14.

[102]

The motion judge
    considered the potential general and pecuniary damages suffered by Dr. Platnick
    as part of his harm assessment under s. 137.1(4)(b). The motion judge had
    grave doubts that Dr. Platnick would be able to establish material pecuniary
    damages: para. 126. He also found that Dr. Platnick would have difficulty
    connecting his alleged general damages to the publication in the email as
    opposed to subsequent publications for which the motion judge held Ms. Bent was
    not responsible: para. 126.

[103]

Dr. Platnick
    gave extensive evidence in his affidavit about the negative impact of the email
    on his professional reputation, health, family life, and income. He claimed
    that within several days of the email being sent, insurers for whom he routinely
    did many medical assessments began cancelling appointments and stopped booking
    new ones. Dr. Platnick indicated that within a few weeks, almost all of his
    insurance work had dried up. By February 2015, about two-and-a-half months
    after the email was sent, some of the insurance work began to return to Dr.
    Platnick. He estimated that his income from that work remained at about 50% of
    what it had been before the email. Dr. Platnick claimed a loss of income for
    the period of January 1, 2015 to April 30, 2016, of $578,949. He filed an
    accountants report said to support that figure.

[104]

On
    cross-examination, Dr. Platnick was not asked for further details about his
    alleged loss of income. He did, however, acknowledge that his gross income from
    insurance-related work in 2015 was around $1 million.

[105]

The motion judge
    described Dr. Platnicks evidence about his financial losses as quite general
    and imprecise: para. 121. In so describing his evidence, the motion judge
    failed to bear in mind the nature of the s. 137.1 proceeding. As observed in
Pointes
,
    at para. 90:

On the s. 137.1 motion, the plaintiff must provide a basis upon
    which the motion judge can make some assessment of the harm done or likely to
    be done to it by the impugned expression. This will almost inevitably include
    material providing some quantification of the monetary damages. The plaintiff
    is not, however, expected to present a fully-developed damages brief. Assuming
    the plaintiff has cleared the merits hurdle in s. 137.1(4)(a), a common sense
    reading of the claim, supported by sufficient evidence to draw a causal
    connection between the challenged expression and damages that are more than
    nominal will often suffice.

[106]

Dr. Platnicks
    affidavit provides evidence quantifying his pecuniary loss claim. It also
    provides evidence of the causal connection between the email and the pecuniary
    loss. According to Dr. Platnick, the insurance work began to stop within a week
    or two of Ms. Bent sending the email. The temporal connection suggests a causal
    connection. In addition to the temporal connection, one could reasonably infer,
    given the nature of the allegations, that insurance companies would soon become
    aware of those allegations and would immediately distance themselves from the expert
    against whom those allegations were made. Even if the insurer had no reason to
    believe the allegations, from the insurers perspective, it would be easier to
    retain an expert who was not tainted by those allegations.

[107]

Finally, the
    motion judge diminished the damages claim on the basis that Ms. Bent could not
    be held liable for damages flowing from publication to anyone other than by way
    of the email. The scope of Dr. Platnicks damages claim, assuming he
    establishes libel, will require considerations of remoteness and
    foreseeability. Both involve questions of fact. The motion judge effectively
    found, as a fact, that it was not reasonably foreseeable that Ms. Bents
    allegations would spread beyond the recipients of the email, primarily because
    of the confidentiality requirements imposed on those obtaining the email: paras.
    29 and 124. With respect, this finding is highly debatable, if not unreasonable.
    I would have thought it almost inevitable that an email sent to several hundred
    people involved in acting for claimants injured in motor vehicle accidents,
    alleging serious improprieties on the part of a medical expert routinely used
    by insurers, would rapidly find a much broader audience. That is in fact what
    happened.

[108]

More to the
    point, it was not the motion judges function to make a finding in respect of
    the scope of Dr. Platnicks damages claim. Dr. Platnicks affidavit and
    cross-examination provided potentially credible evidence of significant general
    and pecuniary damages attributable to the allegations in the email. In my view,
    that is enough for the purposes of s. 137.1(4)(b) to establish significant harm
    caused to Dr. Platnick by the contents of the email. The motion judge erred by
    approaching the question of Dr. Platnicks damages as if he was making a damage
    assessment at the end of a trial.

[109]

In considering
    the public interest in protecting Ms. Bents expression, the motion judge described
    a strong public interest in lawyers sharing information intended to improve the
    administration of justice: para. 132. I agree with his comments in this regard.
    However, much of the information relevant to the administration of justice
    concerns could have been equally effectively revealed without referring to Dr.
    Platnick, or at least without reference to the potentially very damning
    allegation in para. 5 of the email.

[110]

Without
    diminishing the public interest in protecting comments made to promote the
    effective administration of justice, I am satisfied that the potential harm to
    Dr. Platnick outweighs the public interest in protecting Ms. Bents expression.
    Dr. Platnicks allegation, if eventually made out, is a very serious one, both
    in terms of the financial harm caused and the damage to his reputation. For the
    reasons set out above, he has cleared the merits hurdle in s. 137.1(4)(a).
    The public interest requires that he be allowed to pursue his claim in the
    normal course.

E.

the constitutional arguments

[111]

The appellant
    alleges that s. 137.1 of the
CJA
breaches ss. 7 and 15 of the
Charter
.
    The motion judge rejected both arguments: paras. 144-73.

(i)

The Section 15 Claim

[112]

Section 15(1) reads:

Every individual is equal before and under the law and has the
    right to the equal protection and equal benefit of the law without
    discrimination and, in particular, without discrimination based on race,
    national or ethnic origin, colour, religion, sex, age or mental or physical
    disability.

[113]

Dr.
    Platnick does not allege a s. 15 violation based on any of the enumerated
    grounds in s. 15. Counsel for Dr. Platnick argues that Dr. Platnick belongs to
    an analogous group. He describes that group as those protecting constitutional
    principles and values of superordinate importance. On counsels submission, anyone
    who chooses to advance any kind of claim said to be predicated on important constitutional
    principles and values becomes a member of an analogous group for the purposes
    of s. 15. The argument has no merit.

[114]

Section 15
    protects substantive equality. It does so by providing the means by which
    individuals can challenge distinctions made by laws that perpetuate arbitrary
    disadvantages to which those individuals, as members of certain groups, have
    been subject. As explained in
Kahkewistahaw First Nation v. Taypotat
, 2015
    SCC 30, [2015] 2 S.C.R. 548, at para. 19:

The first part of the s. 15 analysis therefore asks whether, on
    its face or in its impact, a law creates a distinction on the basis of an
    enumerated or analogous ground. Limiting claims to enumerated or analogous
    grounds, which stand as constant markers of suspect decision making or
    potential discrimination, screens out those claims having nothing to do with
    substantive equality and helps keep the focus on equality for groups that are
    disadvantaged in the larger social and economic context. [Citations omitted.]

[115]

Section 15 prohibits laws that draw discriminatory
    distinctions based on membership in an enumerated or analogous group:
Kahkewistahaw
    First Nation
, at para. 18. Counsels
    description of an analogous group effectively removes any meaningful notion of
    discrimination from the s. 15 analysis. On counsels approach, almost any
    legislative distinction becomes challengeable under s. 15.

[116]

Counsels submission also ignores the
    long-established Supreme Court of Canad
a jurisprudence describing
    analogous grounds by reference to immutable personal characteristics or
    personal characteristics which are changeable only at unacceptable cost to
    personal identity:
Corbiere v. Canada (Minister of Indian and Northern
    Affairs)
, [1999] 2 S.C.R. 203, at paras. 13-14. [P]rotecting
    constitutional principles and values is not a personal characteristic.

[117]

The appellants
    s. 15 argument fails.

(ii)

The Section 7 Claim

[118]

Section 7 of the
Charter
reads:

Everyone has the right to life, liberty and security of the
    person and the right not to be deprived thereof except in accordance with the
    principles of fundamental justice.

[119]

As best as I can
    understand counsel for the appellants s. 7 argument, he submits that
    reputation is integral to individual liberty and security of the person and is
    therefore protected by s. 7. He contends that any government action that has a
    negative impact on reputation or the ability to defend ones reputation is a
    deprivation of individual liberty and security of the person and must accord
    with the principles of fundamental justice if it is to conform with s. 7.
    Counsel submits that s. 137.1, which he argues severely limits, compromises
    and prejudices a persons ability to vindicate a serious wrong, violates many
    principles of fundamental justice, some substantive and some procedural.

[120]

The motion judge
    rejected the appellants claim that reputation, or more precisely the
    protection of reputation, was encompassed in the right to liberty or the
    right to security of the person: paras. 149-57. In doing so, he followed
Blencoe
    v. British Columbia (Human Rights Commission)
, 2000 SCC 44, [2000] 2
    S.C.R. 307. I am in substantial agreement with the analysis of the motion
    judge.

[121]

Apart entirely
    from the absence of any interest protected by s. 7, the appellants description
    of the impact of s. 137.1 on a plaintiffs ability to pursue a defamation claim
    is unsupported by a proper interpretation of that provision.

[122]

Section 137.1
    was enacted to address a specific and very real problem. The legislature
    recognized that litigation can be used as a weapon to silence and intimidate
    persons who speak out on matters of public interest. To address the very real
    societal harm caused by that kind of litigation, the legislature created a
    means by which the target of that litigation can seek an early, and hopefully
    relatively inexpensive, end of the litigation. The legislation did nothing more
    than put the onus on the plaintiff to show grounds to believe that the claim
    had real merit and that there is no valid defence, and to provide evidence of
    harm sufficient to override the public interest in promoting freedom of
    expression on matters of public interest.

[123]

In my view, the
    limited merits analysis required by s. 137.1(4)(a) does not significantly
    limit a plaintiffs ability to bring a valid defamation claim to trial. It
    places no significant burden on a plaintiff who has attacked someones right of
    expression on a matter of public interest to require that the plaintiff show
    that the attack has a real chance of ultimate success. Similarly, it can hardly
    be said that a plaintiff seeks to vindicate a serious wrong if the plaintiff
    cannot demonstrate that he has or is likely to suffer any significant harm as a
    consequence of the alleged defamation.

[124]

Counsel for the
    appellant also asserts that s. 137.1 has created a litigation chill,
    scaring people into sacrificing or surrendering their legal rights. Counsel
    describes s. 137.1 as a coercive and biased piece of legislation.

[125]

There is no
    support for the hyperbolic assertions made by counsel. They should be ignored.

[126]

The s. 7
    argument has no merit.

F.

conclusion

[127]

I would allow
    the appeal, quash the order dismissing the action, and remit the matter to the
    Superior Court. Counsel should provide written submissions on costs relating to
    the appeal within 30 days of the release of these reasons. Those submissions
    should not exceed five pages.

[128]

Counsel should
    also file within 30 days written submissions of no more than 5 pages relating
    to the costs of the motion. Those submissions should address:

·

the scale of costs;

·

whether this court should fix the costs or remit the fixing of
    the costs to the Superior Court; and

·

the quantum of costs.

Released: DD  AUG 30 2018

Doherty J.A.

I agree D.M. Brown
    J.A.

I agree Grant Huscroft
    J.A.





[1]
The motion judge declined to grant most of the relief sought by the appellant:
Platnick
    v. Bent (No. 2)
, 2016 ONSC 7474. In his Notice of Appeal, the appellant appeals
    from certain aspects of the motion judges decision on the preliminary motion.
    In light of my conclusion that the s. 137.1 motion should be dismissed, I need
    not address the merits of those issues. It is sufficient to say that the motion
    judges order involved the exercise of his discretion to control the
    proceedings before him and the appellant offers no basis upon which this court
    could properly interfere with the exercise of that discretion.



[2]

In her Statement of Defence, Ms. Bent does deny that the contents
    of the email were capable of defaming Dr. Platnick. However, she makes no
    reference to that defence in her affidavit.



[3]

SLAPP refers to Strategic Lawsuits Against Public
    Participation.


