Thursday, September 10, 2020

Defame And Fortune

As Michael Cassio laments in Othello, “Reputation, reputation, reputation! Oh, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial.”  William Shakespeare may have believed that, once lost, reputation may be lost for good.  However, the Supreme Court of Canada has reaffirmed that those who believe they have been defamed may have the right to be compensated and try restore their damaged reputations.

In Bent v. Platnick, the Supreme Court of Canada ("Court") dismissed an appeal opposing the rights of a physician to sue an attorney for defamation.  (Le jugement en français de la Cour suprême du Canada est ici.)  In its September 10, 2020, decision, the Court strengthened the legal right to defend one's reputation against negative allegations.  The Court summarized the facts of the case as follows:

B is a lawyer and partner at an Ontario law firm. She is a member and, at the relevant time, was the president‑elect of the Ontario Trial Lawyers Association (“OTLA”). The OTLA is an organization comprised of legal professionals who represent persons injured in motor vehicle accidents. P is a medical doctor who is typically hired through insurance companies to review other medical specialists’ assessments of persons injured in motor vehicle accidents and to prepare a final report with an ultimate assessment of the accident victim’s level of impairment. Following two insurance coverage disputes in which B was acting as counsel for an accident victim, B sent an email to a Listserv (i.e. an email listing) of approximately 670 OTLA members in which she made two statements that specifically mention P by name and allege that, in the context of those disputes, P “altered” doctors’ reports and “changed” a doctor’s decision as to the victim’s level of impairment. B’s email was eventually leaked anonymously by a member of the OTLA and as a result, an article was published in a magazine which reproduced B’s email in its entirety and referred to testimony from B.

P commenced a lawsuit in defamation against both B and her law firm, claiming damages in the amount of $16.3 million. B filed a motion under s. 137.1 of the Courts of Justice Act (“CJA”) to dismiss the lawsuit. The motion judge allowed B’s motion and dismissed P’s defamation proceeding. The Court of Appeal set aside the motion judge’s determination, dismissed B’s motion, and remitted P’s defamation claim to the Superior Court for consideration.
The Court found that the attorney had met her burden because her "email constitutes an expression that relates to a matter of public interest and P’s defamation proceeding arises from that expression."  According to the Court, the burden then shifted to the physician "to show that there are grounds to believe that his defamation proceeding has substantial merit and that B has no valid defence to it".  Having "shown that there are grounds to believe that his defamation proceeding has substantial merit," the Court dismissed the attorney's appeal, allowing the physician to have his day in court.

Four Supreme Court Justices dissented.

The attorney in this dispute has pursued a very different path to that followed by basketball superstar, Charles Barkley, who once said, in response to a comment he found insulting, "My initial response was to sue her for defamation of character, but then I realized that I had no character."