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Civil Litigation Dicta - SLAPP - No Amendment to Pleadings After SLAPP Motion [137.1(6)]. Platnick v. Bent
In Platnick v. Bent (Div Court, 2024) the Divisional Court dismissed an appeal of a libel action.
Here the court considers a request for leave to amend SLAPP pleadings after a SLAPP motion had been filed:[12] Under the ordinary Rules of Civil Procedure, the presumption is in favour of granting leave to amend the pleadings. Leave to amend shall be granted unless it would cause prejudice that could not be compensated: Rule 26.01. Leave to amend can also be denied if the proposed amendments do not disclose a reasonable or tenable cause of cation: 16884444 Ontario Ltd. v. State Farm Fire and Casualty Co, 2017 ONCA 42 at para. 25.
[13] That presumption is effectively reversed once an anti-SLAPP motion is brought. Section 137.1(6) of the Courts of Justice Act states that a party responding to an anti-SLAPP motion (which Dr. Platnick was before Justice Dunphy) shall not be permitted to amend his pleading in a way that would frustrate the motion without leave of the court.
[14] Dr. Platnick argues that Justice Dunphy only decided his motion to amend his pleadings in the context of the anti-SLAPP motion and did not rule on whether the amendment should be permitted under Rule 26.01. That is not a fair reading of Justice Dunphy’s decision.
[15] Justice Dunphy understood that he had discretion under both s. 137.1(6) of the Courts of Justice Act and under Rule 26.01 to grant Dr. Platnick leave to amend his pleadings. Justice Dunphy expressly asked himself whether he should exercise his discretion under either provision. Justice Dunphy considered whether leave should be granted under Rule 26.01 and decided the proposed amendment disclosed no tenable cause of action because, based on the facts pleaded by Dr. Platnick, the corporation did not contract with the insurer in Dr. Carpenter’s case and had no independent interest in any of his earnings. Justice Dunphy, therefore, decided not to exercise his discretion under Rule 26.01. In doing so he made specific reference to the presumption in favour of granting leave under Rule 26.01. Justice Dunphy then considered s. 137.1(6) of the Courts of Justice Act and concluded that leave should also not be granted under those provisions.
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