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2002 09 19
Weiss v Sawyer, [2001] O.J. No. 3570, 61 O.R. (3d) 526 (CA), affirming [2001] O.J. No. 4544 (SCJ)

The Ontario Court of Appeal unanimously held that a newspaper published on the Internet is included in the definition of "newspaper" contained in Ontario's Libel and Slander Act, R.S.O 1990, c. L.12.

Accordingly, sustaining the lower court's decision dismissing a libel lawsuit, the Court of Appeal held that a defendant was entitled to the benefit of s. 5(1) of the Libel and Slander Act which requires a plaintiff to serve a statutory notice of intended action within six weeks after the alleged libel has come to his or her attention.

The defendant had not been served with such notice and accordingly was entitled to have the action dismissed.

It is unclear whether Weiss v Sawyer will apply in other Canadian jurisdictions.

In Alberta, Manitoba, New Brunswick, Nova Scotia, the Northwest Territories, and the Yukon, for example,a free publication such as the science fiction magazine in Weiss v Sawyer probably would not satisfythe statutory definition of "newspaper."

For example, the Alberta Defamation Act, R.S.A. 2000, c. D-6, defines newspaper as follows in s. 1(c):

a paper containing news, intelligence, occurrences, pictures or illustration, or remarks or observations thereon, printed for sale and published periodically, or in parts or numbers, at intervals not exceeding 31 days between the publication of any 2 of the papers, parts or numbers

(Underlining for emphasis)

Ontario's definition of newspaper does not include the phrase "printed for sale."  The science fiction magazine at issue in Weiss v Sawyer was a free publication.

Accordingly, in Alberta and the other jurisdictions listed above, where a free online magazine would not qualify as a newspaper, a defendant might choose to allege that the online publication constitutes a "broadcast" which is also protected under the statutory notice of intended action provisions.

In Weiss v Sawyer, the Ontario Court of Appeal declined to consider whether the online publication (a letter published in a publication self-described as a "free bi-weekly publication dedicated to serving the Science Fiction and Fantasy audiences") constituted a "broadcast" within the meaning of the Act. That was because the evidentiary record before the court was not complete on that issue.

With respect to the reasoning of the Court of Appeal in extending the definition of newspaper to include an online publication, see the judgment of Armstrong J.A for the Court of Appeal at paragraphs 24-25:

24        The Act defines a newspaper in part as a "paper" containing certain categories of information for distribution to the public.  I think the word "paper" is broad enough to encompass a newspaper which is published on the internet.

25        If I am wrong in my conclusion and the word "paper" is to be given a more restrictive meaning i.e. the substance upon which a newspaper is ordinarily printed, then arguably s. 5(1) is not available to the defendant. However, such a result would clearly be absurd.  It would mean that if an action was commenced against a newspaper, without serving a s. 5(1) notice, it would be barred in relation to the newsprint publication but not so barred in relation to the online publication, unless of course it fell within the definition of "broadcast".  The ordinary meaning rule of statutory interpretation articulated by Ruth Sullivan, in Driedger on the Construction of Statutes, 3rd. ed. (Toronto: Butterworths Canada, 1994) at p. 7 is helpful:

(1)

It is presumed that the ordinary meaning of a legislative text is the intended or most appropriate meaning.  In the absence of a reason to reject it, the ordinary meaning prevails.

 

(2)

Even where the ordinary meaning of a legislative text appears to be clear, the courts must consider the purpose and scheme of the legislation, and the consequences of adopting this meaning.  They must take into account all relevant indicators of legislative meaning.

 

(3)

In light of these additional considerations, the court may adopt an interpretation in which the ordinary meaning is modified or rejected.  That interpretation, however, must be plausible, that is, it must be one of the words are reasonably capable of bearing.

 

In my view, the purpose and scheme of the notice provision in the Libel and Slander Act are to extend its benefits to those who are sued in respect of a libel in a newspaper irrespective of the method or technique of publication.  To use the words of Justice Lax[the decision from which the appeal was taken to the court of appeal] "a newspaper is no less a newspaper because it appears in an online version".

The decision of the Court of Appeal in Weiss will obviously have important implications for all Ontario online publishers who can bring themselves within the statutory definition of "newspaper" having regard to the many other provisions of the Libel and Slander Act which apply to newspapers. 

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