2013 March 25

Harvey v. Memorial University of Newfoundland, 2013 NLTD(G) 51

The Newfoundland and Labrador Supreme Court rejected a number of proposed amendments to the Statement of Claim, including (but not limited to) allegations that the defendant by “acquiescence … ratified and adopted” disparaging emails authored by a third party and statements of the third party which were reported in an article on the British Medical Journal website. The Court permitted an amendment, however, regarding an email from a senior officer of the defendant which allegedly misrepresented the findings of a Committee which had investigated a dispute between the plaintiff and the third party.

The plaintiff’s submissions in this case that liability could arise from “acquiescence” focussed on the decision of the Supreme Court of Canada in Crookes v Newton, 2011 SCC 47, where the issue was whether a hyperlink on the defendant’s website constituted publication of allegedly defamatory expression on another website. Referring to the Crookes decision, the Newfoundland court stated: “While [the dissenting justice in Crookes] would have the law find that publication had taken place without a positive act on the part of the defendant, the majority of six out of seven judges would require circumstances which showed the defendant expressed a view that could amount to adoption or ratification for a finding that publication had occurred.” In this case, only the email from the senior officer of the defendant potentially satisfied the majority’s requirement.