2011 June 27

Martinek v. Dojc, 2011 ONSC 3795

On an appeal from a trial decision of the Toronto Small Claims Court, the Ontario Superior Court ordered a new trial before a different judge because this defamation action had been improperly dismissed on the basis of a defence – qualified privilege – which was not pleaded. The defamation claims related to emails exchanged within a password-protected Yahoo! Group named Reunion founded and moderated by the defendant Dojc. The defendants alleged the plaintiff, who had been excluded from the Yahoo! Group, was an “unauthorised eavesdropper” regarding the impugned emails. The Ontario Superior Court referred to two questions raised on the appeal which had not been canvassed by the trial judge: “1. Whether the material in question was “published” when it was circulated to a limited and private group, which required a password to access the site; and 2. Whether the appellant, as a “trespasser” to the site after being banned from Reunion, is precluded from relying on documents on the site as evidence of defamation after the date of his expulsion.” The Superior Court continued: “The law of defamation in the context of the internet is developing, and is dependent upon the facts. I conclude that there is no definitive answer to the legal question of whether the comments were published on these facts of this case, and therefore it is preferable to refer to the matter to trial so that the issue can be determined upon a full factual record.”