Notice of Intended Action
Cases published to January 7, 2019
Basic Principles
Each Canadian province and territory except British Columbia and Saskatchewan prescribes in its defamation statute a very brief period within which a person who intends to institute an action for libel in a newspaper or in a radio or television broadcast must serve each prospective defendant with a written notice of intended legal action.
In the context of Internet defamation, the question is whether posting on a website is to be considered a publication in a “newspaper” or a “broadcast” within the meaning of these statutes.
See McConchie and Potts, Canadian Libel and Slander Actions, “Chapter Six: Notice of Intended Action and Limitation Defences,” page 61.
Click on a Case Name for full text (links off site).
2019 January 7
The Ontario Superior Court of Justice (Divisional Court) set aside a Small Claims Court order staying a libel action for defamation relating to WhatsApp communications and an emailed poster. The Divisional Court held that whether WhatsApp communications constituted a “broadcast” within the meaning of section 5(1) of the Ontario Libel and Slander Act should not be determined summarily but rather at trial on the basis of a proper and complete factual record.
The Divisional Court noted that WhatsApp, which facilitates communications to a limited number of individuals in WhatsApp groups, differs from online newspapers and online broadcasts. In the latter, there are underlying newspaper articles or radio or television broadcasts. “Whether [WhatsApp] statements are caught by the Act will have serious and extensive potential consequences, not just for application to this case, but also for statements made on other social media platforms as most statements through social media platforms are made through the internet to a limited number of persons (i.e. those using that social media, which may be hundreds, thousands or millions of people).” The Divisional Court noted that Small Claims Court had not decided, one way or the other, whether an emailed poster constitutes a broadcast within the meaning of s. 5.1 of the Libel and Slander Act, which dictates that the plaintiff give notice to the defendant before filing a lawsuit for defamation. Accordingly, this issue was also to be answered at trial on a complete evidentiary record.
2018 December 13
The Prince Edward Island Supreme Court summarily dismissed this defamation action concerning two newspaper articles published online (and in print), holding the lawsuit was filed too late and without advance notice required by the Defamation Act, R.S.P.E.I. 1988, Cap. D-5. The Defamation Act required a plaintiff to serve notice of his claim within three months of publication (section 14) and file suit within six months of publication (section 15). The Court held that sections 14 and 15 apply to online newspaper articles, following the decisions of the Ontario Court of Appeal in Weiss v Sawyer (2002 CanLII 45064) and John v Gallingall (2017 ONCA 579). The Court reasoned that to “restrict the definition of newspaper to the print version only would allow what is now often unrestrained, provocative, rude and politically incorrect commentary to run rampant [on the Internet].”
2018 October 31
The Ontario Superior Court of Justice held that s. 5 (1) of the Ontario Libel and Slander Act requiring a plaintiff to serve notice before action before filing a defamation lawsuit does not apply to Twitter posts.
2017 October 18
The Ontario Superior Court of Justice rejected a motion by the defendant seeking an order dismissing a defamation action on the basis of s. 137.1 of the Ontario Courts of Justice Act (Anti-SLAPP provisions). The action concerned a number of tweets published in May, 2016. The Court concluded that the majority were “thinly veiled attacks” on the plaintiff, not comments on matters of public interest, and that there were grounds to believe the defamation claim has substantial merit. There were reasonable grounds to believe that no defence of fair comment was made out. As regards the defence of failure to give libel notice pursuant to section 5(1) of the Ontario Libel and Slander Act, the Court held that there was no case law interpreting this provision to include social media. “…[T]he parties have not provided this Court with any evidence regarding the nature, characteristics and functioning of the Twitter technology, nor have the parties provided any social policy reasons for interpreting or extending the meaning or definition of broadcast to include Twitter…I am therefore of the view that the Act, as presently worded, does not apply to Twitter posts.” In the circumstances, the Court found there were grounds to believe that the defendant had advanced no valid defences. The interest in permitting the proceeding to continue to trial outweighed the public interest in protecting the impugned expression contained in the tweets.
2017 July 7
The Ontario Court of Appeal held that the six-week notice period and the three-month limitation period prescribed by ss. 5(1) and 6 of the Libel and Slander Act applied to an article that was written about the plaintiff and published on the Toronto Star website and in the print edition. Applying the Court of Appeal’s prior decision in Weiss v Sawyer, (2002) 61 O.R. (3d) 526, the Court of Appeal unanimously held that the definition of “newspaper” is not restricted to a physical paper. The Court also rejected the submission of the appellant/plaintiff that the notice and limitation periods do not start to run until the article is no longer on the Internet. “The appellant seeks to rely on an incorrect interpretation of the ‘multiple publication rule’. That concept provides that when an alleged libel is republished across different mediums, including the internet, those publications are treated as distinct libels. In Shtaif, the court rejected the notion that the limitation period for a suit about an online magazine article starts to run when the plaintiff becomes aware of the printed version. …This decision does not mean that each day of online publication grounds a new cause of action.” The Court went on to agree that any limitation period based on discoverability will run from the point where the internet defamation is discovered.
2016 April 1
The Ontario Superior Court of Justice dismissed an action as statute-barred on the basis that the plaintiff had failed to meet the notice requirements of section 5(1) of the Ontario Libel and Slander Act, RSO 1990, c. L12 and on the basis of the plaintiff’s failure to issue his statement of claim within the 3 month limitation period under section 6 of the same statute. The Court rejected the plaintiff’s argument that the notice provision in s. 5(1) and the 3 month limitation period in s. 6 apply only to hard copy newspapers and not to electronically posted information. The court concluded that “the weight of the jurisprudence favours the view that an internet posting or broadcast is covered by the Libel and Slander Act, unless specific facts dictate otherwise.” The Court stated that other cases, “without delving into the question of whether the Libel and Slander Act applies to an internet posting or broadcast, have accepted, implicitly, the statute does apply” and refered in this regard to “Janssen-Ortho Inc. v Amgen Canada Inc., [2005] O.J. No. 2265 (C.A.) involving an internet re-broadcast of a radio interview; CIPW v Quebecor Media Inc., 2016 ONCA 206, involving a Toronto Sun internet broadcast, web blog posting and paper edition; and World Sikh Organization of Canada v CBC, 2007 CarswellOnt 7649 (SCJ) involving a television broadcast, radio broadcast, internet broadcast and internet article.“
2016 March 14
The Ontario Court of Appeal, reversing a lower court judge, held that the plaintiff had complied with s. 5(1) of the Ontario Libel and Slander Act, RSO 1990, c. L12. The Court stated that “[i]t is well-established that s. 5(1) notices … do not have to be in a specific form or reproduce word for word the statements alleged to be defamatory” and do not need to contain the same particularity as required in a statement of claim. The appellant plaintiff’s notice achieved all of the statutory objectives, by bringing home to the defendant the essence of the matter complained of by the plaintiff and giving the defendant the opportunity to analyze the alleged defamation and then decide whether it calls for a correction, apology or retraction. In this case, the notices “specified that the matters complained of were the statements and inferences from the July 24, 2014 internet broadcast and the July 28, 2014 article in the Toronto Sun print newspaper and internet blog“.
2013 June 17
The Ontario Court of Appeal held that whether a claim arising from the internet version of a magazine article is subject to the notice and limitation provisions in s.5(1) and s. 6 of the Ontario Libel and Slander Act is a genuine issue requiring a trial. Section 5(1) requires that a libel plaintiff give notice to a defendant within six weeks after the alleged libel has come to the plaintiff’s knowledge if the libel is contained in a “newspaper” printed and published in Ontario or a broadcast from a station in Ontario. Section 6 requires that an action for libel in a newspaper or broadcast be commenced within 3 months after the libel has come to the knowledge of the person defamed.
The lower court judge had ruled on a motion for summary judgment that a website posting is not a “newspaper” and held it was not a “broadcast” as defined in the Ontario Libel and Slander Act. Applying its earlier decision in Bahlieda v Santa, (2003), 68 O.R. (3d) 115, the Court of Appeal held the evidentiary record before the Court was not sufficient to decide these questions and they should only be decided at a trial of the plaintiffs complaint about the internet version of the article. Note: if the internet article is not a “newspaper” or “broadcast,” the limitation period of two years under the Ontario Limitations Act applies.
The Ontario Court of Appeal rejected submissions by the defendant Toronto Life that the American “single publication rule” should be applied in Ontario. The Court noted that this rule “holds that a plaintiff alleging defamation has a single cause of action, which arises at the first publication of an alleged libel, regardless of the number of copies of the publication distributed or sold. In other words, the entire edition of an newspaper, book or magazine is treated as a single publication when it is first made available to the public. Later distributions are relevant to the assessment of damages but do not create a new cause of action or a new limitation period.”
The Court noted that the single publication rule has been rejected in England, Australia and by the British Columbia Court of Appeal. The Court also noted that even in “American states which apply the single publication rule, at least one state, California, has rejected its application for reprinting or republication in a different form. … Also, the Restatement of the Law, Second: Torts (American Law Institute, 1977) states that the single publication rule does not include separate aggregate productions on different occasions. If the publication reaches a new group, the repetition rule justifies a new cause of action. See s. 577A.” In this regard, the Ontario Court of Appeal stated:
36. Applying the single publication rule, where, as in this case, the original publication is print and the republication is on the internet could create a serious injustice for persons whose reputations are damaged by defamatory material. A plaintiff may not want to expend the time and resources to sue for an alleged libel in a magazine, which has a limited circulation and a limited lifespan. The plaintiff may consider the magazine’s circulation insufficient to warrant a lawsuit.
36. However, a plaintiff may well want to spend the time and money to sue if the alleged libel is on the magazine’s website and accessible on the internet. Unless the article is removed from the website, its circulation is vast, its lifespan is unlimited, and its potential to damage a person’s reputation is enormous. Yet, if a single publication rule is applied, the plaintiff’s claim may be statute barred before real damage to reputation has occurred.
2012 December 31
The Ontario Superior Court of Justice held that a defamation lawsuit by a military officer concerning emails circulated by his subordinates was premature. The plaintiff first had to exhaust a dispute resolution/arbitration process prescribed by the employment relationship.
The Court rejected defence submissions, however, that s. 5 of the Ontario Libel and Slander Act obligated the plaintiff to give notice to the defendants within six weeks of becoming aware of the allegedly defamatory emails. The Court stated: “The emails were private communications within [the Department of National Defence], as was the lecture material. These were not broadcasts. They fall outside the provisions of the Libel and Slander Act.”
2012 February 8
The Ontario Court of Appeal sustained a lower court ruling striking out a defamation to the extent that the claim was based on allegedly defamatory statements published or broadcast by the news media in Ontario on the ground the plaintiffs/appellants failed to give the libel notice before action required by s. 5(1) of the Libel and Slander Act of Ontario. The Court rejected submissions by the plaintiffs/appellants that their claim relating to the media website was for slander for transmitting the words orally to the media rather than for publication of the words by the media. The amended statement of claim did not plead a claim for slander but rather a claim for libel, because it sought damages flowing from the publications on the media websites. (The Court also held that the requirement of notice before action applies to non-media defendants.)
On the other hand, the Court of Appeal reversed the lower court and held that the plaintiffs/appellants were entitled to pursue their defamation claim over a press release by the defendant Competition Bureau which it posted on its own website. The Court of Appeal held that it was not “plain and obvious” that the words complained of were not capable of bearing a defamatory meaning and the claim therefore should not have been struck out on a pre-trial application under Ontario rule 21.01.
2012 January 19
The Alberta Court of Queens Bench dismissed an interlocutory application by three journalists to be removed as libel defendants on the basis their application raised “complex and fundamental issues” which should be decided at trial after full evidence and argument.
The lawsuit involves libel claims arising from a television broadcast and a television programme’s subsequent continuous availability on the Internet.
The journalists contended that they had not been personally served with the notice required by s. 13(1) of the Alberta Defamation Act, which provides:
13 (1) No action lies unless the plaintiff has, within 3 months after the publication of the defamatory matter has come to the plaintiff’s notice or knowledge, given to the defendant, in the case of a daily newspaper, 7 and in the case of any other newspaper or when the defamatory matter was broadcast, 14 day’s notice in writing of the plaintiff’s intention to bring an action, specifying the defamatory matter complained of.
(2) The notice shall be served in the same manner as a statement of claim.
In the context of the Internet, the Court identified the following issues for the trial judge (at paras. 34 and 35):
[34] First, does the Defamation Act even apply to the initial television broadcast of the Program? The Act defines broadcast in a manner that no longer captures the technological reality of modern television transmission, referring as it does to “electromagnetic waves of frequencies lower than 3000 gigahertz.” The Plaintiff argues that the Act should be read restrictively as it constricts common law rights and that no notice is required because the Act does not apply. The Defendants call for a purposive, remedial and contextual approach to the Act so that its policy goals can be maintained in light of changing technology. In short, the Program was broadcast, even without gigahertz.
[35] Second, does the Defamation Act apply to the Program posted to the CBC website and available on the Internet? There are two aspects worthy of note. First, does posting the Program on the internet constitute a publication of the Program? Second, if it does, and the publication is defamatory, when does the act of defamation occur – only on the first day it appears on the Internet or every day that it is available on the Internet?
The remaining issues identified by the Court are not specific to the Internet.
2011 November 21
The Ontario Superior Court of Justice, in a carefully reasoned judgment, held that the libel notice requirement contained in s. 5(1) of the Ontario Libel and Slander Act does not apply to libel on a website. This decision directly contradicts the September 19, 2002 decision of the Ontario Court of Appeal in Weiss v Sawyer, [2002] 61 O.R. (3d) 526, which concluded that the notice provision applied to an online version of a newspaper.
This Court in Shtaif treated the comments in Weiss v Sawyer about online versions of newspapers as obiter (non-binding) on the basis there was no finding, at either level of court in Weiss v Sawyer, that the libel in issue was actually posted on the defendant newspaper’s website. The Court in Shtaif also stated that many of the issues raised before it concerning the statutory definition of “newspaper” and “broadcast” in the Ontario Libel and Slander Act were not raised in Weiss and the Court of Appeal therefore did not have the benefit of arguments by counsel on the implications of the various statutory provisions. The Court in Shtaif held that the Libel and Slander Act treats a print newspaper entirely differently than an online newspaper.
In Shtaif, the alleged online libel appeared in an article published in the defendant Toronto Life magazine’s website on May 29, 2009. The plaintiff had learned of the printed version of the article (which appeared on newsstands in late May, 2008) by June 23, 2008 but did not see the internet version until August 20, 2008. The plaintiff purported to serve a libel notice pursuant to s. 5(1) of the Ontario Libel and Slander Act on September 29, 2008, which was outside the 6 week notice period prescribed by s. 5(1) concerning the print edition, but within 6 weeks of learning of the online article on the defendant’s website.
The defendants in Shtaif unsuccessfully argued that the Court should apply the American “single publication” rule which provides that for “any single edition of a newspaper or book, there was but a single potential action for a defamatory statement contained in a newspaper or book, no matter how many copies of the newspaper were distributed.” Winrod v Time, Inc. (1948) 334 Ill.App.59. The court stated: “Even though Toronto Life magazine qualifies as a “newspaper” [within the meaning of the Ontario Libel and Slander Act], its website is an entirely different medium and not a newspaper. Although it undoubtedly makes sense to treat multiple libellous statements that appear at various times in the same magazine as a single incident and to allow any affected victim to sue only once for all of them, it makes no sense and would serve no useful purpose, as in this case, to treat one libel printed in a magazine and repeated in a posting on a website as a single libel in the same way. In my view the alleged libel in the print copy of Toronto Life magazine must be treated separately from the alleged libel in the website posting.”
In the course of reviewing the Ontario Libel and Slander Act, the Court in Shtaif stated that the expression “libel” in the statute does not mean any defamatory statement made in writing, but is deemed to mean “defamatory words in a newspaper or broadcast.” “In particular, the website posting cannot be said to contain “libel in a newspaper or broadcast” even if it were to contain a defamatory statement. As clearly defined in section 1(1) of the Act, a newspaper must be made of paper, it must be printed and it must be published periodically as specified. As well, as stipulated in section 7 of the Act, the Act applies “only to newspapers printed and published in Ontario.” A website posting does not meet any of these criteria and, therefore, cannot qualify as a “newspaper.” “Nor does any website on the Internet “broadcast from a station in Ontario” or, indeed, “broadcast” from any place as the word is defined. The process of posting to a website is initiated by uploading content to the website on the Internet through an electronic device referred to as a ‘sever’. There is evidence (see the plaintiff’s motion record at tab Y), not contradicted, that the TL server is located near Austin, Texas. It follows that TL may not “broadcast” or otherwise disseminate the contents of its website “from a station in Ontario”. If, on the other hand, it were to be found that TL does “broadcast,” the broadcast would be from a place in Texas.”
2007 November 23
The Ontario Superior Court of Justice rejected the defence that libel claims arising from 5 of 9 website postings should be barred because the plaintiff failed to give written notice of intended action pursuant to s. 5 of the Ontario Libel and Slander Act which requires such notice in the case of broadcasts from a station within Ontario.
The Court held that the evidentiary record was insufficient to permit a finding whether publication on an internet website is a “broadcast” within the meaning of the Libel and Slander Act, noting that no radio broadcast was involved as was the case in Janssen-Ortho Inc. v Amgen Canada Inc., [2006] O.J. No. 2265. The Court also concluded that because the internet website was hosted on a server outside Canada, the defence could not in any event show that the broadcast was from a station within Ontario.
2005 June 7
The Ontario Court of Appeal held that an Internet broadcast by a radio station which also published the allegedly defamatory expression over ordinary radio waves is a “broadcast” within the meaning of the Ontario Libel and Slander Act.
The Court of Appeal also held that because the radio waves were broadcast by a radio station within Ontario, it was a logical inference that the Internet broadcast was also in Ontario, thereby satisfying another element of the statutory definition. In the circumstances, because the plaintiff had not given the requisite notice of intended action within the time limited by the statute, the plaintiff’s defamation claims relating to the radio wave and Internet “broadcasts” were struck out.
2003 October 22
The Ontario Court of Appeal set aside a lower court ruling which had determined that material placed on a website and made available through the Internet is “broadcast” within the definition of the Ontario Libel and Slander Act, thereby triggering the notice requirement.
The Court of Appeal held that this issue was too complicated to be decided on a summary judgment application and should be determined at a full trial where expert witnesses on the subject could be cross-examined in the presence of the court.
See McConchie and Potts, Canadian Libel and Slander Actions, “Is the libel contained in a ‘broadcast’?“page 152.
2002 September 19
Weiss v. Sawyer, [2001] 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.
For details of this decision, click here.
See McConchie and Potts, Canadian Libel and Slander Actions, “Is the Libel Contained in a ‘Newspaper’?” pages 70-71.
