Ont. C.A.: Libel and Slander Act notice and limitation periods apply to internet libel; “single publication” rule rejected

The Court of Appeal for Ontario judgment in Shtaif v. Toronto Life Publishing Co. Ltd., 2013 ONCA 405 (Ont. C.A.) (“Shtaif“) confirms that the six-week notice requirement and three-month limitation period under the  Libel and Slander Act, R.S.O. 1990 c. L.12 (the “Act”), not the 2-year general limitation period in s. 4 of the Limitations Act, 2002, S.O 2002 c.24, governs libel actions based on online versions of newspaper articles.

The Shtaif case involves an ongoing libel action stemming from a June, 2008 Toronto Life article entitled, “How to Piss Off a Billionaire” published in Toronto Life’s print and on-line editions which referred to Russian billionaire Alex Schnaider and described the ongoing litigation between Schnaider and Michael Shtaif, a former business partner. The article also named Toronto lawyer, Gregory Roberts. For a brief backrgounder, see my previous post: ” Summary Dismissal of Libel Action against Toronto Life Magazine Set Aside” .

After the Court of Appeal for Ontario set aside the dismissal of the plaintiffs’ claim in Roberts v. Toronto Life Publishing Co. Ltd., 2010 ONCA 82, in June 2011, Toronto Life brought a motion for summary judgment to dismiss the action arguing that the defamation claim was time-barred under the Libel and Slander Act (‘the Act”) and the negligence claim would inevitably fail due to a lack of  proximity and foreseeability as necessary elements to establish a prima facie duty of care. (Young v. Bella, 2006 SCC 3, [2006] 1 S.C.R. 108 (SCC).

Shtaif and Roberts brought a cross-motion to amend their statement of claim to add a claim for libel in the print version of the article based upon the “recapture” provision under s. 6 of the Act.  The motion judge granted the plaintiffs’ motion to amend, dismissed the claim for libel in the print version of the article, and dismissed Toronto Life’s motion for summary judgment.

Both parties appealed.

The key issue on the appeal was discoverability, or, perhaps more accurately, the lack of an evidentiary record or pleading to raise the issue of discoverability.

While the plaintiffs complained about the print version of the article, they did not sue over it.  They became aware of the internet version of the article in late August 2008 and gave notice under the Libel and Slander Act  in October 2008, then sued  Toronto Life and related individual defendants. Laskin J.A. for the unanimous panel (Juriansz and Tulloch JJ.A. concurring) writes,

[45]       I am inclined to agree with the plaintiffs’ position.  The defendants did not plead discoverability in their statement of defence; they did not rely on it in their amended notice of motion for summary judgment; they did not argue it in their factum on the motion; and the motion judge made no reference to discoverability in his reasons.

[46]       In limited circumstances, this court can entertain an issue not raised in the trial court.  But to do so we must have a satisfactory record to address the issue and be persuaded that if we do consider it, the party against whom the issue is raised will not be prejudiced: see Ross v. Ross 1999 NSCA 162, 181 N.S.R. (2d) 22; 767269 Ontario Ltd. v. Ontario Energy Savings L.P., 2008 ONCA 350.  I expect that had the plaintiffs known discoverability was to be an issue before the motion judge, they would have filed a good deal of evidence to try to show that they could not reasonably have discovered the internet article earlier.  Thus, I cannot say that the plaintiffs would not be prejudiced were we to consider the issue for the first time in this court.

[47]       But even if we were to consider discoverability, the material filed before us shows that the date the article, and especially the alleged offending portion, could be accessed on the internet is disputed.  The defendants say that it could be accessed around the time it was posted, at the end of May.  The plaintiffs say that they could not access it until August.  In support of their assertion, they point to Shtaif’s August 1 letter, which did not refer to the internet version of the article.

[48]       This dispute can only be resolved at trial.  Therefore, though I do not think that discoverability can properly be raised on this appeal, even if it could, it is a genuine issue requiring a trial.

The Court of Appeal also soundly rejected Toronto Life’s argument for adoption of the American “single publication” rule. (at para. 27-40).

Justice Laskin also held that in respect of the plaintiffs’ internet libel claim, there was a genuine issue for trial whether it was subject to the notice and limitation provisions in the Libel and Slander Act:

[21]       Our court has grappled with the question in two decisions:  Weiss v. Sawyer (2002), 61 O.R. (3d) 526 (C.A.) and Bahlieda v. Santa, (2003), 68 O.R. (3d) 115 (C.A.).

[22]       In Weiss, the evidence conflicted on whether the publication – an allegedly defamatory letter – was published over the internet.  Assuming that it was, Armstrong J.A. wrote, at para. 24, that he thought the word “paper” in s. 1(1) of the Act was broad enough to include a newspaper published on the internet.  He did not discuss whether the internet publication was published in Ontario though implicitly he held that it was, as he found that the notice requirement in s. 5(1) of the Act applied.  Armstrong J.A. did not decide whether the internet publication was also a “broadcast” as there was no evidence to make that determination.

[23]       In Bahlieda, this court held that in the light of the conflicting evidence in the case, the question whether an internet publication was a broadcast from a station in Ontario was an issue for trial.  The panel said, at para. 6: “Summary judgment applications are not a substitute for trial and thus will seldom prove suitable for resolving conflicts in expert testimony particularly those involving difficult, complex policy issues with broad social ramifications”.

[24]       In this case, I think the sensible course is that adopted in Bahlieda: to leave to trial the question whether the internet version of the article is a newspaper published in Ontario or a broadcast from a station in Ontario.  I am not satisfied that the evidentiary record before us is sufficient to decide these questions, which have broad implications for the law of defamation.

[25]       Leaving these questions for trial also makes practical sense.  On my proposed disposition of these appeals, the issue whether the claim for libel in the internet version of the article is subject to the notice and limitation provisions of the Act is relevant only to the issue of discoverability, an issue I would also leave to be determined at trial.

[26]       Therefore, I would hold that the issue whether the claim for libel in the internet version of the article is subject to ss. 5(1) and 6 of the Act is a genuine issue requiring a trial.

With respect to the plaintiff’s attempt to recapture under s. 6 of the Act their claim for libel in the print version of the article, Laskin  J.A. held:

[71]       In summary, a plaintiff who has brought a libel action against the media, may include in that action a claim for an earlier libel.  However, to include or recapture that earlier libel, the plaintiff must meet three timing requirements.  First, the earlier libel must have been published within the year period before the commencement of the action (s. 6).  Second, proper notice must have been given within six weeks after the earlier libel claim to the plaintiff’s knowledge (s. 5(1)). Third, the claim for the earlier libel must be asserted in the action and therefore within three months after the libel sued on came to the plaintiff’s knowledge (s. 6).

[72]       It is the third requirement that the plaintiffs failed to meet. Their claim for libel in the print version of the article could not be brought beyond the three-month limitation period provided for in s. 6.  In other words, it could not be brought after November 20, 2008.  As the plaintiffs did not assert this claim until June 2011, it is long out of time.

While it is arguable that the Shtaif decision ostensibly holds that the Act applies to all forms of internet libel (blogs, Facebook, Twitter, chat forums, etc.), this may be overreaching, since it is difficult to reconcile the statutory definitions of “broadcast” and “newspaper” with internet media. Section 1(1) of the Act defines “broadcasting” and “newspaper” as follows:

“broadcasting” means the dissemination of writing, signs, signals, pictures and sounds of all kinds, intended to be received by the public either directly or through the medium of relay stations, by means of,

(a) any form of wireless radioelectric communication utilizing Hertzian waves, including radiotelegraph and radiotelephone, or

(b) cables, wires, fibre-optic linkages or laser beams,

and “broadcast” has a corresponding meaning; (“radiodiffusion ou télédiffusion”, “radiodiffuser ou télédiffuser”)

“newspaper” means a paper containing public news, intelligence, or occurrences, or remarks or observations thereon, or containing only, or principally, advertisements, printed for distribution to the public and published periodically, or in parts or numbers, at least twelve times a year.

Whether a blogger residing in Ontario is “broadcasting” in Ontario, when the blog is hosted by a server in another jurisdiction, seems to put a premium on physical location of servers at the expense of the locus of reputational harm. Then again, what if the server is in the cloud?  Certainly, Facebook and Twitter are American companies with servers within the U.S. territorial jurisdiction. See my previous post: “Ontario appeal court asserts jurisdiction; rules that a domain name is personal property” discussing the Court of Appeal for Ontario in Tucows.Com Co. v. Lojas Renner S.A., 2011 ONCA 548 (Ont. C.A.).

The Supreme Court of Canada also has extended the Defence of Responsible Communication on Matters of Public Interest” (also referred to as the “responsible journalism” defence ) to bloggers and other social media users in Grant v. Torstar Corp., 2009 SCC 61[2009] 3 S.C.R. 640, (“Grant”) and its companion case, Quan v. Cusson, 2009 SCC 62 (“Quan”): See my previous post:  The Wild West of Journalistic (and Blogistic) Ethics.

In  Crookes v. Newton, 2011 SCC 47 , the Supreme Court of Canada also held that held that there is no intermediary liability for hyperlinking to defamatory content, which does not constitute re-publication, unless the alleged libel is endorsed or repeated: See my previous post: “No intermediary liability for hyperlinking, Supreme Court of Canada rules“.

It’s high time that anachronistic Victorian era legislation catches up with modern technology.The Ontario legislature needs to amend the Libel and Slander Act to wave a fond farewell to the 19th century and enter the new Millennium, even a decade late.

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