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Cyber Libel and Canadian Courts
Canadian Internet Defamation Rulings

Cases published to March 31, 2014

This is a list of Canadian court decisions involving the publication of allegedly defamation expression via the Internet.

This list is not exhaustive: (a) court rulings are not always reduced to writing; (b) the law reports and electronic databases do not contain all written court rulings; and (c) jury verdicts are not published in the law reports or in electronic legal databases.

The Canadian Internet defamation decisions are currently indexed under the following topic headings:

  A. Jurisdiction
B. Notice of Intended Action
C. Limitations Defences
D. Defamation Damage Awards
E. Substantive Defences
F. Pre-Trial Injunctions
G. Anonymous Defendants
H. Miscellaneous Cyber Libel Issues

As new Canadian Court rulings are pronounced and listed on this page, new topic headings may be added.

Under each topic heading, the Canadian decisions are listed in reverse chronological order (i.e. the most recent decision is listed first).

Wherever possible, a hypertext link is provided to the full text of a Canadian decision. A link will in most cases lead to a free, publicly-accessible website.

In a few instances, the link is not to another website but to an Adobe Acrobat version of the judgment stored on this website.

A number of decisions have no link. Most are from the Ontario Superior Court of Justice which does not display its decisions on its website.

Most of the Canadian decisions which pre-date April 1, 2004 are discussed in Roger D. McConchie and David A. Potts, Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004). References to relevant pages in the book are given below.

See also:
  I. Commonwealth Decisions of Interest
This section lists certain Commonwealth decisions which discuss Internet defamation and which may therefore be of interest to Canadian tribunals.

Legal Disclaimer

McConchie Law Corporation makes this list available to clients, friends of the firm, legal researchers, and others interested in Internet law with the caveat that nothing on this website constitutes legal advice. Potential Internet defamation litigants should ensure that they obtain appropriate legal advice tailored to their specific circumstances.

McConchie Law Corporation can not accept any responsibility for keeping information on this list up-to-date although it strives to do so. Cases of interest should be carefully up-dated before any reliance is placed on them.

McConchie Law Corporation does not express any view concerning the validity of the findings of fact made by the courts whose decisions are listed below. Findings of fact may be discussed, however, to the extent necessary to provide context for a court's decision.

 


A. JURISDICTION back to top
Basic principles
Jurisdiction
The basic principle applied by Canadian courts is that a court may exercise jurisdiction only if it has a "real and substantial connection" with the subject matter of the litigation. See McConchie and Potts, Canadian Libel and Slander Actions, "The Provincial Superior Courts and Conflicts of Laws," pages 144-159.

Forum conveniens
Even if a Canadian court has jurisdiction, it may decline to hear the case if it concludes that the court of some other jurisdiction is more convenient and appropriate for the pursuit of the action and for securing the ends of justice. See McConchie and Potts, Canadian Libel and Slander Actions, "The Provincial Superior Courts and Conflicts of Laws," "Forum Non Conveniens," page 152.

British Columbia

In British Columbia, issues of jurisdiction are now governed by the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, chapter 28. This statute substantially codifies the common law but litigants and their legal counsel should give its provisions close consideration.


Canadian Cyber Libel Jurisdiction Cases
Click on a case name for full text

2013 July 18
Kim v Dongpo News, 2013 ONSC 4426

The Ontario Superior Court declined to rule whether an internet article that is published internationally on-line by a newspaper in another country can be considered to be part of a “newspaper printed and published in Ontario” within the meaning of the Ontario Libel and Slander Act on the basis no expert evidence had been put before the Court by the defendant journalist who sought to rely on sections 5 and 6 of that statute. The Court went on to hold that, in any event, the plaintiff had complied with s. 5(1) in providing a notice of libel within six weeks of discovering the libel and had also commenced the action within the three month limitation period set out in s. 6 of the Libel and Slander Act based on the principle of “discoverability.” That principle provides that the limitation period only begins to run when the person defamed knew or could have known about the libel by the exercise of reasonable diligence.

2013 January 11
Gravel v. Lifesitenews.com (Canada), 2013 QCCS 36

The Superior Court of Quebec dismissed a pre-trial application by one of the defendants, a journalist, to strike out elements of the plaintiff’s claim for damages relating to the publication of 39 allegedly defamatory articles in a monthly bulletin posted on the defendant’s Internet website. The defendant journalist alleged the claim against him was outside the one year limitation period for claims based on injury to reputation. The Court noted that a previous Court ruling had rejected the substance of that application. The Court also noted that the plaintiff sought damages for invasion of privacy, which is not subject to the one year limitation.

The Court also refused to decline jurisdiction over the action. The judge noted: (i) the individual defendants were domiciled in Ontario; and (ii) the litigation had been proceeding for some time and was substantially advanced. At this late stage, the Court should not be asked to decline jurisdiction. Further, such an Order was not justified in all the circumstances. Residence of the defendants is only one of the factors to be considered. The plaintiff was seeking recovery of damages only in respect of injury to his reputation in Quebec. [Rough translation from French]: “….[I]n a world of widespread Internet communication, accessible across borders, the most significant geographic location in such litigation is the one where the damage has been suffered.

2012 November 6
Cohen v Desert Eagle Resources Ltd. (Garrison International Ltd.), 2012 QCCS 5654

The Quebec Superior Court rejected a pre-trial application by the defence for an Order declining jurisdiction over a defamation claim arising from press releases published on the Internet. The Court concluded that a clause in a contract requiring disputes over a promissory note to be resolved by the courts of Mongolia did not apply to this claim which was made by a Quebec resident in relation to press releases issued in Ontario.

The Court noted [rough translation from French]:

The press releases on which the claim is based circulated here. As the Supreme Court of Canada noted in Spar Aerospace, damage to reputation occurs in the domicile of the person who is attacked.

The Court held that the fact that the plaintiff also alleges that his reputation was injured elsewhere in Canada as well as China and Mongolia does not mean it should decline jurisdiction. Mongolia would not be a more convenient forum: the great majority of the defendants are located in Ontario.

2012 October 2012
Court v Debaie, 2012 ABQB 640

The Court of Queen’s Bench of Alberta concluded that the plaintiff had demonstrated an arguable or triable case that allegedly defamatory material posted on Facebook was published in Alberta. The Court accordingly dismissed a pre-trial application by the defendants for an Order that Ontario or Nova Scotia were more convenient jurisdictions.

In this case, the statement of claim alleged that in January, 2012, the defendants published defamatory comments on their Facebook pages which were then set to open access. “As a result, anyone with an Internet connection could view the comments. The posted comments would also appear on the “wall” of the Defendants’ Facebook “friends.” One defendant was alleged to have 286 friends; the other 51 at the time of the postings.

The Court held that:

“publication need not always be provided by direct evidence. Publication may be inferred from other evidence in appropriate cases. Justice Deschamps (in Crookes v Newton, SCC) was specific about this and held that ‘if a plaintiff proves facts from which it is reasonable to infer that the words were brought to the knowledge of some third person, that will establish a prima facie case of publication.”

2012 April 18
Editions Ecosociete Inc. v Banro Corp, 2012 SCC 18, dismissing an appeal from 2010 ONCA 416, affirming 2009 CanLII 7168

The Supreme Court of Canada held that the Ontario court had jurisdiction over defamation claims relating to a book published by a corporation based in Montreal, Quebec, where the evidence showed 93 copies were distributed to bookstores in Ontario, including 27 in the City of Toronto, a number of copies were available in Ontario public libraries, and the book was also available for purchase on the defendant’s website. One of the individual defendants had given a speech about the book at the University of Toronto. “The book has also been referenced by many websites and newspaper articles available and accessible in Ontario.”

The Supreme Court of Canada held that at this preliminary stage of proceedings, the “plaintiff need only allege publication and its allegations should be accepted as pleaded unless contradicted by evidence adduced by the defendants.

On the forum conveniens issue, the Supreme Court of Canada specifically rejected defence submissions that the plaintiff must allege and prove “substantial publication” in Ontario, rejecting the approach taken by the English courts. “The defamation law of Canada has not adopted the substantial publication standard. In Canada, the evidentiary standard for proving publication remains the traditional common law standard, according to which a single instance of publication is sufficient for the tort to crystallize.” The Court noted that the importance of place of reputation has long been recognized in Canadian defamation law and that it is important to permit plaintiffs to sue for defamation in the locality where they enjoy their reputation.

2012 April 18
Breeden v Black, 2012 SCC 19, affirming 2010 ONCA 547

The Supreme Court of Canada unanimously held that the Ontario Superior Court has jurisdiction over libel claims by Conrad Black who alleges in six libel actions that certain statements issued by the defendants and posted on the website of Hollinger International, Inc. are defamatory and that the defendants had failed to prove that Illinois was a more appropriate forum than the Ontario court. “Lord Black alleges that the press releases and reports issued by the appellants [defendants] and posted on International’s website contained defamatory statements that were downloaded, read and republished in Ontario by the Globe andMail, the Toronto Star and the National Post [not named as defendants]. He claims damages for injury to his reputation in Ontario.

The Supreme Court of Canada rejected defence arguments that Black is a libel tourist and that in cases of transnational libel claims, the Court should be concerned with whether there is a real and substantial connection between the forum and the substance of the action. In this case, the appellants argued, the substance of the actions is American and both New York and Illinois are more appropriate forums for a libel trial. LeBel J., writing the judgment of the Court, stated: “The issue of assumption of jurisdiction is easily resolved in this case based on a presumptive connecting factor – the alleged commission of the tort of defamation in Ontario. It is well established in Canadian law that the tort of defamation occurs upon publication of a defamatory statement to a third party. In this case, publication occurred when the impugned statements were read, downloaded and republished in Ontario by three newspapers. It is also well established that every repetition or republication of a defamatory statement constitutes a new publication. …The original author of the statement may be held liable for republication where it was authorized by the author or where the republication is the natural and probable result of the original publication. …in my view, the republication in the three newspapers of statements contained in press releases issued by the appellants clearly falls within the scope of this rule. In the circumstances, the appellants have not displaced the presumption of jurisdiction that results from this connecting factor.

In answer to defence arguments that Illinois was a more appropriate jurisdiction, the Court considered the relevant factors which are described in Club Resorts v Breda, 2012 SCC 17, noting that they have been codified in the a non-exhaustive list in the British Columbia Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, s. 11(2). Those factors include: “(a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum; (b) the law to be applied to issues in the proceeding; (c) the desirability of avoiding multiplicity of legal proceedings; (d) the desirability of avoiding conflicting decisions in different courts; (e) the enforcement of an eventual judgment; and (f) the fair and efficient working of the Canadian legal system as a whole.” The Court [at paragraph 25] also listed the factors most commonly considered by Quebec Courts in Club Resorts in connection with the issue of the most convenient forum.

LeBel J., noting that the BC statute does not provide for consideration of any factor corresponding to the advantage conferred upon the plaintiff by its choice of forum, stated that “juridical advantage not only is problematic as a matter of comity, but also as a practical matter, may not add very much to the jurisdictional analysis” and that “[j]uridical advantage … should not weigh too heavily” in the forum non conveniens analysis.

2012 February 9
Nazerali v Mitchell, 2012 BCSC 205

The British Columbia Supreme Court dismissed a defence application for an order striking out the plaintiff’s notice of civil claim, or staying or dismissing the proceedings on the ground that the notice of civil claim did not allege facts that, if true, would establish that the court has jurisdiction over the applicants in respect of the claim made against them in the proceeding. After noting that the plaintiff resides in Vancouver and the defendants are resident in the U.S.A., the Court defined the issue before it in the following terms: “The essence of the defendants’ application is that the pleadings, even as supplemented by the supporting affidavits, do not establish publication in British Columbia of the material at issue, as there is neither an allegation nor evidence that anyone in the province read the words that are alleged to be defamatory.

The Court held that pleadings in defamation actions concerning material posted on the Internet require an allegation that the allegedly defamatory posting was communicated to a third person in British Columbia, referring to Crookes v Newton, 2011 SCC 47 at paragraph 1; Elfarnawani v International Olympic Committee, 2011 ONSC 6784 at paragraph 31, and Crookes v Yahoo, 2007 BCSC 1325, affirmed 2008 BCCA 165. In this context, the Court stated:

21. The plaintiff submits that using the word “publication” necessarily implies that the material posted on the website was read by someone within the province. In my view, that submission is inconsistent with the holding in Yahoo. I find that the notice of civil claim in the present case has the same deficiency as that found … in Yahoo in that it does not contain an allegation that anyone in British Columbia either downloaded or read the defamatory words from the website.

The Court went on to hold, however, the affidavits filed by the plaintiff evidence cured the deficiency in the notice of civil claim because they established a “good arguable case” of publication of the defamatory statements in the province, despite the fact that none of the three deponents stated that they read or downloaded the specific words complained of in the notice of civil claim. The deponents deposed that they read statements on the website which conveyed certain meanings to them. “The plaintiff has met the burden to establish an arguable case that a tort has been committed in British Columbia.

2011 November 15
Elfarnawani v. International Olympic Committee, 2011 ONSC 6784

The Ontario Superior Court of Justice stayed the plaintiff’s defamation action on the basis that the plaintiff had failed to lead any evidence of “publication” in Ontario and therefore had failed to prove that the alleged tort of defamation was committed in Ontario. The Court noted that while the allegedly defamatory material was posted by the defendant on its Internet website “thereby making it available to anyone in the world with access to the internet,” that material would only be “published” in Ontario “if someone other than the plaintiff, or his legal representatives or agents, in fact accessed the allegedly defamatory material posted on the IOC website.” The Court held that merely posting material on an Internet website does not constitute publication, which only occurs when and wherever a third party downloads or views the impugned material from the website, citing Braintech Inc. v. Kostiuk, [1999] B.C.J. No. 622 (C.A.) at para. 58-63; Dow Jones Co. Inc. v. Gutnick (2002), 194 Aust.L.R. 433 (H.C.) at para. 44; Barrick Gold Corp. v. Blanchard and Co., [2003] O.J. No. 5817 (S.C.); Crookes v. Holloway 2007 BCSC 1325 (CanLII), (2007), 75 B.C.L.R. (4th) 316 (S.C.) at para. 26; affirmed: 2008 BCCA 165 (CanLII), (2008), 77 B.C.L.R. (4th) 201 (C.A.); Research in Motion Ltd. v. Visto Corp., [2008] O.J. No. 3671 (S.C.J.) at para. 87-92; Crookes v. Wikimedia Foundation Inc., [2009] B.C.J. No. 1832 (C.A.) at para. 80; affirmed: 2011 SCC 47 (CanLII), 2011 SCC 47; J.-G. Castel and J. Walker, Canadian Conflict of Laws (2005), 6th ed.), vol. 1, at § 11.12, at pp. 11-55 to 11-64, vol. 2, at § 35.8, at p. 35-18. The necessary “publication” may also occur in any particular location that appears to have been specifically “targeted” by the posting of the allegedly defamatory material. See: Black v. Breeden (2010), 102 O.R. (3d) 748 (C.A.) at para. 32-42; presently under reserve in the Supreme Court of Canada: [2010] S.C.C.A. No. 387; Bangoura v. Washington Post 2005 CanLII 32906 (ON CA), (2005), 258 D.L.R. (4th) 341 (Ont.C.A.) at para. 34; leave refused: [2005] S.C.C.A. No. 497.

The Court held that publication within Ontario could not be presumed in favour of the plaintiff. “Under the Libel and Slander Act …defamatory words in a newspaper or in a broadcast are “deemed to be published.” However, as the Supreme Court of Canada recently observed in Crookes v. Newton, at para. 14, there is “no such presumption in relation to material published on the Internet.” Any significant shift in policy in relation to this issue would have to come from the Legislature. Further, the issue is clearly not a matter that is properly the subject of judicial notice. Accordingly, the issue of “publication” is a matter of proof, by evidence, in each individual case. By failing to lead any evidence at all of “publication” in Ontario, the plaintiff has failed to prove that the alleged tort of defamation was committed in Ontario.

2011 January 13
Éditions Écosociété inc. v. Banro Corp., [2010] S.C.C.A. No. 311

The Supreme Court of Canada granted leave to the defendants to appeal a decision of the Ontario Court of Appeal which sustained a lower court decision holding (i) that there is a real and substantial connection between Ontario and the defamation claims brought by the plaintiff Banro Corporation and (ii) that Ontario is the appropriate forum to hear the claims. The plaintiff Banro is an Ontario company based in Toronto. The defamation claims concern a book which was published in Quebec and distributed to bookstores in Quebec, Ontario and other parts of Canada. The Internet is implicated because the book can be purchased on the Internet and is referred to on websites and in newspaper articles which can be accessed by persons in Ontario. In the court of Ontario, the defendants brought unsuccessful motions to stay the action on the basis there was no real and substantial connection to Ontario and that Ontario was not the convenient forum for the trial of the action. For more information about the facts, see the brief Court of Appeal decision: 2010 ONCA 416 and the decision of the Ontario Superior Court of Justice: 23 February 2009, COURT FILE NO.: CV-08-00356266-0000. The Supreme Court of Canada is scheduled to hear this appeal on March 25, 2011.

2010 August 13
Black v Breeden, 2010 ONCA 547. Note: leave to appeal this decision to the Supreme Court of Canada was granted on December 16, 2010: 2010 CanLII 75965 (S.C.C.)

The Ontario Court of Appeal dismissed an appeal from the March 31, 2009 decision of the Ontario Superior Court which confirmed that Ontario has jurisdiction and is the appropriate and convenient forum for the plaintiff’s six defamation actions against directors, advisors and a Vice President of Hollinger International Inc. in relation to posting’s on Hollinger’s website.

Applying the test for jurisdiction in Van Breda v Village Resorts Limited (2010), 98 O.R. (3d) 721 (CA) [on appeal to the Supreme Court of Canada], the Ontario Court of Appeal rejected defence arguments that treating the place of the tort as the place in which the allegedly defamatory statements were accessed in not appropriate in the context of libel. The Court of Appeal held it did not need to decide whether the correct test (as alleged by the defence) was whether the defendant “targeted” the defamatory statements to the forum because the Court held that it was “clear on the record that there is evidence that the defendants did target and direct their statements to this jurisdiction.

The Court of Appeal concluded that although the factual context of the claims involved significant connections to the United States, there was a real and substantial connection between the plaintiff Black’s claims and Ontario arising from the publication in Ontario and damage to Black’s reputation in Ontario. The Court of Appeal noted that Black’s claims were limited to damages to his reputation in Ontario. Even if an Ontario libel judgment favouring Black might be unenforceable in the United States, it would still have significant value to Black as a vindication of his Ontario reputation.

2009 October 23
Blais c. Couture, 2009 QCCQ 10968

The Quebec Court (Civil Division – Small Claims), District of Montreal, dismissed an application by the defendant to transfer these defamation proceedings to the District of Joliette. The plaintiff’s lawsuit concerned allegations published in a magazine distributed in Montreal and on an Internet website which was not alleged to be located in Montreal The Quebec Code of Civil Procedure permitted the plaintiff to bring the action in his jurisdiction of residence if a libel in the press was involved. The fact the words complained of were also published in an electronic medium could not be used to defeat this right.

2009 March 31
Black v Breeden, [2009] O.J. No. 1292

The Ontario Superior Court of Justice dismissed a defence motion to stay six related libel actions brought by the plaintiff Conrad Black holding that there was a real and substantial connection with Ontario and that the province was a convenient and appropriate forum. The Court held, inter alia: “The case law is clear that the heart of a libel action is publication. The tort of defamation is committed where the publication takes place. Publication occurs when the words are heard, read or downloaded. The statements in question may well have been made in the U.S. by directors or advisors of the U.S. company, but they were published or republished in Ontario and they are alleged to have caused injury in Ontario. The connection between the subject matter of the actions and Ontario is thus significant.” With respect to the American defendants, the Court held that they can be “connected to Ontario if it was reasonably foreseeable to these defendants that the allegedly defamatory press releases posted on their company’s New York website would be downloaded and published in Ontario and would result in damage to the plaintiff’s reputation in Ontario.”

2009 February 23
Banro Corp. v . Éditions Écosociété Inc., [2009] O.J. No. 733,
appeal dismissed:
2010 ONCA 416

The Ontario Superior Court of Justice dismissed a defence motion to stay a defamation action concerning a book entitled Noir Canada. The court concluded that the corporate defendant publisher was carrying on business in Ontario by disseminating copies of the book for sale by bookstores in Ontario and by making the book available for sale in Ontario via the Internet. The court held that publication occurs where the allegedly defamatory matter is downloaded from the Internet or where a book is read. “It was and should have been reasonably foreseeable to the defendants that, in writing, researching, editing and publishing Noir Canada, dissemination and marketing of Noir Canada in Ontario and via the internet would or could cause harm to the plaintiff in Ontario. As a result, I am of the view that the above activities have rendered the defendants subject to the jurisdiction of this forum.”

2008 September 19
Research in Motion Ltd. v Visto Corp., [2008] O.J. No. 3671

The Ontario Superior Court rejected arguments by the defendant, a competitor of RIM, that the Ontario court did not have jurisdiction, or alternatively, that Ontario was not a convenient forum to hear the trial of this action.  The plaintiff claimed damages in its statement of claim for allegedly false and misleading statements contrary to s. 36 and s. 52 of the Competition Act, alleged violation of s. 7(a) of the Trade-marks Act, and alleged injurious falsehood and unlawful interference with the plaintiff’s economic relations.  These claims related in part to statements allegedly reported and published in various media and on the Internet; interviews with CNBC Europe and CNN in England which were posted on the defendant’s website; and an interview with Telecom TV linked to the defendant’s website.  [Note:  On this type of application, the Court does not decide the merits of the claims]. 

The Court held that there was a real and substantial connection between Ontario and the facts giving rise to the lawsuit, rejecting defence submissions that Ontario was not implicated because the statements at issue were made in the United States or the United Kingdom by United States citizens regarding a United States patent infringement lawsuit.  The Court noted that the impugned statements “were disseminated in Ontario by direct contact with the media or by the internet.”  Referring to Crookes v Holloway, [2008] B.C.J. No. 834 (BCCA), the Ontario court accepted that “defamation occurs in the jurisdiction where the statements were read or heard.”

2008 July 28
Guilbert v Guilleaume, 2008 QCCS 3504

The Quebec Superior Court , following and applying Vincent v Forget, 2008 QCCS 2466, ordered that a lawsuit for defamation based on words published in discussion groups hosted by Google inc. should be transferred from the judicial district of Trois-Rivières to the judicial district of Montrèal where the defendants reside.
 
2008 May 20
Vincent v Forget, 2008 QCCS 2466

The Quebec Superior Court held that s. 68 of the Quebec Civil Procedure Code required a lawsuit for defamation based on publication on a website to be brought in the judicial district of Joliette where the defendant resided and where his computer was located. The Court rejected submissions by the plaintiff that the website publication was, by analogy, a “libelle de presse” (newspaper libel), in which case a plaintiff would be entitled to bring the case in the judicial district where the plaintiff resides. Accordingly, the lawsuit was ordered by a justice of the District of Quebec to be transferred to the District of Joliette. [Note:  This decision turned on the wording of the Quebec Civil Procedure Code]

2008 April 1
TimberWest Forest Corp. v United Steel, Paper and Forestry,
Rubber Manufacturing, Energy, Allied Industrial and
Service Workers International Union
, 2008 BCSC 388

The British Columbia Supreme Court concluded that it had jurisdiction to hear defamation claims brought against the defendants, holding that “all of the allegedly defamatory statements, video, website postings, pamphlets, and other communications relate to a tort alleged to have been committed in British Columbia because the harm allegedly suffered by the plaintiff was suffered in British Columbia where it resides, where it carries on business, where it employs contractors and employees, where some of its customers are located, and where it is regulated.

2007 September 4
Crookes v Holloway, 2007 BCSC 1325, affirming 2007 BCSC 1325

Alleged Cyber Libel: Website posting

Non-Internet Defamation Also Alleged: No.

Canadian Court has jurisdiction? No

Canadian Court should decline jurisdiction: Not relevant

The British Columbia Supreme Court dismissed this libel action against Yahoo, a foreign defendant with no ties to British Columbia. “Yahoo has no offices in Canada, is not registered to do business in Canada and does not pay Canadian taxes. Yahoo does not do business and has no physical presence or bank accounts in British Columbia. The servers for Yahoo’s internet services ... are not located in Canada. The fact Yahoo can be accessed on the internet from a computer in British Columbia is not evidence it is carrying on business in British Columbia.”

The Court, applying Dow Jones Co. Inc. v Gutnick (2002), 194 Aust.L.R. 433 (H.C.) and Barrick Gold Corp. v Blanchard and Co., [2003] O.J. No. 5817 (S.C.), held that the defamation is committed at the time and place when a person downloads the impugned material from the internet.

The plaintiff in this case “neither alleged nor tendered any evidence that any individual in British Columbia has downloaded and read the impugned material posted ... on the website.”

2007 March 27
Bains v Sidhu Singh Hamdard Trust, [2007] O.J. No. 1129

Alleged Cyber Libel: Website posting

Non-Internet Defamation Also Alleged: Yes - printed newspaper

Canadian court has jurisdiction? Not disputed

Canadian court should decline jurisdiction? No

The Ontario Superior Court of Justice held that it had jurisdiction to hear this case (as conceded by the defendants) and rejected the defence submissions that India was a more appropriate jurisdiction for the action. As a result, the defence motion to stay the Ontario litigation on forum conveniens grounds was dismissed.

The plaintiffs, who originally came from the Punjab and have lived in Canada since 1992, brought this libel litigation over an article relating to events which took place in India. The Court noted that although the print edition of the defendant newspaper “is directed to readers in India for the most part, the [newspaper’s] website is accessed by an approximate average of 8,000 readers per day in Canada, a significant portion of whom are in Ontario.”

In arriving at the conclusion that the action should be heard in Ontario, the Court noted that the plaintiffs had commenced defamation actions against three other newspapers distributed in Ontario and read by members of the Punjabi-speaking population which had reportedly published the same article or a version of it. The desirability of avoiding a multiplicity of proceedings was a factor which the court held weighed heavily in favour of the plaintiffs on this application.

2005 September 16
Bangoura v The Washington Post, Ontario Court of Appeal Docket C41379,
reversing
(2004) 235 D.L.R. (4th) 564 (SCJ) , leave to appeal to Supreme Court of Canada denied without reasons: 16 February 2006.

Alleged Cyber Libel: Website posting

Alleged Cyber Libel: Website posting

Non-Internet Defamation Also Alleged: Yes - printed newspapers

Canadian court has jurisdiction? No

Canadian court should decline jurisdiction? Not relevant

The Ontario Court of Appeal ruled unanimously that a lower court judged erred in ruling that Ontario has jurisdiction to hear a defamation claim based on two articles originally published by the defendant in 1997 on its website (and in its hard copy newspaper) while the plaintiff was living in Kenya. The articles related to the plaintiff’s activities in a prior posting in Ivory Coast as an employee of the United Nations. The plaintiff’s wife and children had moved to Montreal in December 1996.

The Court of Appeal heard from an intervener, Media Coalition, which suggested alternative approaches to the issue of jurisdiction which the Court declined to adopt in this case, stating “[i]t may be that in some future case involving internet publication, this court will find it useful to consider and apply one or more of the proposed approaches.”

See McConchie and Potts, Canadian Libel and Slander Actions, "Jurisdiction simpliciter," page 147, "Forum Non Conveniens," pages 152, 153; "Where did the wrong take place," page 157.

2005 September 16
Burke v NYP Holdings, Inc., 2005 BCSC 1287

Alleged Cyber Libel: Website posting

Non-Internet Defamation Also Alleged: Yes - printed matter in Ontario andQuebec; also re-publication by a Vancouver radio talk show [not named as defendant]

Canadian court has jurisdiction? Yes

Canadian court should decline jurisdiction? No

The British Columbia Supreme Court held that it has jurisdiction to hear a defamation claim brought by former Vancouver Canucks general manager Brian Burke against the New York Post over a February 27, 2005 column published in the New York Post, less than 250 copies of which were delivered in hard copy to subscribers or newsstands in Canada (none in British Columbia). There were approximately 3,500 “hits” on the website page containing the column. The New York Post had “no method to determine the geographic origin of the hits or the geographic location of any of the individuals directing their browsers to access the website.” A Vancouver radio sports talk show host, however, testified he personally accessed the subject column and “read a large excerpt of that column on the air.”

The BC Supreme Court held that the New York Post, by “publishing on its website a matter which was of interest to people in British Columbia …it was foreseeable that the Column would be picked up by the media in British Columbia given the [prior] publicity” surrounding an incident which took place during a Canucks game in Vancouver.

The Court also held that British Columbia is the appropriate forum for this cyber libel lawsuit.

For details of this decision, click here [under construction - summary forthcoming]

See McConchie and Potts, Canadian Libel and Slander Actions, "Jurisdiction simpliciter," page 147, "Forum Non Conveniens," pages 152, 153; "Where did the wrong take place," page 157.

2005 January 14
Wiebe v Bouchard, 2005 BCSC 47

Alleged Cyber Libel: Website posting

Non-Internet Defamation Also Alleged: Yes - printed matter

Canadian court has jurisdiction? Yes

Canadian court should decline jurisdiction? No

The British Columbia Supreme Court held that it has jurisdiction to hear a defamation claim arising from the publication of a Quebec academic's report placed on a website by the Government of Canada and the Minister Responsible for the Status of Women Canada.

The Court noted that the defendant Québec academic had deposed that the topics in her report (which had been translated from French into English by the defendant Government of Canada) were of national and perhaps international importance and had been placed on the Government website for the benefit of all Canadians.
The Court also held that British Columbia is the appropriate forum for this cyber libel lawsuit.

For details of this decision, click here.

See McConchie and Potts, Canadian Libel and Slander Actions, "Jurisdiction simpliciter," page 147, "Forum Non Conveniens," pages 152, 153; "Where did the wrong take place," page 157.

2004 February 02
Trizec Properties Inc. v Citigroup Global Markets Inc., [2004] O.J. No. 323

Alleged Cyber Libel: Website posting

Non-Internet Defamation Also Alleged: Yes - telephone conference call, printed matter

Canadian court has jurisdiction? Yes

Canadian court should decline jurisdiction? No

The Ontario Superior Court of Justice held that it has jurisdiction to hear a defamation claim arising from statements allegedly made by an employee of the defendant during a telephone conference call and in a Research Note the same employee later authored. The Court found that the Research Note was distributed primarily in the United States but also to recipients in Ontario.

The Court also found that the Research Note was made available on three websites of the defendant Citigroup Global and that there were approximately 1,300 Ontario subscribers who could have accessed the three websites.

The Court also held that Ontario is the appropriate forum for this lawsuit.

For details of this decision, click here.

See also McConchie and Potts, Canadian Libel and Slander Actions, "Jurisdiction simpliciter," page 147; "Where did the wrong take place," page 157.

2003 December 09
Barrick Gold Corporation v Blanchard & Co, [2003] O.J. No. 5817 (SCJ)

Alleged Cyber Libel: Website posting

Canadian court has jurisdiction? Yes

Canadian court should decline jurisdiction? No

The Ontario Superior Court held that it has jurisdiction over claims relating to allegedly defamatory statements made by the defendants that were allegedly published or disseminated in Ontario and other parts of Canada on the Internet and by press releases, written notices and a telephone hotline, and certain re-publication.

The Ontario Superior Court of Justice also held that Ontario is the appropriate forum for this lawsuit.

For details of this decision, click here.

2003 March 12
Imagis Technologies Inc. v Red Herring Communications Inc.,
2003 BCSC 366, (2003) 15 C.C.L.T. (3d) 140.

Alleged Cyber Libel: Website posting

Canadian court has jurisdiction? Yes

Canadian court should decline jurisdiction? No

The British Columbia Supreme Court held that it is the appropriate forum for a lawsuit alleging that the defendant magazine had published expression defamatory of the plaintiff in hard copy print form and on the Internet.

For details of this decision, click here.

See McConchie and Potts, Canadian Libel and Slander Actions, "Where did the wrong take place?" - page 156.

1999 June 29
Direct Energy Marketing Ltd. v Hillson, [1999] A.J. No. 695, (1999) 34 C.P.C. (4th) 200 (QB)

Alleged Cyber Libel: Website posting

Canadian court has jurisdiction? Yes

Canadian court should decline jurisdiction? No

The defendant conceded that the Alberta Court of Queen's Bench had jurisdiction where the plaintiff alleged that the allegedly defamatory words were published in The Saskatoon Star Phoenix newspaper, several copies of which were sold in Calgary, Alberta from a news outlet and also alleged that the words were published on the Internet websites of The Regina Leader Post and The Saskatoon Star Phoenix (located in Saskatchewan.).

The Court also concluded that Alberta was the appropriate forum for this lawsuit.

For details of this decision, click here.

See McConchie and Potts, Canadian Libel and Slander Actions, "Forum Non Conveniens," page 153.

1999 March 18
Braintech, Inc. v Kostiuk, (1999), 171 D.L.R. (4th) 46 (CA), [leave to appeal to the Supreme Court of Canada denied [1999] S.C.C.A. No. 236.

Alleged Cyber Libel: Website posting

Texas court had jurisdiction? No

Texas court was appropriate jurisdiction? No

The British Columbia Court of Appeal refused to enforce a $300,000 (US) default judgment for libel and disparagement obtained by the plaintiff from a Texas court on the ground that there was no real and substantial connection between the parties and that jurisdiction. The factual cornerstone of the Court's ruling seems to be the lack of any evidence that anyone in Texas actually viewed or downloaded the allegedly defamatory matter which had been posted on a computer located outside Texas. Accordingly, there was no evidence of any "publication" to a third party within Texas.
The British Columbia Court of Appeal concluded that British Columbia was "the natural forum for the resolution of the dispute between two residents" and that "Texas was not even an appropriate forum."

For details of this decision, click here.

See McConchie and Potts, Canadian Libel and Slander Actions, "Jurisdiction simpliciter," page 149; "Recognition and Enforcement of Foreign Judgments," page 158.

1998 December 09
Investors Group Inc. v Hudson, [1998] Q.J. No. 4543 (SC)

Alleged Cyber Libel: Website posting

Canadian court has jurisdiction? Yes

Canadian court should decline jurisdiction? Not in issue.

The Québec Superior Court held that although a resident of Québec had published allegedly defamatory comments on an Internet site at a server outside that province, the Court had jurisdiction to hear the matter. The Court noted that all the facts which were the subject of the lawsuit had their origins in Québec. The defendant prepared the website in Québec and resided in that province. Customers or potential customers of the plaintiff resided in Québec and elsewhere in Canada.

1998 June 18
Kitakufe v Oloya (1998), 67 O.T.C. 315

Alleged Cyber Libel: Website posting

Canadian court has jurisdiction? Not in issue

Canadian court should decline jurisdiction? No

The Ontario Superior Court of Justice held that it was the appropriate forum to consider claims brought by the plaintiff over a newspaper article published in the Ugandan daily newspaper New Vision which was republished on the newspaper's website.

For details of this decision, click here.

See McConchie and Potts, Canadian Libel and Slander Actions, "Forum Non Conveniens," page 153.

 


B. NOTICE OF INTENDED ACTION back to top
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.

Canadian Cyber Libel Notice Cases
Click on a case name for full text

2013 June 17
Shtaif v Toronto Life Publishing Co, 2013 ONCA 405, varying 2011 ONSC 6732

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
Oullette v Canada (Attorney General), 2012 ONSC 7375

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
TPG Technology Consulting Ltd. v Canada (Minister of Industry), 2012 ONCA 87

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
Alberta Adolescent Recovery Centre v Canadian Broadcasting Corp.,
2012 ABQB 48


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
Shtaif v Toronto Life Publishing Co., 2011 ONSC 6732

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 2007
Warman v Fromm and Canadian Association for Free Expression Inc.,
Ontario Court File No: 04-CV-26550SR

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 07
Janssen-Ortho Inc. v Amgen Canada Inc., [2005] O.J. No. 2265

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
Bahlieda v Santa, [2003] O.J. No. 4091, 68 O.R. (3d) 115 (CA), reversing [2003] O.J. No. 1159

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.

 


C. LIMITATIONS DEFENCES back to top

Basic principles
Each Canadian province and territory has enacted statutes which bar or extinguish the cause of action for defamation after the lapse of a specified period of time.

Canadian Cyber Libel Limitations Cases
Click on a case name for full text

2013 December 3
Free v McPherson, 2013 ONSC 7416

The Ontario Superior Court of Justice granted the defendant permission to amend its statement of defence to allege the plaintiff had failed to give requisite notice of its intention to sue within the time limits prescribed by the Ontario Libel and Slander Act. The Court stated: “I disagree with plaintiff’s counsel submissions that if it had been known 3 years ago, when the defence was served, that notice would be an issue that he could have taken a different approach to internet republications. As of three years ago, the claim would have been 5 years old and all limitation periods would have expired so it is difficult to visualize what the plaintiff could have done at that stage to correct the lack of notice.”

2013 May 29
Group LNR Investments Ltd. c Sim, 2013 QCCQ 5559

The Quebec Court (Civil Chamber) summarily dismissed an action for defamation filed March 11, 2013 over an email sent by the defendant to the plaintiff's controller on February 17, 2012 on the basis of the expiry of the one year limitation period prescribed by article 2929 of the Quebec Civil Code.

2012 January 18
Matandi v Société Radio-Canada, 2012 QCCS 65

The Quebec Superior Court dismissed a defamation action concerning a Radio-Canada broadcast on January 17, 2003 which was also posted on the defendant’s website. Article 2929 of the Quebec Civil Code stipulated a one year limitation period for a defamation action commencing on the day the person defamed learned of the defamatory expression. The Court rejected the plaintiff’s evidence that he did not learn of the 2003 broadcast until he received a letter in 2006 from an African political party refusing to accept his candidature for an election in the Congo. The plaintiff did not file his lawsuit until June 27, 2007, which the Court found was outside the one year limitation period.

2008 June 3
Atlantic International Trade Inc. (c.o.b. Soltani & Associates) v
Georgian College of Applied Arts and Technology
, [2008] O.J. No. 2385.

The Ontario Superior Court of Justice allowed the amendment of a statement of claim to join an individual plaintiff (the principal and operating mind of the corporate plaintiff) notwithstanding the expiry of the statutory limitation period. The defamation clearly involved the plaintiff personally; the new plaintiff had been named for discovery as the corporate defendant’s representative and was questioned by the defence about injury to his personal reputation; and defence counsel had appeared to encourage the amendment. The court held that the amendment was not a new cause of action; it merely clarified that it was the individual and not his company who seeks damages.

2005 August 03
Carter v B.C. Federation of Foster Parents Association, 2005 BCCA 398,
reversing in part 2004 BCSC 137

The British Columbia Court of Appeal unanimously rejected the “single publication rule” adopted by a number of American States, noting it had not been accepted by appellate courts in England and Australia. The Court described the single publication rule as one “which several communications to a third party of a defamatory statement are held to be only one publication and the limitation period begins to run from the date of the first such communication.” The Court of Appeal held that each publication would give rise to a fresh cause of action. The Court noted that “[i]n the instant case, the offending comment remained available on the internet because the defendant respondent did not take effective steps to have the offensive material removed in a timely way.

The Court of Appeal sustained the lower court’s ruling that making a reference in a printed newsletter to a website, where the defendant exercised no element of control over the website, did not constitute an actionable publication of defamatory material on the website. “Whether a different result should obtain concerning an internet website that makes reference to another website I would leave for that decision when that factual circumstance arises.”

See McConchie and Potts, Canadian Libel and Slander Actions, "Internet Libel," pages 106-107.

 


D. CANADIAN CYBER LIBEL DAMAGE AWARDS back to top
Click on a case name for full text

2014 February 19
Ironside v Delazzari Estate, 2014 ONSC 999

The Ontario Superior Court of Justice awarded the plaintiff $50,000 general damages, $25,000 aggravated damages, and $10,000 punitive damages over defamatory statements posted to a webpage controlled by Delazzari (who was deceased at the time of this litigation). The libels remained on the Internet for approximately seven years and the defamatory website was only taken down after Delazzari passed away. The Court noted that “(p)otential customers who tried to access the plaintiff’s websites were automatically directed to one of [the defendant’s] websites” where the libels were published, and that the plaintiff’s business went into a “tail spin.” The Court held that the defamatory attack was a “‘deliberate and malicious act … done for the sole purpose of ruining the plaintiff’s reputation and business’ by employing ‘one of most powerful tools of communication ever invented … a medium of virtually limitless international defamation’ (See Barrick Gold Corp. v Lopehandia et al 2004, 71 O.R. (3d) 416 (Ont. C.A.) at para. 62).

2014 February 14
Trout Point Lodge Ltd. v Handshoe, 2014 NSSC 62 

The Nova Scotia Supreme Court, noting this is the second round of litigation between the same parties, awarded $35,000 general damages to the corporate plaintiff.  Each of the two individual plaintiffs was awarded $50,000 general damages, $30,000 aggravated damages and $25,000 punitive damages.  The libels were published on the Internet, notwithstanding the permanent injunction granted by the Court on February 1, 2012 which prohibited the defendant from “dissemination, posting on the Internet, distributing or publishing in any manner whatsoever, directly or indirectly, statements or comments about Trout Point Lodge [or the individual plaintiffs … including] statements or comments which refer to the three plaintiffs by name, depiction or description.”  [Note: In addition, the Court awarded statutory damages of $80,000 and punitive damages of $100,000 for the defendant’s breach of the plaintiffs’ copyright in  four photographs arising from their publication on the Internet by the defendant for commercial purposes.]

2014 February 6
Busseri v Doe, 2014 ONSC 819

The Ontario Superior Court dismissed an application by the defendant to set aside a default judgment for libel damages over a series of serious defamatory posts on Stockhouse.com relating to the plaintiff CEO of a publicly-traded company.   The default judgment was granted on January 7, 2013 for $200,000 damages, $3,500 costs and a permanent injunction.  The Court agreed, however, to hear submissions from the parties whether the $200,000 award was excessive and should be varied, as it appeared that the default judgment was based on an erroneous finding  by the Court that the defamatory posts involved 500,000 “hits” although the evidence tendered by the plaintiff was that the hits on the defamatory posts totalled in the thousands, not hundreds of thousands.  In refusing to set aside the default judgment, the Court noted that the defendant’s evidence would not support a proposed defence of truth or fair comment; there had been no retraction or apology; the defendant had continued his campaign of defamation despite an interlocutory injunction; and the prejudice that would be caused to the plaintiff by re-opening the judgment would be significant.

2014 February 5
Chayer v Messier, 2014 QCCS 357

The Quebec Superior Court awarded $5,000 moral damages and $5,000 punitive damages to the plaintiff over defamatory postings on the defendant’s website.  The Court also ordered the defendant to remove each defamatory article from his website and enjoined the defendant from publishing, in any manner, any defamatory comments, articles or messages identical to those previously published.

2014 January 17
Davis v Singerman, 2014 QCCS 70

The Quebec Superior Court awarded the plaintiff $5,000 damages over a defamatory comment on the defendant’s Facebook page.

2014 January 8
Learmouth v Statham, 2014 BCSC 19

The British Columbia Supreme Court, assessing defamation damages following judgment in default of defence, awarded the male plaintiff a total of $35,000 general and punitive damages over an internet article which, on the evidence, was published on a single occasion and then removed by the website operator after only 9 days. The Court stated: “While the limited publication might not warrant the damages of $35,000 sought by the plaintiffs, I am satisfied that the sum is reasonable given the lack of any justification for the allegations in the article, and the mala fides that I find motivated the defendant in his conduct in question.” The Court also awarded the plaintiff special costs.

2013 December 6
Rodrigues v Rodrigues, 2013 ABQB 718

The Alberta Court of Queen's Bench awarded the plaintiff cleric $75,000 general damages and $50,000 aggravated damages against the defendant, a foreign lawyer, over false and defamatory allegations of serious misconduct in the foreign jurisdiction. The false allegations were made in blog postings and articles posted on the Internet as well as emails sent to the plaintiff's new employer and colleagues in Alberta. The defendant had refused to retract and apologize. The Court noted that "posting the defamatory statements on the Internet ...created the potential for ridicule and scorn by countless people who do not know the plaintiff." The Court also granted the plaintiff an injunction prohibiting the defendant from publishing any further defamatory statements concerning the plaintiff and directing "[a]ny third parties, including any Internet service provider or site, who have published, posted or distributed or who have otherwise repeated the defamatory comments ... to assist the Plaintiff and this Honourable Court in the enforcement of this injunction, including the removal of any defamatory comments about the Plaintiff from the Internet and any other form of publication or distribution ...[including] any website, social media site, blog, usernet news groups, chat site, email or any other electronic means."

2013 October 28
McDonald v Koe, 2013 NWTSC 81

The Northwest Territories Supreme Court awarded $100,000 general damages and $61,843.86 special damages to the former temporary Chief Operating Officer (“COO”) of a First Nations tribal council over defamatory allegations in a letter sent by the defendants, former employees of the tribal council, to approximately 30 people. The Court noted that the letter “was transmitted by electronic mail and as such it could be published to an even wider audience with relative ease. In choosing to use electronic distribution, the defendants created a significant risk of further publication beyond the intended recipients. Indeed, it wound up in the hands of both print and broadcast media outlets, both of which disseminated the allegations amongst an even larger audience.”

2013 October 3
Warman v Fournier, Ontario Superior Court of Justice, Court File No. 07-CV-39927

The plaintiff was awarded a total of $42,000 damages against all defendants by a jury which heard this Ontario Superior Court of Justice defamation lawsuit over 40 postings on a website. The award included $ $15,000 general damages, $9,000 aggravated damages and $18,000 punitive damages, from which the Court inferred that the “jury found that the defendants acted in a manner that was highhanded and oppressive towards the plaintiff.” [See 2014 ONSC 412].

2013 August 15
Vanderkooy v Vanderkooy, 2013 ONSC 4796.

The Ontario Superior Court of Justice awarded the plaintiff $125,000 general damages over serious defamatory statements contained in emails sent by certain relatives to other members of a large family and close-knit community.

2013 August 5
Gesca ltée c. Corporation Sun Media, 2013 QCCS 3689

The Quebec Superior Court awarded the plaintiff, the owner of Montreal’s La Presse newspaper, defamation damages of $10,000 over a June 2011 article published in Le Journal de Montreal, a Sun Media newspaper, and on websites operated by the defendant Canoë Inc., which made disparaging allegations about the plaintiff’s relationship with Radio-Canada. The Court ordered that: the article be removed from www.canoe.ca; that the defendants publish a retraction in Le Journal de Montreal; and that Canoë Inc. post a link to the retraction on its home page for 48 hours and thereafter maintain that link on its website for 2 years. The Court rejected defence arguments that the lawsuit was brought to suppress freedom of expression.

2013 August 1
Roshard v St. Dennis, 2013 BCSC 1388

The British Columbia Supreme Court awarded the plaintiff ex-mayor $5,000 general damages over defamatory allegations voiced by the defendant during an eve-of-election interview which was posted to a local website. In assessing damages, the Court noted that the plaintiff’s primary purpose in bringing the action was to vindicate her reputation and that she had already obtained significant settlements in connection with her defamation claims against others.

2013 July 22
Mainstream Canada v Staniford, 2013 BCCA 341, leave to appeal to the Supreme Court of Canada denied: 2014 CanLII 5973 (SCC)

The British Columbia Court of Appeal set aside the trial judge’s finding that the defendant was protected by the defence of fair comment and awarded the plaintiff $25,000 general damages and $50,000 punitive damages over defamatory comments contained in: (i) a January 2011 press release which was also published on the defendant’s website; and (ii) other publications on the defendant’s website. The Court of Appeal also awarded the plaintiff special costs (close to full indemnity) of the trial in BC Supreme Court, party-party costs of the appeal hearing (partial indemnity), and a permanent injunction.

2013 18 July
Kim v Dongpo News, 2013 ONSC 4426

The Ontario Superior Court awarded the plaintiff $12,000 general damages and $5,000 punitive damages against the individual defendant Song over an article which was published in Dongpo News, a South Korean on-line and printed newspaper.

2013 June 13
Gouin v White, 2013 ABQB 332

The Alberta Court of Queen’s Bench awarded a grand total of $600,000 to two individual plaintiffs in two separate but related lawsuits against private investigators who sold certain allegedly defamatory information to third parties who were seeking a basis to sue the plaintiffs. The third parties published the allegedly defamatory information in a statement of claim filed in court, which was then the subject of a report in a daily newspaper. The allegedly defamatory information was also published by the defendants on their website. The Court awarded each of the two plaintiffs a total of $100,000 general damages for defamation in each of the two actions; general damages therefore totaled $400,000. The court also awarded each plaintiff $50,000 punitive damages in each of the two actions; punitive damages therefore totaled $200,000. The grand total awarded in this case is $600,000.

2013 May 27
Chelin c Gill, 2013 QCCS 2377

The Quebec Superior Court awarded the plaintiff architect $25,000 moral damages and $10,000 punitive damages over three articles published in December 2007 and February and December 2011 on the internet website of the Syndicate des Professeurs et des Professeures de l’University du Quebec a Montreal (the “SPUQ”) which contained allegations held to be false and defamatory. The Court also ordered the defendants to cease further publication, remove the three articles, withdraw all prior consent given to third parties to republish the articles, and to take all necessary measures to definitively eliminate every trace of the articles from every internet site on which they continue to appear.

2013 May 22
Canuck Security Services Ltd. v Gill, 2013 BCSC 893

The British Columbia Supreme Court awarded the corporate plaintiff $1,000 general damages against the ex-employee defendant over a letter he sent in March 2011 to four construction companies and three government agencies which the Court held was defamatory. In arriving at this modest figure, the court noted, among other things, that any harm to the plaintiff’s reputation resulted from publication of other allegations in the letter which the Court held were true. The Court held that the defendant’s false statement did not seriously affect the employer’s reputation or standing in the community

2013 April 5
Immeubles Robin inc. c Ingold, 2013 QCCS 1373

The Superior Court of Quebec awarded the corporate and individual plaintiffs each $3,000 over defamatory words published by the defendant Croghan on an English-language blog relating to Brome Lake, Quebec. The Court also ordered the removal of the blog item at issue.

2013 March 1
Rubin v Ross, 2013 SKCA 21

The Saskatchewan Court of Appeal held that the plaintiff, the director of a veterinary teaching hospital, was entitled to $100,000 general damages over defamatory statements made by the defendant union in: (i) notices posted on the eight hospital bulletin boards accessible to the public; (ii) an article in the defendant union’s newsletter which was mailed to 1400 members; and (iii) an article published in a Mini Bulletin on the union’s website. The article was not removed from the website until the plaintiff filed his lawsuit. The Court noted that the union website was open to the public “without any access code protections or other privacy protections.” The Court of Appeal held that it was “irrelevant that [the plaintiff] did not present any evidence to the Court to prove that anyone did in fact search the internet to find the communication.”

2013 February 6
Manson v John Doe, 2013 ONSC 628

The Ontario Superior Court of Justice awarded the plaintiff lawyer $100,000 general damages, $50,000 aggravated damages and $50,000 punitive damages against a “John Doe” defendant who had “waged an anonymous electronic campaign of libel.” The “John Doe” defendant had failed to comply with an earlier Court Order requiring him or her to identify themselves. The Court noted:

“There are few things more cowardly and insidious than an anonymous blogger who posts spiteful and defamatory comments about a reputable member of the public and then hides behind the electronic curtain provided by the Internet. The Defendant confuses freedom of speech with freedom of defamation. There are undoubtedly, legitimate anonymous Internet post; persons critical of autocratic or repressive regimes, for example, or legitimate whistleblowers. The Defendant is not one of those people. The law will afford his posts all the protection that they deserve, which is to say none.”

The Court noted that the defendant’s “malevolent refusal to comply with [the earlier Court Order requiring the defendant to identify himself/herself] only adds to the case for punitive damages.”

2012 December 27
James v Black Press Group Ltd., 2012 BCSC 1969

The British Columbia Supreme Court awarded the plaintiff, a First Nations artist, the sum of $35,000 for general damages over an article which appeared on the website of the defendant’s newspaper. The article, which was incorrectly illustrated with the plaintiff’s photograph, concerned the criminal conviction of a different person who had the same name.

2012 December 13
Blondin c Huraux, 2011 QCCQ 15926

The Quebec Court (Civil Chamber) awarded $100 to the plaintiff corporation (6231829 Canada inc.), $3,000 to the plaintiff businessman Blondin and $3,000 to the plaintiff businessman Genereux over a defamatory Internet publication by the defendant, a French immigrant to Quebec and an email which linked to that posting. The defamatory posting was accessible for approximately six months. Each of the three plaintiffs was also awarded $1,500 punitive damages.

2012 November 7
122164 Canada Ltd. (c.o.b. New York Fries) v C.M.Takacs Holdings Corp., 2012 ONSC 6338

The Ontario Superior Court of Justice awarded the corporate plaintiff $425,000 general damages and $75,000 punitive damages against the corporate defendant, a terminated ex-franchisee, and against the individual defendants (husband and wife) in relation to a campaign of defamatory statements made to “a broad and varied audience that was carefully selected to maximize the harm to New York Fries’ reputation.

The statements held to be defamatory were made in emails, a complaint to police, a letter and to a reporter for the Financial Times (who republished them in an article). The defamatory statements falsely alleged that the plaintiff had breached its franchise agreements with the defendants and other franchisees, unlawful terminated the defendants’ franchises and was guilty of other misconduct including breaches of federal, provincial and municipal legislation.

2012 October 12
G.P. v S.S., 2012 QCCQ 8325

The Quebec Court (Civil Chamber) awarded each of the two defendants (who were plaintiffs by counterclaim) the sum of $5,000 compensatory damages and $5,000 punitive damages over false and defamatory reports by the plaintiff to child protection authorities. The Court held that the plaintiff, who was the mother of the defendant C.B., the mother-in-law of the defendant S.S., and the grand-parent of certain children, made the defamatory complaints maliciously. The children were seized temporarily by the child protection authorities. The Court dismissed the plaintiff’s claim against the defendant S.S. over a Facebook posting that described the trauma the defendant was experiencing as a result of the defamatory statements to the child protection authorities.

2012 October 5
Lukawecki v Bayly, 2012 QCCQ 7898

The Quebec Court (Civil Chamber) awarded the plaintiff teacher $5,000 moral damages plus $5,000 punitive damages over a series of 9 emails by a parent which made falsely and serious defamatory allegations about the teacher’s conduct.

2012 September 6
Lapierre c Sormany, 2012 QCCS 4190

The Quebec Superior Court awarded the plaintiff, a former federal Cabinet Minister and co-founder of the Bloc Quebecois party, $22,000 moral damages for defamatory statements contained in a posting which appeared on a third party’s Facebook page. The defendant, a senior official with a major media organization, removed the posting after four days. The Court noted there was no evidence at trial that the posting had gone viral or that it had been republished in other social media.

2012 June 28
Laforest c. Collins, 2012 QCCS 3078

The Quebec Superior Court awarded the plaintiff $30,000 compensatory damages and $15,000 punitive damages over defamatory postings on blogs over a period of five years. The Court also ordered the defendant to remove all of the defamatory material from the Internet and to sign and deliver a letter of retraction which specifically withdraws the defamatory accusations, undertakes not to defame the plaintiff in the future, and authorizes the plaintiff to publish the retraction as he sees fit.

The Court noted that [rough translation to English from French]. “the Web has become the most powerful and frequently used medium of communication on earth. It permits wars to be halted quickly, criminals to be quickly captured. Teaching has no limit. Communication can be personal as well as impersonal. The Web can make anyone a celebrity in a few minutes. It can tarnish or destroy a reputation with one click. Use of the Web, of its sites and its blogs varies according to the category of users, their ages, their sex, their religion etc.

On the evidence before the Court, it appeared that the plaintiff’s employment prospects were prejudiced by the defamatory postings. The plaintiff testified that his employer hired him on the condition that he clear his name and that for several years he had to maintain a “low profile” because of the defamatory postings of the defendant.

2012 June 22
Bier v Takefman, 2012 QCCS 2851

The Quebec Superior Court awarded $20,000 moral damages and $25,000 punitive damages to husband and wife plaintiffs over a “successful and vicious campaign” of emails to friends and acquaintances of the plaintiffs “with a stated goal of destroying their reputation.” The Court rejected defence arguments that the defendant’s “slanderous, cruel and vengeful” comments should qualified as “gossip” with which the Court should not interfere. The Court held the comments were a “clear illustration of an abuse of right and the exercise in bad faith” of the right to freedom of expression. In the opinion of the Court, “the exceptional circumstances of this case justify the issuance of a permanent order that will enjoin [the defendant] not to communicate directly or indirectly in writing with the [plaintiffs] or to third parties regarding the [plaintiffs’] private life, their assets and property or their financial situation.” “This is one of those rare cases, where such an extensive prohibition is warranted and can be reasonably justified.

2012 June 18
Uppal v Diler, [2012] O. J. No. 2713.

The Ontario Superior Court of Justice (Small Claims Court) awarded the plaintiff dentist $22,000 general damages against a former patient over defamatory emails and internet postings on YouTube and the website of the Association of Dentists which the Court held were part of a “deliberate campaign to harass [the plaintiff] and smear him in the eyes of a variety of parties associated with the practice of his profession.” The duration of this campaign was almost two years and commenced six years after the defendant was his patient for a brief time in 2004 and after her complaint to the Royal College of Dental Surgeons was dismissed. The Court would have assessed the plaintiff’s general damages at $45,000 except for the fact his formal claim only sought $22,000.

2012 May 30
Michie v Guthrie-Waters, 2012 BCSC 793.

The plaintiff financial consultant was awarded nominal damages and a permanent injunction restraining the defendant from publishing, on the internet or by any other method or medium, whether by name, pseudonym, address, photograph or other means of identity, any defamatory statement referring in any way to the plaintiff. The defamatory statement was contained in an email sent by the plaintiff’s ex-spouse to a Swiss journalist. Although the nature of the defamation was serious, it was sent to only one person and the conduct of the defendant was complicated by other factors.

2012 May 25
2964376 Canada Inc. (c.o.b. Ameublement Prestige Furniture) v Bisaillon,
2012 ONSC 3113.

The Ontario Superior Court of Justice awarded general damages of $15,000 to the corporate plaintiff, which operated a furniture store for defamatory statements made in an email sent by the defendant from work to a circle of friends and colleagues (38 people) on September 2, 2010 asking that they forward it to others. The Court held that “[w]hile limited companies are entitled to damages for libel, in practice in the absence of proof of special damages, or of a general loss of business, generally the monetary amounts are somewhat lower than for defendants who are not corporations.

2012 April 12
Raymond c Aero-Photo (1961) Inc., 2012 QCCS 1535.

The Quebec Superior Court awarded the plaintiff (one of the shareholders of Group Alta) $500 moral damages against the defendant Grenier over defamatory emails sent to five other shareholders of Group Alta. The plaintiff was awarded $10,000 moral damages against the defendant Levesque over defamatory words spoken to a group of employees and for instigating a public demonstration by employees of Group Alta which targeted the plaintiff and was reported in the news media. Levesque was also ordered to pay $1,000 punitive damages. Grenier was also ordered to pay $100 punitive damages.

2012 April 10
9080-5128 Quebec inc. c Morin-Ogilvy, 2012 QCCS 1464.

The Quebec Superior Court awarded the plaintiff Bouffard compensatory damages of $4,000 and punitive damages of $3,000 and the plaintiff Leduc compensatory damages of $1,000 and punitive damages of $2,000 over defamatory publications on Facebook and in an email. The Facebook postings, which concerned automobile repairs carried out by the plaintiffs, were removed after only two days.

2012 February 29
Tjelta v Wang, 2012 BCSC 299

The British Columbia Supreme Court awarded the plaintiff businessman $20,000 general damages over emails and letters impugning his business ethics and practices which were sent to his friends, family members, neighbours, business associates, investors and spouse. The Court noted that the “mode and extent of the publication are relatively limited on the evidence.”

2012 February 13
Chayer c Vaillancourt, 2012 QCCQ 1354.

The Quebec Court (Civil Chamber) awarded the plaintiff journalist $2,000 moral damages over an anonymous email sent by the defendant to one client of the plaintiff (and possibly other persons) attaching a defamatory article which had been published years earlier and had been the subject of previous legal proceedings by the plaintiff in the Quebec Superior Court against the defendant.

2012 February 1
Trout Point Lodge Ltd. v Handshoe, 2012 NSSC 245

The Nova Scotia Supreme Court awarded defamation damages totalling $425,000 to the corporate plaintiff and two individual plaintiffs over blog postings on the Internet by a Mississippi resident.  The defendant did not participate in the court hearing for the assessment of damages following a judgment in default of defence.  The corporate plaintiff was awarded $75,000 general damages.  Each of the two individual plaintiffs was awarded $100,000 general damages; $50,000 aggravated damages; and $25,000 punitive damages.   The Court also granted the plaintiffs a permanent injunction , stating that the conduct of the defendant “became stronger and more malicious and derogatory as the action was commenced and as it proceeded to this assessment of damages.  There has been no retraction or apology but a continued campaign of defamation.”

2011 December 7
Ward v Labelle, 2011 QCCS 6753

The Quebec Superior Court awarded the 70-year-old plaintiff municipal councillor the sum of $5,000 for moral damages plus $5,000 for punitive damages over defamatory statements published on a political adversary’s Internet blogs. The Court noted that although the defamatory words were serious, the plaintiff had not lost the esteem of the voters who re-elected him despite the defamation. The Court noted that the defendant’s blog had 833 visitors over several years. The defendant was also ordered to remove the defamatory statements from his blogs and prohibited from making the allegations again in the future.

2011 November 10
Farallon Mining Ltd. v Arnold, 2011 BCSC 1532

The British Columbia Supreme Court awarded the plaintiff mineral exploration and development company general damages of $40,000 over defamatory postings made under the pseudonym “Stonecut” on the Stockhouse website. The assessment of damages was made pursuant to a consent order requiring the defendant to pay damages to be assessed after the defendant withdrew his statement of defence. The Court found that the defendant had an improper motive for publishing the postings on a website intended for the investing community. “He made the decision to publish on the Stockhouse website presumably because he knew that the audience would include investors, and potential investors … Targeting this audience ensured that the damages inflicted would be substantial.

2011 October 26
Kim v Dongpo News, Court File No. CV-09-00375111

The Ontario Superior Court awarded the plaintiff $50,000 general damages, $25,000 aggravated damages and a permanent injunction against the defendant Dongpo News on an assessment of damages following a default judgment against that defendant. See paragraph 2 of 2013 ONSC 4426.

2011 June 3
Wright (c.o.b. Wright Design Concepts) v Van Gaalen, 2011 BCSC 707

The British Columbia Supreme Court awarded the plaintiff sprinkler system designer $14,750 general damages over a defamatory email sent by the defendant to a customer of the plaintiff. The Court held that because the email was sent only to a specific individual on a single occasion, this weighed in favour of a lower award. Significantly, the plaintiff had failed to claim damages for actual monetary loss. The Court stated that “[t]his is unfortunate because there was evidence in the trial that was capable of demonstrating specific losses arising from [the email recipient’s] decision to stop referring meaningful design work to [the plaintiff].” In arriving at the figure of $14,750, the Court reduced damages by “the nominal amount of $250 in light of the unspecified offer of a retraction.

2011 May 20 2001
Astley v Verdun, Ontario Court File No. 06-CV-311034PD3.

An Ontario Superior Court of Justice jury awarded damages totalling $650,000 to the plaintiff, a prominent businessman, over various defamatory publications by the defendant, a shareholder activist and former newspaper publisher. The defamatory publications included letters to the Ontario Securities Commission, newspapers, emails and blog postings. Many of the publications complained of were webcast. The award consisted of $250,000 general damages and $400,000 aggravated damages.

2011 May 16
Sarachman v Whitehead, 2011 ONSC 2946

The Ontario Superior Court of Justice awarded the plaintiff, a professional engineer and businessman, general damages of $15,000 against the defendant alderman over an email message copied to the mayor and all other municipal councillors. The email described the plaintiff as a “destructive mean spirited irrational liar that does not deserve the time of day.” The plaintiff acknowledged at trial the email did not appear to have affected his reputation. The defendant apologized for his statement in an email to the mayor and council. The Court held that the damages would have been considerably higher but for the apology.

2011 February 25
Klein v Camara, [2011] O.J. No. 1752, Court File 464/09

The Ontario Small Claims Court awarded the plaintiff $10,000 damages (the maximum in Small Claims) over defamatory accusations about his conduct as coach of a peewee baseball team. The defamatory accusations were contained in an email sent by the defendant parent to other parents and to officials. The email was also posted on the defendant’s website. The court held the email was part of a “campaign of character assassination” to have the plaintiff removed as coach. He did in fact resign. The Court said it would have awarded a larger sum, including aggravated damages, if monetary jurisdiction had been higher.

2011 February 22
Mina Mar Group Inc. v Divine, 2011 ONSC 1172

The Ontario Superior Court of Justice awarded $50,000 general damages for defamation to the plaintiff corporation and its principal against the two defendants who live in New Jersey. In addition, the Court held that punitive damages of $25,000 were warranted (provided the plaintiffs abandoned an unspecified claim for actual financial loss). The defendants, who did not defend this action, were found to be responsible beginning in 2006 and continuing to date of judgment for “profuse posting on Internet bulletin boards and websites” which frequently defamed the plaintiffs, causing them to lose clients and opportunities for new clients. The Court also granted a permanent injunction restraining the defendants from disseminating, posting on the Internet or publishing further defamatory statements concerning the plaintiffs.

2011 January 5
Kindinformatique.com c Tardif, 2011 QCCS 736

The Quebec Superior Court awarded the plaintiff $5,000 moral damages and $5,000 punitive damages over defamatory statements about the plaintiff’s computer repair business which were posted on websites where the plaintiff advertised his own services.

2011 January 4
Daboll v DeMarco, 2011 ONSC 1

The Ontario Superior Court of Justice awarded the plaintiff lawyer $50,000 general damages over malicious and false allegations published in local community and shopping newspapers as well as on the website of the National Coalition for Law Societies Reform and on a related website, Dirty Lawyer Registry Ontario. The Court found that “individual fragments of the advertisement arguably had some basis in fact, but they were expressed and juxtaposed in a manner [the court found] to be inconsistent with the truth.” Damages were aggravated by a number of factors, including the dissemination of additional material on websites accessible through the internet. “The internet postings continued to be available for viewing to the time of trial. The wide circulation of defamatory statements through the internet has been recognized as a potential aggravating factor in libel cases ...” The Court also granted a permanent injunction requiring any statements relating to the plaintiff to be removed from the websites.

2010 November 19
Windsor-Essex Catholic District School Board v. Lentini, 2010 ONSC 6364.

The Ontario Superior Court awarded the plaintiff high school teacher $20,000 general damages plus $7,500 aggravated damages over false allegations posted by a parent on a password-protected website.

2010 November 18
Vigna v Levant, 2010 ONSC 6308

The Ontario Superior Court awarded the plaintiff , a lawyer for the Canadian Human Rights Commission, $25,000 general damages against the defendant lawyer/journalist/political commentator over blog postings which contained false allegations about the plaintiff`s conduct before the Canadian Human Rights Tribunal. The Court noted that the amount of damages awarded was lessened by several mitigating factors, including the effect of a correction published by the defendant and the absence of specific evidence from the plaintiff concerning personal suffering as a result of the libels.

2010 November 15
Nesbitt v Neufeld, 2010 BCSC 1605, appeal dismissed: 2011 BCCA 529

The British Columbia Supreme Court awarded the defendant business woman Neufeld (plaintiff by counterclaim) general damages of $40,000 for the defamation and breach of privacy claims made in her counterclaim against her husband Nesbitt, a family physician. The award related, among other things, to a defamatory email sent by the husband to the Rotary Club, a website specifically targeting the Neufeld, and a Facebook page. The Court stated that it “limit[ed] the defamation damages due to the fact that while it is plainly publication to the world in the sense the defamatory material was put on the Internet, Ms. Neufeld indicated there has been little personal or professional backlash.”

2010 November 4
Diop c Abou-Khalil, 2010 QCCA 1988

The Quebec Court of Appeal dismissed an appeal from the trial verdict which awarded the plaintiff Abou-Khalil the sum of $100,000 moral damages and $25,000 punitive damages for defamation. See 14 May 2008, 2008 QCCS 1921

2010 November 1
Hansen v Tilley, 2010 BCCA 482, dismissing an appeal from 2009 BCSC 360

The British Columbia Court of Appeal dismissed an appeal by the defendant from the trial judge’s verdict on March 27, 2009 awarding the plaintiff $30,000 general damages for defamatory articles published in a University student newspaper both in its hard-copy and online edition.

2010 October 15
A v B, 2010 QCCS 5024

The Quebec Superior Court awarded $9,000 moral damages to the female plaintiff and $3,000 moral damages to the male plaintiff. The Court also awarded $3,000 punitive damages to the female plaintiff and $1,000 punitive damages to the male plaintiff. The defamation arose from harassment by the defendant or his ex-girlfriend by emails, including anonymous emails.

2010 September 20
Caswell v Buckle, 2010 SKCA 116, dismissing an appeal from 2009 SKQB 363

The Saskatchewan Court of Appeal dismissed an appeal from a September 17, 2009 trial verdict in favour of the plaintiff Buckle. See 2009 SKQB 363. The trial verdict of the Saskatchewan Court of Queen’s Bench awarded a senior Crown prosecutor libel damages of $50,000 over statements published by the defendant on a blog on the Internet which made false, serious allegations of misconduct. The defendant refused to apologize. The Court also granted an injunction compelling the defendant to remove all Internet postings concerning the plaintiff.

2010 August 24
Alleslev-Krofchak v. Valcom Ltd., 2010 ONCA 557, affirming 2009 CanLII 30446 (ON S.C.)

The Ontario Court of Appeal dismissed an appeal from the May 25, 2009 trial judgment which included an award to the plaintiff of $100,000 for defamatory statements in emails circulated by the defendants which falsely alleged that the plaintiff had lied, lacked integrity, was not trustworthy and was lacking in management skills.

2010 August 20
Cragg v Stephens, 2010 BCSC 1177

The British Columbia Supreme Court awarded each of the three plaintiffs general damages of $25,000 and aggravated damages of $10,000 over false and defamatory statements alleging improper and criminal behaviour which were circulated widely via email to the plaintiffs’ work colleagues and supervisors, media outlets, politicians, civil servants, and others. In addition, the defendant posted defamatory statements on a local newspaper website

2010 July 30
Corriveau c. Canoe inc., 2010 QCCS 3396, appeal dismissed: 2012 QCCA 109
[19 January 2012]

The Superior Court of Quebec awarded the plaintiff lawyer $50,000 moral damages and $50,000 punitive damages over allegations published on a blog by the defendant Martineau who used an internet portal operated by Canoe.

2010 July 20
Dawydiuk v Insurance Corporation of British Columbia, 2010 BCCA 353

The British Columbia Supreme Court awarded the plaintiff $1,000 nominal damages for defamation over an email sent by her supervisor to an individual who had no reciprocal duty to receive the supervisor’s email report.

2010 June 1
Mudford v Smith, 2010 ONCA 395, dismissing an appeal from 2009 CanLII 55718 (ON S.C.).

The Ontario Court of Appeal dismissed an appeal from a judgment pronounced October 16, 2009 awarding the plaintiff damages for libels published on a personal website and posted on several third party websites.

2010 April 26
Best v Weatherall, 2010 BCCA 202, reversing 2008 BCSC 608 (CanLII)

The British Columbia Court of Appeal awarded the plaintiff, a resident of Salt Spring Island and a member of the Salt Spring Island Tennis Association, the sum of $3000 over disparaging statements contained in an email sent by the defendant to a members of the Salt Spring Island Parks and Recreation Commission, the Capital Regional District and 100 members of the Salt Spring Island Tennis Association. The Court of Appeal stated that a wholly nominal award would not be sufficient and that a “proper damages award” was necessary both to vindicate reputation and as consolation for his hurt feelings.

2010 March 30
Hunter-Dickenson Inc. v Butler, 2010 BCSC 939.

The British Columbia Supreme Court each of the two plaintiff companies $75,000 general damages. The individual plaintiff was awarded $125,000 general damages plus $75,000 aggravated damages. Each of the three plaintiffs was also awarded $25,000 punitive damages to deter further defamatory statements. The defendant had authored numerous postings on an internet website falsely alleging illegal activities on the part of the plaintiffs, including allegations of fraud, theft, stock manipulation, and fraud on the court. A permanent injunction was also granted.

2010 February 10
National Bank of Canada v Weir, 2010 QCCS 402

The Quebec Superior Court awarded the plaintiff bank the sum of $20,000 as punitive damages in relation to defamatory postings by the defendant on the website of Stockgroup Media Inc. on message boards referred to as “Bullboards.” The bank did not seek compensatory damages. The primary relief sought and obtained by the bank was an injunction restraining the defendant from publishing in any media any comment of a defamatory nature concerning the plaintiff bank.

2009 December 9
A c B, 2009 QCCQ 14676

The Quebec Superior Court awarded the female plaintiff, a television personality, the sum of $10,000 for moral damages and $7,500 for punitive damages against her ex-husband over a false and malicious posting on a Quebec internet site (the largest in Quebec concerning meetings between men and women) which falsely alleged she was bi-sexual and was looking for the perfect male to engage in “new things.” Her photograph and personal details were also published. The information was posted on the site for 2.5 days.

2009 November 30
Doré c Lefebvre, 2009 QCCS 5601

The Quebec Superior Court awarded moral damages of $12,500 and punitive damages of $5,000 to the plaintiff mayor Dore over false insinuations during the 2006 municipal election that he had a criminal record and over false allegations of fraud and theft made at a municipal council meeting and to the press. The plaintiff councillor Bernard was given the same damage awards over the same allegations plus a false insinuation that he was in a conflict of interest. A local newspaper published the gist of the false allegations in hard copy and on its Internet site.

2009 November 19
McQuaig v Harbour Financial Inc., 2009 ABQB 678

The Alberta Court of Queen’s Bench awarded the plaintiff, Chief Executive Officer of a corporation, $75,000 general damages and $25,000 punitive damages over false accusations impeaching his honesty and integrity in memos and emails sent to the Board of the corporation, at least two outside investment brokers and an unknown number of investors through anonymous postings on Stockhouse, a website which provides financial information to subscribers and provides a group of internet chat rooms called “bullboards” where subscribers can post messages about particular stocks.

2009 October 29
Reaburn v Langen, 2009 BCCA 465

The British Columbia Court of Appeal sustained a lower court ruling awarding the plaintiffs, two RCMP officers, defamation damages.

2009 October 21
Création Alpha Design Inc. c. Gagnon, 2009 QCCQ 10511

The Quebec Court (Civil Small Claims) awarded $500 damages to the plaintiff company over a small posting by the defendant debtor on an Internet “cyberjournal” which read: “Cabinets of poor quality – I am looking for people who have done business with a company [stating its location] which make cabinets and who have had problems with the quality of their cabinets. Urgent, contact me please by email.” The Court noted that although the “cyberjournal” received 5,000 visitors a day, it could not be said how many read the posting. Although libel damages were limited to $500, the court felt it was necessary to send the message that one cannot write whatever you want on the internet and that media is subject to the same legal rules which govern other media. [The plaintiff also recovered judgment against the defendant for the indebtness for the cabinetry].

2009 October 16
Mudford v Smith, [2009] O.J. No. 4317

The Ontario Superior Court of Justice awarded the plaintiff interior designer $30,000 general damages and $5,000 aggravated damages over false allegations posted on the Internet impugning the plaintiff’s integrity and falsely alleging she had refused to pay two judgments against her.

2009 September 17
Buckle v Caswell, 2009 SKQB 363

The Saskatchewan Court of Queen’s Bench awarded a senior Crown prosecutor libel damages of $50,000 over statements published by the defendant on a blog on the Internet which made false, serious allegations of misconduct. The defendant refused to apologize. The Court also granted an injunction compelling the defendant to remove all Internet postings concerning the plaintiff.

2009 August 18
Henderson v Pearlman, [2009] O.J. No. 3444

The Ontario Superior Court of Justice awarded the plaintiff author $60,000 damages ($10,000 payable by each of 6 defendants) over false allegations that the plaintiff was a career criminal and child molester which were published on the defendants’ websites and bulletin boards. This award included an element of aggravated damages based on a finding of malice.

2009 August 6
Borud and others v Robulack, 2009 YKSC 59

The Yukon Supreme Court awarded each of the two individual plaintiffs general damages of $25,000 plus aggravated damages of $10,000 against the defendant, a freelance journalist, over articles published in two local newspapers and on the defendant’s Internet blog. The corporate plaintiff was awarded $10,000 damages for loss of income. With respect to the individual plaintiffs, the Court stated: “…[W]hat is aggravating in this case is the aspect of the internet and the specific invitation to others to communicate with [the plaintiffs]” which resulted in five or six messages to the plaintiffs’ email or by texting. The Court held this was “an invitation of potential harassment and this was certainly an egregious factor.

2009 June 2
Lavigne v Chenail, 2009 QCCS 2518

The Quebec Superior Court awarded the plaintiff (former) mayor $50,000 moral damages and $10,000 exemplary damages against the defendant, a Member of the Quebec National Assembly, over allegations of conflict of interest and putting private interest ahead of public interest made in an open letter printed in a newspaper and on the newspaper’s website. The plaintiff’s husband was also awarded $20,000 moral damages and $10,000 exemplary damages. The letter was published on the eve of the municipal election. The plaintiff was not re-elected to the mayor’s office.

2009 June 2
Sanchez-Pontigon v Manalansan-Lord, [2009] O.J. No. 2293.

The Ontario Superior Court of Justice awarded the plaintiff school teacher/financial adviser $25,000 general damages and $12,500 aggravated damages over false allegations in a book published on the Internet and in a print edition that she had committed kidnapping, forgery and fraud. The Court held that “the dissemination … through the Internet is an extremely aggravating factor.”

2009 May 25
Alleslev-Krofchak v Valcom Ltd., [2009] O.J. No. 2469.

The Ontario Superior Court of Justice awarded the plaintiff, a senior project manager, $100,000 general damages for defamation over libels contained in emails which falsely reflected on her reputation for honesty, integrity and trustworthiness. Although the defamatory emails had a limited initial circulation, the court noted they were seen by a wider audience and the plaintiff worked in a “small, closely-knit network where news travels fast and reaches most individuals.” The plaintiff was also awarded $100,000 damages at large in relation to a claim for intentional interference with economic relations plus further damages to be calculated for economic loss.

2009 March 17
Hansen v Tilley, 2009 BCSC 360.

The British Columbia Supreme Court awarded the plaintiff, an ex-employee of the Douglas College Student Union, general damages of $30,000 against the defendant student newspaper over libels published in its hard-copy and online edition which falsely accused him by implication or insinuation of committing a criminal act or omission, including offences relating to misappropriation and fraud.

2009 March 5
Raymond Lasalle inc. c. Equipments G. Gagnon inc., 2009 QCCS 935.

The Quebec Superior Court awarded each of the two plaintiffs $5,000 moral damages and $5,000 punitive damages over an email sent by the defendant to the plaintiffs’ franchisor falsely alleging the plaintiffs were selling agricultural machinery distributed by a competitor of the franchisor. The plaintiff was justified in thinking the email, which was sent under a false name, put the franchise in danger. The court noted, however, the limited distribution of the email.

2009 January 29
Wade c Diop, 2009 QCCS 350.

The Quebec Superior Court awarded moral damages of $75,000 and punitive damages of $50,000 to the plaintiff , the son of the president of Senegal, over approximately 30 defamatory articles published by the defendant on his Internet blog during a four month period in 2005. The false and defamatory accusations included appropriation or diversion of public funds, illegal trafficking in shares, and threats and intimidation. See also May 14, 2008, Abou-Khallil c Diop, 2008 QCCS 1921

2009 January 19
Fuda v Conn, [2009] O.J. No. 188.

The Ontario Superior Court of Justice awarded the plaintiff 72-year old businessman $50,000 general damages and $20,000 aggravated damages over defamatory statements contained in a Management Information Circular that was disseminated by the defendants in the context of a proxy battle for control of the board of a limited company. The Circular was posted on a web-site for all public corporations.

2008 November 14
Beaudoin c Deschamps, 2008 QCCS 5403

The Quebec Superior Court awarded symbolic damages of $200 to the defendant on a counterclaim for defamation relating to an email sent by the plaintiff to a third party which impugned the defendant’s honesty. The Court noted that the dissemination of the defamation and its consequences were limited.

2008 November 6
Lamarre c Allard, 2008 QCCS 5266

The Quebec Superior Court awarded moral (general) damages of $15,000 for defamation which the judge held resulted from the defendant’s breach of a confidentiality clause contained in a settlement agreement. That agreement was made by the defendant in a prior civil lawsuit for damages he brought (against the plaintiff in this litigation.) In that prior lawsuit, the defendant was interviewed by a television reporter, following which stories based on that interview were broadcast on two television news bulletins and disseminated on the Internet. Although the evidence showed that the two television news bulletins reached estimated audiences of 206,700 (6:00 PM) and 67,400 (mid-day), the Court observed that the evidence did not reveal the impact of the Internet publication.

2008 October 20
Warman v Grosvenor, [2008] O.J. No. 4462

The Ontario Superior Court of Justice awarded the plaintiff Warman, a lawyer employed by the Government of Canada, damages capped at $50,000 for defamation and assault. The defamation was contained in Internet postings “published throughout Canada and the world by way of Google website groups, Mailgate website groups and others” on servers located in California, Italy and Germany.

The Court accepted that the plaintiff had proven “publication” (an essential element of the cause of action) stating:  “The Internet is a means of publication like no other, given its ability to instantaneously send words throughout the world to the millions who have access to computers. The defendant has caused defamatory words to be communicated to others by the Postings and each time he has re-posted the same defamatory words in the Postings, he has created a new publishing of those words.

Because the plaintiff brought these proceedings under the “simplified” Rules of Court,  he could not recover damages in excess of $50,000 for all causes of action. Although the Court agreed that a total amount of $175,000 would be the appropriate amount for general and aggravated damages, it therefore awarded only the $50,000 maximum comprised as follows:  $20,000 general damages for defamation, $10,000 aggravated damages for defamation, $15,000 general damages for assault, and $5,000 aggravated damages for assault.

2008 October 8
Reaburn v Langen, 2008 BCSC 1342, appeal dismissed by the Court of Appeal, 2009 BCCA 465

The British Columbia Supreme Court awarded the plaintiff RCMP officer Maw general damages of $20,000 and the plaintiff RCMP officer Reaburn general damages of $22,000 over false and defamatory allegations of criminal misconduct published by the defendant in a newspaper with limited circulation and on a website which was relatively unknown.

2008 15 July
Griffin v Sullivan, 2008 BCSC 827

The British Columbia Supreme Court awarded the plaintiff, a resident of Australia, damages totalling $154,644.50 for serious, defamatory statements published on numerous websites on the Internet during the period from May 2003 to trial in April 2008 by the defendant, a resident in British Columbia. The defamation award consisted of general damages of $100,000; aggravated damages of $50,000; and special damages of $4,644.40. The plaintiff was also awarded $25,000 for invasion of privacy.

2008 June 18
Inform Cycle Ltd. v. Rebound Inc. (c.o.b. Rebound Cycle), 2008 ABQB 369

The Alberta Court of Queen’s Bench awarded the plaintiff general damages for defamation in the amount of $5,000 over the individual defendant’s conduct in forwarding the visitors to the plaintiff’s website to a gay pornographic website for a period of 16 days. The court noted that the nature of the defamation was such that it could not be replicated almost endlessly over the internet as in the case of an actual defamatory statement. The Court also awarded punitive damages of $5,000.

2008 June 10
Manno v Henry, 2008 BCSC 738

The newspaper defendants were ordered to pay general damages aggregating $210,000 to five plaintiffs over unfounded allegations that they were victims of a marijuana grow-rip and had been involved in a marijuana grow-op. The individual awards were: (1) $55,000; (2) $45,000; (3) $45,000; (4) $35,000; and (5) $30,000. These awards were substantially based on hard-copy publication. However, the defamatory article was also published on the defendant newspaper’s website. The court held that the internet article, probably exacerbated, although to a minor degree, the defamation by the newspaper of the five plaintiffs awarded damages.

2008 May 14
Abou-Khalil c Diop, 2008 QCCS 1921

The Quebec Superior Court awarded the plaintiff $100,000 moral damages and $25,000 punitive damages over defamatory articles published on an Internet website which falsely alleged the plaintiff had been arrested at the airport in Paris, France, in possession of two suitcases containing 8 million Euros and was trafficking in shares. The defendant also published the same allegations during a radio broadcast in Senegal. The Court held the defendant had invented and fabricated these allegations and ruled that the plaintiff had never been involved in the sale of foreign shares or any other type of illegal business. The Court also noted that the defamatory statements appeared on a blog much visited by people connected to Senegal. This decision is on appeal to the Quebec Court of Appeal.

2008 May 1
Manson v Moffett, [2008] O.J. No. 1697

The Ontario Superior Court of Justice awarded the plaintiff damages of $20,000 for libel on the internet. The libellous impact was achieved by the defendant’s use of metatags on his own website that misdirected the plaintiff’s potential customers to the defendant’s website, on which the defendant published certain false information of the plaintiff.

2008 March 28
Angle v LaPierre, 2008 ABCA 120, affirming 2006 ABQB 198

The Alberta Court of Appeal unanimously dismissed an appeal by the defendant from a trial judgment that certain statements he made and published on the internet were defamatory. A cross-appeal by the plaintiffs seeking a higher award of damages was also dismissed.

2008 March 3
Ottawa-Carleton District School Board v. Scharf, 2008 ONCA 154,
affirming [2007] O.J. No. 3030

The Ontario Court of Appeal dismissed an appeal from the trial judgment awarding aggregate damages of $30,000 to the plaintiffs. An application for leave to appeal to the Supreme Court of Canada was filed on June 23, 2008, [2008] S.C.C.A. No. 285.

2007 December 06
Smith v Cross, 2007 BCSC 1757, appeal dismissed 2009 BCCA 529

The British Columbia Supreme Court awarded the plaintiff municipal councillor $25,000 general damages and $10,000 punitive damages over false and defamatory allegations relating to the plaintiff’s prior role as Chairman of the local School Board. The libels were contained in three emails disseminated in November, 2005 to a variety of recipients, including Members of the British Columbia Legislature. The Court noted that the defendant “argued that anyone could author an e-mail and make look as though it came from him, when in fact it did not” but ruled that the defence position with respect to the emails was “obstructionist” and held that “those portions of the e-mails produced as exhibits by the plaintiff purporting to be from the defendant were in fact sent to the plaintiff and the others listed on them by [the defendant].”

2007 November 28
Lee v Ng, 2007 BCSC 1947, appeal dismissed 2009 BCCA 91

The British Columbia Supreme Court awarded general damages of $5,000 to the plaintiff real estate agent over false allegations of fraudulent behaviour in an email sent to a handful of individuals at a real estate firm. The one email recipient who testified for the plaintiff did not assert the email had a negative effect on her views of the plaintiff. An appeal from this decision was dismissed by the British Columbia Court of appeal on February 25, 2009.

2007 November 23, 2007
Warman v Fromm and Canadian Association for Free Expression Inc.
Ontario Court File No: 04-CV-26550SR, appeal dismissed
2008 ONCA 842, leave to appeal to Supreme Court of Canada denied: March 23, 2009, [2008] SCCA No. 40.

The Ontario Superior Court of Justice awarded the plaintiff, a human rights lawyer, defamation damages aggregating $30,000 over nine postings on various Internet websites. The award consisted of $20,000 general damages and $10,000 aggravated damages The Court held that the individual defendant’s statements were designed to hold the plaintiff up to ridicule by “staying away from the truth behind [the plaintiff’s actions] because of his [the defendant’s] profound philosophical support for unbounded and unlimited freedom of expression, despite the parameters and constraints imposed by law.” The Court found that the dominant motive of the individual defendant was to attack the plaintiff personally “in retaliation for the [plaintiff’s] use of legal processes to restrain illegal speech.”

2007 October 29
Shell v Cherrier, [2007] O.J. No. 5152

The Ontario Small Claims Court awarded the plaintiff labour lawyer general damages of $7,500 over two defamatory emails sent to prominent members of the union movement and the public.

2007 August 8
Ottawa-Carleton District School Board v Scharf, [2007] O.J. No. 3030,
affirmed 2008 ONCA 154

The Ontario Superior Court of Justice awarded the plaintiff school principal and the plaintiff superintendent of instruction defamation damages aggregating $30,000 over a “News Release” and supporting documents posted continuously on an Internet website since January, 2005 which falsely alleged the plaintiff was guilty of violating a court order, assault, use of excessive force and improper action making a school unsafe for a child with Downs syndrome. Each plaintiff was awarded general damages of $15,000. The Court also ordered the removal of the defamatory material from the Internet.

2007 May 23
Bilodeau v Savard, 2007 QCCQ 5127.

The Quebec Court (Civil) awarded $2,000 to the plaintiff, a consultant who treated compulsive gambling, over defamatory allegations published by the defendant on the plaintiff’s own website for one day, which falsely alleged that the effectiveness of the plaintiff’s methods had been misrepresented to the media.

2007 May 17
3095-4333 Quebec inc. v Service de transport STCH inc., 2007 QCCS 2442.

The Superior Court of Quebec awarded the plaintiff transportation company $25,000 punitive damages against the defendant transportation broker over two defamatory emails sent to the transportation brokers association, and subsequently distributed to all association members, which warned association members against dealing with the plaintiff. The emails made false allegations of misconduct against the plaintiff. The Court also ordered the defendant to formally apologize to the plaintiff and to inform all members of the transportation brokers association to disregard its defamatory emails.

2007 March 21
Finocchio v Kurtesi, [2007] O.J. No. 5581

The Ontario Superior Court of Justice awarded the plaintiff $75,000 general damages and $50,000 aggravated damages over a defamatory email sent by the defendants to a municipal Clerk with instructions that it be circulated to members of the municipal council, opposing the renewal of a hot dog vendor licence. The Court held that the email made serious, malicious allegations of misconduct for the purpose of punishing and hurting the plaintiff, who was a competitor.

2007 January 11
WeGo Kayaking Ltd. v Sewid, 2007 BCSC 49

The British Columbia Supreme Court awarded defamation damages totalling $257,500 to two corporations offering kayak tours in waters east of Vancouver Island. The Court held that the individual male defendant was responsible because he participated in publishing the defamatory statements concerning the plaintiff eco-tourism companies on a website by “formulating, then communicating, authorizing and approving” their publication on the website. In such circumstances, it was no defence that someone else ( a bankrupt co-defendant) was the person who actually posted the defamatory statements on the website. Details of the damages awarded are as follows: (a) general damages of $100,000 plus punitive damages of $2,500 to the corporate plaintiff WeGo Kayaking Ltd. and (b) general damages of $150,000 plus punitive damages of $5,000 to the corporate plaintiff Northern Lights Expeditions Ltd.

2006 November 24
Urbanowski v Harkins, 2006 BCSC 1741

The British Columbia Supreme Court awarded the plaintiff computer systems engineer $10,000 general damages over false allegations by the defendant that the plaintiff had defrauded the defendant and his collision company with the unauthorized use of the defendant’s credit card and by “reneging” on payment terms for his insurance deductible. The false and defamatory statements were made in two emails sent by the defendant to the Insurance Corporation of British Columbia, one of which was also copied to two officers of the Associate of Auto Trades.

2006 July 24
Loh v Yang, 2006 BCSC 1131

The British Columbia Supreme Court awarded the plaintiff lawyer $50,000 general damages, $25,000 aggravated damages and $10,000 punitive damages over false allegations that he was dishonest as a lawyer, political candidate and community leader. These false allegations were published over a period of six years on web sites, in a written notice of a media conference, and on a placard worn by the defendant in Vancouver and on occasion near the plaintiff’s offices. The plaintiff was also awarded special costs.

2006 June 20
Sanjh Savera Weekly v Ajit Newspaper Advertising, [2006] O.J. No. 2464

The Ontario Superior Court of Justice, in the course of assessing defamation damages to be awarded to the plaintiffs, rejected the plaintiff’s submission that publication of the offending article on the website of the defendant newspaper from October 2002 to April 2003 was a factor that weighed in support of an award of punitive damages. In this case, the Court noted that the posting of the defamatory editorial on the website was part of the standard practice of the defendant newspaper and not a special step related to the plaintiffs. “An Internet user would need to go through several steps to access the editorial, which suggests that it would not come to the attention of such users as readily as it would have reached the readers of the newspaper in its distribution in print form in the week of October 2, 2002.” The Court held that publication on the website was not shown to have likely had a material effect.

2006 March 13
Angle v LaPierre, 2006 ABQB 198

The Alberta Court of Queen’s Bench awarded general damages aggregating $49,001 to six plaintiffs who were defamed in website postings. The plaintiffs included two school principles, three teachers and the Alberta Teacher’s Association and one of its employees. The individual defendants included parents of children in the schools system.

2006 January 11
Newman v Halstead, 2006 BCSC 65

The British Columbia Supreme Court awarded defamation damages aggregating $676,000 CAN to eleven plaintiffs who were defamed in sixty defamatory statements published on internet “chat rooms” or “bulletin boards”, a website and in emails which were distributed to large numbers of recipients. The largest individual award of general damages was $150,000 CAN. The judgment included an award of $50,000 CAN punitive damages to be divided equally among the plaintiffs. The Court also granted a permanent injunction against “any statements or other communications which refer to any of the plaintiffs by name, by depiction or by description.”

2005 November 11
Lacroix v Dicaire, [2005] J.Q. no 16431

The Québec Superior Court awarded the plaintiff, a senior city official, the sum of $30,000 Cdn as moral damages for defamation over expression published on the Internet and elsewhere. At paragraph 75 of its judgment, the Court stated that the defendant “ a utilisé un moyen de communication puissant, l'internet, afin de s'assurer de détruire plus largement la reputation” of the plaintiff.

2004 November 15
Hay v Partridge, 2004 NUCJ 3

The Nunavut Court of Justice awarded the plaintiff prison warden general damages of $35,000 including aggravated damages over defamatory expression contained in a hard-copy newsletter published by subordinate employees. The Court held that the plaintiff’s damages were aggravated by the dissemination of the newsletter’s defamatory allegations on an internet message board which provoked “local anonymous commentary” and thereby “expanded” the publication.

2004 November 09
Ross v Holley, [2004] O.J. No. 4643.

The Ontario Supreme Court awarded the plaintiff $75,000 Cdn general damages and $50,000 Cdn aggravated damages over emails which the court held were false and defamatory.

2004 June 04
Barrick Gold Corp. v Lopehandia, (2004) 239 D.L.R. (4th) 577

The Ontario Court of Appeal held that the corporate plaintiff, a gold mining company, was entitled to $75,000 Cdn general damages and $50,000 Cdn punitive damages for libels published in postings on various websites. The lower court judge had awarded only $15,000 Cdn general damages and nothing for punitive damages.

2004 June 01
Simpson v Mair, 2004 BCSC 754

The British Columbia Supreme Court awarded the defendant radio show host the sum of $100 Cdn as nominal damages over what it held were false and defamatory allegations by the defendant by counterclaim- the Citizens Research Institute Society -- on its website.

2004 February 27
Sasseville v Vincent, [2004 J.Q. no. 1832

The Québec Superior Court awarded the plaintiff hockey team administrator the sum of $3,500 Cdn as moral damages for defamation against the defendant hockey player over allegations published in a newspaper and on the newspaper's website.

Gosselin v Vincent, [2004] J.Q. no. 1831

The Québec Superior Court awarded the plaintiff hockey team general manager the sum of $2,000 Cdn as moral damages for defamation against the defendant hockey player over allegations published in a newspaper and on the newspaper's website.
2004 January 29

2004 January 29
Vaquero Energy Ltd. v Weir, 2004 ABQB 68, [2004] A.R. 191 (QB)

The Alberta Court of Queen's Bench awarded the plaintiff oil and gas exploration company $10,000 Cdn general damages over false, anonymous and defamatory e-mails and messages posted in chat rooms - called bullboards - where people could post messages about particular stocks. The individual plaintiff - the president and CEO of the company -- was awarded $40,000 Cdn general damages and $25,000 Cdn punitive damages.

2004 January 07
Consumers' Assn. of Canada v Hillard, [2004] O.T.C. 11

The Ontario Superior Court of Justice awarded the plaintiff - a non-profit, non-governmental, volunteer organization -- $1,000 Cdn general damages. The court also awarded the president of the organization $4000 Cdn general damages and the secretary/treasurer $3000 Cdn general damages. The Court held that the libels were contained in two emails sent by the defendant, a board member, to other board members, to committee chairs and to provincial branches of the organization in Manitoba, Alberta and Saskatchewan.

2003 July 30
Buchwald c 2640-7999 Quebec Inc., [2003] J.Q. no. 13270

The Québec Superior Court awarded the male plaintiff - a restaurant operator -- $6,250 Cdn moral damages over the defendant's statements and comments which appeared on his Internet website for 125 days. The $6,250 Cdn award represented $50 Cdn damages per day for the website publication. The male plaintiff was also awarded $1,750 Cdn punitive damages. The male plaintiff's wife, although not expressly named by the defendant in the libels, was awarded $1,500 Cdn moral damages and $1,750 Cdn pecuniary damages for losses to the restaurant business (150 meals). In addition, the court awarded the plaintiffs a total of $2,250 Cdn damages for legal expenses.

2003 June 06
Ager v Canjex Publishing Ltd., 2003 BCSC 891, (2003) 16 C.C.L.T. (3d) 188 varied 28 September 2005, 2005 BCCA 467

The British Columbia Supreme Court awarded the plaintiff geophysicist defamation damages totaling $300,000 Cdn in relation to certain articles published in "Stockwatch," a Vancouver publication which is made available to subscribers principally via Internet. The plaintiff was also awarded special (substantial indemnity) costs. The award consisted of $200,000 Cdn general damages and $100,000 Cdn aggravated damages. On September 28, 2005, the Court of Appeal sustained the award of $200,000 Cdn general damages but set aside the award of $100,000 for aggravated damages:
2005 BCCA 467.

See McConchie and Potts, Canadian Libel and Slander Actions, "Chapter Twenty-Three: Pleadings," "Fair Comment," page 583.

2003 June 04
Association des medecins traitant l'obesitee v Breton, [2003] J.Q. no. 6601

The Québec Superior Court awarded defamation damages aggregating $220,000 Cdn over approximately thirty Internet postings by the defendant. The plaintiff association AMTO (doctors treating obesity) was awarded $25,000 Cdn punitive damages; the plaintiff Pro-amino (a corporation selling food products) was awarded $25,000 Cdn punitive damages. Two doctors were each awarded $25,000 Cdn moral damages and $50,000 Cdn punitive damages. A third individual was awarded $10,000 Cdn moral damages and $10,000 Cdn punitive damages.

2003 May 05
Graf v Duhaime, [2003] J.Q. no. 4811

The Québec Superior Court awarded the plaintiff - the president of a non-profit society -- the sum of $50,000 Cdn moral damages over defamatory allegations contained in a letter mailed to members and contributors and others and posted on the society's Internet site, in messages and text on the Internet home page of the society, in certain statements made to a newspaper, and in a written communication to members of the society pending its annual meeting in 2001. The female co-plaintiff was awarded $10,000 Cdn damages. In addition, the court awarded the plaintiffs damages of $100,000 Cdn to defray their legal costs.

2003 March 07
Caron v Rassemblement des employes technicians aubulanciers du Quebec (R.E.T.A.Q.), [2003] J.Q. no 1611, affirmed [2004] J.Q. no.4914

The Québec Superior Court awarded the plaintiff lawyer/ambulance technician $100,000 Cdn damages ($50,000 moral; $50,000 exemplary) arising from a communique sent by fax by the defendant union to regional unions affiliated with a national federation of unions. The circular was posted on the bulletin boards of ambulance companies in Québec whose unions were affiliated with the national federation. The same communique was also posted on the Internet site of the defendant union.

2002 July 08
Reichmann v Berlin, [2002] O.J. No. 2732, (2002) O.T.C. 464

The Ontario Superior Court of Justice awarded the aggregate sum of $400,000 Cdn damages to the plaintiff over libels published on the Internet on at least seven different websites. The award consisted of $200,000 Cdn general damages, $50,000 Cdn aggravated damages against each of the two defendants, and $50,000 Cdn punitive damages against each of the defendants.

See McConchie and Potts, Canadian Libel and Slander Actions, "Chapter Thirty: Damages," "Aggravated Damages," page 852; "Avoiding Overlap between General and Aggravated Damages," page 853; "Awards," page 866.

2001 November 23
Vermette v Harmer, BCSC docket 01 - 1822, Victoria Registry

The Supreme Court of British Columbia awarded $40,000 Cdn general damages, $10,000 Cdn aggravated damages and $10,000 Cdn punitive damages to the plaintiff police constable for defamatory statements published on two websites.

2000 December 04
Ramsey v Pacific Press, a Division of Southam Inc., 2000 BCSC 1551

The British Columbia Supreme Court awarded a provincial cabinet minister general damages of $30,000 Cdn for defamation against defendant radio talk-show host and his employer, a radio station, over a broadcast and over the posting of the text of the broadcast on the radio station's website.

See McConchie and Potts, Canadian Libel and Slander Actions, pages 165, 182, 184, 185, 187, 189, 317, 460, 764, 786, 787.

2000 September 21
Southam v Chelekis,
[2000] B.C.J. No. 314 (CA), affirming [1998] B.C.J. No. 848

The British Columbia Supreme Court awarded damages aggregating $875,000 Cdn to a newspaper columnist, David Baines, for several articles, a press release, and an oral statement made at a business seminar.

The damage awards included general damages of $250,000 Cdn against the defendants Chelekis and Market News (a distributor of information by means of electronic communication to private investors, including supplying material to Star Data and Bloomburg, thereby achieving worldwide distribution).

Aggravated damages of $100,000 Cdn and punitive damages of $100,000 Cdn were also awarded, presumably in part in relation to the electronic communications.

The British Columbia Court of Appeal unanimously dismissed an appeal by two of the defendants, Market News Publishing Inc. and Robert Shore, from the assessment against them of damages in the sum of $250,000 (see (c) above). Leave to appeal to the SCC was denied [2000] SCCA 177 (SC)

See McConchie and Potts, Canadian Libel and Slander Actions, "Chapter Thirty: Damages, Awards" -pages 865, 894.

1999 September 23
Campbell v Cartmell, [1999] O.J. No. 3553

Five school board officials and the Toronto District School Board sued in the Ontario Superior Court over defamatory letters which were posted on Web sites and on Scribe, an internal bulletin system of the Scarborough Board of Education.

The Court awarded a total of $15,000 Cdn general damages to five of the plaintiffs ($3,000 Cdn each to four individuals and the School Board) plus a total of $2,000 Cdn aggravated damages ($500 to each of the four individual plaintiffs who received an award of general damages).

In addition, the court awarded $1,500 Cdn punitive damages to one individual plaintiff. The court subsequently ordered that the defendants pay solicitor and client costs (substantial indemnity for legal fees) [2000] O.J. No. 840.

1995
Fantino v Baptista

The Police Chief of London, Ontario brought a lawsuit in the Ontario Court General Division over an individual who made defamatory remarks in electronic messages. The plaintiff obtained a default judgment in the amount of $40,000.

 


E. SUBSTANTIVE CYBER LIBEL DEFENCES back to top
Click on a case name for full text

2013 December 4
Rosenberg c Lacerte, 2014 QCCS 6286

The Quebec Superior Court dismissed this action which sought damages and the removal of the defendant’s Internet blog on the basis the postings at issue did not defame the plaintiffs. The Court held that the many postings at issue fell within the limits of lawful freedom of expression, noting that the plaintiffs played an active public role in promoting certain local interests and by participating in the work of municipal organisms. The Court suggested that those who want to enjoy anonymity wisely stay at home and are less likely to be subjected to public criticism than those who participate in news media interviews as representatives of identifiable groups. The opinions expressed on the blog were reasonably justifiable in light of the proven facts.

2013 August 26
Christian Advocacy Society of Greater Vancouver v Arthur, 2013 BCSC 1542

The British Columbia Supreme Court granted a summary trial application by the defendants and dismissed this libel lawsuit over the publication of a report on the defendants’ website, which concerned “crisis pregnancy centres.” The Court held, among other things, that the allegations at issue in the report were not “of and concerning the plaintiffs” and they were therefore not defamed.

2013 July 22
Mainstream Canada v Staniford, 2013 BCCA 341, leave to appeal to the Supreme Court of Canada denied: 2014 CanLII 5973 (SCC)

The British Columbia Court Appeal, reversing the trial judge, unanimously held that the defendant was not protected by the defence of fair comment for defamatory allegations contained in a January 2011 press release sent to the news media and in publications on the defendant's website (including a version of the January 2011 press release).

Writing the judgment of the Court of Appeal, Tysoe J.A. noted that the Supreme Court of Canada set out the test for fair comment in Grant v Torstar Corp, 2009 SCC 61:

As reformulated in WIC Radio, [WIC Radio Ltd. v Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420] at para. 28, a defendant claiming fair comment must satisfy the following test: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.

Tysoe JA held that the trial judge in this case erred "in finding that the second element (i.e. the comment must be based on known facts) was satisfied." Accordingly, the Court of Appeal allowed the appeal, and held it was "unnecessary to consider whether the trial judge erred in concluding that the fourth element of the test was satisfied and the defence was not defeated by malice." He noted that in order for the fair comment defence to apply, "it is necessary for the comment to have a factual foundation or factual substratum" so the audience is in a position to assess or evaluate the comment.

Tysoe JA expressly approved the following passage from the majority decision of the High Court of Australia in Channel Seven Adelaide Pty Ltd. v Manock, [2007] HCA 60 concerning the required linkage between the comment and the supporting facts:

[49] ... a sufficient linkage between the comment alleged and the factual material relied on can appear in three ways: the factual material can be expressly stated in the same publication as that in which the comment appears (ie by "setting it out"); the factual material commented on, while not set out in the material, can be referred to (ie by being identified "by a clear reference"); and the factual material can be "notorious." ...

Tysoe JA considered that this statement is "consistent with the expression at para. 34 of WIC Radio that the factual foundation for the comment must be properly disclosed, sufficiently indicated or notorious.

Applying that test to this case, the Court of Appeal found that certain facts were notorious, others were contained in the defamatory publications, but certain key facts were neither notorious nor contained in the publications and therefore needed to be "identified by a clear reference" or "sufficiently indicated." In this context, the trial judge erred:

  1. By failing to distinguish between non-notorious facts stated in the defamatory publications and non-notorious facts stated elsewhere.
  2. By failing to consider whether the non-notorious facts stated elsewhere were identified by a clear reference.
  3. By suggesting it was sufficient for the facts upon which the defamatory comments were based to be known by determined readers who conducted research on the defendant's website and beyond.

Tysoe JA noted that the plaintiff Mainstream did not allege in its notice of civil claim that all of the pages on the defendant's website were defamatory:

[45] In my view, all of the pages on a website, together with all articles hyperlinked on the website, do not constitute a single publication...It is not sufficient for the defence of fair comment for facts upon which the comments were made to be contained on webpages that were not alleged to contain defamatory comments or in hyperlinked documents unless those other pages or hyperlinked documents were identified by a clear reference to contain such facts.

[46] Whether the hyperlinks in a defamatory publication on a website to other documents containing facts upon which the defamatory comment was made is sufficient will depend on the circumstances of each case. If the defamatory publication advises the reader that a hyperlinked document contains facts upon which the defamatory comment is based and sets out where in the document they are contained, then there may well be a sufficient reference to those facts. In this case, however, the readers of the defamatory publications were not advised which of the multitudinous hyperlinked documents in the publications or elsewhere on the [defendant's] website contained facts upon which Mr. Staniford's comments were based.

In the result, instead of remitting the matter to the BC Supreme Court for a new trial, the Court of Appeal awarded the plaintiff corporation $25,000 general damages, $50,000 punitive damages, special costs and an injunction.

2013 July 15
M v CBC Radio-Canada, Bell Canada, Microsoft Corporation and New Zimbabwe Media Ltd., 2013 QCCA 1225, leave to appeal to the Supreme Court of Canada denied: 19 December 2013

The Quebec Court of Appeal granted motions filed by Bell Canada, Microsoft and the CBC to dismiss M’s appeal from a trial judgment which refused to permit M to institute defamation proceedings seeking $12 million damages over articles on the Internet entitled “Federal Court bans man for frivolous lawsuits.” The trial judge had concluded that the Internet articles summarized precisely and correctly the reasons for judgment rendered by a judge of the Federal Court of Appeal.

In this decision, the Quebec Court of Appeal ruled that the appeal by M “has no reasonable chance of success and should be dismissed pursuant to article 501, paragraph 1(4.1) C.C.P.

2013 July 15
Nu Fibre Inc. v Ishkanian, 2013 BCSC 1255

The British Columbia Supreme Court held that the plaintiffs were defamed by three emails and by two articles which appeared in the TIAC Times (a magazine published in print and online) and the Journal of Commerce. One of the three emails held to be defamatory was sent to the Journal of Commerce; the other two were sent to engineers at major mechanical consulting firms.

Nevertheless, the Court dismissed the plaintiff’s claims on the basis the publications all occurred on occasions of qualified privilege. The Court noted that for an occasion to be privileged, the person making the communication must have an interest or a duty, legal, social or moral, to make it to the person(s) to whom it is made, and the person to whom it is made must have a corresponding interest or duty to receive it. “That element of reciprocity is essential.

In this case, the Court held that engineers and consultants as well as contractors, distributers, builders, designers and engineers likely to receive the Journal of Commerce and the TIAC Times would “share [the defendant’s] professional interest.

The Court held that the “segment of the population that would be likely to receive [the TIAC Times article) or find it on the website would be quite limited” and that it therefore “could not be considered ‘publication to the world.’” With respect to the Journal of Commerce, the Court expected that publication to have a wider circulation but stated “no evidence was adduced from which I could find that it was so wide as to exceed the limits of qualified privilege…

The privilege was not defeated by express malice, applying the test for malice prescribed in Smith v Cross, 2009 BCCA 529, which states in part at paragraph 34:

  1. In Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004) at 299, R. D. McConchie and D.A. Potts reduce this statement to a helpful framework for the categories under which a finding of malice can be made. A defendant is actuated by malice if he or she publishes the comment:
    1. Knowing it was false; or
    2. With reckless indifference whether it is true or false; or
    3. For the predominant purpose of injuring the plaintiff because of spite or animosity; or
    4. For some other dominant purpose which is improper or indirect, or also, if the occasion is privileged, for a dominant purpose not related to the occasion.

More than one finding can be present in a given case.

Although the Court dismissed the action, it stated: “…it would seem to me proper that any continuing publication of the TIAC Times article on that journal’s website or elsewhere should be terminated immediately.” “This is not a direction; but I observe that failure to do so in view of my findings would suggest bad faith.

2013 June 20
373041 Ontario Ltd. v King Reed & Associates Inc., 2013 ONSC 4289, appeal dismissed 2014 ONCA 184

The Ontario Superior Court of Justice granted summary judgment to the defendants Shaw Direct and Bell Express Vu, dismissing defamation claims against them relating to the publication by the Reed King defendants of an internal newsletter which was printed and circulated to employees of King-Reed in April 2011 and which, sometime thereafter, was posted on a website on the Internet for 16 days by one of the King-Reed limited partners.   The Court held that there was “no evidence indicating that either ExpressVu or Shaw had anything to do with the writing or publication of the King-Reed’s employee newsletter or the allegedly defamatory article” which had been posted briefly on the internet.

2013 June 14
Images Turbo inc. c Marquis, 2013 QCCS 2781

The Quebec Superior Court dismissed a claim by the corporate plaintiff for damages relating to an allegedly defamatory email sent by the defendant, an ex-employee, to her husband and the plaintiff's lawyer. The Court sustained an objection to the admissibility of the email to her ex-husband (on the grounds of invasion of privacy) and held there was no proof of damage arising from its communication to the lawyer, because the defendant and the lawyer were two people who worked closely together and spoke to one another about their working conditions. By the time of the trial, the lawyer had also left employment with the plaintiff. The email had been discovered on the defendant's Blackberry, after she returned it to the ex-employer on departing the company.

2013 April 18
Taylor v Lamon, 2013 SKQB 144

The Saskatchewan Court of Queen's Bench dismissed all claims and counterclaims for defamation which arose from the involvement of all parties in a national trade union which represented inside workers employed by the City of Saskatoon. The counterclaims related, in part, to: (i) an email sent on August 11, 2000 to members of the union local; (ii) an email sent on August 23, 2000 to union members and to nine other people unknown to the sender whose names appear on the national union's website; and (iii) an email sent on October 11, 2000 to union members including grievance committee members. The Court concluded that none of the emails were defamatory, in some instances because the statements fell within the "rough and tumble" of union politics and business; in other instances because the readers would have considered the source of the remarks - the email's author - to be "confrontational, aggressive, angry and of uncertain reliability in terms of relating circumstances." "Because of the confrontational, antagonistic and agitated nature of the email, the reasonable reader would have concluded that any comments in it could not be taken at face value." In the alternative, the Court found that each of the emails was published on an occasion of qualified privilege.

2013 February 6
Gichuru v Pallai, 2013 BCCA 60

The British Columbia Court of Appeal rejected an appeal by the plaintiff, a non-practising lawyer, from a summary trial judgment dismissing his libel action concerning an online posting. The plaintiff had failed to prove publication of the allegedly defamatory posting. The defendants had denied: (i) any involvement in making or posting the allegedly defamatory statement; (ii) that they had authorized anyone to make it; (iii) that they knew in fact who made it; and (iv) that they had seen the posting on the Internet or knew of anyone who had. At the summary trial on affidavits, the plaintiff failed to tender any evidence that the defendants had posted or asked to anyone to post the statement. The Court of Appeal held that the lower court’s decision that the matter was appropriate for disposition by summary trial was entitled to appellate deference. In this case, the plaintiff’s failure to prove publication, a threshold issue, was fatal to his claim.

2012 December 21
Whitehead v Sarachman, 2012 ONSC 6641

The Ontario Divisional Court allowed an appeal by the defendant from a trial judge’s finding that the defendant had been guilty of actual malice which vitiated a defence of qualified privilege. The action concerned an exchange of emails between the plaintiff and the defendant, who were both members of Hamilton City Council. The email exchange had been copied to all other City Councillors and to the Mayor of Hamilton.

The Divisional Court held that although it was open to a trial judge to find intrinsic evidence of malice in the defamatory emails themselves, the “wording must be so violent, outrageous and disproportionate to the facts that it furnishes strong evidence of malice.” The Divisional Court warned that “[i]solated expressions should not be examined hypercritically. A court should not too readily draw an inference of malice from mere exaggeration or extravagance in the use of language. Any warmth or force of expression may properly be attributed by the jury to an honest endeavour on the part of the defendant to honestly achieve his or her purpose. The language must be extreme before an inference of malice will be drawn.” [Quoting Brown on Defamation, at p.16-115 to 116]

The Divisional Court held that the plaintiff’s honest belief in the truth of what he published on an occasion of qualified privilege is a “strong presumption” [citing Brown on Defamation, at pages 16-134.] To prove actual malice, it is not sufficient to prove that the defendant was moved by spite to say the things he said. The plaintiff must show that the defendant’s dominant motive was improper. In the circumstances, the Divisional Court sent the action back to the trial court for a new trial before a different judge.

2012 December 12
Walsh Energy Inc. (c.o.b. The Energy Centre) v Better Business Bureau of Ottawa-Hull Inc., 2012 ONSC 5819

The Ontario Superior Court of Justice dismissed an action against the Better Business Bureau over allegedly libelous ratings on its website. The Court noted that although the BBB opinions are published on the Internet, they must be searched individually by consumers wishing to obtain information about a specific company such as the plaintiff. In all the circumstances, the ratings were published on an occasion of qualified privilege. The Court held that it was clearly in the public’s interest that ratings opinions from the BBB should be available. Pursuant to its objects, the BBB is under a duty to accumulate and supply such information. The Court also concluded the BBB ratings were protected by the defence of fair comment. The Court held that there was no evidence of actual malice which would have negated the qualified privilege and fair comment defences.

2012 June 28
Cosgrove v Crowe, 2012 BCSC 955

The British Columbia Supreme Court dismissed a defamation claim over an email sent by the defendant to several groups and individuals, holding that the defence of justification (truth) applied.

2012 June 21
Harvey c. Paillé, 2012 QCCS 2886

The Quebec Superior Court dismissed a libel action arising from a posting by a Bloc Quebecois candidate on his website during the 2008 federal election campaign. The plaintiff, an incumbent Conservative Member of Parliament, was defeated in the election. The Court held that the defendant’s criticism of the plaintiff did not prejudice his integrity or honesty and was protected by a defence of “commentaire loyal.”

2012 June 14
Baglow v Smith, 2012 ONCA 407, reversing 2011 ONSC 5131

The Ontario Court of Appeal unanimously allowed an appeal by the plaintiff blogger, a retired civil servant, from a summary dismissal of his libel action over a posting on a right-wing website. The Court of Appeal held that the issues in the lawsuit should be determined in the normal way at a trial and did not lend themselves to a determination on a motion for summary judgments on affidavits, particularly because “they arise in the relatively novel milieu of internet defamation in the political blogosphere.” The Court of Appeal noted that summary judgment has “rarely been granted in defamation cases, probably because the courts have recognized that the threshold over which a statement must pass in order to be capable of being defamatory of a plaintiff is relatively low … and because the question whether a statement is in fact defamatory has long be considered the purview of a trier of fact. Whether impugned words are defamatory of an individual in fact is the type of decision better made on the basis of a full factual record with cross-examination and possibly expert testimony.” The Court of Appeal also held that the following issues, not previously addressed in the case-law in any significant way, should be decided following a full trial:

  1. Are caustic and strident exchanges on a blog during “a robust and free-wheeling exchange of political views” subject to the standard test for determining whether a statement is defamatory?
  2. Does “anything go” in exchanges on such a blog?
  3. Do different considerations apply to other forms of publication on the Internet, such as Facebook or Twitter?

Novel questions of law or mixed law and fact should generally be determined at trial instead of a summary judgment application at an interlocutory stage of proceedings.

The Court also noted: “No expert evidence was tendered (at the summary judgment hearing) concerning the expectations and understanding of participants in blogosphere political discourse. There was simply no evidence as to what the right-thinking person in this context would consider would lower the appellant’s reputation in the estimation of a reasonable reader.

2012 May 14
Gichuru v Pallai, 2012 BCSC 693

Following a summary trial (on affidavits and transcript evidence from pre-trial examinations for discovery), the British Columbia Supreme Court dismissed a defamation action over an anonymous posting in October 2010 on the Discover Vancouver website. The Court held that the plaintiff “did not submit any evidence that anyone had read the allegedly defamatory statement and in general did not address submissions with respect to the issue of publication.” The onus was on the plaintiff to prove publication to a third party, which the Court held he failed to do on the evidence. The Court also held, in the alternative, that the defendants had established a defence of fair comment and rejected the plaintiff’s submission the defendants had been guilty of actual malice which would have voided that defence.

2012 February 8
TPG Technology Consulting Ltd. v Canada (Minister of Industry), 2012 ONCA 87

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.

2011 August 30
Baglow v Smith, 2011 ONSC 5131

The Ontario Superior Court dismissed a defamation action involving political bloggers who debated the validity of the trial of Omar Khadr, a Canadian being held by American forces at Guantanamo Bay, in a series of strongly-worded postings and counter-postings over a four day period in August, 2010. Granting summary judgment to the defendants (right-wing bloggers), the Court held the words complained of by the plaintiff (a left-wing blogger) were not capable of damaging the reputation of the plaintiff.

The Court stated that its conclusion the words were non-defamatory was supported by the “contextual factor” that they were published “in the context of an ongoing blogging thread over the Internet.” “Internet blogging is a form of public conversation. By the back and forth character it provides an opportunity for each party to respond to disparaging comments before the same audience in an immediate or relatively contemporaneous time frame. …This distinguishes the context of blogging from other forms of publication or defamatory statements.” Equating blogging to a live debate, the Court suggested that “in construing alleged defamatory words in an ongoing debate, [the Court] should determine whether the context of the comment from the perspective of a the reasonable reader or listener is one that anticipates a rejoinder, which would eliminate the possible consequence of a statement lowering the reputation of the plaintiff in their eyes.” “A statement is not derogatory when made in a context that provides an opportunity to challenge the comment and the rules of the debate anticipate a rejoinder, unless the statement is wholly outside the scope of the debate or otherwise so outrageous as to prevent meaningful argument from continuing.

The Court held that “walking off the blogging stage … is a form of ‘gotcha’ contrary to the rules governing the debate” and that “bringing an action on the allegedly defamatory comment in md-debate runs contrary to the rules and has the effect of chilling discussion.” The Court found that the plaintiff, having used the blog “to aggressively berate” and publish “colourful derogatory characterizations” of the defendants, was not defamed having regard to the other derogatory remarks made about him and by him throughout the blogs.

In the alternative, the Court concluded that the words complained of were protected by the defence of fair comment and that the plaintiff had failed to prove that the defence was vitiated by express malice on the part of the defendants.

2011 July 28
TPG Technology Consulting Ltd. v Canada (Minister of Industry), 2011 ONSC 4604

The Ontario Superior Court of Justice struck out libel claims relating, inter alia, to certain postings by the federal Competition Bureau in a press release on its website. The Court held that the internet postings “make plain that the plaintiffs merely stood accused of bid-rigging and had not yet been convicted of any offence.” The Court also held that the postings “fairly describe the alleged offence, including the end objectives of individuals who engage in bid-rigging.” Accordingly, the postings were not capable of being defamatory. “It is now well-accepted that a statement indicating that a person has been charged with an offence is not defamatory because reasonable persons are mindful that an accused is presumed innocent until proven guilty.” The plaintiff argued unsuccessfully that the postings were capable of conveying more serious imputations which were defamatory.

2011 May 12
Blanc c. Éditions Bang Bang inc, 2011 QCCS 2624

The Quebec Superior Court dismissed a defamation lawsuit brought by a specialist in web marketing including social media who had undergone a male-to-female sex change operation. The plaintiff and a columnist for the Montreal newspaper La Presse exchanged barbs on their respective Internet websites concerning the merits of blogging. Commenting about that online exchange, the defendant Bang Bang, an internet magazine, published an article illustrated by The Sacrifice of Isaac, the well-known painting attributed to Caravaggio which depicts Abraham on the point of sacrificing his son Isaac to God. However, the painting was digitally altered by superimposing the plaintiff’s face on Abraham (but retaining Abraham’s beard) and by superimposing the face of the La Presse columnist on Isaac. The plaintiff alleged that because her image in the altered painting was bearded (recall she had transgendered from a male), the publication exposed her to humiliation and ridicule and caused her to suffer significant emotional distress. Rejecting the defamation claim, the Court ruled that the defendant’s website article including the altered painting represented a legitimate exercise of freedom of expression about the public online debate between the plaintiff and the newspaper columnist. The Court concluded that in this context, the reasonable reader would not have interpreted the article and altered painting as an attack on the plaintiff’s trans-gendered status, but rather as an ironic commentary about the differences between the plaintiff and the columnist about the virtues of blogging.

2011 February 3
Blumas v Institute of Chartered Accountants of Ontario, 2011 ONCA 94

The Ontario Court of Appeal unanimously sustained a trial court dismissal of a defamation action on the basis that the defamatory and inaccurate email was sent by the defendant on an occasion of qualified privilege. The plaintiff failed to prove actual malice on the part of the defendant which would have vitiated the qualified privilege defence. The Court of Appeal held that the ICAO officials involved with the email were “acting in the public interest, in the context of a confidential regulatory process. It is important in such circumstances that the officials involved be free to speak candidly...The information communicated was reasonably within the scope of the regulatory process in the circumstances at the point when the information was given.

2011 January 14
Conroy v The College of Physicians and Surgeons of Ontario, 2011 ONSC 324

The Ontario Superior Court of Justice granted the defendant’s application for summary judgment dismissing this action, which included claims arising from an allegedly defamatory posting on the College’s website/public register. The Court held that the College had immunity based on section 38 of the Registered Health Professions Act, which provided that no action or proceeding could be instituted for any act done in good faith in the performance or intended performance of a duty. The Court found that the plaintiff had failed to plead necessary particulars of “bad faith” on the part of the defendant College and in the alternative, there were no facts in evidence to support a finding that the College had acted in “bad faith.

2010 December 7
Crookes v Newton, [2009] SCCA No. 448

On December 7, the Supreme Court of Canada heard the plaintiff’s appeal from lower court decisions dismissing his action for defamation over hyperlinks on the defendant’s website. See the BC Court of Appeal decision appealed from: 2009 BCCA 392. The Supreme Court of Canada has reserved judgment.

2010 July 14
Rubin v Ross, 2010 SKQB 249

The Saskatchewan Court of Queen’s Bench accepted a defence of qualified privilege and dismissed a libel action brought against the defendants over: (i) a posting on a union website, (ii) notices posted on bulletin boards in the plaintiff’s workplace, and (iii) a mass mailing to union employees. The allegedly defamatory notice had been posted in a section on the website intended for communication with union members and was intended to encourage potential witnesses to a union grievance to come forward.

2010 July 8
Sauvé v Canada, 2010 FC 734

The Federal Court dismissed an defamation action on the basis that the RCMP was not responsible for defamatory statements allegedly posted on a website entitled RCMP Vets Net (Vets Net). The defence called the owner of the website, a private individual, who testified that he owned the relevant domain name and was the sole owner of Vets Net which he had created as a place where retired RCMP members could stay in touch. The witness also testified that the RCMP neither funded nor controlled the website in any way. The Acting Manager of New Media for the RCMP also testified that the RCMP did not control Vets Net directly or indirectly and did not even provide a hyperlink to it on the RCMP website. Further, a disclaimer webpage warned visitors to the RCMP website when they were leaving the website that the RCMP is not responsible for the contents of any external website to which it provides hyperlinks. In any event, the plaintiff failed to prove that the words he complained about were in fact published on the Vets Net website.

2010 July 5
B.C. Teacher’s Federation v Thorne, 2010 BCSC 953

The British Columbia Supreme Court dismissed the defendant’s counterclaim for defamation which was based on comments attributed to a spokesperson for the plaintiff in articles published by The National Post and The Province (Vancouver) newspapers in their on-line and print editions. The newspapers were not sued by the defendant. The Court found that in speaking to the newspaper reporter, the plaintiff’s spokesperson had told the reporter she would not comment on the particular case of the defendant, but could speak only about the general practices of the plaintiff Teacher’s Federation. The Court stated: “[the spokesperson] can only be liable in defamation, it need hardly be said, for statements she actually made, considered in context. The fact that someone purporting to publish her statements misreported her, or omitted part of what she said and thereby altered the meaning of her words, cannot be brought home to her. The publisher could potentially be liable in defamation, but the person whose words were altered could not.

2010 June 9
Shavluk v. Green Party of Canada, 2010 BCSC 804, 2010 BCSC 804, appeal dismissed by the BC Court of Appeal, 2011 BCCA 286

The British Columbia Supreme Court dismissed a libel action based in part on a conference call interview that was posted on the Internet and in part on a press release posted on the Green Party’s concerning the termination of the plaintiff’s candidacy in the federal election in the fall of 2008. The Court held, inter alia, that the occasion of publication was one of qualified privilege. A federal election was imminent and the defendant Green Party had announced the candidacy of the plaintiff with a press release. “The decision to remove the endorsement of the party leader from the candidate was ... a matter about which the public at large had an interest.” The defence of qualified privilege was not vitiated by malice. Although the plaintiff was cut off from access to the member’s area of the Green Party website once he was not longer a candidate, that was appropriate to protect the membership list and voter’s list. Further, being cut off from internet forums on the party’s website did not support an inference of malice. The Court also held that the communications were protected by the defence responsible communication on matters of public interest.

2010 April 22
Langen v Reaburn, [2009] SCCA 529

The Supreme Court of Canada rejected the defendant’s application for leave to appeal theOctober 29, 2009 decision of the BC Court of Appeal which upheld a BC Supreme Court ruling awarding defamation damages to two RCMP officers. See also Reaburn v Langen, 2009 BCCA 465

2009 December 22
Cusson v Quan, 2009 SCC 62, Grant v Torstar Corp., 2009 SCC 61

The Supreme Court of Canada, in companion decisions released the same day, created a new common law defence of “responsible communication on matters of public interest” and directed that these defamation claims brought against conventional newspaper defendants be re-tried. This new common law defence of responsible communication, which is to be assessed with reference to the broad thrust of the publication in question, will apply where:

  1. The publication is on a matter of public interest (a question for the judge, being a mixed question of fact and law)
  2. The publisher was diligent in trying to verify the allegation (question of fact for the jury), having regard to:
    1. The seriousness of the allegation;
    2. The public importance of the matter;
    3. The urgency of the matter;
    4. The status and reliability of the source;
    5. Whether the plaintiff’s side of the story was sought and accurately reported;
    6. Whether the inclusion of the defamatory statement was justifiable;
    7. Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”);
    8. Any other relevant circumstances.

The onus of proof rests on the defendant to establish this defence. A defendant who has acted with malice in publishing defamatory allegations has by definition not acted responsibly. An individual’s reasonable expectation of privacy must be respected in this determination.

The Supreme Court of Canada made it clear that this new defence is not limited to the traditional news media but has potential application to the new media, including bloggers and others publishing on the Internet. Consider the following extracts from the majority judgment of Chief Justice McLachlin in Grant v Torstar:

  1. The protection offered by a new defence based on conduct is meaningful for both the publisher and those whose reputations are at stake. If the publisher fails to take appropriate steps having regard to all the circumstances, it will be liable. The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause.
  2. A second preliminary question is what the new defence should be called. In arguments before us, the defence was referred to as the responsible journalism test. This has the value of capturing the essence of the defence in succinct style. However, the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets. I agree with Lord Hoffmann that the new defence is "available to anyone who publishes material of public interest in any medium": Jameel, at para. 54.
  3. A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. For this reason, it is more accurate to refer to the new defence as responsible communication on matters of public interest.

2009 September 15
Crooks v Wikimedia Foundation Inc., 2009 BCCA 392, , leave to appeal to Supreme Court of Canada granted April 1, 2010 (appeal has not yet been heard)

The British Columbia Court of Appeal sustained a lower court decision which dismissed this defamation lawsuit on the basis that the plaintiff had failed to prove publication of the allegedly defamatory words.

Discussing the “publication element” of the tort of defamation, the Court of Appeal stated that there are two aspects. “The first, relating to the defendant as publisher, concerns the act of promulgating the impugned item. The second, relating to the third party receiver of the impugned item, concerns the receipt of that item by a person within the court's jurisdiction. (I refer to the issue of jurisdiction because publication, to be actionable, must be within this jurisdiction, and publication of internet material occurs where the words are read: King v. Lewis, [2005] E.M.L.R. 45, C.A.; Gutnick v. Dow Jones, [2002] H.C.A. 56.)

As to the first aspect, the Court of Appeal held that the mere fact that the defendant hyperlinked the allegedly defamatory website did not constitute promulgating the defamatory words on that website. “Whether the hyperlink is a web address, as is often the case, or a more specific reference, both require a decision on the part of the reader to access another website, and both require the reader to take a distinct action, in the one case typing in a web address and in the other case clicking on the hyperlink. In other words, there is a barrier between the accessed article and the hyperlinked site that must be bridged, not by the publisher, but by the reader. The essence of following a hyperlink is to leave the website one was at to enter a different and independent website.

However, in an important caveat, the Court of Appeal agreed that “the circumstances of a case may add more so as to demonstrate that a particular hyperlink is an invitation or encouragement to view the impugned site, or adoption of all or a portion of its contents...So a statement to the effect "N is described at [hyper link]" may itself incorporate a libel so as to be defamatory.

In this case, however, the Court of Appeal concluded that there was “no encouragement or invitation” by the defendant and that the statements on his website fell “far short of a statement of approbation, or adoption, and appear to me to be most comparable to a footnote for a reader, or a card index in a library. It is not, as was suggested is sometimes the way in the recent case Metropolitan Schools v. Google Inc., [2009] E.W.H.C. 1765 (Q.B.), a snippet from the article or a snippet produced by a search engine.”

On the second aspect, the Court held there was an insufficient basis on which to infer that a person in British Columbia accessed the impugned articles which were hyperlinked to the defendant’s website.

2008 October 17
Prud’Homme c Rawdon (Municipality of), 2008 QCCA 1985

The Quebec Court of Appeal refused to hear an interlocutory appeal from a pre-trial judgment of the Quebec Superior Court which had rejected a defence application to dismiss a lawsuit brought by the Municipality of Rawdon for defamation over a website operated by the defendant.

The defendants unsuccessfully argued in Superior Court that a government body should not be permitted to bring an action in defamation against a member of the public in view of the constitutional guarantee of freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms. The Court of Appeal agreed that the defence application “raised a serious legal question, of general interest, elegantly framed, and which in the end might be decided in their favour.” On the other hand, the appeal court was “not convinced that the use and the abuse of recent technology, and in particular of the Internet, by anonymous phamphleteers, may not call for a contextual reconsideration of the limits of free speech that is defamatory. Addressing a small crowd in the flesh and from the north-east corner of Hyde Park is one thing, connecting from a suburban basement, and by means of the Internet, with a vast and anonymous multitude in the cyberspace may be quite another thing. It may be that, technologically, the medium, so enhances the message as to radically  alter its impact and oblige its originator to exercise a degree of caution not expected of orators around Speaker’s Corner.

In all the circumstances, the Court of Appeal held that this important issue should be considered at a trial where an adequate evidentiary record would be before the lower court. 

2008 October 27
Crookes v Wikimedia Foundation Inc., 2008 BCSC 1424, appeal dismissed by the British Columbia Court of Appeal: 2009 BCCA 292

Following a summary trial, the British Columbia Supreme Court dismissed this libel action in which the plaintiffs alleged they had been defamed in four articles on the internet published on two websites.  The defendant N wrote an article commenting on the implications of defamation actions for those who operate internet forums.  In that article, the defendant N inserted hypertext links to the two websites containing the allegedly defamatory articles.  The plaintiffs did not allege that the defendant N wrote or published any defamatory words; they alleged that N’s conduct in posting hypertext links to websites containing defamatory material constituted publication of the defamatory words in the latter websites.

The Court held that “[w]ithout proof that persons other than the plaintiff visited the defendant’s website, clicked on the hyperlinks, and read the articles complained of, there cannot be a finding of publication. As in Crookes v Holloway, the plaintiffs have not adduced any evidence to support this claim.”  The Court continued: “...the mere creation of a hyperlink in a website does not lead to a presumption that persons read the contents of the website and used the hyperlink to access the defamatory words.” Further, the Court held, “[a]lthough a hyperlink provides immediate access to material published on another website, this does not amount to republication of the content on the originating site.  This is especially so as a reader may or may not follow the hyperlinks provided.” “Readers of a newsletter, whether in paper form or online, who read of a reference to a third party website, may go to that website.  I conclude that does not make the publisher of the web address a publisher of what readers find when they get there.” 

The Court made it clear, however, that this decision did not mean that hyperlinking can never make a person responsible for the contents of the remote site. “For example, if [the defendant N] had written “the truth about [the plaintiff] is found here” and “here” is hyperlinked to the specific defamatory words, this might lead to a different conclusion.

2008 June 6
Shekhdar v. K&M Engineering and Consulting Corp. [2008] O.J. No. 2251

The Ontario Superior Court of Justice dismissed defamation claims brought by the plaintiff after his employment had been terminated by the defendant. The plaintiff claimed he had been defamed in the letter of termination which had been delivered only to him, in an oral statement to the Virginia Exchange Commission and in an email sent to defence counsel in order to respond to allegations made by plaintiff’s counsel. The Court held that allegedly defamatory email to defence counsel did not involve an actionable publication to third parties because it constituted “internal comments made solely for the purposes of advising counsel as to the facts and circumstances of the matter and sent only to counsel” acting on behalf of the defendant. 
 
2008 April 3
Amjay Ropes and Twines Ltd. v Cordex North America, Inc., 2008 ONCA 247

The Ontario Court of Appeal dismissed an appeal from the lower court decision pronounced September 4, 2007 striking out a paragraph in the plaintiff’s statement of claim which alleged that a statement on the defendant company’s website was defamatory. The Court of Appeal held that even if the website statement could be taken to be a statement “of and concerning” the plaintiff Amjay (which the Court of Appeal doubted), neither the website statement or a faxed statement or an oral statement – taken in context and individually or together, were capable of bearing the defamatory meanings alleged in the statement of claim. 
 
2008 March 26
Lewis v Terrace Tourism Society, 2008 BCSC 361

The British Columbia Supreme Court dismissed an action brought by the plaintiff, a former Executive Director of the defendant Terrace Tourism Society (“TTS”), over allegedly defamatory statements contained in a confidential email sent by the defendant P to former members of the Board of Directors of the TTS.  The email set out the concerns of the defendant P, who  was charged with responsibility for winding up the affairs of TTS and providing a financial report, regarding certain financial matters and sought information from the email recipients. The defendant P subsequently sent a follow-up email advising that his earlier concerns had been completely resolved to his satisfaction and that matters were in fact in good order thereby retracting any defamatory imputations. The Court held that the contents of the email defamed the plaintiff, but that the email was not an actionable libel because it was published without malice by P on an occasion of qualified privilege.  The email recipients, in their capacity as former directors and members of TTS, had a reciprocal interest in the issues raised in the email.

2008 March 11
Wiebe v Bouchard, 2008 BCSC 249

The British Columbia Supreme Court dismissed a defamation action brought by the creator of a website called B.C. Fathers against the authors of a research paper published by a federal government agency which used an image taken from the plaintiff’s website as an example of internet “hate messages”. The alleged defamation was contained in a lengthy report which was the result of a research project funded by the Status of Women Canada. The report contained only two direct references to the plaintiff or his website. The Court concluded that the passages at issue were matters of comment, as opposed to statements of fact, and that they were protected by the defence of fair comment. “In this case, the defendants reproduced an image that the plaintiff admits was on his website. The defendants made statements about that image and what they considered to be its symbolic meaning and underlying message. For the purpose of the defence of fair comment, the “facts” on which the comment is based consist of the image itself and the fact that it appeared on the plaintiff’s website. Some readers looking at the image may agree with what the defendants say about it. Others may fail to see who the defendants drew those conclusions, while still others may think the defendants have misinterpreted and over-reacted to an attempt at humour or satire. The point is that the image is there for readers to consider in light of what the defendants may say about it. In my view, this makes it a classic example of a comment based on true, clearly stated facts.” The Court found that the subject was of public interest, reasoning that by creating a website and posting material on it, the plaintiff obviously decided the material was of public interest and related to social or political issues. “Any response to or comment upon it must be of equal public interest.”

2007 December 20
Rozario v Souza, 2007 BCSC 1850

The British Columbia Supreme Court dismissed a defamation action following a summary trial concerning newsletters published on the Internet from April until November 2006 which the plaintiff complained alleged that he was a “troublemaker”. Although the Court that meaning was defamatory, and rejected a pleaded defence of truth (“justification”), it held that the publications were protected by the defence of fair comment. In this regard, the Court stated: “Notwithstanding that the statements are defamatory, in the sense that they might tend to reduce [the plaintiff’s] reputation in the community, the statements that he is a “troublemaker”, do not allege any criminal, quasi-criminal or immoral actions, nor does the term imply an improper motive on the part of [the plaintiff]. 2007 May 23

2007 October 25
P.B. v R.V.E., 2007 BCSC 1568

The British Columbia Supreme Court dismissed defamation claims by parents of the defendant arising from communications by the defendant to her siblings and their spouses alleging physical and sexual abuse by the plaintiff P.B. and failure to prevent its occurrence by the plaintiff J.B. Some of those communications consisted of emails. The Court held the communications occurred on an occasion of qualified privilege. The Court also found that certain allegations of the defendant R.V.E. against P.B. were true and awarded damages to the defendant R.V.E. on her counterclaim against the plaintiff P.B.

2007 October 18
Crookes v De Simone, 2007 BCCA 515

The British Columbia Court of Appeal unanimously sustained a summary judgment by the trial court [2007 BCSC 630] dismissing this libel action over postings on an internet website because the plaintiffs had not proven the defendant published the alleged libels.

2007 September 26
Srougi v Lariviere, 2007 QCCQ 11008

The Quebec Court (Civil Chamber) dismissed defamation claims over emails sent by the Defendant within the plaintiff’s workplace. The emails at issue related to a dispute between the plaintiff and the defendant arising from their collaboration on the development of a website.

2007 September 4
Crookes v Holloway, 2007 BCSC 1325

The British Columbia Supreme Court dismissed this libel action against Yahoo, a foreign defendant with no ties to British Columbia. “Yahoo has no offices in Canada, is not registered to do business in Canada and does not pay Canadian taxes. Yahoo does not do business and has no physical presence or bank accounts in British Columbia. The servers for Yahoo’s internet services ... are not located in Canada. The fact Yahoo can be accessed on the internet from a computer in British Columbia is not evidence it is carrying on business in British Columbia.”

The Court, applying Dow Jones Co. Inc. v Gutnick (2002), 194 Aust.L.R. 433 (H.C.) and Barrick Gold Corp. v Blanchard and Co., [2003] O.J. No. 5817 (S.C.), held that the defamation is committed at the time and place when a person downloads the impugned material from the internet.

The plaintiff in this case “neither alleged nor tendered any evidence that any individual in British Columbia has downloaded and read the impugned material posted ... on the website.”

2007 September 4
Amjay Ropes and Twines Ltd. v Cordex North America Inc., 2007 CanLII 36630

The Ontario Superior Court of Justice struck out a paragraph in the plaintiff’s statement of claim which alleged that a statement on the defendant company’s website was defamatory. The court held that it was “plain and obvious” that it was “unlikely in the extreme that a reasonable farmer or operator of a retail store [the class of persons to whom the remarks were addressed] ...would understand the statements alleged to have the defamatory meaning imputed to them by the plaintiff.”

2007 May 23
Crozier v Cherniak, [2007] O.J. No. 2024

The Ontario Superior Court of Justice dismissed an action brought by the plaintiff over a 1997 Law Society of Upper Canada report summarizing her disbarment proceedings which remained accessible until April 2004 through the Law Society website. The Court noted that on October 16, 2006, the Divisional Court had dismissed the plaintiff’s motion for leave to appeal from the Divisional Court decision upholding her disbarment and that two other judicial review applications brought by the plaintiff with respect to two other discipline decisions were both dismissed for delay on September 2006. The Court held that “[a]ll aspects of the plaintiff’s defamation cause of action are incapable of being proven and legally untenable” and denied leave to deliver a proposed amended statement of claim.

2007 May 16
Inform Cycle Ltd. v Rebound Inc. (c.o.b. Rebound Cycle), 2007 ABQB 319

On appeal from the November 16, 2006 decision of a Master, a Justice of the Alberta Court of Queen’s Bench sustained the Master’s conclusion that the claims based on alleged vicarious liability should be dismissed on a summary judgment application by the defendant employer. “I agree with the Master’s conclusion that none of the cases cited by the Plaintiffs would extend the concept [of vicarious liability”] to the improper use of technological equipment which is available to virtually all employees in almost all business premises.” The defendant employee had established a domain name using the trade name of his former employer and redirected it to a gay pornographic website. The plaintiffs sued, inter alia, for defamation by innuendo.

2007 March 16
Crookes v Pilling, 2007 BCSC 630

The British Columbia Supreme Court summarily dismissed this libel action against one of the four defendants (W de Simone) concerning allegedly defamatory website articles. The Defendant de Simone deposed in an affidavit that he was never involved in setting up the website or any of its contents: “I never wrote or published or approved any articles, nor did I have knowledge of the plaintiff. Prior to this litigation I have never even seen the articles regarding the plaintiff which are in issue.” The Court noted that since commencing the action the plaintiffs had about 10 months to find evidence linking the defendant to the publication but had failed to do so.

2006 November 28
Hemming v Newton, 2006 BCSC 1748

The British Columbia Supreme Court struck out a defence that an allegedly defamatory posting and an allegedly defamatory article on a website “consist of protected expression under the Canadian Charter of Rights and Freedoms, s. 2(b) and to the extent the traditional common law of defamation would impose liability on the defendant for the posting, the law is to that extent of no force or effect.” In dismissing this defence, the Court relied on an earlier decision of the BC Court of Appeal in Moises v Canadian Newspaper Co. (c.o.b. Times-Colonist) (1996), 24 B.C.L.R. (3d) 211, where that court reviewed the Supreme Court of Canada’s decision in Hill v Church of Scientology of Toronto, [1995] 2 S.C.R. 1120, and stated: “What emerges from the foregoing authorities is a justified unwillingness to hold that the common law of defamation is inconsistent with Charter values. Freedom of expression is of fundamental importance in Canada, but so is the dignity of the individual and his or her right to protect and preserve a good reputation.” The Court held that it was plain and obvious that the Charter defence was bound to fail.

2006 November 16
Inform Cycle Ltd. v Rebound Inc. (c.o.b. Rebound Cycle),
2006 ABQB 825


The Alberta Court of Queen’s Bench summarily dismissed a claim for defamation against the defendant company holding that it not vicariously liable for the acts of its employee R Draper (an ex-employee of the plaintiff) who admitted doing “a very silly thing.” “Believing he was owed $1500 by his former employers, he used the internet connection of his present employer [the defendant company] to register the name of the former employer’s company as a domain name … hoping to sell the domain name to his former employers and make back the money he says he is owed. However, he didn’t stop there. He says that he then directed the domain name [of his former employer to his current employer’s website], and later to a pornographic website.”

Rejecting the plaintiff’s submissions there were sound policy reasons to hold the corporate defendant liable for the employee’s misuse of its computer facilities, particularly since the defendant had no written policy with respect to internet use or email, the Court noted there was no connection between R Draper’s redirection of the web domain address and his duties as an employee. “In today’s world, virtually all employees who work in offices, stores, or restaurants have access to computers, telephones and faxes. The Plaintiff’s argument would lead to the result that employers are liable for a single unauthorized act or an employee where communications equipment that is accessible and incidental to the employee’s position, such as computers and telephones, is used for the employee’s own improper purpose.”

2006 October 26
Stanley v Shaw, 2006 BCCA 467

The British Columbia Court of Appeal upheld a lower court order dismissing a defamation claim against two defendants, who were alleged to be real estates agents and officers and directors of the corporate defendant. The plaintiff had complained that the two defendants “said and did nothing” when they received an allegedly defamatory email from a third individual defendant and that their “constituted an endorsement” of the defamatory allegations. The Court of Appeal agreed with the lower court that “publication” is a necessary element of the tort of defamation and that “silence” did not satisfy that requirement.

2006 July 7
Tan v Yukon Territory, 2006 YKSC 45

The Yukon Supreme Court struck out a defamation claim relating to an email which the plaintiff alleged was sent to him by the Public Service Commissioner in March, 2005, which the Commissioner also copied to the plaintiff’s alleged union representative. The plaintiff having failed to plead express malice in relation to that email, the Court held that the email was sent on an occasion of qualified privilege and the plaintiff’s defamation claim therefore disclosed no reasonable cause of action. Alternatively, the Court would have dismissed the defamation claim pursuant to Rule 18A (summary trial) in view of the affidavit evidence before the Court.

2006 March 31
Angle v LaPierre, 2006 ABQB 198, affirmed 2008 ABCA 120

The Alberta Court of Queen’s Bench held that defamatory website criticism by the defendant parents targeted at several school principals, teachers and the teachers’ association was not protected by the defence of qualified privilege. The Court noted that the defence is “occasion specific” and that to succeed, the a defendant who pleaded qualified privilege had to prove that he or she was writing to discharge some public duty or interest and that “the persons to whom she [or he] …wrote had a corresponding duty or interest in hearing or reading those words.” In the case of the defamatory website postings, the Court concluded that such publications “to the world” went “beyond the bounds of reciprocity” and were not protected by qualified privilege. The Court rejected defence submissions that by sending “cease and desist” letters to defendants, the plaintiff teachers’ association s took essentially private disputes into the “broader public forum” such that the defendants were entitled to use that same forum for their publications. The Court noted that the association did not post the cease and desist letters on the Internet.

2006 February 27
Milne v Ontario (Securities Commission), [2006] O.J. No. 953

The Ontario Superior Court of Justice struck out this claim for damages against the Ontario Securities Commission (“OSC”) and its litigation counsel in its Enforcement Branch which was based in part on the publication on the OSC website of a Panel decision that the plaintiff “permitted, authorized and acquiesced in the conduct of Arlington [Securities Inc.]” which company the Panel found “failed to deal honestly and in good faith with its clients.” The plaintiff had not appealed the OSC decision to the Ontario Divisional Court, an option that was available to him pursuant to s. 9 of the Ontario Securities Act. The Court held that the website publication of the OSC decision was protected by privilege: “The OSC had a legitimate interest in bringing the decision to the attention of the investing public in accordance with its statutory mandate. It did so by posting a copy of the decision on its website.”

2005 January 11
Porter v Robinson Sheppard Shapiro, Court of Appeal for Ontario,
Docket: C42157, reversing 2004 June 29, Ontario Superior Court of Justice File No. 03-CV-243741 CM2

The Ontario Court of Appeal held that the evidentiary basis before the lower court judge was not sufficient to resolve the issue whether posting on the defendant law firm’s website of a communiqué summarizing a judgment of the Supreme Court of Canada in Whiten v Pilot Insurance Co. (2002), 209 DLR (4th) 257 was a publication on an occasion of qualified privilege.

In Whiten, the Supreme Court of Canada reversed a decision of the Ontario Court of Appeal and reinstated a $1 million jury award of punitive damages against an insurance company for bad faith denial of an insurance claim, in the process defining the basis on which punitive damages may be awarded by Canadian courts.

The lower court judge, whose summary judgment decision was reversed, had concluded that that defendant law firm had a duty, at least to their clients, to communicate the information, stating: "The Internet is probably the least expensive and most efficient means of conveying this information, not only to existing clients, but to potential clients, and to the insurance community, all of which have a reciprocal interest with the defendant in receiving the information."

A settlement of this libel action during the third day of trial means that the issue of qualified privilege for website postings will not reach the Court of Appeal for determination in this case.

[NOTE: Although Chris Porter was mentioned in the Supreme Court of Canada’s judgment in Whiten v Pilot Insurance, Chris Porter was not the Pilot Insurance employee who denied Daphne Whiten’s insurance claim against Pilot nor was he in fact personally guilty of any bad faith towards Whiten. Chris Porter was not even called to testify at the trial in Whiten v Pilot Insurance. Chris Porter settled his libel action against the law firm on the third day of the trial. The settlement agreement contains certain terms which cannot be publicized on the Internet. Chris Porter has been unsuccessful so far in attempts to have the Supreme Court of Canada clarify certain passages in its judgment to make Chris Porter’s non-involvement clear to readers unfamiliar with the detailed evidence placed before the trial court.]

2003 November 12
Christian Labour Association of Canada v Retail Wholesale Union
2003 BCSC 2000

The British Columbia Supreme Court rejected a common law defence of qualified privilege pleaded by two unions in relation to a defamatory posting on their website about the plaintiff, a rival union.

For details of this decision, click here.

See McConchie and Potts, Canadian Libel and Slander Actions, "Chapter Thirty-Five, Pre-Trial Disposition of Claims and Defences," "Summary Trial", page 666, 669-670.

 


F. Pre-Trial Injunctions back to top
Click on a case name for full text

Basic principles
The basic principle applied by Canadian courts is that interlocutory injunctions will be granted only in the rarest and clearest of cases. “The Court must be satisfied that the words are beyond doubt defamatory, are clearly untrue so that no defence of justification would succeed and, where such defence may apply, are not fair comment on true or admitted facts.” Canada Metal Co. Ltd. et al v Canadian Broadcasting Corp. et al (1974), 44 DLR (3d) 329 (Ont. H.C.J.) per Holland J. at page 344; affirmed (1975) 55 DLR (3d) 42 (Ont. Div.Ct.) where Stark J. speaking also for Zuber and Reid JJ. stated at pages 42-43:

The granting of [pre-trial] injunctions to restrain publication of alleged libels is an exceptional remedy granted only in the rarest and clearest of cases. That reluctance to restrict in advance publication of words spoken or written is founded, of course, on the necessity under our democratic system to protect free speech and unimpeded expression of opinion. The exceptions to this rule are extremely rare.

See McConchie and Potts, Canadian Libel and Slander Actions, "Injunctions," pages 33-38.

2013 September 20
Gant v Berube, 2013 BCSC 1721

The British Columbia Supreme Court dismissed an application for an interlocutory application to restrain the defendants from further publication of allegedly defamatory allegations concerning the plaintiffs on various websites and Internet bulletin boards.  The Court stated:

“ An application for an interlocutory injunction in the context of a defamation claim has always been treated differently.  This is because it squarely raises the competing public interest of freedom of speech, which, the courts have held, ought not to be stifled in advance of a trial on the merits except in the very clearest of cases.  In one sense, this may be viewed as akin to the principle from RJR-MacDonald that the strength of the applicant’s case is the predominant consideration where the effect of the injunction would be to end the litigation.  Since the granting of an interlocutory injunction in a defamation case prevents the publication of the impugned words without any decision on the merits of the claim, the existence of a fair case to be tried has been considered insufficient.  Instead, the courts have required that the words complained of be manifestly defamatory and impossible to justify: see, for instance, Beidas v. Pichler 2008 CanLII 26255 (ON SCDC), (2008), 294 D.L.R. (4th) 310 (Ont. Sup. Ct. J.), and Canada (Human Rights Commission) v. Canada Liberty Net1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626.  …  Although many cases refer solely to the defence of justification, the test is wider than that.  To quote from Professor R. E. Brown's well-known text, Brown on Defamation, looseleaf, 2nd ed. (Toronto: Carswell 2011) at pp. 36-7 and 44-46:  A court will look to see if the defendant has a sustainable defence; if so an interim injunction will not be granted.  It must be beyond doubt that there are no defences.  An injunction should issue only if the defendant does not deny the falsity of the publication or, if denied, it would be impossible for him or her to succeed on a plea of justification.  Even if it is conceded that the publication is untrue, an interlocutory injunction will not be granted where the defendant intends to defend on the grounds of privilege or fair comment on a matter of public interest.  … If the defendant intends to defend on the basis of a qualified privilege or a fair comment on a matter of public interest, the court should not issue an injunction unless it is shown that the defendant is acting dishonestly and with malice in, or it is clear that the defences are spurious or fanciful or bound to fail.  It is not necessary for the defendant to submit evidence in support of these defences  to defeat an injunction, but the court will look critically at the defences pleaded to see if they would succeed.”  

In this case, the BC Supreme Court held that it could not conclude that the defence of justification cannot possibly succeed and the plaintiffs therefore had not satisfied the test for an interlocutory injunction, referring to Nazerali v Mitchell, 2011 BCSC 1846 at paragraph 12.

2013 June 10
Asselin v McDougall, 2013 ONSC 3216

The Ontario Superior Court of Justice rejected the plaintiff's submissions, following a dismissal of its application for an interlocutory injunction, that the defendants should not be awarded costs for the motion on the theory they would thereby be "rewarded for posting and allowing others to post on their YouTube channel, comments of a ... vile nature." The Court rejected the defence request for "full indemnity" costs (awarding only the lesser "substantial indemnity" costs), stating that it had no reason to doubt the plaintiff was "motivated only by a desire to permanently remove from the Internet offending comments made about him on the Defendant's YouTube channel." The defence unsuccessfully argued that the main purpose of the plaintiff's injunction application was to force the defendants to incur unnecessary costs thereby bringing financial pressure on the defendants. The Court held there was no evidence to support that defence allegation

2013 March 25
Asselin v McDougall and Moviemat Entertainment Ltd., 2013 ONSC 1716

The Ontario Superior Court of Justice dismissed the application of the plaintiff, a municipal official employed by the town of Renfrew, for a pre-trial injunction regarding two videos made by the defendants and comments on YouTube posted by the defendants and others in relation to the videos. The defendants made the videos to protest alleged difficulties with municipal officials over the defendants’ decision to operate a pornography store on the town’s main boulevard. The plaintiff argued that the defendants were liable not only for their own comments, but those posted by others which the plaintiffs characterized as “cyber bullying.” After noting that a pre-trial injunction is an “extraordinary remedy, granted sparingly, in the clearest of cases, and only to the extent necessary,” the Court held that it was for a jury to find that “the Defendants deliberately adopted and endorsed the opinion of others, having regard to all of the circumstances, including the involvement of others who made comments of a defamatory nature against the Plaintiff and that of YouTube.

2012 September 25
Busseri v John Doe, 2012 ONSC 5385

The Ontario Superior Court of Justice granted the plaintiff, the CEO of a publicly-traded corporation, a pre-trial injunction against the defendant “John Doe” aka B Prince (at a Yahoo email address) who did not appear in court although the Court found he had notice of the application. The Court noted that the defendant had responded to the plaintiff’s demands with emails to the effect: “Go F___yourself.” Commenting that the defendant “has done the opposite of expressing his intention to justify his words,” the judge held that the defendant’s posts to the “bullboard” about the plaintiff’s company on Stockwatch were clearly defamatory and designed to injure the plaintiff’s reputation. The evidence indicated they had been viewed over 500,000 times. Granting the application, the Court stated: “An injunction will not constrain Mr. Prince’s freedom of expression. What is being enjoined are defamatory posts. Public discussion of publicly traded corporations and their managers are rightfully and properly the subject of discussion on the Internet. Members of the public have every right to post and share their thoughts and opinions, but the invention of the Internet has not repealed the law of defamation.

2011 December 13
Nazerali v Mitchell, 2011 BCSC 1846, disapproving ex parte decision
2011 BCSC 1581

The Supreme Court of British Columbia dismissed an application by the plaintiff to extend an ex parte, temporary injunction granted October 19, 2011 which enjoined certain defendants from publishing any statements regarding the plaintiff on the Internet and prohibited GoDaddy from permitting operation of the defendant’s domain name or transferring its registration: 2011 BCSC 1581.

Although the Court agreed that the words complained of by the plaintiff were defamatory, the Court held that the earlier pre-trial injunction granted on October 19, 2011 was not based on the correct legal test for such an injunction which is described in Canadian National Railway Company v Google Inc., 2010 ONSC 3121 as follows:

[8] It is not easy to obtain an injunction in response to defamation. We respect the principle of freedom of speech and are careful when asked to limit the freedom of anyone to express their views. This concern for the freedom of expression is itself expressed in the following:

The granting of injunctions to restrain publication of alleged libels is an exceptional remedy granted only in the rarest and clearest cases. That reluctance to restrict in advance publication of words spoken or written is founded, of course, on the necessity under our democratic system to protect free speech and unimpeded expression of opinion. The exceptions to this rule are extremely rare.

(Canadian Metal Co v. Canadian Broadcasting Corp. (1975), 7 O.R. (2d) 261, 55 D.L.R. (3d) 42 at p. 261 quoted in Mcleod (c.o.b. Malask Mcleod Gallery) v. Sinclair, [2008] O.J. No. 5242 at para. 19)

[9] The test to obtain an injunction in such circumstances is high. It is not insurmountable. The test is found in Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626. In that case, the Court quoted from Rapp v. McCelland & Stewart Ltd. (1982), 34 O.R. (2d) 452 (Ont. H.C.) as follows:

The guiding principle then is, that the injunction should only issue where words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse by the Court of Appeal. To put it another way where it is impossible to say that a reasonable jury must inevitably find the words defamatory the injunction should not issue.

… American Cyanamid…has not affected the well-established principle in cases of libel that an interim injunction should not be granted unless the jury would inevitably come to the conclusion that the words were defamatory.

(Rapp v. McCelland & Stewart Ltd., supra, at pp. 455-6)

[10] This has been repeated in the following terms:

According to the test, the Court must consider the likelihood of a finding of defamation at trial. The words in question must be clearly defamatory and obviously impossible to justify, such that the trial judge's acceptance of a defence of justification would of necessity have to be set aside as some perverse finding on appeal.

(Canada (Human Rights Commission) v. Canadian Liberty Net, supra, at para. 49, referred to in Henderson v. Pearlman, [2009] O.J. No. 3444 at para. 37)

At the earlier hearing on October 19, 2011 [when the defence was not represented because it had no notice of the lawsuit or the injunction application] the presiding judge considered that once it had been shown the words were defamatory, the Court did not need to ask whether or not there was any conceivable defence. This was not the correct approach as demonstrated in Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626.

The Court also expressed concern about the substance of the October 19, 2011 ex parte order in the sense of its breadth. The Court noted that the defendants’ “website consisted of significantly more than the article … which is complained of” and yet the ex parte injunction effectively shut down the entire website. The earlier ex parte injunction was therefore unnecessarily broad.

After considering all of the material, and potential defences raised by the defendants’ motion material, the Court concluded it was “obliged to dismiss the [plaintiff’s] application” to extend the injunction.

2011 January 5
Hutchens v Scam.com, 2011 ONSC 56

The Ontario Superior Court dismissed an application by the plaintiff for an interlocutory injunction requiring the defendant Hillier to remove all video postings he has placed on www.youtube.com that have any content concerning the plaintiffs. The Court also refused to grant an interlocutory injunction restraining Hillier from broadcasting, transmitting, publishing or posting on the internet or the worldwide web and/or from distributing in any manner whatsoever any information concerning the plaintiffs. The Court was not satisfied that the plaintiffs have met their burden to prove that the defendant Hillier’s words are “clearly defamatory and impossible to justify”. “...Hillier is but one of many people, identified and unidentified, who are discussing [the plaintiff] and his businesses on the Internet and in the media at large. Strangely, the plaintiffs have chosen to invest their time and money in pursuing one person [the defendant] Hillier.” Although the court did grant an order joining Hillier as a defendant to the action, the judge dissolved an ex parte order made in March, 2009 prohibiting SCAM.COM from posting “derogatory statements or imputations concerning the plaintiffs and granting an Anton Piller order permitting the plaintiff’s to enter and inspect the premises of SCAM.COM. The Court held that the plaintiffs had abused the extraordinary relief granted in the March 2009 orders by attempting to enforce the order against Hillier, who was not a defendant and had never been an officer, director, employee, contractor or agent of SCAM.COM, and was not one of the anonymous posters the plaintiffs were seeking to identify with the March 2009 orders. “The plaintiffs continued to misuse the March orders when they represented to Internet sites (other than SCAM.COM) that the orders applied to them ...The March orders were issued 20 months ago and the plaintiffs have not moved this action ahead to trial ... It is apparent from [an affidavit of the plaintiff] and the misuse of the March orders that the plaintiffs treated the interim injunctive relief as a sword and acted like there was a final determination on the merits.” The Court noted that a plaintiff who obtains an interlocutory injunction must proceed expeditiously to trial so as to limit as much as possible the time period during which the defendant is impacted by the order.

2010 October 4
Vladi v Krolow, 2010 ONSC 5484

The Ontario Superior Court dismissed an ex parte application by the plaintiffs for (i) an Anton Piller order authorizing a search and seizure of the defendants’ business computers and (ii) an interim interlocutory injunction prohibiting the latter from publishing any further allegedly defamatory statements and requiring the defendants to remove and “unpublish” all allegedly defamatory statements about the plaintiffs from their website or otherwise within their control. The plaintiffs’ sought an Anton Piller order to seek evidence supporting their allegation that the defendants had disseminated allegedly defamatory emails using an alias. Rejecting an Anton Piller order, the Court noted there was no evidence to support an allegation the defendants would intentionally destroy evidence. As regards the proposed injunction, the Court noted the planitiff’s application was brought more than two months after they became aware of the allegedly defamatory website publications, and stated: “I am not prepared to grant an interim interlocutory injunction on an ex parte basis in the absence of evidence that a delay to provide the defendants with notice of the motion is likely to result in serious and irreparable harm to the plaintiffs.” The Court left open the possibility of a renewed application for an injunction on notice to the defendants.

2010 September 24
Adelo Systems Inc. v Sinclair, 2010 ONSC 5229

The Ontario Superior Court of Justice ordered that the defendant cease contacting the plaintiff and its employees and departments directly or indirectly by email about the subject matter of this litigation (claims for defamation, intentional interference with economic relations and infringement of trademark) until completion of the action or further order of the Court; the defendant was ordered to communicate only with the plaintiff company’s legal counsel. However, the Court rejected the plaintiff’s application for a broadly worded injunction to prevent the defendant from communicating with competitors or saying anything about the plaintiff. The Court held that the plaintiff had not shown that it will suffer irreparable harm that cannot be compensated by damages if the injunction is not awarded and that the evidence was not sufficient to prove the defendant was responsible for an allegedly defamatory report posted on Ripoffreport or that the defendant controlled (at the time of this motion) any website employing the plaintiff’s name in a pejorative way.

2010 May 28
Canadian National Railway Co. v. Google Inc., 2010 ONSC 3121

The Ontario Superior Court of Justice granted a pre-trial injunction against Google requiring the defendant to remove the allegedly defamatory website hosted on Blogspot. After noting that the test to be satisfied in order to obtain a pre-trial injunction against defamation is stringent, the Court considered whether the test “could be impacted by the novel nature and broad impact of the publication of defamatory material on the Internet.” The Court concluded that there was no reason to amend or alter the ordinary test when the publication s on the Internet but held it must be applied in a “careful, considered and appropriate manner.” Google did not oppose this motion. The anonymous John Doe defendants did not respond although they had been served with the motion by email.

2010 March 31
Pichler v Meadows, 2010 ONSC 1863

The Ontario Superior Court of Justice dismissed a motion by the plaintiff for an interim and interlocutory injunction to restrain the defendant from publishing or republishing five articles published on her websites which were not specifically complained of in the Statement of Claim. The Court stated:”An interlocutory injunction ... is intended as protection against harm complained of in a statement of claim that is alleged to need to be addressed immediately, on an interlocutory basis, without awaiting the trial and its outcome. ...There is no evident reason why an interlocutory injunction in an action for defamation ought to be given for statements that are not claimed in the Statement of Claim to be defamatory and sought to be enjoined on that basis.” The Court further stated that “[i]t cannot be said that the plaintiff comes to this Court on this motion with clean hands” noting that the plaintiff had published on his own website in 2001 an article “intended to be ... a public derogatory comment about the defendant.” “The reasonable inference is that the publication of [the plaintiff’s article was] gratuitous and malicious, which is the same complaint that the plaintiff now makes about the defendant’s publications.

2009 December 3
Béton St-Hubert Inc. c Entreprises Kijiji Canada Inc., 2009 QCCS 5676

The Quebec Superior Court dismissed an application for a pre-trial injunction to restrain the dissemination and publication of defamatory statements concerning the security of the business of the plaintiff or pollution of the environment by the plaintiff. The defendant corporation specialized in hosting web sites for vendors of used goods, including the defendant individual, who published a number of anonymous postings on such web sites. The corporate defendant removed the postings once it received the plaintiff’s complaint. The Court concluded the evidence did not justify granting this exceptional remedy, where the content of the expression to be enjoined was not yet known.

2009 July 9
Rawdon (Municipalité de) c. Leblanc (Solo), 2009 QCCS 3151

The Quebec Superior Court granted an interlocutory injunction sought by the mayor, director general and Rawdon municipality to restrain the publication of defamatory words on a specified Internet website and prohibiting the defendants – as the role of administrators, hosts or moderators - from allowing the plaintiffs to be defamed on any Internet website. The court also ordered the defendants to deactivate and withdraw from the Internet within 12 hours a specific discussion group and to withdraw from the Internet every document or words containing the defamatory expression. [Prior court orders in favour of the plaintiffs included an Anton Pillar order which lead to the identification of anonymous posters.] In connection with a finding that the plaintiffs would suffer irreparable harm if the injunction were not granted, the court stated that it was of the opinion that “use of the Internet as a means of dissemination of the defamation rendered practically impossible the correction of the negative impression left by the defamatory words.”

2008 December 8
Mcleod (c.o.b. Maslak Mcleod Gallery) v Sinclair, [2008] O.J. No. 5242

The Ontario Superior Court of Justice adjourned the plaintiffs’ application for an interlocutory injunction to “close down” a website created and operated by the defendant which allegedly defamed the plaintiffs and threatened to endanger or damage their businesses. The purpose of the adjournment was to permit the defence to prepare responding material and to allow any necessary cross-examinations in preparation for a full hearing of the injunction motion. The court ordered that the website could remain up pending that hearing, but only on the following terms: “Each and every page which suggests [the alleged defamatory meanings] ... shall have placed on it a label 4 inches by 3 inches in dimension. The label will have a white background, be easily-read with clear wording using a Times New Roman font stating: The opinions expressed on this website and on this page are those of [the defendant] and of no other person. These opinions are alleged to be defamatory and are the subject of an action in the Superior Court of Ontario.”

2008 September 26
Emerald Passport Inc. v. MacIntosh, 2008 BCSC 1289

The British Columbia Supreme Court granted an interlocutory injunction pending trial which restrained the defendant, a web-based business competitor of the plaintiff, from “making false or malicious statements with regard to (the plaintiff) on his web site, or any other web site, or otherwise.” In granting the injunction, the court noted that “the types of losses claimed by the plaintiff are by their nature very difficult to quantify, particularly given the web-based nature of the business” and that actual losses from sales due to the defendant’s actions will not be readily ascertainable and the loss of goodwill will be unquantifiable.  Further, the defendant had given evidence which lead the court to conclude that “any damages proven will not be collectible.

2008 May 29
Beidas v Pichler, [2008] O.J. No. 2135, reversing [2007] O.J. No. 3684

A three member panel of the Ontario Divisional Court set aside an interim injunction which prohibited the defendants from publishing any material which may identify the plaintiffs and that all references to the plaintiffs be deleted from the Internet. Murray J. held that the plaintiffs had failed to prove irreparable harm on the basis of clear evidence, and their refusal to submit to cross-examination was fatal to interlocutory relief.  Further, the orders were too broad and unnecessarily impaired freedom of speech and expression. The fact that defamatory expression is placed on the Internet did not over-ride the stringent test for granting prior restraint. “The Internet should not be less free for expression than other media.  The Internet may present unique problems and unique challenges but its use does not and should not invite unwarranted restriction on freedom of expression.” Molloy J. concurred that the injunction was  overly broad but would have agreed to amend it if the other two members of the Court were prepared to do so (they were not). Pitt J., dissenting, would have sustained the interlocutory injunction, noting that the defendant’s statements were bizarre and that the alleged defence of truth was unlikely to succeed.

2007 September 25
Beidas v Pichler, [2007] O.J. No. 3684,
reversed [2008] O.J. No. 2135 (Divisional Court)

The plaintiffs in this action in the Ontario Superior of Justice sued over articles disseminated on-line and obtained a pre-trial injunction prohibiting the defendant from publishing any materials which may tend to identify the plaintiffs. Subsequently, the defendant sent an email to 11 people which the plaintiffs alleged violated the injunction. The plaintiffs, seeking to have the defendant found in contempt of court, issued summonses to certain proposed witnesses in connection with a contempt hearing.

In this pre-hearing ruling, a Master of the Court quashed the summonses served by the plaintiffs on four individual witnesses, holding that the plaintiffs failed to demonstrate that they were likely to have any evidence relevant to the contempt motion.

2006 November 17
A.T. v L.T.H., 2006 BCSC 1689

In this lawsuit, the British Columbia Supreme Court continued (with certain modifications) an interlocutory consent injunction originally granted in May 2006 which prohibited the defendant ex-wife from publishing anything in any way, including the internet, relating to: (i) the plaintiff ex-husband; (ii) the couple’s pre-adolescent daughter; (iii) this proceeding; and/or (iv) another lawsuit in which the ex-wife sued a number of parties alleging wrongdoing. The Court noted that the ex-wife continued to allege that the plaintiff ex-husband physically and sexually abused and neglected the pre-adolescent daughter although her allegations were rejected (a) by another judge of the BC Supreme Court following a lengthy trial and (b) again years later by a different judge of the BC Supreme Court following many days of hearings.

Until the defendant ex-wife was restrained by the May, 2006 consent injunction, she used the internet to seek public support for her claims, posting information which described the alleged sexual abuse, provided particulars of the alleged abuse and personal details of the pre-adolescent daughter, such as her name, photograph, school name and home address.

The Court noted that the ex-wife’s allegations would be defamatory and stated that “injunctions restraining anticipated defamation are rare but can be made in appropriate circumstances, such as to prevent irreparable harm by protecting the identity of people alleged to have perpetrated sexual assaults.” Although the Court accordingly granted a continuation of the injunction (with minor modifications), it required the ex-husband to either amend his claim in this lawsuit within 20 days to seek a permanent injunction or to commence separate legal proceedings seeking such relief.

2006 March 6
Koopman v Rathwell, 2006 BCSC 366

The Supreme Court of British Columbia granted an interim injunction preventing the petitioners from publishing information in the media or on the internet concerning the respondents or this proceeding despite the fact that the respondents had not yet filed pleadings that defined a claim for defamation against the petitioners, noting that affidavits of the respondents described some facts which, if believed, could lead the court to conclude the petitioners “have encouraged negative publicity” for one company.” The court held that the petitioners would not be inconvenienced by an injunction because they denied having generated negative publicity in the past and said they had no desire to do so in the future.

2005 October 24
Mallard v Killoran, 2005 SKQB 487

The Saskatchewan Court of Queen’s Bench found the defendant in civil contempt of court for transmitting certain emails which were held by the court to breach an interim injunction obtained earlier by the plaintiff restraining the defendant “from making and publishing further statements whether oral or written and whether distributed via the internet or otherwise or making or permitting the further distribution and publication about any or all of the plaintiffs to this action.”

1999 November 30
Henry v Stockhouse Media Corp., [1999] B.C.J. No. 3202

The British Columbia Supreme Court granted an ex parte injunction restraining for one week the publication of certain anonymous postings on internet websites operated by a British Columbia company and a U.S.A. company. “… I consider it inappropriate to grant an injunction which will endure until trial, with the right in the defendants and the anonymous writers only to apply to set aside the injunction. It is my view that the injunction should be for as brief a period of time as is reasonable, with an obligation on the part of the plaintiffs to apply for the injunction to be extended.” The Court also granted the plaintiff leave to apply for an extension of the injunction. After noting that the “Court will be as cautious as it is possible to be, more than extremely cautious, in restraining persons from exercising their right to free speech,” the judge stated that what led him to the conclusion that the brief ex parte injunction should be granted is that the statements complained of were anonymous. The judge expressed concern that one anonymous poster “feels free to throw around accusations of the most serious kind behind the cowardly screen of an alias.

 


G. ANONYMOUS DEFENDANTS back to top
Click on a case name for full text

If the defamer has used a pseudonym or is otherwise anonymous, a potential libel plaintiff has certain legal options to identify the defamer, including the following:

  1. A lawsuit against a “John Doe” defendant and seek to obtain discovery of information from third parties who may have knowledge of the identity of “John Doe”; or
  2. A lawsuit in the nature of a “bill of discovery” against a named defendant, typically someone who may have information permitting the identification of the defamer, so that a subsequent lawsuit may be filed against the defamer (sometimes referred to as a “Norwich Order”); or
  3. Exploit special rights of discovery under Court rules of practice (e.g. Nova Scotia) which provide for pre-action discovery.

See McConchie and Potts, Canadian Libel and Slander Actions, "Identification of Potential Defendants,” pages 726-730.

2013 May 31
Burke v John Does #1 to #18, 2013 BCSC 964

The British Columbia Supreme Court authorized the plaintiff to serve his notice of civil claim on the anonymous John Doe defendants by the alternate method of sending a private notification to each defendant's message board account advising them that they are named as a defendant in this defamation action and telling them how to access the notice of civil claim and a copy of the order permitting alternative service at a dedicated page on the website of the plaintiff's lawyers.

2012 November 29
Phillips v Ontario Racquet Club, 2012 ONSC 6679

The Ontario Superior Court of Justice (Master), hearing a pre-trial application made by the defendant, refused to strike out allegations in the statement of claim concerning an “anonymous” email sent to Canadian tennis associations and to several people at the British Lawn Tennis Association. The Court held that because the plaintiff was uncertain which of the defendants were responsible for republishing those emails to the original and secondary recipients, he was permitted by the Ontario Rules of Court to allege, in the alternative, that the defendant J, or alternatively the defendant C, published the original email; and that the defendant M, or alternatively the defendant J was responsible for its republication to other recipients.

2011 November 7
Pierce v Canjex Publishing Ltd., 2011 BCSC 1503

The British Columbia Supreme Court ordered the defendant website to disclose internet protocol addresses, names and any other identifier information concerning a registered user “halcrow” who had posted a comment that did not relate to the plaintiff. The Court accepted that a strong inference could be drawn that the user who commented on the defendant’s “Stockwatch” website under the name “halcrow” after the website began limiting comments to paid subscribers was the same “halcrow” who earlier posted defamatory comments about the plaintiff. Previous efforts to identify halcrow met a dead end when the Internet Service Provider could not provide subscriber logs.

Whether or not the Ontario Superior Court decision in York University v Bell Canada Enterprises (2005), 99 O.R. (3d) 695 should be followed in BC did not matter. The BC Supreme Court was persuaded the petitioner Pierce had a prima facie case of defamation. The Court was satisfied the plaintiff should not be required to first resort to “unnecessary and potentially very costly methods such as hiring private investigators when the information may in fact be readily available from Canjex Publishing Ltd.

2011 August 3
Manson v John Doe No. 1, 2011 ONSC 4663

The Ontario Superior Court of Justice ordered the anonymous defendant JD1 to identity himself (or herself) and to provide his address and the names and addresses of the anonymous co-defendants. The Court held that anonymity “should not be uniformly expected or ensured merely because the Internet is used as the defamatory communication tool.” The Court applied the test defined by the Ontario Divisional Court in Warman v Fournier, 2010 ONSC 2126, which must be satisfied for an order compelling an identified defendant (such as a website operator) to provide identity information about anonymous posters. The Court also ordered JD1 to forthwith remove from the Internet the original blog and a mirror blog and prohibited any republication of the words complained of until completion of the trial.

2011 July 20
Morris v Johnson, 2011 ONSC 3996

The Ontario Superior Court of Justice dismissed an application by the plaintiff, a former mayor, for an order compelling named to defendants to identify the anonymous “John Doe” defendants, applying the test for such relief described by the Ontario Divisional Court in Warman v Fournier, 2010 ONSC 2126.
The postings at issue were published on a political forum website during the run-up to a general election in October at which the plaintiff was defeated in her bid for re-election.

The Court held that the plaintiff failed to establish a prima facie case because she had failed to set forth the specific words complained of as being defamatory. “The jurisprudence clearly establishes that in actions of libel … the precise words complained of are material and should be set forth with as much particularly as possible in the pleading itself, ideally verbatim, or at a minimum, with sufficient particularly to allow the defendant to respond.” In addition, the plaintiff failed to address a failure to provide notice of the specific defamatory words within the limitation period prescribed by s. 5 of the Ontario Libel and Slander Act and had not demonstrated that she had taken reasonable steps to identify the anonymous defendants.

2011 May 30
Warman v Wilkins-Fournier, 2011 ONSC 3023
[See also below the 2010 May 3 decision of the Divisional Court]

The Ontario Superior Court of Justice ordered the Fournier defendants to disclose to the plaintiff all relevant documents relating to the true identities of two “John Doe” defendants, “conscience” and “HR-101,” including (i) email addresses and all personal information used and submitted to the Freedominion website to register their access accounts and/or profiles, and (ii) the internet protocol addresses used by those “John Doe” defendants when making the specific postings complained of in the plaintiff’s statement of claim.

Applying the test prescribed by the 2010 May 3 decision of the Divisional Court, the Judge concluded that the public interests favouring disclosure outweighed the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified.

In this case, the John Doe defendants did not have a reasonable expectation that their identities would remain anonymous. The terms of their membership in Freedominion included the following: “...Freedominion will not be responsible for any illegal content that a member posts. Your FC alias is no protection. You can be called to account for what you publish. Free Dominion will not protect you. “Over-the-top” posts about public figures that test legal limits are unwelcome. If you post libelous or defamatory material, you are on your own. We take no responsibility for problems posters may cause for themselves.” The Court held that opting to use pseudonyms reveals an intention to remain anonymous but does not create a reasonable expectation in that result. Having regard to the terms of use agreed to upon their registration for access to the Freedominion website, the defendants could reasonably contemplate that their identities may be disclosed if they publish postings that are prima facie defamatory.

The Court also rejected the submission by the John Doe defendants that given the vast amount of hyperbole and exaggeration online, a reasonable person would not tend to take the postings of “conscience” and “HR-101” seriously. “...[G]iven the all pervasive nature of the Internet and its capacity to replicate defamatory messages, I do not find this argument persuasive. Whether or not the use of rude terms is common, does not speak to whether the [impugned term in this case] would be capable of lowering the plaintiff’s reputation in the eyes of a reasonable person. ... Given the low threshold set for establishing prima facie defamation, I find the plaintiff has met his burden ...

2010 September 14
Latner v Doe, 2010 ONSC 4989

The Ontario Superior Court of Justice (Master) ordered that the plaintiff’s brother submit to an examination under oath as a non-party for the purpose of assisting the plaintiff to identify the defendant, John Doe, in relation to a website which described the plaintiff in unflattering terms and included a photograph of the plaintiff and his home. In previous proceedings, the plaintiff had obtained an order requiring both Google and Photobucket to release information to him in identifying John Doe. Both complied, resulting in the plaintiff obtaining the IP address from which John Doe made his postings. Subsequently, a further court order was obtained for the purpose of identifying the subscriber to the IP address, which the ISP identified as assigned to the plaintiff’s brother. The Court noted that non-party brother had been cross-examined on an affidavit sworn in another proceeding involving other family members and that when asked if he had created a blog about the plaintiff, denied doing so and denied even being aware of the blog. The Court held that the plaintiffs had satisfied the requirements for the order sought which were discussed in Irwin Toy v Doe, [2000] OTC 561. “The IP address from which the blog emanates is registered to [the non-party brother]. While he may not be able to state unequivocally who was responsible for this publication, he certainly is well placed to provide information as to who it could have been and to help sort this out. As his IP address was used, one would have thought he, too, would want to know how this could have happened without his authority or even his knowledge.”

2010 June 29
Doucette v Brunswick News, 2010 NBQB 233

In this Norwich application, the New Brunswick Court of Queen’s Bench ordered that the respondents Brunswick News, CanadaEast Interactive and CanadaEast.com produce all information regarding the identity of the person who posted allegedly defamatory comments on the “Letters to the Editor” section of the CanadaEast.com website under the name “Anonymous Anonymous” on February 18 and 19, 2010. The Court held, inter alia, that: (i) the information sought by the applicant was necessary to identify wrongdoers, (ii) the language used by “Anonymous Anonymous” was prima facie defamatory, (iii) the applicant had provided evidence sufficient to raise a valid, bona fide or reasonable claim, and (iv) that the interests of justice favoured disclosure.

2010 May 3
Warman v. Wilkins-Fournier, 2010 ONSC 2126

The Ontario Superior Court of Justice, Divisional Court, set aside an order of a judge in chambers which directed the defendants to provide IP addresses for allegedly defamatory postings made by John Doe defendants as well as the e-mail addresses with which they registered as users of an Internet message board and any associated data provided at the time of registration. The matter was sent back to the judge in Chambers for reconsideration on the basis of the following principles: Before deciding whether the make such an order, the Chambers judge should consider: (1) whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances; (2) whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith; (3) whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and (4) whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

The Divisional Court described the intersection of the plaintiff’s interest in protecting reputation and the defence interests in protecting privacy and freedom of expression that weighed in favour of these principles:

“In this case, it is clear that both the right of freedom of expression, guaranteed by section 2(b) of the Charter, as well as privacy interests that are also recognized by the Charter, are engaged. ... Privacy interests arise for consideration in the present case in favour of both the plaintiff and the John Doe defendants. As the Supreme Court ruled in Hill, the good reputation of an individual is intimately connected to his right to privacy, and thus the right to privacy of the plaintiff may be affected by the allegedly libelous postings. At the same time, the John Doe defendants who made the allegedly libelous postings arguably had a reasonable expectation of privacy, having expressly elected to remain anonymous when they did so ...

In Irwin Toy Ltd., which arose in the context of a defamation action, Wilkins J. suggested at para. 11 that, in keeping with the protocol or etiquette developed in the usage of the internet, some degree of confidentiality regarding identifiers of the originator of a message, ‘has significant safety value and is in keeping with what should be perceived as being good public policy.’ His statement is consistent with an implicit understanding of citizens that, to some degree at least, their identities will be protected when they use the internet anonymously. In Cuttell at para. 27, the court also held that there was a reasonable expectation of privacy in a party's subscriber information which linked the party's identity to internet usage. “In addition, because this proceeding engages a freedom of expression interest, as well as a privacy interest, a more robust standard is required to address the chilling effect on freedom of expression that will result from disclosure. It is also consistent with the recent pronouncements of the Supreme Court that establish the relative weight that must be accorded the interest in freedom of expression. In the circumstances of a website promoting political discussion, the possibility of a defence of fair comment reinforces the need to establish the elements of defamation on a prima facie basis in order to have due consideration to the interest in freedom of expression. On the other hand, there is no compelling public interest in allowing someone to libel and destroy the reputation of another, while hiding behind a cloak of anonymity. The requirement to demonstrate a prima facie case of defamation furthers the objective of establishing an appropriate balance between the public interest in favour of disclosure and legitimate interests of privacy and freedom of expression.”

Finally ... there may be circumstances in which it is appropriate that notice of a motion for disclosure be given to a John Doe defendant. The case law suggests that any such determination is to be made on a case-by-case basis, and we agree. In a defamation action, little would generally be added by such a step, because any defences that might be raised are not relevant to a determination as to whether a prima facie case has been made out. For such purpose, a plaintiff is required to establish only the elements of defamation within its control. However, in other cases a John Doe defendant may have compelling reasons for wishing to remain anonymous that are not immediately obvious, such as a risk to personal safety, and such grounds could not be put before the court absent notice.”

2010 April 19
Mosher v. Coast Publishing Ltd., 2010 NSSC 153

The Nova Scotia Supreme Court granted an order compelling Google to provide the plaintiff with the name, account status, secondary email, account services, account creation date and the Canadian I.P. address of anonymous internet posters who allegedly made defamatory comments. The Court held that the Nova Scotia Rules of Court were flexible enough to make such an order at the pre-commencement stage of the lawsuit. The Court also made an order compelling Coast Publishing to provide all information in its possession regarding the identity of the posters.

2009 September 9
York University v Bell Canada Enterprises, [2009] O.J. No. 3689

The Ontario Superior Court of Justice granted the plaintiff University a “Norwich order” requiring Bell Canada and Rogers Communications to disclose information necessary to obtain the identity of the anonymous author(s0 of allegedly defamatory emails and a web site posting. Bell and Rogers did not oppose the order, which required them to disclose the contact information of the customer(s) associated with certain IP addresses.

The plaintiff had previously obtained a “Norwich order” compelling Google Inc. to disclose information to aid in the identification of the author(s) of the communications. The information obtained from Google, namely the internet protocol address associated with an email address, led to the identification of Bell and Rogers and the relevant sources of the identity of the source of the emails and web posting.

This judgment contains a detailed discussion of the basis for the order and the circumstances under which the Court will make a “Norwich order” for the disclosure of identifying information.

2009 March 23
Warman v Wilkins-Fournier, [2009] O.J.No. 1305

The Ontario Superior Court ordered that the defendants, owners and operators of an Internet website, produce relevant documentary information either identifying, or that could assist the plaintiff in identifying eight John Doe defendants in this case. Under the Ontario Rules of Civil Procedure, the defendants must provide an Affidavit of Documents which includes a list of names and addresses of persons who might reasonably be expected to have knowledge of the matters in issue in the action. The Court rejected the defence argument that the plaintiffs were obligated to establish a prima facie case and that disclosure should not be automatic on issuance of a statement of claim, distinguishing Irwin Toy v Doe, [2000] O.J. No. 3318 on the basis it concerned the obligations of a non-party and the plaintiff required a court order to compel the non-party to produce documents. The obligation is on the defendants to disclose and the plaintiffs were not required to prove a prima facie case. The court also noted: “The Irwin Toy case was decided in 2002 and cites no other case law. At that time [the judge] may have simply felt that the issue was too novel.” The court also concluded that there is no reasonable expectation of privacy in one’s IP address information, relying in part on R v Wilson, [2009] O.J. No. 1067 (2 February, 2008).

2000 September 08
Irwin Toy Ltd. v Doe (2000), 12 C.P.C. (5th) 103 (Ont.S.C.)

The Ontario Superior Court of Justice made an order pursuant to the Ontario Rules of Court entitling the plaintiff to examine a non-party Internet service provider in order to determine the identity of the John Doe defendant.

See McConchie and Potts, Canadian Libel and Slander Actions, "Chapter Twenty-Seven, Identification of Potential Defendants", page 727.

1998 June 00
Philip Services Corp. v John Doe aka Addicted2PHV, Court File No. 4582/98 (Ont)

The Ontario Superior Court of Justice made an order pursuant to the Ontario Rules of Court requiring a non-party Internet service provider to provide information to the plaintiff identifying persons who made allegedly defamatory postings to a website.

 


H. MISCELLANEOUS CYBER LIBEL ISSUES back to top
Click on a case name for full text

2014 January 23
Warman v Fournier, 2014 ONSC 412

The Ontario Superior Court awarded the plaintiff Warman $85,000 costs against the defendants following a three week jury trial involving defamatory postings on a website which resulted in an award of $42,000 for general, aggravated and punitive damages plus prejudgement interest. The Court held that the “defendants did not act reasonably when they failed to accept the plaintiff’s very reasonable Offer to Settle of $5,000 per defendant before trial and ruled that costs should be awarded on a “substantial indemnity” scale in part because “all of the defendants … acted with malice and highhanded egregious conduct.” The Court also found that “[I]n a complex defamation case such as this one, it would not be unreasonable to award an amount for costs in excess of the amount awarded for damages” and that the “time spent and the hourly rates [of legal counsel] were reasonable and proportionate to the very important objective of preserving the plaintiff’s reputation.

2013 November 7
McDonald v Freedman, 2013 ONSC 6812

The Ontario Superior Court of Justice, Divisional Court, unanimously denied an appeal by the appellant/defendant from a decision of the Ontario Superior Court dismissing his application for summary judgment dismissing this defamation lawsuit.

The plaintiff/respondent had sued for damages over statements made by the defendant in: (a) an email sent to Ontario’s Minister of Health and Long-Term Care with a copy to the President of the College of Physicians and Surgeons of Ontario; and (b) a subsequent email to the Minister, copied to the President of the College, in response to the plaintiff’s letter demanding a retraction and apology. The emails concerned “liberation therapy” which hypothesizes that multiple sclerosis involves compromised blood flow through the veins draining the central nervous system, which can be relieved by angioplasty to widen constricted neck veins.

The Divisional Court agreed with the lower court judge that the case was not suitable for determination by summary trial, because the question whether the emails were protected by the defence of absolute privilege required “a full factual record, as well as the full forensic machinery of a trial.” Similarly, with respect to the defence of qualified privilege, determining whether there was reciprocity on the part of the speaker (the defendant) and the listeners (the Minister and the President of the College) required “a full factual record after a trial that addresses the interests and duties of the sender and recipient of the Email.” In addition, the Divisional Court held there was some evidence of malice, which necessitates a full record of the factual context in which the impugned publications were made.

2013 November 4
Malak v Hanna, 2013 BCSC 2010

The British Columbia Supreme Court held that the plaintiff was entitled to particulars of a defence of fair comment pleaded by several defendants in relation to various publications on the internet. The Court held that the defendant should have known of their obligation to provide particulars of the facts on which the alleged comment is based.

2013 October 29
Astley v Verdun, 2013 ONSC 6734

The Ontario Supreme Court found the defendant Verdun in contempt of court for breaching a very broad injunction granted at the defamation trial which prohibited Verdun from communicating with anyone about the plaintiff Astley. The Court sentenced the defendant to a “conditional sentence of 90 days during which he will be under house arrest.” During the 90 day conditional sentence of house arrest, the defendant would only be permitted to leave his house for medical emergencies, grocery trips, and to attend his conditional sentence supervisor. The Court declined to impose a fine on the basis that several monetary awards had not yet been paid to the plaintiff, who should have first call on the defendant’s assets before the Court. The Court also imposed a probation order on Verdun, requiring that he be supervised for an 18 month period and perform 200 hours of community service. Verdun was also ordered to appear before the sentencing judge periodically to monitor his progress, commencing at the end of the 90 day’s house arrest, and would be required to report to a probation officer.

2013 October 8
Arcelormittal Tubular Products Roman S.A. v Canadian Natural Resources Ltd.,
2013 ABQB 578

The Alberta Court of Queen’s Bench rejected a number of defamation-related amendments to the plaintiff’s statement of claim on the basis they raised new claims after the expiry of the applicable 2-year limitation period under section 3 of the Alberta Limitations Act. The Court noted that “every delivery of a defamatory statement amounts to a new publication, giving rise to a separate cause of action even if the defendant is repeating or referring to something previously said.” One of the rejected amendments concerned an email dated January 13, 2006, which forwarded a “Quality Alert” dated November 29, 2005, which was complained of in the existing statement of claim. The Court held that the email was a new publication which amounted to a new claim that was not related to the conduct, transaction or events pleaded in the original statement of claim, in part because the general complaint regarding other “false statements” in the original pleading were too general to satisfy the requirements for defamation pleadings. The Court also rejected amendments alleging republication of the “Quality Alert” because the original statement of claim failed to properly plead one or more of the three recognized exceptions to the general principle that a defendant is not liable for republication of the defamatory statements by others. Those exceptions arise where: (1) the defendant authorized or intended the republication; (2) republication was the natural or probable result; and (3) the person to whom the original publication was made was under a moral duty to repeat or republish the words to a third person. Further, in any event, the Court held that the “Quality Alert” itself was not defamatory.

2013 July 26
Northwest Organics, Limited Partnership v Maguire, 2013 BCSC 1328

The British Columbia Supreme Court dismissed an application by the defendants for an order dismissing the corporate plaintiffs’ defamation action as a “strategic lawsuit against public participation” (“SLAPP”). The documents alleged to be defamatory included an environmental study, two pamphlets and certain “online material” which was published on a website, but at the time of this hearing was “no longer accessible”. The plaintiffs had not yet delivered particulars regarding the words complained of in this “online material.”

The Court held that the defendants were proposing a wholesale, substantive change to the law of defamation, not simply changes to procedural rules of civil practice. Such a change would normally be undertaken by the legislature, or by higher courts with a full evidentiary record. “Under the substantive law of defamation, the plaintiffs, as corporate entities, have a right to protect their reputation: Home Equity Development Inc. v Crow, 2004 BCSC 124 at para. 183, Quijano J. Every defamation law suit has some dampening effect on speech. I cannot see how inherent jurisdiction can or should be used to change the substantive laws of defamation under the guise of a procedural change meant to protect the processes of the courts and the integrity of the judicial system. … Moreover, the Rules already protect against abusive litigation. If the plaintiffs’ claim proves baseless after a trail on the merits, those actions can be addressed through costs, as was done in Scory v Krannitz, 2011 BCSC 1344, 13 C.P.C. (7th) 118.

2013 June 7
Browne v Toronto Star Newspapers Ltd., 2013 ONSC 3348

The Ontario Superior Court of Justice sustained a defence objection at trial to the admissibility in the plaintiff's case of evidence of republication of the allegedly defamatory website article on websites other than that of the defendant Toronto Star based on the results of Internet searches that her partner had conducted using Google and other search engines. Noting that pleadings play a critical role in defamation actions, the Court held that the plaintiff had failed to specifically plead the exceptions to the basic rule that each publisher is only responsible for its own act of publication. In this case, despite a pre-trial warning from the defence that the issue of republication on other internet sites had not been specifically pleaded, the plaintiff failed to seek an amendment. In conclusion, the Court stated: "While there may be cases of notoriety where, absent a specific pleading of an exception, a court might be prepared to find that the fact of publication of an article on the Internet was sufficient to raise the issue of republication by other Internet providers, this is not such a case."

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.

2013 March 6
Lewis v Rancourt, 2013 ONSC 1350

The Ontario Superior Court, on application by the plaintiff, made orders requiring the defendant to provide certain information sought by the plaintiff on the pre-trial examination of discovery of the plaintiff in this libel action over allegedly defamatory blogs including, inter alia: 1) the true facts relied on by the defendant to support his defence of fair comment; 2) the address or location for the servers that host his website on Blogspot.com; 3) why the defendant is posting messages about this defamation action on Facebook; 4) a list of all the defendant's Facebook friends who would have had access to messages he posted about the plaintiff or this defamation action on Facebook; 5) copies of all messages the defendant posted to his Facebook page about the plaintiff or this libel action; 6) a list of the defendant's 79 Twitter followers (if not already provided); and 7) copies of all articles the defendant has written on-line on the subject of racism in Canada. The Court accepted submissions by the plaintiff that this information was relevant to the plaintiff's claim for aggravated damages and to various defences pleaded by the defendant including fair comment, responsible communication, and the alleged expiry of limitation periods in sections 5 and 6 of the Ontario Libel and Slander Act.

2013 February 27
Nazerali v Mitchell, 2013 BCSC 698

The British Columbia Supreme Court granted an application by the defendants for a ruling that the claims relating to allegedly defamatory expression on a U.S.A. website are not suitable for determination by summary trial on affidavits.

Turning to the suitability of this case for summary trial, there is no issue that I can dismiss an application to proceed in that manner if the issues are not suitable for determination by summary trial, or it such a trial process will not assist in the efficient resolution of the proceeding. On the issue of justification … it will be necessary to decide whether the justifying facts put forward by the defendants or Mr. Nazerali’s denial of them should be preferred. Unlike cases in which conflicts in the evidence can be resolved by resorting to objective evidence external to the parties … engaging in that process on the evidence in this case would place a summary trial judge in an impossible position…

As to the defence of responsible journalism, …this case will depend on an assessment of the credibility of the defendants’ claims that Mr. Nazerali was inaccessible for the purposes of gaining his side of the story and that the nature of the confidential information that they relied on made it reasonable not to seek his input. Again, these are not conclusions that can be arrived at solely from a comparison of affidavit contents.

The Court concluded that without live testimony and cross-examination, a judge will not be able to find the facts necessary to determine the factual and legal issues.

2012 October 2
McDonald v Freedman, 2012 ONSC 5253, leave to appeal to the Divisional Court granted February 5, 2013, 2013 ONSC 812

The Ontario Superior Court of Justice dismissed a defence application for summary judgment in relation to an allegedly defamatory email sent to the Minister of Health and Long Term Care for Ontario with a copy to the president of the College of Physicians and Surgeons of Ontario. The email related to the scientific controversy arising from so-called “liberation therapy” advocated by Dr. Zamboni and “seized upon by [the plaintiff] as a possible cure for MS.” The Court noted that summary judgment has rarely been granted in defamation cases in Ontario, referring to the decision of the Ontario Court of Appeal in Baglow v Smith, 2012 ONCA 407, and held that the plaintiff should have the opportunity to have a jury determine whether the email “went beyond the bounds of scientific and regulatory discourse and whether it was sent maliciously with an intent to injure and not for purposes of advancing … a bona fide complaint.

2012 September 27
A.B. v Bragg Communications Inc., 2012 SCC 46, reversing 2011 NSCA 26

The Supreme Court of Canada unanimously held that a 15-year-old girl was entitled to proceed anonymously with her Court application for an order requiring an Internet service provider to disclose the identity of the person who had published a fake and allegedly defamatory Facebook profile using her photograph, a slightly modified version of her name, and other particulars identifying her. The Court noted that “[a]ccompanying the picture was some unflattering commentary about the girl’s appearance along with sexually explicit references.” The Supreme Court of Canada also banned publication of the contents of the fake Facebook posting to the extent that it contained identifying information.

The Court accepted that the “open court principle” was trumped by the need to protect the young girl’s privacy “from the relentless intrusive humiliation of sexualized online bullying,” noting that “[r]ecognition of the inherent vulnerability of children has consistent and deep roots in Canadian law.

2012 June 22
Bier v Takefman, 2012 QCCS 2851

The Quebec Superior Court awarded $20,000 moral damages and $25,000 punitive damages to husband and wife plaintiffs over a “successful and vicious campaign” of emails to friends and acquaintances of the plaintiffs “with a stated goal of destroying their reputation.” The Court rejected defence arguments that the defendant’s “slanderous, cruel and vengeful” comments should qualified as “gossip” with which the Court should not interfere. The Court held the comments were a “clear illustration of an abuse of right and the exercise in bad faith” of the right to freedom of expression. In the opinion of the Court, “the exceptional circumstances of this case justify the issuance of a permanent order that will enjoin [the defendant] not to communicate directly or indirectly in writing with the [plaintiffs] or to third parties regarding the [plaintiffs’] private life, their assets and property or their financial situation.” “This is one of those rare cases, where such an extensive prohibition is warranted and can be reasonably justified.

2012 June 14
Baglow v Smith, 2012 ONCA 407, reversing 2011 ONSC 5131

The Ontario Court of Appeal unanimously allowed an appeal by the plaintiff blogger, a retired civil servant, from a summary dismissal of his libel action over a posting on a right-wing website. The Court of Appeal held that the issues in the lawsuit should be determined in the normal way at a trial and did not lend themselves to a determination on a motion for summary judgments on affidavits, particularly because “they arise in the relatively novel milieu of internet defamation in the political blogosphere.” The Court of Appeal noted that summary judgment has “rarely been granted in defamation cases, probably because the courts have recognized that the threshold over which a statement must pass in order to be capable of being defamatory of a plaintiff is relatively low … and because the question whether a statement is in fact defamatory has long be considered the purview of a trier of fact. Whether impugned words are defamatory of an individual in fact is the type of decision better made on the basis of a full factual record with cross-examination and possibly expert testimony.” The Court of Appeal also held that the following issues, not previously addressed in the case-law in any significant way, should be decided following a full trial:

  1. Are caustic and strident exchanges on a blog during “a robust and free-wheeling exchange of political views” subject to the standard test for determining whether a statement is defamatory?
  2. Does “anything go” in exchanges on such a blog?
  3. Do different considerations apply to other forms of publication on the Internet, such as Facebook or Twitter?

Novel questions of law or mixed law and fact should generally be determined at trial instead of a summary judgment application at an interlocutory stage of proceedings.

The Court also noted: “No expert evidence was tendered (at the summary judgment hearing) concerning the expectations and understanding of participants in blogosphere political discourse. There was simply no evidence as to what the right-thinking person in this context would consider would lower the appellant’s reputation in the estimation of a reasonable reader.

2012 April 5
Buckle v Caswell, 2012 SKQB 143

The Saskatchewan Court of Queen’s Bench found the defendant to be “guilty of contempt of court and criminal contempt of court by breaching and refusing or failing to obey” a September 2009 injunction which prohibited the defendant from “publishing or causing to be published on the internet (or any other media) any defamatory statement referring to the plaintiff.” This finding related to defamatory material published by the defendant on her blog “on a continued basis”. The Court sentenced the defendant to a jail term 30 days but suspended the order of incarceration as long as the defendant complies with the September 2009 injunction. The Court also ordered Google Inc. [which was not a party to the lawsuit) to remove the defamatory material from the blog site of the defendant.

2011 December 21
Saputo inc. v Petkov, 2011 QCCS 6885

The Quebec Superior Court granted a permanent injunction prohibiting the defendant from disseminating defamatory expression contained in an email dated October 29, 2009 and in a communique dated 31 July 2009. The October 29, 2009 email, which had previously been sent to ten employees of the corporate plaintiff, called for a boycott of the corporate plaintiff’s products. The defamatory communique warned that “millions of emails containing the communique” would be transmitted to businesses in the Montreal area if the defendant came to harm. On November 3, 2009, the court had issued a temporary, pre-trial injunction prohibiting the defendant from disseminating the contents of the communique. In June, 2010, the defendant had been found guilty of contempt of court for violating the temporary injunction because of transmissions in January 2010 (to investment and retirement funds, the media and store managers) and in February 2010 (to participants in a breakfast organized by the Montreal Chamber of Commerce.)

The new, permanent injunction ordered the defendant not to disseminate, print, publish or circulate in any manner, verbally or in writing, by email or in any other medium, the defamatory words contained in the email or the communique, or analogous words, in whole or in part. The Court also specifically authorized the plaintiffs to communicate this judgment to anyone who had received a copy of the defamatory email or communique.

2011 October 27
Baglow v Smith, 2011 ONSC 6382

The Ontario Superior Court rejected the plaintiff’s submissions that the defendants, who had obtained a summary judgment dismissing the plaintiff’s libel claims, should be entitled to no costs (or only nominal costs) “on a public interest basis that an action in defamation involving Internet blogging raised a novel point of law and a novel fact situation.” The Court awarded costs to the defendants but reduced their fees to 50 per cent of the amount claimed on the basis of other conventional factors.

2011 October 19
Crookes v Newton, 2011 SCC 47

The Supreme Court of Canada dismissed an appeal from a decision of the British Columbia Court of Appeal [2009 BCCA 392] which upheld a trial judgment [2008 BCSC 1424] which dismissed an action for libel based on two hyperlinks created by the defendant on his own website. The plaintiff sued on the basis that hyperlinking to defamatory material constituted publication of that material. “One [of the two hyperlinks] was a ‘shallow’ hyperlink, which takes the reader to a webpage where articles are posted, and the other was a “deep”hyperlink, which take the reader directly to an article. … Both shallow and deep hyperlinks require the reader to click on the link in order to be taken to the content.” The defendant’s webpage had been viewed 1,788 times but there was no evidence whether either of the two hyperlinks had been clicked on or followed.

Abella J. (Binnie, Charron, Rothstein and Cromwell JJ concurring), held that there is no presumption of publication arising from posting material on the Internet and that hyperlinks that connect to allegedly defamatory material cannot be said to “publish” that material.

Abella J. agreed with the approach taken by the BC Court of Appeal in Carter v B.C. Federation of Foster Parents Assn., 2005 BCCA 398, that merely referring to an article containing defamatory comment without any repetition of the comment itself should not be found to be a republication of the defamatory comment. “Hyperlinks are, in essence, references. By clicking on the link, readers are directed to other sources. Hyperlinks may be inserted with or without the knowledge of the operator of the site containing the secondary article. Because the content of the secondary article is often produced by someone other than the person who inserted the hyperlink in the primary article, the content on the other end of the link can be changed at any time by whoever controls the secondary page...In my view, then, it is the actual creator or poster of the defamatory words in the secondary material who is publishing the libel when a person follows a hyperlink to that content. … The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral – it expresses no opinion, nor does it have any control over, the content to which it refers.”

Abella J. considered that subjecting hyperlinks to the traditional publication rule would have the effect of “seriously restricting the flow of information and … freedom of expression” and potentially “chill” how the Internet functions.

On the subject of damage to reputation caused by internet libel, Abella J. stated:

[37]         I do not for a moment wish to minimize the potentially harmful impacts of defamatory speech on the Internet. Nor do I resile from asserting that individuals’ reputations are entitled to vigorous protection from defamatory comments. It is clear that “the right to free expression does not confer a licence to ruin reputations” (Grant, at para. 58). Because the Internet is a powerful medium for all kinds of expression, it is also a potentially powerful vehicle for expression that is defamatory. In Barrick Gold Corp. v. Lopehandia 2004 CanLII 12938 (ON CA), (2004), 71 O.R. (3d) 416 (C.A.), at para. 32, Blair J.A. recognized the Internet’s “tremendous power” to harm reputation, citing with approval the following excerpt from Lyrissa Barnett Lidsky “Silencing John Dow: Defamation & Discourse in Cyberspace” (2000), 49 Duke L.J. 855, at pp. 863-64:

Although Internet communications may have the ephemeral qualities of gossip with regard to accuracy, they are communicated through a medium more pervasive than print, and for this reason they have tremendous power to harm reputation. Once a message enters cyberspace, millions of people worldwide can gain access to it. Even if the message is posted in a discussion forum frequented by only a handful of people, any one of them can republish the message by printing it or, as is more likely, by forwarding it instantly to a different discussion forum. And if the message is sufficiently provocative, it may be republished again and again. The extraordinary capacity of the Internet to replicate almost endlessly any defamatory message lends credence to the notion that “the truth rarely catches up with a lie.” The problem for libel law, then, is how to protect reputation without squelching the potential of the Internet as a medium of public discourse. [Blair J.A.’s emphasis removed.]

Abella J. left open the possibility, however, that links that automatically display other content may constitute “publication.”

[43]         I am aware that distinctions can be drawn between hyperlinks, such as the deep and shallow hyperlinks at issue in this case, and links that automatically display other content. The reality of the Internet means that we are dealing with the inherent and inexorable fluidity of evolving technologies. As a result, it strikes me as unwise in these reasons to attempt to anticipate, let alone comprehensively address, the legal implications of the varieties of links that are or may become available. Embedded or automatic links, for example, may well prove to be of consequence in future cases, but these differences were not argued in this case or addressed in the courts below, and therefore need not be addressed here.

Chief Justice McLachlin and Fish J. agreed substantially with the majority but proposed a different test for determining when a hyperlink constitutes publication of defamatory matter to which it links. “…[A] hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.” “Adoption or endorsement of the content accessible by a link in the text can be understood to actually incorporate the defamatory content into the link. Thus the content of the text comes to include the defamatory content accessed by the hyperlink. The hyperlink, combined with the surrounding words and context, ceases to be a mere reference and the content to which it refers becomes part of the published text itself.

In a separate lengthy judgment, Deschamps J. disagreed with a blanket exclusion of hyperlinks from the scope of the publication rule, concluding that publication is demonstrated only where the plaintiff can establish on a balance of probabilities that the defendant performed a deliberate act that made defamatory information readily available to a third party in a comprehensible form. In this formulation of the test, it would be a question of fact whether defamatory information is readily available.

2011 October 6
St. Lewis v Rancourt, 2011 ONSC 5923

The Ontario Superior Court of Justice granted the plaintiff’s motion to compel the defendant and a defence witness to answer certain questions and to submit to further cross-examination on affidavits. Plaintiff’s counsel also asked for direction from the Court as to who may attend at the cross-examination because certain individuals who are not parties to the action attended at a prior cross-examination and refused to leave notwithstanding the objections of plaintiff’s counsel. “One of these observers then posted comments on the internet describing the cross-examination and attributing unethical behaviour [to plaintiff’s counsel] while also suggesting the plaintiff herself was somehow associated with evidence of wrongdoing … .” The court rejected defence submissions that the public was entitled to attend the cross-examination and directed that only the parties and their lawyers and the court reporter could attend.

2011 September 28
Wilson v Switlo, 2011 BCSC 1287, affirmed 2013 BCCA 471

The British Columbia Supreme Court awarded general, aggravated and punitive damages for libel but declined to include an allowance for publication of the libels on the Internet website of the British Columbia Utilities Commission. The Court held that there was no presumption of publication and that the plaintiffs had failed to prove that any material posted to the website was accessed and read on the Internet.

2011 September 16
Group BMR inc. v Gilbert, 2011 QCCS 4954

The Quebec Superior Court granted the plaintiff company and its president (also a plaintiff) a permanent injunction prohibiting the defendant from publishing any statements calculated to damage the plaintiffs, their shareholders, administrators, officers, employees, suppliers or merchant members. At trial, the plaintiffs tendered proof that the defendant had defamed them with false allegations of a very serious nature which were published in emails, letters and other communications. The plaintiffs did not seek damages because the defendant was impecunious. Previous interlocutory injunctions had failed to restrain the defendant who declared his intention to continue disseminating his allegations to third parties.

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.

2011 June 14
Astley v Verdun, 2011 ONSC 3651

Following a jury verdict in favour of the plaintiff for $250,000 general damages and $400,000 aggravated damages, the Ontario Superior Court of Justice ruled that the plaintiff was also entitled to a permanent injunction and to partial indemnity costs of the lawsuit in the amount of $215,919.32 payable forthwith by the defendant.

The Court noted that “permanent injunctions have consistently been ordered ... where either: (1) there is a likelihood that the defendant will continue to publish defamatory statements despite the finding that he is liable to the plaintiff for defamation; or (2) there is a real possibility that the plaintiff will not receive any compensation, given that enforcement against the defendant of any damage award may not be possible.” In this case, the Court found that the defendant “extended the scope of his publications after the commencement of the action by publishing his [defamatory] book and posting statements on the Internet which he refused to disengage even after the jury’s verdict.

The permanent injunction granted by the judge prohibits the defendant from “disseminating, posting on the Internet or publishing, in any manner whatsoever, directly or indirectly, any statements or comments about the plaintiff ... For further particularity, the defendant shall not publish or cause to be published or otherwise disseminate or distribute in any manner whatsoever, whether by the Internet or other medium, any statements or other communications which refer to [the plaintiff] by name, depiction or description.” “There will also be a mandatory injunction requiring the defendant to forthwith remove his blog postings dated April 29, 2011 and May 2, 2011 from the Internet, and any similar postings that refer to the plaintiff, directly or indirectly.

2011 May 30
Barreau du Quebec c Richard, 2011 QCCS 2655

The Quebec Superior Court granted the Quebec Bar Association a permanent injunction against the defendant prohibiting him from: (i) sending emails, letters or cease and desist demands to the Bar or its officers, elected officials, members and personnel; and (ii) communicating by email, letter or by cease and desist demands to the Bar, its officers, elected officials, members and employees using any electronic address associated with the domain name of the Quebec Bar or its directors. The Court stated that without a permanent injunction, the defendant would recommence his campaign as no damages award would influence his conduct; that only the fear of going to prison could reduce him to silence. Paraphrasing the judgment in National Bank v Weir, 2010 QCCS 402, the Court stated that the abusive, defamatory, vexatious, misleading, harassing and furious words of the defendant are like fallen leaves which fall from a tree and then are picked up by the autumn winds. Just as it is impossible to gather them all up once they have dispersed, so it is impossible to call back defamatory and harassing expression. No monetary compensation could compensate for the damages that would result; the only effective remedy is to prevention.

2011 May 2
Froehlich v Darling, 2011 ONSC 2674

The Ontario Superior Court of Justice dismissed a defence application to stay this defamation lawsuit in favour of mediation and then arbitration. The plaintiff alleged in his statement of claim that in January 2010, the defendant sent two emails that were defamatory of him to all of the members of the club. The Court noted that “it is a reasonable inference from the language of the emails that the defendant wished to portray the plaintiff to the other members as an undesirable member of the club and an unworthy candidate for election to the club’s board of directors.” Concluding that the subject matter of the defamatory emails did not fall with the scope of a mandatory arbitration bylaw (which came into effect after the alleged libels), the Court stated: “The plaintiff’s right to sue in this court is not a right that should be lightly confiscated. Although people are entitled to oust the jurisdiction of this court by agreement, such agreements must be interpreted reasonably to give effect to the makers of the agreement.

2011 March 4
A.B. Bragg Communication Inc., 2011 NSCA 26

The Nova Scotia Court of Appeal unanimously upheld a lower court decision [2010 NSSC 215] refusing an application by a 15-year old plaintiff to continue her defamation action under a pseudonym and for an order imposing a publication ban on the allegedly defamatory words posted on Facebook. The Court of Appeal described this case as “pit[ting] a teenager who finds herself the victim of on-line bullying against the public’s right to be informed by a free and independent press given unrestricted access to open court proceedings.” With respect to Facebook, the Court of Appeal noted that its “popularity and meteoric success is reflected in the slew of business articles reporting the untold wealth amassed by its creators; its current depiction in a Hollywood film; and its recent emergence as a force of truly global proportions in mobilizing mass protest fixed on toppling ruling elites.

This action related to “the creation of a fake Facebook profile by an unidentified perpetrator, which included a photograph of the [15-year old plaintiff], a slightly modified version of her name, and other particulars which identified her. The fake profile also discussed the [15-year old plaintiff’s] physical appearance, her weight, and allegedly included scandalous sexual commentary of a private and intimate nature.” The request for use of a pseudonym and publication ban was part of the 15-year old plaintiff’s application for an order compelling Bragg Communications to disclose the identity of the person who used the IP address, located in Dartmouth Nova Scotia, involved in the creation of the fake Facebook account. The lower court ordered Bragg Communications to disclose that identity as part of the same ruling which denied use of a pseudonym and publication ban.

On this appeal, the 15-year old argued unsuccessfully that the lower court erred by failing to take into account the special vulnerability of children and by ignoring an obvious and serious risk of harm. The appeal was opposed by the Halifax Herald Limited and by Global Television.

In its ruling dismissing the appeal, the Court of Appeal considered, among other things, the nature of libel litigation: “Defamation is a claim that one's reputation has been lowered in the eyes of the public. To initiate an action for defamation, one must present oneself and the alleged defamatory statements before a jury and in open court. To be able to proceed with a defamation claim under a cloak of secrecy, strikes me as being contrary to the quintessential features of defamation law. A.B. would wish to have her identity shielded from the public, and the fake Facebook profile banned from publication, apparently as a protection from further embarrassment and public scrutiny. But, when A.B. chose to avail herself of the court process in the pursuit of damages for defamation, she submitted to whatever public scrutiny attaches to civil litigation and must accept the attendant diminished expectation of privacy.

The Court of Appeal held that although the restrictions sought by the 15-year old might be appropriate in family law, or in cases involving sex crimes, they had no application to a defamation action. “A statement of claim in a defamation case requires the pleader to refer explicitly to the published words which are said to have harmed the plaintiff’s reputation” and it would be contrary to the public interest “to permit a plaintiff ... to pursue her claim anonymously, with her identity kept secret.” The Court continued: “Let me conclude these reasons by suggesting that the effect of the judge's decision will be to produce a laudatory result. Whether attending court to watch the trial, or reading published reports of the proceedings, citizens will associate A.B.'s name with the words of the fake profile, but not in the way the bogus poster ever intended. Presumably, the fake Facebook page was created and posted with a view to persuading people that these were A.B.'s own words and expressions, or simply intended as a parody of a real profile. It will be for a jury to ultimately decide whether the impugned words are defamatory, or are defensible as truth, parody, fair comment or otherwise. But news reporting of A.B.'s efforts to unmask an anonymous poster and seek money damages for the harm to her reputation puts the story in a completely different light. There is no suggestion that these are her own words: quite the opposite. And so readers will be told that A.B. is taking legal action to obtain redress for the alleged lies that have been posted. Should she be successful, one might expect that she will be lauded for her courage in defending her good name and rooting out on-line bullies who lurk in the bushes, behind a nameless IP address. The public will be much better informed as to what words constitute defamation, and alerted to the consequences of sharing information through social networking among "friends" on a 21st century bulletin board with a proven global reach.

2011 March 1
Université de Montréal c. Côté, 2011 QCCS 833

The Quebec Superior Court granted a permanent injunction to the plaintiff university which prohibits the defendant researcher from communicating with the university, its administrators, employees and professors. The Court held the restriction on freedom of expression was warranted in view of the massive number of emails (and faxes) the defendant sent to people at the university in 2004 and 2005, which stopped after the Court had granted an interim injunction.

2011 January 26
Vigna v Levant, 2011 ONSC 629

This decision of the Ontario Superior Court of Justice concerned an award of costs to the plaintiff who recovered a judgment in the amount of $25,000 for defamation damages plus an order that the defamatory publications be removed from the defendant’s website. Although the plaintiff was substantially successful, his claim for punitive damages was not allowed and some of the publications at issue in the action were found either not to be defamatory or were protected by other defences. In addition to noting that legal issues involved in defamation litigation are more complex than the typical lawsuit, the court remarked on the factual complexities arising from the defendant’s blog postings relating to various legal proceedings. The court held that the plaintiff should be awarded costs on a substantial indemnity basis because the defendant “published defamatory statements about [the plaintiff] for an ulterior purpose and his actions were malicious, and also because [the plaintiff] obtained a result after trial, which exceeded the financial terms of his offers to settle by a substantial amount and included the remedy of the removal of the defamatory comments from [the defendant’s] website... [the pre-trial] offers made by [the plaintiff] were reasonable and a better or equivalent result was obtained after trial.”

2011 January 20
Destiny Software Productions Inc. v. Musicrypt Inc., 2011 ONSC 470

In this Ontario Superior Court proceeding, the defendant counterclaimed over certain statements made by the plaintiff and its CEO for defamation, injurious falsehood, infringement of the Trade-marks Act and the Competition Act, and unlawful interference with economic relations. These claims concerned statements contained in an electronic press release, an email that discussed the press release, and a newspaper article which reported on the press release. The plaintiff/defendant by counterclaim sent the press release to its customers and potential customers under cover of the impugned email which explained ongoing patent litigation between the plaintiff and the defendant. The Court refused to grant a summary judgment on the defamation counterclaim, holding that the issues raised in the defence to the counterclaim ought to be dealt with in the normal way at a trial with witnesses where the full factual context could be evaluated. “It is well-accepted that determining the defamatory nature of material is a highly contextual analysis. In that light, there is little to be gained by parsing each statement one by one and deciding whether a trial is required to determine the defamatory nature of that particular utterance. The trial judge must still assess each statement in light of its surrounding context, which will include the remaining statements made in each of the three documents.”

2010 November 24
Gobeil v Smith, 2010 ONSC 64905

The Ontario Superior Court of Justice stayed a defamation action by two Ontario Provincial Police Officers over statements published by the defendant on two of his websites. The words complained of relate to the police investigation and charges laid against the defendant. At the date of this hearing, the defendant had been convicted on five counts charges and an appeal was still pending from his conviction on four. The Court dismissed the defendants motion to dismiss the action for want of prosecution or delay, noting that it was clear that in January 2007 the parties agreed that the lawsuit should proceed only after the criminal case was complete. The Court found that there was an overlap of the factual and legal issues between the civil and criminal proceedings, noting that the plaintiffs defamation claim is brought by two officers who investigated the defendant in relation to the alleged criminal activity which ultimately led to charges being laid against him.

2010 August 23
Billingsley v Communication, Energy and Paperworkers, Union Local No. 481, 2010 SKQB 297

The Saskatchewan Court of Queen’s Bench dismissed a motion by the defendant union and by individual union members for an order striking out damages claims by the plaintiffs (all executive or elected council members of the Saskatchewan Government and General Employees Union) over allegedly defamatory allegations published on a website. The defence unsuccessfully submitted that a collective agreement in force between the defendants and the plaintiffs’ employer, which contained an arbitration clause, deprived the Court of jurisdiction to hear the plaintiffs’ defamation claims. The Court held that the dispute did not arise under the collective agreement and the arbitration clause did not apply to deprive the court of jurisdiction.

2010 August 16
Warman v National Post Co, 2010 ONSC 3670

The Ontario Superior Court of Justice (Master) ruled on an application by the defendant Levant, for (1) an order for production of certain categories of documents and (2) a mirror image of the hard drive of the plaintiff’s personal computer in order to obtain all relevant documents and information from the plaintiff’s personal computer or, in the alternative, (3) an order requiring to turn the hard drive or a mirror image of the hard drive over to a mutually agreeable expert who will examine it and produce all relevant documentation and information, including meta data, to all parties. The Court noted that in this “Simplified Procedure” action in which the plaintiff seeks an apology and damages of no more than $50,000, the “parties’ cases could hardly be more diametrically opposed”: (a) the plaintiff “asserts that someone adverse to his interests set about to make a hateful internet posting and to take appropriate steps to make it appear that the posting had been generated from an Internet Protocol (“IP”) address belonging to [the plaintiff];” (b) the defendant Levant asserts in a 36 page statement of defence containing 145 paragraphs that the plaintiff “generated the subject posting and that if a full analysis of the hard drive of [the plaintiff’s] computer is undertaken, it may well be that proof of Mr. Levant’s theory will be found.

Taking into account the new requirement under the Ontario Rules of Court for proportionality, the Court concluded that a forensic examination of some of the available electronic data was justified but that such an examination should be: (i) restricted to very limited areas, (ii) made on a mirror image of the plaintiff’s hard drive, and (iii) made by an independent, mutually acceptable expert. The Court directed, inter alia, that the independent computer expert: (a) conduct searches for certain specified alleged personas and related metadata concerning these terms or meaningful fragments of them found on the hard drive, and ensure that appropriate searches are made with respect to all specified keywords; and (b) seek all documents and information showing the plaintiff’s IP address at relevant times. The Court stated: “Unless and until we know that the [independent computer expert] finds on the hard drive (if anything), this alleged fishing expedition may turn out to have been a wild goose chase.”

2010 August 13
Roskam v Jacoby-Hawkins, 2010 ONSC 4439

The Ontario Superior Court granted an application by the plaintiff, a supporter of the Libertarian Party of Canada, for an extension of time to appeal from a judgment of the Small Claims Court ordering him to pay Jakoby-Hawkins, a Green Party candidate, $7,000 general damages and $3,000 in aggravated damages for defamation contained in an email to Green Party officials, statements made in a website, and statements made in a written newsletter. Although the parties did not address the merits of the proposed appeal, the Court found that there appears to be a bona fide intention to the pursue the appeal, the Notice of Appeal was delivered a very short time after the expiry date, and there appears to be no prejudice to the defendant as a result of the late service.

2010 June 25
A.B. (Litigation guardian of) v. Bragg Communications Inc., 2010 NSCA 57

The Nova Scotia Court of Appeal imposed a termporary publication ban concerning the allegedly defamatory words published about the 15-year-old female plaintiff on a fake Facebook profile pending the hearing of the plaintiff’s her appeal from the refusal of a lower court judge to issue such a ban. The Court of Appeal order also permitted the plaintiff to proceed temporarily under a pseudonym. The plaintiff had successfully sought and obtained from the lower court a ruling compelling a service provider to disclose information in its possession regarding the identity of the owner of the IP address used to create the fake Facebook profile. The full appeal hearing is scheduled for December, 2010.

2010 June 4
A.B. v Bragg Communications Inc., 2010 NSSC 215

The Nova Scotia Supreme Court ordered, inter alia, that the defendant disclose the identity of a person whose used a specified IP address at a specified date and time including (if available) name, address, telephone number and any other identifying information. This action arose from the alleged creation by an unidentified perpetrator of a fake Facebook profile which included a photograph of the applicant A.B. and other particulars which identified her. The Facebook profile also discussed the applicant’s physical appearance, weight, and allegedly included scandalous sexual commentary of a private and intimate nature. The Facebook profile was removed by the internet provider in March, 2010. Applying the principles discussed by the Ontario Divisional Court in Warman v Wilkins-Fournier, 2010 ONSC 2126, the Nova Scotia Supreme Court held that a prima facie case of defamation had been made out and stated that “...where a prima facie case of defamation is established and no public interest beyond the general right of freedom of expression is offered in support of maintaining the author’s anonymity, ... the public interest favouring disclosure prevails.”

2010 May 21
Trace Foundation v. Centre For Research On Globalization (CRG),
2010 QCCS 2119


The Quebec Superior Court dismissed a defamation action concerning an article on the defendant’s website. The Court found no causal link between the website article and any prejudice to the plaintiff’s relationship with the Chinese government. The lawsuit was held to be frivolous, in bad faith and an attempt to restrict freedom of public debate.

2010 March 29
Bie v Canada (Attorney General), 2010 ONSC 1798

The Ontario Superior Court of Justice dismissed an application by the Attorney General of Canada and an individual defendant employed by Health Canada to strike out defamation claims against the individual defendant. The statement of claim alleged that the individual defendant was involved in posting to the Health Canada website a Health Canada press release that defamed the plaintiff and that the press release circulated globally via the regulator’s global advisory networks and press distribution system. The details pleaded by the plaintiff in its statement of claim contained the requisite elements of a defamation claim against the individual defendant including what, when, how and to whom and the damages that the plaintiff suffered. The Court rejected arguments that because the Crown is liable for damages in respect of a tort submitted by a servant of the Crown, it was not necessary to name the individual defendant personally. The Court held that if the plaintiff properly pleads a cause of action against an individual employee, the plaintiff is entitled to maintain that claim notwithstanding a concession of vicarious liability by the Crown. An admission of vicarious liability does not negate a cause of action against a Crown employee.

2010 March 12
Takefman v. Bier, 2010 QCCA 486

The Quebec Court of Appeal dismissed an appeal from a lower court injunction prohibiting the defendant from sending emails to the plaintiffs which they considered to be a form of harassment. Nevertheless the Court of Appeal held that a separate provision in the lower court’s order was overly broad and needed revision. That provision prohibited the defendant from communicating electronically with third parties about the plaintiffs. Accordingly, it was varied to prohibit communications on the Internet about the plaintiffs’ private lives.

2010 March 2
Warman v Wilkins-Fournier, 2010 ONSC 2826

The Ontario Superior Court of Justice, on application by the plaintiff, struck out a counterclaim for abuse of process which had been filed by the defendant Bertucci to the plaintiff’s defamation action over comments published on the defendant’s internet website. The Court stated: “A libel notice or a defamation action may often cause the defendant to temper or avoid future critical comment of the plaintiff. It is not improper nor does a tort occur if a plaintiff commences a law suit to redress defamation and make the defendant aware that future defamatory comment will be responded to. The intent to silence through a defamation action is not a collateral or improper purpose [a required element of an abuse of process]”. “If [the plaintiff] Mr. Warman expresses controversial public opinions on matters of public interest and pursue litigation against those who defame him in their expressing disagreement with his opinions, neither his past controversial statements nor his law suits against others constitute a “collateral and improper purpose” to this defamation action against [the defendant] Mr. Bertucci.

2010 February 10
National Bank of Canada v. Weir, 2010 QCCS 402

The Quebec Superior Court granted an injunction prohibiting the publication of defamatory internet blog postings concerning the plaintiff bank as well as its directors, senior officers and representatives. The defendant failed to offer any evidence to justify “the vitriolic and malicious nature of most, if not all, of the remarks contained in the postings.

2009 February 2
Desroches c. Klein, 2009 QCCS 340

The Quebec Superior Court rejected the plaintiff’s request for a permanent injunction prohibiting the defendant from making accusations against the plaintiff or publishing harassing words to her or her friends. The defendant admitted creating a website which contained negative words about the plaintiff, but denied being the author of words which were posted under the name of an unknown third party. The court noted that the words complained of by the plaintiff had been withdrawn from the Internet site a considerable time before the injunction application was heard. The court was also critical of the scope of the injunction sought by the plaintiff.

2008 August 22
Harrington v Sullivan, [2008] O.J. No. 3279

In this ruling, the Ontario Superior Court of Justice awarded legal costs of $2,800 to the plaintiff following a settlement agreement between the parties concerning a defamatory email transmitted by the defendant S in September, 2005 to a single recipient who was the director of operations for a company the plaintiff had just joined. The defendant S retracted and apologized for the allegations and agreed to pay $5,000 damages. Although the court found that the defendant corporation “apparently made some contribution” to the damages settlement, no costs were ordered to be paid by the corporation. The judge stated: “I fail to see any basis for the allegation that [the defendant corporation] was in any way responsible for the publication of the defamatory email” despite the fact that the individual defendant S sent the email from his office computer using a corporate email account. The court stated that it appeared “likely that [the individual defendant S] was on a ‘frolic of his own’” when he sent the email, and accordingly there was no basis for a finding the corporation was vicariously responsible for the individual defendant’s libel. 

2008 July 14
Lorch v McHale, [2008] O.J. No. 2807

In this ruling, the Ontario Superior Court ordered the consolidation for trial of two lawsuits for defamation arising out of an Aboriginal land claims dispute in Caledonia, Ontario. One of the two lawsuits involved libel claims by twenty-two police officers over certain postings about the Ontario Provincial Police on a website operated by McHale. The court also struck out a counterclaim by McHale alleging that Ontario’s Provincial Police Chief was guilty of the tort of unlawful “maintenance” of litigation because of his public statement that he would arrange for the O.P.P. to financially support the lawsuit against McHale.  The court noted that the Police Services Act grants statutory authority for the plaintiff police officers to be reimbursed at the end of litigation if they acted in good faith.  Furthermore, the statement by the Police Chief fell short of “stirring up” litigation and the Police Chief could not be considered guilty of “officious intermeddling” in matters that did not concern him.

2008 June 10
Manno v Henry, 2008 BCSC 738

The British Columbia Court held that an article published on the defendant newspaper’s Internet site, which was identical in content to the hard copy newspaper article but  did not name or picture any of the plaintiffs, falsely defamed three of the five plaintiffs by asserting that persons at the house located at a specified street address in Abbotsford had been carrying on a marijuana growing operation, had been suspected of being the victims of a pot rip-off, and had failed to cooperate with police as a means of covering up this illegal activity. Although none of the plaintiffs was either named or pictured in the Internet version of the article, three of the plaintiffs had “the necessary connection to the property so as to lead persons acquainted with them reasonably to conclude from the Internet article that they were the victims referred to.” However, the court noted that it was likely that some of the persons who also read the newspaper article had seen the hard copy article (which was accompanied by a photograph depicting three of the plaintiffs).  The Internet article was held to exacerbate, to a minor degree, the defamation by the newspaper article of all five plaintiffs who were defamed by the hard copy article.   

2008 May 1
Manson v Moffett, [2008] O.J. No. 1697

In this ruling awarding libel damages to the plaintiff, the Ontario Superior Court of Justice stated that “by any reasonable definition, anything disseminated on the internet is intended for consumption by a wide audience and easily meets any reasonable definition of ‘publication’.”  “Indeed, the very concept of a ‘worldwide web’ invites no other reasonable interpretation.” Although the defendant was not ordinarily resident in Ontario, the Court also granted an injunction “enjoining the defendant from engaging in the impugned conduct”.

2008 April 16
Crookes v Yahoo, 2008 BCCA 165, affirming 2007 BCSC 1325

The British Columbia Court of Appeal held that where the Internet postings complained of by the plaintiff were posted on a website with restricted access that was not available to the public, there is no presumption it was read by anyone in British Columbia. In these circumstances, in the absence of evidence of publication from the plaintiff demonstrating there was publication to a person in British Columbia, the lower court judge did not err in dismissing this action against Yahoo.

2007 January 3
Regina School Division No. 4 v Hall, 2007 SKCA 1323

The Saskatchewan Court of Appeal varied a lower court order striking a counterclaim against the plaintiff’s law firm as being frivolous and vexatious by permitting the individual defendant to counterclaim for alleged breach of fiduciary duty. The law firm had acted for the defendant in matters leading to his 1981 criminal code record (for which he was granted a full pardon in 1994) which became an issue when the plaintiff board caused a press release to be published in daily newspapers in Regina and Saskatoon announcing its legal action over “potentially libellous emails” which alleged that the school district, its schools and teachers are associated with an organization “directed and operated by an individual [the defendant] convicted of criminal offences.” The law firm conceded at the hearing of appeal that breach of fiduciary duty was properly pleaded by the defendant. “Since [the law firm] did act for the [individual defendant] in the criminal proceedings which played a prominent part in the subsequent proceedings it took on behalf of the Board against [the individual defendant], it cannot be said either that the pleadings in this respect disclosed no cause of action or that the pleadings were frivolous or vexatious. [The individual defendant] will, of course, have to prove at trial that the fiduciary duty of [the law firm] to [the individual defendant] continued to exist at the relevant time, notwithstanding that it had provided no services to [the individual defendant] for many years, that the members of the firm who acted for [the individual defendant in the criminal matters had left the firm many years before, and that the relevant files had been destroyed. While this may be difficult to prove or seem highly improbable, it cannot be said on the basis of the pleadings alone and the affidavits filed in support, that the claim is devoid of all merit of cannot possibly succeed. It is a matter for the trial judge to determine after hearing all relevant evidence. The Court of Appeal sustained the lower court’s decision to strike out the counterclaim for defamation relating to the allegation that the individual defendant had been convicted, noting that the pardon “cannot ... change the historical fact that the convictions occurred and continued to exist for a period of time.” The Court of Appeal ordered that the counterclaim be stayed, however, until the original defamation action by the Board against the defendants over an email authored by the individual defendant and information on the defendant’s website is tried and determined.

2007 November 9
Allen v Harrison Hot Springs (Village), 2007 BCSC 1622

The British Columbia Supreme Court declined to decide issues raised by the petitioning ex-mayor for indemnity for legal fees he was incurring to defend a defamation action by a municipal employee which arose from certain publications by the petitioner during the municipal election campaign in the fall of 2005. The day after the petitioner lost the election, the municipal employee was reinstated to his position by the new mayor and council and filed a statement of claim alleging libel, including certain publications by the ex-mayor on his personal website. The Court held that the claim for indemnity would be best decided after the defamation trial has concluded.

2007 October 1
Fontaine v Courchene, 2007 MBQB 238, appeal dismissed 2008: MBCA

The Manitoba Court of Queen’s Bench dismissed an application by the plaintiff, a former First Nation Band Councillor, for the payment by the defendants of interim costs to fund her action in defamation over an email allegedly disseminated to Band members. The Court held the plaintiff had failed to satisfy the test for such a rare and exceptional order which was reaffirmed by the Supreme Court of Canada in Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), 2007 SCC 2.

2007 May 23
Crozier v Cherniak, [2007] O. J. No. 2024

The Ontario Superior Court of Justice rejected proposed amendments to the statement of claim in this action brought by an ex-lawyer in relation to allegedly defamatory statements contained in a Report published by the defendant Law Society of Upper Canada on the internet. The report was a brief summary of discipline proceedings against the plaintiff in 1997. The Court held that the Report was accurate and that the plaintiff’s proposed amendments therefore had no hope of success. “All aspects of the plaintiff’s defamation case are incapable of being proven and legally untenable.”

2006 November 7
Szewczyk v Real Estate Council of Ontario, [2006] O.J. No. 4487 (Ont.C.A.)

The Ontario Court of Appeal dismissed an appeal by the plaintiff from a decision of the Ontario Superior Court of Justice dismissing his action against the Council “claiming that the discipline decision [of the defendant Council] was wrong and that the [Council] had defamed him by publishing its decision on the Internet.” In a very brief ruling, the Court of Appeal held that having failed to appeal the Council’s decision, it was not open to the plaintiff to bring this action as it “constitutes an abuse of process and a collateral attack on the decision.”

2006 November 1
Sansone v D’Addario, [2006] O.J. No. 4365

The Ontario Superior Court of Justice refused to allow the plaintiff to amend his statement of claim to claim damages arising from allegedly defamatory comments about the plaintiff on the internet and elsewhere, reasoning that although the evidence relating to the alleged defamation would have some peripheral relevance to the main action for alleged breach of contract, the defamation claim would add undue complexity, possible confusion and probable delay. The Court noted that the plaintiff had the right to commence a separate action concerning the alleged defamation and left open the possibility that the plaintiff could apply for an order consolidating the two lawsuits after the completion of discoveries

2006 July 21
Crozier v Cherniak, [2006] O.J. No. 2990

The Ontario Superior Court of Justice struck out all aspects of claims by the plaintiff for libel and damage to reputation for publishing allegedly untrue statements on a website and in other publications. The bulk of the defamation claim had already been raised in two previous civil actions, both of which were dismissed. The Court therefore ruled that it an abuse of process to raise the same points again in this action. The only part of the claim not previously dismissed “failed to set out a coherent cause of action” and was therefore struck out with leave to make one application to amend the statement of claim to express the plaintiff’s claim in a comprehensible fashion.

2006 May 4
Conservation Council of New Brunswick Inc. v Encon Group Inc., 2006 NBCA 51

The New Brunswick Court of Appeal sustained a decision that an insurer, Co-Operators Insurance Company of New Brunswick, had a duty to defend the Conservation Council of New Brunswick Inc. “CCNB”) against an action for defamation brought by Bennett Environmental Inc, on the basis that Bennett’s claim did not fall squarely within the exclusionary provisions of the insurance policy held by CCNB. The Court held it was impossible to distinguish between legal defence costs relating to allegations covered by the policy (i.e. certain material published in a newspaper) and those allegations not covered (website material); the latter being excluded from coverage under the policy.

2006 April 26
Regina School Division No. 4 v Hall et al, 2006 SKQB 202, varied 2007 SKCA 1323

The Saskatchewan Court of Queen’s Bench struck out a counterclaim against the plaintiff School Board’s law firm in an action in which the Board alleged it was defamed by two emails and an article on an internet website. The counterclaim complained, among other things, about two letters from the law firm demanding compliance with the Board’s request for a cessation of communication and promising court action otherwise, for commencing this lawsuit, and for causing a report of the filing of the lawsuit to be published in two newspapers. The Court concluded that the law firm was named in the counterclaim “only because the law firm is doing its job as counsel for the Board” and that “the counterclaim against the law firm is intended to annoy or embarrass the Board, and is advanced with the ulterior motive of removing the law firm as counsel for the Board.”

2006 April 7
Halton Hills (Town) v Kerouac, [2006] O.J. No. 1473

The Ontario Superior Court of Justice dismissed an action by the Town of Halton Hills against a local internet-based news purveyor on the basis that defamation actions by government are barred by the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms.

2005 November 18
Mallard v Shirley, 2005 ABQB 858

The Alberta Court of Queen’s Bench found a non-party in civil contempt of Court in part for distributing a private confidential KPMG Interim Report (copied to the litigation parties pursuant to an Anton Piller Order) by-email to numerous other non-parties, without first obtaining leave of the Court. In the particular circumstances of this case, the Court found that this publication by e-mails was a violation of the sub judice rule, and presented a real risk of interference with the due administration of justice.

2005 September 27
Cooper v Hennan, 2005 ABQB 709

The Alberta Court of Queen’s Bench ordered the plaintiff’s to provide particulars of the precise words they complain of in an email, portions of which had been incorporated by the plaintiffs in an Amended Statement of Claim. The Court held that allowing the plaintiffs to “incorporate whole paragraphs of an e-mail into their Amended Statement of Claim would be tantamount to a fishing expedition and would encourage speculative lawsuits. Further, the Court held that the Amended Statement of Claim should identify at least one recipient of the defamatory publication beyond themselves. In this connection, the Court stated: “With the exception of the internet ‘chat rooms’ mentioned in the Amended Statement of Claim, I am unsympathetic to the plaintiff’s concern that publication via e-mail is ubiquitous and accessible by multiple people. Sending a publication by e-mail is different that posting it on the internet; in each e-mail there is a list of addresses to whom the message has been sent. I regard email as being similar to regular mail because there is usually both an identified sender and recipient. I have seen no evidence that makes this case an exception.

 


I. COMMONWEALTH DECISIONS OF INTEREST back to top
Click on a case name for full text

2006 05 12 - Amoudi v Brisard & Anor [2006] EWHC 1062 (QB)

2006 03 10 - Bunt v Tilley & Ors [2006] EWHC 407 (QB)

2006 02 15 - Creative Resins International Ltd. v Glass am Europe Ltd. [2006]
EWHC 182 (QB)

2005 07 29 - Armstrong v Times Newspapers Ltd. [2005] EWCA Civ 1007

2005 07 05 - Steinberg v Englefield [2005] EWCA Civ 824

2005 06 15 - Jameel v Times Newspapers Ltd. [2005] EWHC 1219 (QB)

2005 06 14 - McKeith v News Group Newspapers Ltd. [2005] EWHC 1162 (QB)

2005 05 25 - Carroll v Kynaston [2005] EWHC 927 (QB)

2005 05 12 - Campbell-James v Guardian Media Group plc [2005] EWHC 893 (QB)

2005 05 12 - Turner v News Group Newspapers Ltd. [2005] EWHC 892 (QB)

2005 04 29 - Waters v John Fairfax Publications Pty Limited [2005] NSWSC 394

2005 04 08 - Miller v Associated Newspapers Limited [2005] EWHC 557 (QB)

2005 02 03 - Dow Jones & Co Inc. v Jameel [2005] EWCA Civ 75

2005 02 03 - Jameel v Wall Street Journal Europe SPRL (No. 2) [2005] EWCA Civ 74

2004 11 05 - Greene v Associated Newspapers Limited [2004] EWCA Civ 1462

2004 10 29 - Richardson v Schwarzenegger, [2004] EWHC 2422 (QB)

2004 10 19 - King v Lewis & Ors, [2004] EWCA Civ 1329 (CA)

2004 09 17 - Hewitt v ATP Tour Inc [2004] SASC 286

2004 08 17 - University of Newlands v Nationwide Pty News Ltd.
(Wellington, New Zealand)

2004 06 04 - Askew v Morris & Ors [2004] WASC 117

2004 03 22 - Waters v Western Australian Newspapers Ltd. [2004] VSC 124

2004 02 06 - King v Lewis & Ors, [2004] EWHC 168 (QB)

2003 05 22 - Harrods Limited v Dow Jones & Company Inc.,[2003]
EWHC 1162 (QB)

2002 12 10 - Dow Jones & Co. v Gutnick, [2002] H.C.A. 56

2001 12 05 - Loutchansky v Times Newspapers Ltd., [2001] EWCA Civ 1805

2003 07 24 - Cullen v White, [2003] WASC 153

2002 09 26 - Mickelberg v 6PR Southern Cross Radio Pty Ltd & Ors [2002]
WASCA 270

 

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