Cases published to February 2, 2012
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:
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:
This page lists certain Commonwealth decisions which discuss Internet defamation and which may therefore be of interest to Canadian tribunals.
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.
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.
2011 November 15
Elfarnawani v. International Olympic Committee
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
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 Breeden2010 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 December 3
Béton St-Hubert Inc. c Entreprises Kijiji Canada Inc.
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 October 23
Blais c. Couture
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
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.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.
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
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
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
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 Holloway2007 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
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, (2004)
235 D.L.R. (4th) 564 (SCJ)
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
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
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.
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
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
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
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
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.
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.
2012 January 19
Alberta Adolescent Recovery Centre v Canadian Broadcasting Corp.
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.
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.
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. 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
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.
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.
2012 January 18
Matandi v Société Radio-Canada
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
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
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.
2011 December 7
Ward v Labelle
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
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 June 3
Wright (c.o.b. Wright Design Concepts) v Van Gaalen
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
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
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
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
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.
2001 January 5
Kindinformatique.com c Tardif
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
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
.
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
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
The British Columbia Supreme Court awarded the defendant business woman Neufeld (plaintiff by counterclaim), a successful business woman, 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
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 Tilley2009 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
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 Buckle2009 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 5572009 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
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
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
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 Smith2009 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 Weatherall2008 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
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
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
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
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.
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
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
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
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
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
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
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
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
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.
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
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.
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
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
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
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
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
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 Langen2009 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
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)
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
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
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,
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
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
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,
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 19472009 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
2008 ONCA 842March 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
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,
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
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.
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 January 11
WeGo Kayaking Ltd. v Sewid
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
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
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
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
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
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
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
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.
.
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
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
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
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
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
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
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.
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.
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,
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
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
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.
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
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.
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 [2000] B.C.J. No. 314 (CA) [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.
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.
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.
2011 August 30
Baglow v Smith
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)
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
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
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.”
2010 December 7
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
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
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 June 9
Shavluk v. Green Party of Canada
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
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 QuanGrant v Torstar Corp.
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:
- The publication is on a matter of public interest (a question for the judge, being a mixed question of fact and law)
- The publisher was diligent in trying to verify the allegation (question of fact for the jury), having regard to:
- The seriousness of the allegation;
- The public importance of the matter;
- The urgency of the matter;
- The status and reliability of the source;
- Whether the plaintiff’s side of the story was sought and accurately reported;
- Whether the inclusion of the defamatory statement was justifiable;
- Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”);
- 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:
- 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.
- 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.
- 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.
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)
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
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.
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.
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
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
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
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.
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
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
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
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.
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
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)
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
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
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)
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
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
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
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)
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
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
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.
2011 December 21
Saputo inc. v Petkov
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 November 7
Pierce v Canjex Publishing Ltd.
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 October 27
Baglow v Smith
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
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
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
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
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 August 3
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
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 June 27
Martinek v Dojc
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
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
Warman v Wilkins-Fournier[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 ...”
2011 May 2
Froehlich v Darling
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.
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
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
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.
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.”
2011 January 5
Hutchens v Scam.com
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 November 24
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 October 4
Vladi v Krolow
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
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 September 14
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 August 23
Billingsley v Communication, Energy and Paperworkers, Union Local No. 481,
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
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
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 29
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 June 25
A.B. (Litigation guardian of) v. Bragg Communications Inc.
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
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 28
Canadian National Railway Co. v. Google Inc.
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 May 21
Trace Foundation v. Centre For Research On Globalization (CRG)
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 May 3
Warman v. Wilkins-Fournier
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.
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.
2010 March 31
Pichler v Meadows
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.”
2010 March 29
Bie v Canada (Attorney General)
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
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
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
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 September 9
York University v Bell Canada Enterprises
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 July 9
Rawdon (Municipalité de) c. Leblanc (Solo)
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.”
2009 March 23
Warman v Wilkins-Fournier
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).
2009 February 2
Desroches c. Klein
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 December 8
Mcleod (c.o.b. Maslak Mcleod Gallery) v Sinclair
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
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 August 22
Harrington v Sullivan
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
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
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 29
Beidas v Pichler
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.
2008 May 1
Manson v Moffett
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 Yahoo2007 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
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)
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
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 September 25
Beidas v Pichler
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.
2007 May 23
Crozier v Cherniak
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 17
A.T. v L.T.H.
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 November 7
Szewczyk v Real Estate Council of Ontario
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
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
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.
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
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
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.
2006 March 6
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 November 18
Mallard v Shirley
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.
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.”
2005 September 27
Cooper v Hennan
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.
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.
1999 November 30
Henry v Stockhouse Media Corp.
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.”
1998 June 00
Philip Services Corp. v John Doe aka Addicted2PHV
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.
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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