2012 February 8

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

The Ontario Court of Appeal sustained a lower court ruling striking out a defamation to the extent that the claim was based on allegedly defamatory statements published or broadcast by the news media in Ontario on the ground the plaintiffs/appellants failed to give the libel notice before action required by s. 5(1) of the Libel and Slander Act of Ontario. The Court rejected submissions by the plaintiffs/appellants that their claim relating to the media website was for slander for transmitting the words orally to the media rather than for publication of the words by the media. The amended statement of claim did not plead a claim for slander but rather a claim for libel, because it sought damages flowing from the publications on the media websites. (The Court also held that the requirement of notice before action applies to non-media defendants.)

On the other hand, the Court of Appeal reversed the lower court and held that the plaintiffs/appellants were entitled to pursue their defamation claim over a press release by the defendant Competition Bureau which it posted on its own website. The Court of Appeal held that it was not “plain and obvious” that the words complained of were not capable of bearing a defamatory meaning and the claim therefore should not have been struck out on a pre-trial application under Ontario rule 21.01.