Cyber Libel Updates

Canadian Internet Defamation Rulings

Limitations Defences

Cases published to February 13, 2019
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.

Click on a Case Name for full text (links off site).

2019 February 13
Islam v Maritime Muslim Academy, 2019 NSSC 53

The Nova Scotia Supreme Court held that an action in defamation over two articles published in June 2012 on the CTV website does not constitute a “personal injury claim” within the meaning of the Limitation of Actions Act, SNS 2014, c. 35.  Accordingly, the Court did not have discretion to disallow a limitation defence under s. 12(3) of the new Nova Scotia Limitations of Actions Act on the grounds it creates a hardship to the claimant.    “The plain, ordinary and unequivocal meaning  of the phrase “personal injuries” as understood in Canadian law is physical, mental or psychological injury or harm to the body or mind of the individual.  The phrase does not encompass injury to one’s reputation in the community which is intrinsic in defamation actions.”

The Court nevertheless dismissed the defence application for summary judgment against the adult plaintiff.  The plaintiff alleged that the defendants were “estopped” from relying on the limitation defence because of representations made by the defendants which were relied upon by the plaintiffs in delaying their commencement of the lawsuit.  The evidence before the Court did not provide the necessary fulsome foundation for a determination of that issue.   The Court suggested, however, that “counsel consider the practicality of engaging in a further interlocutory proceeding to have the issue of estoppel and waiver of the limitation period determined as a preliminary question of law, or mixed law and fact, on a fulsome evidentiary foundation.”

2018 December 13
Ayangma v Saltwire Network Inc. (c.o.b. The Guardian), 2018 PESC 48

The Prince Edward Island Supreme Court granted summary judgment dismissing this defamation action over two newspaper articles published in print and on-line as statute-barred by the limitation period in the Defamation Act, R.S.P.E.I. 1988, Cap. D-5.   The plaintiff did not serve notice of his claim or commence his claim until after the expiry of the three-month limitation for service of the notice of intended action (s. 14) and the six month limitation period for commencement of the action (s. 15).  The Court rejected the plaintiff’s submissions that sections 14 and 15 do not apply to online newspaper articles, choosing to follow Weiss v Sawyer, 2002 CanLII 45064 (Ontario Court of Appeal) and John v Gallingall, 2016 ONSC 2245 and 2017 ONCA 579.  The Court held that to “restrict the definition of newspaper to the print version only would allow what is now often unrestrained, provocative, rude and politically incorrect commentary to run rampant simply because the comments were not made on newsprint.”   The Court also rejected submissions that each day of online publication grounds a new cause of action, following John v Gallingall, 2017 ONCA 579.  The Court found that “the onus was on the plaintiff to exercise reasonable diligence.   The evidence before the court suggests that [the plaintiff] was in a position to know about the articles.   A reasonable person would have found the articles exercising reasonable diligence.”

2017 July 7
John v Ballingall, 2017 ONCA 579

The Ontario Court of Appeal held that the six-week notice period and the three-month limitation period prescribed by ss. 5(1) and 6 of the Libel and Slander Act applied to an article that was written about the plaintiff and published on the Toronto Star website and in the print edition.  Applying the Court of Appeal’s prior decision in Weiss v Sawyer, (2002) 61 O.R. (3d) 526, the Court of Appeal unanimously held that the definition of “newspaper” is not restricted to a physical paper.  The Court also rejected the submission of the appellant/plaintiff that the notice and limitation periods do not start to run until the article is no longer on the Internet. “The appellant seeks to rely on an incorrect interpretation of the ‘multiple publication rule’. That concept provides that when an alleged libel is republished across different mediums, including the internet, those publications are treated as distinct libels.  In Shtaif, the court rejected the notion that the limitation period for a suit about an online magazine article starts to run when the plaintiff becomes aware of the printed version.  …This decision does not mean that each day of online publication grounds a new cause of action.”  The Court went on to agree  that any limitation period based on discoverability will run from the point where the internet defamation is discovered.

2017 June 14
Automattic, Inc. v Trout Point Lodge, 2017 NSCA 52

The Nova Scotia Court of Appeal, allowing in part an appeal from a lower court, held that a motions judge must determine the applicable limitation period before adding a person as a party to the proceeding, which involved, inter alia, claims of defamation in respect of which the defendant alleged that California law will apply.  The Court of Appeal expressly declined to decide whether the law of California did apply, and if so, whether the limitation period had expired.  The plaintiff was permitted to resubmit the motion to the lower court to add the proposed party.

 

2016 August 12
Bresnark v Thomson Reuters Canada Ltd., 2016 ONSC 5105

The Ontario Superior Court of Justice dismissed this libel lawsuit on a summary basis in part because of the two-year limitation period under s. 4 of the Ontario Limitations Act, 2002, SO 2002, c. 24, Sch. B. There was overwhelming evidence that the plaintiff was aware of the impugned article in August 2012 when it was published on the “Law Times” website and that the plaintiff had vociferously complained about the article to the editor in a voice mail message on August 15, 2012. The action was not brought until December 2015, well outside the two-year period prescribed by statute.

2015 July 29
Lavoie c Vailles, 2015 QCCS 3534

The Superior Court of Quebec dismissed the plaintiff’s defamation claim against Google which sought an injunction requiring the defendant to remove certain newspaper articles from its search engine. The Civil Code of Quebec required that an action based on injury to reputation be brought within one year. The articles were published in November 2012 but Google was not named as a defendant until March 2015.

2013 December 3
Free v McPherson, 2013 ONSC 7416

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

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

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

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

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

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

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

2005 August 3
Carter v B.C. Federation of Foster Parents Association, 2005 BCCA 398, reversing in part 2004 BCSC 137

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

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

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