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DEFAMATION - Defences - Absolute privilege - Fair comment - Publication

Tuesday, February 11, 2020 @ 8:43 AM  

Lexis Advance® Quicklaw®
Appeal by the plaintiff from summary judgment dismissing his defamation actions as statute barred and from the assessment of costs. The appellant was a regular litigator. In May 2016, the respondent newspaper published an article written by its employee R providing a factual account of a court decision prohibiting the appellant from acting for his son in a civil suit on the ground that the appellant was practising law contrary to the Legal Profession Act. The respondent also published an opinion column authored by its employee M concerning court proceedings and the consumption of court time and resources. Both articles were also posted on the newspaper’s website. In 2017, the articles were moved to a different server. The appellant argued he first learned of the articles in October 2017 shortly before he commenced his action. The motions judge found that the limitation period in s. 15 of the Defamation Act barred the claim and awarded costs to the respondent on a partial indemnity basis. The appellant argued that if the comments remained online, the limitation period was renewed each time someone accessed the website and read the comments. He argued that the articles were republished in September 2017. 

HELD: Appeal dismissed. Leave to appeal the costs award was refused. The appellant did not show strong grounds upon which to find that the motions judge erred in exercising her discretion. When the articles were migrated to another server in September 2017, nothing was changed in the articles save for the hyperlink which was removed on that day. On the evidence before the motions judge there was no republication. There was no change in URL and therefore no change in how the reader accessed the articles. The publication dates were May 2016. A different limitation period did not apply to the same words published the same day on the online version of the newspaper. The limitation period began when the appellant knew or ought to have known of the defamatory articles. The motions judge was correct in law when she found that the discoverability principle applied to s. 15 of the Defamation Act. The motions judge had evidence from which one could reasonably conclude that the appellant knew or ought to have known of the articles within the limitation period. While the motion judge erred in not dealing with the appellant’s negligence claim, the negligence claim was simply a dressed-up defamation action. The defamation claim was also not made out. The R article was absolutely privileged as a fair and accurate report published in a newspaper of a proceeding before the courts. There was no evidence that could support a finding that the M article was actuated by express malice. The opinion article was a fair comment on a matter of public opinion, and the comments contained therein were ones that any person could honestly express on the facts.

Ayangma v. Saltwire Network Inc. (c.o.b. The Guardian), [2020] P.E.I.J. No. 1, Prince Edward Island Court of Appeal, D.H. Jenkins C.J.P.E.I., M.M. Murphy and J.K. Mitchell JJ.A., January 3, 2020. Digest No. TLD-February102020005