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DEFAMATION - Practice - Publication - In mass media - Internet - Libel

Monday, August 28, 2017 @ 12:42 PM  

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Appeal by the plaintiff from an order striking out his claim. The appellant was a rapper. He sued the respondents for libel as a result of an article that was written about him and published on the Toronto Star’s website and in the print edition. On December 5, 2013, the day after the article was published on the website, the appellant emailed the writer taking issue with the content of the article. There was no further communication between the parties until 16 months later, in April 2015, when the appellant sent an email to the writer complaining about the online version of the article, alleging libel and threatening legal action. Approximately two weeks later, the appellant issued a statement of claim. On a motion brought by the respondents, the appellant’s claim was struck because the appellant did not comply with the six-week notice period and the three-month limitation period provided for in ss. 5(1) and 6 of the Libel and Slander Act. The motion judge found that the appellant’s message in December 2013 did not meet the standard required of notice because there was no direct or implied assertion that the statements in the online article were libellous or that the appellant contemplated legal action. While the email sent in April 2015 satisfied the notice requirements, it was out of time. The appellant appealed, arguing that the Libel and Slander Act did not apply to online articles. He argued that the applicable limitation period was two years under s. 4 of the Limitations Act, 2002.

HELD: Appeal dismissed. The Libel and Slander Act applied to online newspaper articles. The word “paper” in the definition of “newspaper” was not restricted to physical paper. The time by which a plaintiff was required to give notice under s. 5(1) and bring his action under s. 6 began to run when the libel came to the knowledge of the person defamed. On December 5, 2013, when the appellant wrote to the writer, he was aware of the facts on which his cause of action might be founded. As a result, the limitation period began to run on that date. The appellant’s message on December 5, 2013 did not meet the standard required of notice. There was no direct or implied assertion that the article was libellous. In addition, the limitation period had expired long before the appellant issued his statement of claim, 16 months later. The motion judge properly struck the claim, as it was plain and obvious that it could not succeed.

John v. Ballingall, [2017] O.J. No. 3638, Ontario Court of Appeal, D.H. Doherty, M.L. Benotto and G.T. Trotter JJ.A., July 7, 2017. Digest No. TLD-August282017002