Case Summary and Outcome

In this landmark tort libel decision, the Ontario Court of Appeal (“ONCA”) rejected the American “single publication rule” and set out a new test for Ontario’s lower courts to follow in libel actions involving subsequent publications. Namely,”(1) [t]he earlier libel must have been published within a year before the commencement of the action [;] (2) [p]roper notice must have been given within six weeks after the earlier libel claim came to the plaintiff’s knowledge [;] (3) [t]he claim for the earlier libel must be asserted in the action and therefore within three months after the libel sued on came to the plaintiff’s knowledge.” [1]

[1] Paragraph 71 of the decision, http://www.canlii.org/en/on/onca/doc/2013/2013onca405/2013onca405.html.

Facts

The defendant, a magazine called Toronto Life, published an article in May 2008 entitled “How to Piss Off a Billionaire” in which it described an interaction between several prominent Canadian and international businessmen.

The plaintiffs were a group of businessmen mentioned in the Toronto Life article. When the article was first published, they complained about it but did not file suit. At the time of publication, they claim, they were aware only of a print version of the article. They became aware of an online version of the article in August 2008, and filed suit two months later, alleging that the article was defamatory and negligent.

The defendant filed a motion to dismiss on the basis that the six week statutory period to file suit had passed. However, the statute allows claims to be “recaptured” under certain circumstances, and the plaintiffs filed a cross motion claiming that the circumstances of the case at hand met the statutory requirements because the online version of Toronto Life could be considered a “newspaper” within the meaning of the statute. The lower court held for the defendant on the basis of the “single publication rule” applied by U.S. courts – a rule that holds that a plaintiff has a single cause of action arising from the first publication of a given article containing defamatory material regardless of how many times the article is reprinted and how many articles are sold. The plaintiffs appealed to the Ontario Court of Appeals (“ONCA”).

Decision Overview

As to the issue of whether the online version of Toronto Life could be considered a “newspaper” within the meaning of Ontario’s defamation statute, the ONCA remanded the case back to the trial level calling the Internet classification a “difficult” question, and a genuine issue of triable fact.

As to the issue of whether the U.S. “single publication rule” should be adopted by Ontario’s courts, the ONCA opted to follow the interpretations of defamatory statutes endorsed by British Columbia and English law, which holds that each new publication is a new instance of libel. The American “single publication rule”, by contrast, treats all publications of a single article as a single instance of libel. The significance of this is that the six week statute of limitations, under the American rule, would have been triggered by the first publication of the article in May 2008, and not by any of its subsequent publications online. Under the English/British Columbia rule, the online publications restarted the six week statutory period for the plaintiffs to bring a claim.

Finally, in deciding the issue of whether the plaintiffs could “recapture” their libel claim given the circumstances at hand and given the aforementioned interpretations of Ontario’s defamation statute, the Court set out three “recapture” timing requirements: “(1) [t]he earlier libel must have been published within a year before the commencement of the action [;] (2) [p]roper notice must have been given within six weeks after the earlier libel claim came to the plaintiff’s knowledge [;] (3) [t]he claim for the earlier libel must be asserted in the action and therefore within three months after the libel sued on came to the plaintiff’s knowledge.” [1]

In the case at hand, the Court found that the plaintiffs had not met the third timing requirement to recapture the libel claim, and accordingly, found that the statute of limitations had passed and dismissed the claim.

[1] Paragraph 71 of the decision, http://www.canlii.org/en/on/onca/doc/2013/2013onca405/2013onca405.html.