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Shtaif v. Toronto Life Publishing Co. Ltd.

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    June 17, 2013
  • Outcome
    Dismissed
  • Case Number
    2013 ONCA 405
  • Region & Country
    Canada, North America
  • Judicial Body
    Appellate Court
  • Type of Law
    Civil Law
  • Themes
    Defamation / Reputation
  • Tags
    Civil Defamation, Internet, Libel

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Case Analysis

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.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

Through its rejection of the U.S.’s “single publication rule”, the Ontario Court of Appeal expanded situations in which plaintiffs can sue a publication for publishing defamatory material, namely, by ensuring that each incidence of publication would be considered an incidence of libel. This could be read as an expansion on the individual right to privacy and right to protect one’s reputation, but it also expands the instances in which a publication is exposed to costly tort claims, which may place a chilling effect on the willingness of a given publication to publish potentially controversial (potentially defamatory) material.

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

National standards, law or jurisprudence

  • Can., Ont., Libel and Slander Act, R.S.O. 1990
  • Can., Ont., Weiss v. Sawyer, 2002 CanLII 45064 (ON CA)
  • Can., Ont., Bahlieda v. Santa, 2003 CanLII 2883 (ON CA)
  • Can., Barrick Gold Corp. v. Lopehandia, [2004] 71 O.R. 3d 416
  • Can., Ont., Misir v. Toronto Star Newspaper Ltd., 1997 CanLII 717 (ON CA)
  • Can., N.S., Ross v. Ross, 1999 NSCA 162 (CanLII)
  • Can., Ont., Ontario Ltd. v. Ontario Energy Savings L.P., 2008 ONCA 350 (CanLII)

Other national standards, law or jurisprudence

  • U.S., Churchill v. State, 876 A.2d 311 (App. Div. 2005)
  • U.K., Berezovsky v. Michaels, [2001] W.L.R. 104
  • Austl., Dow Jones & Co. Inc. v. Gutnick, [2002] HCA 56
  • Can., Carter v. B.C. Fed'n of Foster Parents Ass'n, [2005] B.C.A. 398

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Canada is a common law country. Ontario’s lower courts will be bound to reject the “single publication rule” as the ONCA did here, and the decision establishes influential (not binding) precedent on the courts of Canada’s other provinces.


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