Ontario has specific notice requirements and limitation periods that apply to defamation lawsuits, which differ from those in other Canadian provinces and territories. This blog post will discuss these requirements and periods, as well as the purpose of these rules and how they apply in various scenarios.
Notice Requirements in Ontario
In Ontario, special notice requirements apply to defamation cases involving libel in a newspaper printed and published in the province or a broadcast from a station within Ontario. Plaintiffs must provide written notice to the defendant within six weeks after becoming aware of the alleged libel. This notice should specify the matter complained of and must be served in the same manner as a statement of claim, or delivered to an adult at the chief office of the defendant. Failure to meet this requirement may result in the plaintiff losing the right to sue for libel.
Purpose of the Notice Requirement
The notice requirement aims to facilitate early resolution of defamation disputes by providing the publisher an opportunity to review the matter and decide whether to issue a correction or apology. By receiving notice, the publisher can potentially avoid legal action by addressing the issue quickly. The notice also benefits the claimant by offering a chance to obtain a remedy, such as an apology, that might be more effective than monetary damages alone.
Specificity of the Notice
In Ontario, the notice must specify the “matter” complained of, which should fairly inform the publisher of the issue so they can review it and decide how to respond. The notice does not need to be in a specific form, nor does it need to reproduce the defamatory statement word-for-word. The plaintiff does not need to provide every particular defamatory meaning or suggest a possible resolution in the notice.
The notice requirement incorporates the notion of “discoverability,” which means that the notice period begins when the plaintiff becomes aware of the alleged libel or reasonably could have known of it. This principle can apply in cases where the plaintiff did not discover the defamatory statement at the time of publication, or when the defamatory meaning of an article only becomes apparent when read in conjunction with a later article.
Service of Notice
In Ontario, the notice must be served in the same manner as a statement of claim or delivered to an adult at the chief office of the defendant. This includes personal service, substituted or validated service, as specifically provided for in the provincial rules of practice. A lawyer may also accept service of the notice on behalf of the defendant. However, serving a statement of claim within the notice period does not cure a defective notice.
Notice Requirements for Non-Media Defendants
In Ontario, the notice requirement applies to all defendants, whether media organizations or not. Non-media defendants, such as those who provide defamatory quotes to the media or issue defamatory media releases, are also required to receive notice. Although non-media defendants may not have direct control over whether an apology is published, they can still make efforts to cause retractions, apologies, or purchase paid advertising for an apology.
Notice to Vicariously Liable Parties
If a defamation action involves both an individual and an entity vicariously liable for the individual’s conduct, notice must be provided to both parties. In Ontario, an alternative to this requirement exists where the notice can be delivered to an adult at the chief office of the individual defendant.
Pleading the Notice in a Statement of Claim
A plaintiff is not required to plead that notice has been given in their statement of claim. If a defendant intends to rely on the lack of notice as a defense, they must plead it in their response. If a defendant unduly delays in bringing a motion to dismiss a claim for lack of notice, the court may dismiss the motion, but the issue of notice may still be subject to adjudication by the trial judge.
The Single Publication Rule
The concept of a “single publication rule” has been considered in the case of Bahlieda v. Santa, where the Ontario Superior Court of Justice interpreted the Ontario Libel and Slander Act on a summary judgment motion to effectively adopt this rule for archived Internet material. The court held that since notice and limitation periods under the Ontario statute run from the time the “libel” has “come to the knowledge” of the plaintiff, those periods run only once, from the time the plaintiff first has knowledge of the allegedly defamatory material. However, the Court of Appeal held that the issue should not have been disposed of by summary judgment and directed that the case proceed to trial. The Ontario Court of Appeal has since declined to adopt a single publication rule.
When it comes to suing for republication where publication is barred, if a plaintiff is entitled to sue for a republication of defamatory material where earlier publications are barred by a notice or limitation period, the court may only award damages caused by the republication, and not those flowing from the publication upon which the plaintiff is not entitled to sue.
Information About the Publisher
Libel statutes across Canada commonly provide conditions precedent to claiming the benefit of notice requirements. These conditions are in place to ensure that potential plaintiffs have the information they need to comply with the notice requirement that may otherwise restrict their access to the courts. In Ontario, the names of the proprietor and publisher, and the address of publication of the newspaper, must be stated either at the head of the editorials or on the front page of the newspaper.
Notice Requirements for Broadcast Defamation
With regard to broadcast defamation, the Ontario Court of Appeal has held that the Internet version of a publication otherwise constituting a “newspaper” under the Ontario Libel and Slander Act is subject to that statute’s notice requirement, since the purpose of the requirement is to benefit persons “sued in respect of a libel in a newspaper irrespective of the method or technique of publication.” Following this reasoning, that court has also held that a radio broadcast remains a “broadcast” for the purpose of the Libel and Slander Act when it is transmitted over the Internet. The Ontario Superior Court of Justice has held that the Internet version of a television news broadcast is also “broadcast” within the meaning of the statute.
Is Information on the Internet Considered a Broadcast?
Regarding websites generally, the Ontario Superior Court of Justice held in Bahlieda v. Santa that a “broadcast” as defined in the Ontario Libel and Slander Act includes information posted on an Internet website. Court of Appeal held that the issue was not appropriately determined on a motion for summary judgment and directed that the matter proceed to determination at a trial. The Court of Appeal has recently restated this view. It has been doubted whether e-mail communications and postings on Internet websites are “broadcasts” within the meaning of the Ontario legislation.
In conclusion, understanding the notice requirements and limitation periods in Ontario defamation law is crucial for both plaintiffs and defendants. This ensures that defamation claims are handled properly and in accordance with the statutes governing the province. It is important to consult with a legal professional when dealing with potential defamation cases to ensure compliance with these requirements and to maximize the chances of a successful resolution.