In J.K. v. The Korea Times & Hankookilbo Ltd. (The Korea Times Daily), the Court of Appeal held that a plaintiff will satisfy the notice provision in section 5(1) the Libel and Slander Act by giving notice which conveys the essence of the matter complained of so that the defendant can take appropriate steps to mitigate damages.
The decision contains a thorough summary of the section 5(1) jurisprudence:
[19] A review of the authorities considering s. 5(1) of the Libel and Slander Act reveals the following principles:
i. There is no prescribed form of notice. The notice must identify the “matter” complained of and need not describe the “statement” complained of or specify the exact words: Grossman, at pp. 501-502.
ii. Notices need not contain the same level of particularity as a statement of claim:Canadian Union of Postal Workers v. Quebecor Media Inc., 2016 ONCA 206(CanLII), at para. 5; World Sikh Organization of Canada v. CBC/Radio Canada,2007 CarswellOnt 7649 (S.C.), at para.12.
iii. The adequacy of the notice must be assessed in the light of its purpose: Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405 (CanLII),366 D.L.R. (4th) 82, at para. 57.
iv. The purpose of the notice is to call the publisher’s attention to the alleged libellous matter, so that the publisher may investigate and, if it deems it appropriate, publish a retraction, correction, or apology. This will permit the publisher to reduce or eliminate any damages: Grossman, at p. 501; see alsoJanssen-Ortho Inc. v. Amgen Canada Inc.(2005), 2005 CanLII 19660 (ON CA),256 D.L.R. (4th) 407 (Ont. C.A.), at para. 38; Siddiqui v. Canadian Broadcasting Corp. (2000), 2000 CanLII 16920 (ON CA), 50 O.R. (3d) 607 (C.A.), at para. 16, leave to appeal refused (2001), 271 N.R. 196 (note) (S.C.C.); and Canadian Union of Postal Workers, at para. 6.
v. The appropriate test for the sufficiency of the notice is whether the notice fairly brings home to the publisher the matter complained of to permit the publisher to review the matter and decide how to respond: Grossman, at pp. 504-505; see also Siddiqui, at para. 18; Canadian Union of Postal Workers, at para. 6;Gutowski v. Clayton, 2014 ONCA 921 (CanLII), 124 O.R. (3d) 185, at para. 36; and Shtaif at para. 58.
vi. Courts can assess the adequacy of the notice in the light of all of the surrounding circumstances: Grossman, at p. 505; see e.g. Pringle v. Channel 11 Limited Partnership, 2015 ONSC 2699, at paras. 20-22; Boyer v. Toronto Life Publishing Co. (2000), 2000 CanLII 22369 (ON SC), 48 O.R. (3d) 383 (S.C.), at paras. 17-19.
vii. A plaintiff may also benefit from the notice, because a timely correction, retraction, or apology may constitute a better remedy than damages:Grossman, at p. 501.
viii. There is a preference in the case law to have matters determined on the merits, rather than terminating them on technical grounds: see Grossman, at p. 505;Telegram Printing Co. v. Knott, [1917] 55 S.C.R. 631, 3 W.W.R. 335, at p. 342;Sentinel-Review Company Limited v. John R. Robinson, 1928 CanLII 9 (SCC),[1928] S.C.R. 258, at pp. 262-63; Pringle, at paras. 33-34; Boyer, at para. 19.
[20] In summary, in considering the adequacy of a notice, the court must have regard to the purpose ofs. 5(1) and the circumstances of the particular case to determine whether it fairly alerts the publisher to the matter complained of, so that the publisher may take appropriate action.
[21] In conducting this analysis, the court must be careful to ensure that the notice provision is not abused to shield publishers from legitimate defamation claims. Subsection 5(1) of the Libel and Slander Act was not enacted to reward publishers who are deliberately obtuse. Rather, it is designed to ensure that publishers have sufficient information to permit them to take appropriate steps to mitigate or to eliminate potential damages, if they choose to do so.
In the defendant’s Statement of Defence, it described the notice provision as a limitation period. This provides a teachable moment: notice periods are not limitation periods. Because notice periods and limitation periods have similar practical consequences, people tend to conflate them, and indeed in the Law of Limitations we treat notice provisions as if they are a subset of the law of limitations.
Justice Wilcox recently emphasised this point in Bourassa v Temiskaming Shores (City). The plaintiff ventured a technical and rather dubious argument (of the kind that limitations issues seem to encourage): the notice provision in section 44(10) of the Municipal Act is of no force and effect because it is a limitation period, but not one listed in the schedule to s. 19 of the Limitations Act, which preserves certain former limitation periods in other acts. Justice Wilcox followed appellate jurisprudence standing for the principle that notice periods are not limitation periods (see for example Bannon v. Thunder Bay (City) at para. 22), noted that none of the limitation periods listed in the section 19 schedule include notice periods, and concluded quite rightly that the plaintiff’s argument was baseless.