Ontario: the limitation of indefinitely available internet defamation

At issue in Torgerson et al. v. Nijem was the limitation of a claim arising from internet defamation where the impugned words remain available indefinitely.  The plaintiff argued that each day the words remain available gives rise to a new cause of action, a new claim, and a new limitation period.  Justice Schabas rejected this argument: “When a plaintiff becomes aware of a specific posting on a website, time begins to run for the purpose of applying limitation periods. To hold otherwise, and allow plaintiffs to wait indefinitely to sue simply because the libel remains available, would render limitations defences meaningless and have serious implications for freedom of expression.”.  The decision is well-reasoned and persuasive; I have no quibbles. This is the analysis:

[12]           Section 4 of the Limitations Act, 2002 creates a general limitation period of two years from “the day on which the claim was discovered.” Section 5(2) of the Act creates a presumption that the claim is discovered when the act or omission took place, “unless the contrary is proved.”  Here, the defendant’s action in publishing the defamatory statements took place on January 18 and 19, 2016, and the plaintiff became aware of them within days, and no later than the end of January, 2016. The defendant therefore submits that it is plain and obvious that the action cannot succeed as the plaintiff did not commence this action until April 23, 2018, more than two years after the actions of the defendant were known, or “discovered”, by the plaintiff.

[13]           The plaintiff, however, relies on the “multiple publication” rule, that each publication of a defamatory communication is a separate and distinct libel, subject to its own limitation period. In the context of an electronic communication or publication on the internet, the argument goes, every time a person accesses or downloads the information there is a new claim and a new limitation period applies. In my view, the plaintiff’s position misunderstands the “multiple publication” rule and how it has been applied to the internet.

[14]           The “multiple publication” rule dates back to the somewhat infamous case of Duke of Brunswick v. Harmer (1849), 14 Q.B. 185, in which a cause of action arose after the Duke dispatched his manservant to purchase a back issue of a newspaper from the publisher in order to sue for a libel first published 17 years earlier. This, it was held, constituted a republication by the newspaper, allowing the plaintiff to avoid the limitation period.  The “multiple publication” rule established in that case has been subject to criticism, especially in light of the development of the internet.  American courts have rejected it, adopting a “single publication rule” in which limitation periods begin to run from the date of first publication: see, e.g., Firth v. State of New York775 N.E.2d 463 (NY Ct App 2002); Canatella v. Van de Kamp486 F. 3d 1128 (9th Cir. 2007).  And the British have now adopted a somewhat similar approach in s. 8 of the Defamation Act 2013, (U.K.) 2013, c. 26.

[15]           The multiple publication rule continues to find acceptance in Canada: see, e.g.,Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398 (CanLII)Shtaif v. Toronto Life Publishing Co. Ltd., 2014 ONCA 405 (CanLII).  In this case it is not necessary to address the validity of the rule, other than to note that it may be seen as another way of expressing the “repetition rule”, where someone has chosen to repeat or re-publish a defamatory statement, as the law provides that every person who repeats a libel is liable as if he or she is the original speaker: see Downard, Libel (Lexis Nexis, 3rd Ed., 2014) at paras. 5.32–5.44.

[16]           Another form of republication is found in Breeden v. Black2012 SCC 19 (CanLII), on which the plaintiff relies. Statements posted on the internet in the United States were read, downloaded and republished by newspapers in Ontario, creating a cause of action against the American defendants in Ontario, as the tort of defamation occurs when and where the words are read by a third party, and the republication in Ontario was foreseeable as a natural and probable consequence of the posting of the statements on the internet. This does not mean, however, that every time a person reads the defamatory words in those newspapers a new cause of action arises and limitation periods can be avoided.  Applying the discoverability principle, a plaintiff must sue within two years of when he or she becomes aware of the defendant’s action in publishing the defamatory words, whether in print or on the internet.

[17]           The Ontario Court of Appeal considered republication and the multiple publication rule in Shtaif.  There, the plaintiffs had not provided notice of their intention to sue over the print article within six weeks of becoming aware of it, as required by s. 5 of the Libel and Slander Act.  However, they became aware of the internet publication later and did provide notice of it within the required time.  The plaintiffs then sought to include their complaint about the print version in their action against the magazine, relying on s. 6 of the Act which permits adding other claims for libel against the defendant that occurred within the previous year.

[18]           The Court considered and rejected applying the single publication rule, as it would be inconsistent with s. 6 of the Act. The analysis in Shtaif must be seen in the context of that case, which dealt with separate publication in two different mediums – print and online.  As the Court of Appeal observed more recently in John v Ballingall, at para. 35, Shtaif  “does not mean that each day of online publication grounds a new cause of action.”

[19]           In John v. Ballingall the plaintiff had missed the notice and limitation periods for publications by the media under the Libel and Slander Act, and argued that “for every day the defamatory words are published online, a new and distinct cause of action accrues and a new limitation period begins to run.” The Court of Appeal rejected that position, stating, at para. 35:

The appellant seeks to rely on an incorrect interpretation of the “multiple publication rule”. That concept provides that when an alleged libel is republished across different mediums, including the Internet, those republications are treated as distinct libels. In Shtaif, the court rejected the notion that the limitation period for a suit about an online magazine article starts to run when the plaintiff becomes aware of the printed version. This was the basis for the conflicting evidence on discoverability in ShtaifThis decision does not mean that each day of online publication grounds a new cause of action. The court in Vachon v. Canada Revenue Agency2015 ONSC 6096 (CanLII), expressly rejected this interpretation of Shtaif. I concur with Hackland J., who said, at para. 22:

The plaintiff argues that the alleged defamation should be taken as having been republished every day [while it] remained accessible on the internet … Shtaif does not support that proposition … any limitation period based on discoverability will run from the point where the internet defamation is discovered. [emphasis added]

[20]           The plaintiff seeks to distinguish John v. Ballingall on the basis that it only deals with notice periods under the Libel and Slander Act.  While that was the context, the case also engaged the 3 month limitation period under the Libel and Slander Act, and the same reasoning must apply.   The Libel and Slander Act simply creates a shorter limitation period, together with a notice requirement, in recognition of the special position of the media, allowing it the opportunity to publish timely corrections to minimize damage and to prepare defences when facts remain fresh.

[21]           In my view, the Court of Appeal in John v. Ballingall clearly rejected the proposition that just because defamatory words remain online and are available to be downloaded and read indefinitely, there is continuous publication allowing limitation periods to be ignored. As the Court noted, the multiple publication rule applies when something is “republished across different mediums”.  Such republications require specific acts by the publisher, or republisher, to further disseminate, or repeat, the libel, as was the case in Shtaif.

[22]           Furthermore, to give effect to the amendment in the Statement of Claim would create the potential for endless retriggering of limitation periods simply because the words remain on the internet. This would allow plaintiffs to sit on their rights until it suited them to take action, rather than sue when they become aware of the wrong. This would be unfair to defendants who would be subject to lawsuits indefinitely, and raises concerns about freedom of expression.


Ontario: the running of the notice period for libel

Section 5(1) of the Libel and Slander Act provides the notice requirement for an action in libel in a newspaper:

No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant.

In John v. Ballingall, the Court reiterated that the day on which a plaintiff must give notice under s. 5(1) and bring an action under s. 6 begins to run when the libel comes to the knowledge of the person defamed.


Ontario: Notice under the Libel and Slander Act

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.