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SCC File No.

:
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
BETWEEN:
DARREN JOHN
APPLICANT
(Appellant)
-and-
ALEX BALLINGALL, TORONTO STAR NEWSPAPERS LTD. AND TORSTAR
CORPORATION
RESPONDENTS
(Respondents)
APPLICATION FOR LEAVE TO APPEAL
(DARREN JOHN, APPLICANT)
(Pursuant to Section 40 of the Supreme Court Act, R.S.C. 1985, c.S-26)
ZEMEL VAN KAMPEN LLP SUPREME ADVOCACY LLP
401 Bay St., Suite 1600 340 Gilmour St., Suite 100
Toronto, ON, M5H 2Y4 Ottawa, ON, K2P 0R3
Maanit Zemel Marie-France Major
Tel: 416-937-9321 Thomas Slade
Fax: 647-795-2645 Tel.: 613-695-8855
Email: maanit@canadatechlaw.com Fax: 613-695-8580
Email: mfmajor@supremeadvocacy.ca
OMAR HA-REDEYE PROFESSIONAL
tslade@supremeadvocacy.ca
CORPORATION
526 Richmond St. East Ottawa Agent for Counsel for the Applicant,
Toronto, ON, M5A 1R3 Darren John
Omar Ha-Redeye
Tel: 416-546-7412
Fax: 416-546-7412
Email: omar@fleetstreetlaw.com
LOMIC LAW
1 First Canadian Place
100 King Street West, Suite 5700
Toronto, ON, M5X 1C7
Paul V. Lomic
Sabrina A. Salituro
Tel: 647-464-6710
Fax: 416-352-5154
E-mail: paul@lomic-law.ca
sabrina@lomic-law.ca
Co-Counsel for the Applicant, Darren John
BLAKES CASSELS & GRAYDON LLP
199 Bay Street,
Suite 4000, Commerce Court West
Toronto, ON, M5L 1A9

Iris Fischer
Kelly Pulfer
Tel: 416-863-2408
Fax: 416-863-2653
Email: iris.fischer@blakes.com

Counsel for the Respondents, Alex


Ballingall, Toronto Star Newspapers Ltd.
and Torstar Corporation
TABLE OF CONTENTS

TAB PAGE
1. Notice of Application for Leave to Appeal ...............................................................1
2. Judgments and Reasons Below ..................................................................................4
a. Endorsement Superior Court of Justice, dated April 1, 2016 ............................4
b. Order of the Superior Court of Justice, dated April 1, 2016 ............................15
c. Reasons for Judgment Court of Appeal for Ontario, dated July 7, 2017 .........18
d. Order of the Court of Appeal for Ontario, dated July 7, 2017 .........................33
3. Memorandum of Argument .....................................................................................36
PART I OVERVIEW AND STATEMENT OF FACTS .........................................36
A. Overview ..........................................................................................................36
B. Statement of Facts ............................................................................................37
PART II QUESTIONS IN ISSUE ...........................................................................38
PART III STATEMENT OF ARGUMENT ...........................................................38
Issue #1: The Interpretation of the Libel and Slander Act...............................38
Overview of the Relevant Sections of the LSA .....................................38
The Origin and Purpose of the LSA .....................................................39
The Court of Appeal Failed to Apply Clear Legislative Intent ............42
Incorrect Application of Statutory Interpretation Principles ..............43
The Definition of Newspaper under the Act ....................................44
The Court of Appeal Refused to Consider the Definition of
Broadcast.........................................................................................45
Section 8(1) of the LSA ........................................................................45
The Internet has No Geographical Boundaries ...................................46
The Unique Characteristics of Online Defamation .............................46
Issue#2: Inconsistent Decisions of the Courts .............................................49
Inconsistent Supreme Court of Canada Decisions ..............................49
Inconsistent Ontario Court of Appeal Decisions .................................51
The Multiple Publication Rule .............................................................52
Other Inconsistent Appellate Court Decisions ....................................54
Conclusion ......................................................................................................54
PART IV COST SUBMISSIONS ...........................................................................55
PART V ORDER SOUGHT ....................................................................................55
PART VI TABLE OF AUTHORITIES ...................................................................56
PART VII STATUTES, REGULATIONS AND RULES ......................................58
36

PART I OVERVIEW AND STATEMENT OF FACTS


A. Overview
1. The issue in the appeal is whether the strict notice and limitation period provisions of the
Ontario Libel and Slander Act 1 (the LSA), which apply to newspapers printed on paper, also
apply to publications on the Internet, a fundamentally different medium. The Honourable Court
of Appeal for Ontario (OCA) held that an online version of an article is for the purposes of
the LSA a newspaper. The decision fails to recognize that defamation on the Internet, unlike in
newspapers, persists and repeats, often indefinitely. The approach of the OCA deprives plaintiffs
in online defamation cases the protection of Canadian defamation law that recognizes the
inherent differences between newspapers printed on paper and publications on the Internet.

2. The OCA read in the word Internet into the definition of newspaper in the LSA. A
provincial statute enacted at the time of, and intended only for, the printing press cannot
reasonably be interpreted as intending to govern publications on the Internet. Treating the LSA as
flexible enough as to extend to the Internet creates numerous problems for the Canadian law of
online defamation, an important emerging area of law.

3. The implications of the OCAs decision is the imposition of strict, burdensome and unfair
notice and limitation periods (6 weeks and 3 months respectively) in online defamation cases,
and a potentially intrusive right of third party production requests against newspapers for
anonymous members of the public. This is an issue that affects all parties in online defamation
cases, regardless of whether they reside in Ontario, elsewhere in Canada, or abroad.

4. This case raises issues of national or public importance regarding the application of
legislation governing newspapers to online publications. The decision of the OCA has broad and
seriously harmful implications for the law of online defamation and privacy. As publications on
the Internet are global by their very nature, the decision sets an important precedent across
Canada.

5. Leave to appeal should therefore be granted.

1
Libel and Slander Act, R.S.O. 1990, C. L. 12
37

B. Statement of Facts

6. The underlying action was for an allegedly defamatory statement in an article published
by the Toronto Star (the Star) on its website. Although a similar article was published in a print
edition, the specific objectionable words were published only online.

7. The appeal to the OCA was from The Stars preliminary motion to dismiss the action
because it was allegedly statute-barred by the notice and limitation provisions of the LSA. The
issue before the motion judge was whether those provisions apply to online publications. At the
motion, the Appellant was self-represented.

8. The Honourable motion judge held that the notice and limitation provisions applied to
online defamation and summarily dismissed the Appellants action. The OCA upheld the motion
judge, stating:

[23] I agree with the analysis in Weiss that the word paper in the definition of
newspaper is not restricted to physical paper. To hold otherwise would be to
ignore principles of statutory interpretation, which are flexible enough to achieve
the intent of the legislature in the context of evolving realities. 2

9. Although the OCA attempted to limit its decision only to the specific facts of this case,3
these statements are merely conjecture about its impacts. The issue on appeal was not a narrow
factual one, but rather a broad issue of statutory interpretation: is an online publication a
newspaper for notice and limitation period purposes? Indeed, the Respondents have already
used the motion judges decision in other cases to successfully bar those proceedings. 4 In
addition, at least one case cites the motion judges decision as a basis for potentially extending
the application of the LSA to defamation posted on various social media forums, including
Facebook and blog sites. 5

2
John v. Ballingall, 2017 ONCA 579 at para. 23 [Tab 2B]
3
Ibid. at para. 20
4
Graff v. Mallick, 2016 unreported, (Ont. S.C.J., Small Claims Ct.)
5
Rizvee v. Newman, 2017 ONSC 4024 (S.C.J.), at paras. 85-88
38

PART II QUESTIONS IN ISSUE


10. This case raises the following issues of national or public importance:

Issue #1: Should the notice and limitation period restrictions in a provincial
statute, intended to regulate the printed press in the 19th century, be
interpreted as applying to publications on the Internet?

Issue #2: Can the OCAs decision be reconciled with inconsistent jurisprudence
in Ontario and across Canada?

PART III STATEMENT OF ARGUMENT

Issue #1: The Interpretation of the Libel and Slander Act

Overview of the Relevant Sections of the LSA

11. Subsection 5(1) of the LSA requires notice of any action for libel in a newspaper or in a
broadcast to be delivered within 6 weeks, as follows:

5. (1) 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 plaintiffs 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. 6

12. Section 6 of the LSA establishes a strict and relatively short limitation period of 3 months
for bringing an action for libel in a newspaper or broadcast, as follows:

6. An action for a libel in a newspaper or in a broadcast shall be commenced


within three months after the libel has come to the knowledge of the person
defamed, but, where such an action is brought within that period, the action may
include a claim for any other libel against the plaintiff by the defendant in the
same newspaper or the same broadcasting station within a period of one year
before the commencement of the action. 7

13. Section 1(1) of the LSA defines broadcasting and newspaper as follows:

1. (1) broadcasting means the dissemination of writing, signs, signals,


pictures and sounds of all kinds, intended to be received by the public either
directly or through the medium of relay stations, by means of,

6
Libel and Slander Act, R.S.O. 1990, c. L. 12, subsection 5(1)
7
Ibid., subsection 6
39

a. any form of wireless radioelectric communication utilizing Hertzian


waves, including radiotelegraph and radiotelephone, or
b. cables, wires, fibre-optic linkages or laser beams,
and broadcast has a corresponding meaning; (radiodiffusion ou tldiffusion,
radiodiffuser ou tldiffuser)
newspaper means a paper containing public news, intelligence, or
occurrences, or remarks or observations thereon, or containing only, or
principally, advertisements, printed for distribution to the public and published
periodically, or in parts or numbers, at least twelve times a year. 8 [emphasis
added.]

14. Section 7 of the LSA geographically limits the application of the LSA to Ontario:

Subsection 5(1) and section 6 apply only to newspapers printed and published in
Ontario and to broadcasts from a station in Ontario. 9

The Origin and Purpose of the LSA

15. The LSA emerged out of the regulatory context in England, with the Newspaper Libel and
Registration Act 1881. 10 This U.K. statute, and its subsequent amendments, required mandatory
registration for all newspapers due to the anonymous nature of print publications at that time and,
as a compromise, provided them with a notice requirement for any defamation action against
them. 11 The newspaper was required to provide their name and contact information in the
publication for the purpose of this notice. 12

16. The primary purpose of these provisions was, and still is, to mitigate the damage to the
plaintiffs reputation through timely correction or apology. Specifically, the nature of circulation
of newspapers in print form means that past newspapers are discarded, and therefore the damage
to the plaintiffs reputation could be reduced through a timely intervention by the publisher. The
requirement to print the identity of the printer and publisher was not only to offer the information

8
Ibid., subsection 1(1)
9
Ibid., section 7
10
Newspaper Libel and Registration Act 1881, 1881 Chapter 60 44 and 45 Vict
11
Ibid.
12
Tom O'Malley & Clive Soley, Regulating the Press, (London, Pluto Press, 2000) at pp. 46-48.
40

as to who the notice should be provided, but to prevent anonymous defamation by print
publications. 13

17. The Legislative Assembly of Ontario adopted much of the same wording as the English
legislation, maintaining the compromise between mandatory registration and publication of
contact information, in exchange for a notice requirement and a short limitation period.

18. The notice provisions under the LSA were thus originally intended to provide a plaintiff
with the ability to compel the identification of a defamatory anonymous party from the print
publisher, a third-party. 14 If the LSA applies to online publications, in cases involving
anonymous defamatory comments posted on online newspapers, all the plaintiff would need to
do is serve the online publisher with an LSA notice to compel disclosure of the commentators
identity. This is contrary to the established practice of applying to the courts for a Norwich
Order, an intrusive and extraordinary remedy that must be exercised with caution. 15 Norwich
Orders provide judicial oversight over the disclosure and include built-in safeguards that are
intended to protect the privacy of the anonymous posters. The application of the LSA to online
publications therefore raises serious issues for the law of online privacy, a matter of national or
public importance.

19. The relevant sections of the LSA find their origin in the 19th century and have been
amended several times to reflect, inter alia, technological advances in the media:

Section 5(1) of the Act, which establishes the requirement to give a libel notice, was
first enacted in 1887. 16
Section 6 of the Act, which imposes a 3 months limitation period, was first enacted in
1894. 17
The definition of newspaper was first enacted in 1894. 18

13
George Elliot, The Newspaper Libel and Registration Act, 1881: With a Statement of the Law,
(London: Stevens and Haynes, 1884) at pp. 89-91
14
Jaani Riordan, The Liability of Internet Intermediaries (Oxford, Oxford University Press,
2016) at pp. 70-71
15
GEA Group AG v. Ventra Group Co., 2009 ONCA 619 at para. 85, per Cronk J.A.
16
An Act Respecting the Law of Libel, (1887) 50 Vic. c. 9, ss. 1(2)
17
An Act Respecting the Law of Libel, (1894) 57 Vic. c. 27, s. 4
18
Ibid. at s. 2 newspaper
41

Section 7, which limits the application of the Act to newspapers printed and
published in Ontario was first enacted in 1909.
In 1958, the definition of broadcast was added to the Act. 19
The definitions of newspaper and broadcasting were last amended in 1980 to
reflect the current versions of those definitions. 20

20. The most notable amendment was in 1958, when the definition of broadcast was added,
intending to apply to publications on radio and television. It is significant that the introduction of
the technology of radio and television required a statutory amendment and was not expected to
automatically extend the definition of newspaper to those modes of publication. This illustrates
that the application of the LSA is intended to be technology-specific and not technology-neutral,
contrary to the OCAs analysis in this case. Indeed, the technology of the Internet is different
from the technology of newspaper in the same manner that broadcast is different from
newspaper.

21. The LSA was amended as recently as November 3, 2015, through the passing of the
Protection of Publication Participation Act, 2015 21 (commonly referred to as the Anti-SLAPP
Legislation), which amended section 25 of the LSA to expand the defence of qualified privilege.
It made no other amendments to the LSA and, significantly, no reference the Internet or online
publications.

22. If the legislature had intended to include a particular thing within its legislation, it would
have referred to that thing expressly. The legislatures failure to explicitly mention the thing
forms the grounds for inferring that it was deliberately excluded. When a provision specifically
mentions one or more items, but is silent with respect to other comparable items, it is presumed
that this silence is deliberate and reflects an intention to exclude the items that are not
mentioned. 22

19
The Libel and Slander Act 1958, S.O. 1958, c. 51, ss. 1(a) broadcasting;
20
An Act to Amend the Libel and Slander Act, S.O. 1980, c. 35, s. 1.
21
Protection of Public Participation Act, 2015, S.O. 2015 c.23, s. 4
22
Prof. R. Sullivan, Sullivan on the Construction of Statutes, 6th Ed., at p. 248 (Toronto:
LexisNexis, 2014)
42

23. The fact that the LSA was last updated in 2015 should put to rest any questions of
legislative intent, as the legislator does not speak in vain. 23 The deliberate exclusion of the
Internet from the 2015 amendments to the LSA, and the failure of the legislature to amend the
LSA to include the Internet to date, should be construed as clear legislative intent that this statute
is not intended to be applied to online publications. The evolving realities of the Internet were
not different in 2015 as they are today.

The Court of Appeal Failed to Apply Clear Legislative Intent

24. In 2006, the legislature provided important guidance into the interpretation of the relevant
provisions of the LSA, when it passed the Legislation Act. 24 This statute consolidated and
replaced a number of different statutes, including the Interpretation Act. 25

25. The provisions in the Legislation Act must be employed in the construction of a statute in
Ontario. 26

26. The Legislation Act contains the following definition of newspaper:

87. In every Act and regulation,


newspaper, in a provision requiring publication, means a document that,
(a) is printed in sheet form, published at regular intervals of a week or less and
circulated to the general public, and
(b) consists primarily of news of current events of general interest; (journal) 27

27. This definition, introduced after the advent of the Internet and after the OCAs decision
in Weiss v. Sawyer 28 (hereinafter, Weiss) (discussed in more detail below), illustrates that the
legislature clearly intended references to newspaper in all statutes to apply only to publications
printed on paper material, and to exclude electronic or online publications, unless there is clear

23
Attorney General of Quebec v. Carrires Ste-Thrse Lte, 1985 CanLII 35 (SCC), [1985] 1
S.C.R. 831, at para. 28
24
Legislation Act, 2006, S.O. 2006, c. 21, Sched. F
25
Interpretation Act (R.S.C., 1985, c. I-21)
26
Ashford v. Johnson, 2014 ONSC 5825, at para. 8; Cuthbertson v. Rasouli, [2013] 3 S.C.R. 341,
at para. 32; Ayr Farmers Mutual Insurance Company v. Wright, 2016 ONCA 789, at para. 31
27
Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s.87
28
Weiss v. Sawyer (2002), 61 OR (3d) 526 (C.A.)
43

legislative intent in the particular statute to indicate otherwise. No such indication can be found
in the LSA.

28. The legislature had its mind on the Internet when it passed the relevant sections of the
Legislation Act. The Province of Ontarios Backgrounder on these changes states the following,

The proposed Access to Justice Act would, if passed, bring Ontario's rules
for how laws are published and interpreted into the electronic age. The
proposed Legislation Act, 2005, rolls numerous provisions about the publication,
citation and interpretation of Ontario laws into one act. If passed, the legislation
would modernize and improve the underlying legal framework for Ontario law.
[emphasis added] 29

The possibility of publishing online was also indisputably on the mind of the legislature, as the
changes enacted made the online version of these statutes the official version.

29. This failure by the OCA to consider and apply clear legislative intent raises an issue of
national or public importance that can only be addressed by this Honourable Court.

Incorrect Application of Statutory Interpretation Principles

30. The OCA extended the definition of newspaper to online newspapers because, as stated
by Benotto J.A.:

To hold otherwise would be to ignore principles of statutory interpretation,


which are flexible enough to achieve the intent of the legislature in the context of
evolving realities. 30

Not only does this statement incorrectly state the evolving realities surrounding online
defamation, but it also fails to employ the established approach in interpreting statutes.

31. As this Honourable Court has repeatedly stated, statues should be construed in their
entire context and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament. 31

29
Ministry of the Attorney General, Backgrounder - Creation of the Legislation Act, Oct. 27,
2005, online: https://news.ontario.ca/archive/en/2005/10/27/Backgrounder-Creation-of-the-
Legislation-Act.html
30
John v. Ballingall, 2017 ONCA 579, at para. 23 [Tab 2B]
44

32. Applying this principle requires some textual analysis, especially where no real
ambiguity around the terms exists. 32 The OCA failed to conduct any textual analysis of the LSA
and omitted any examination of how the expansion of the term newspaper to the online context
would affect all online defamation actions.

33. The provisions of the LSA should be read together as part of a functioning whole, to
create harmonization and internal coherence. The LSA contains several provisions that must be
read together with sections 5 and 6, including the entire definition of newspaper, the definition
of broadcast, and sections 2, 7, 8(1) and 9. The Court of Appeal failed to consider these
sections in its analysis.

The Definition of Newspaper in the LSA

34. The LSA defines newspaper as a paper containing public news, intelligence, or
occurrences, or remarks or observations thereon, or containing only, or principally,
advertisements, printed for distribution to the public and published periodically, or in parts or
numbers, at least twelve times a year [emphasis added]. 33

35. The OCAs extension of the LSA to online publications would have numerous absurd
consequences in light of established technologies and practices by newspapers online. As the
OCA has now transformed the LSA to provide an entity-based protection for newspapers, as
opposed to a medium-based protection, the question of what form of online publication qualifies
as a newspaper creates further uncertainty in the law.

36. For example, it is unclear whether videos posted on the websites of The Star or other
newspapers would qualify for these protections, or whether articles posted on social media
sites controlled by such newspapers (e.g., The Stars Facebook page or Twitter handle) would
qualify for these protections. It is also unclear whether online-only media publications such as
the Huffington Post or Vice News would receive these statutory protections. Moreover, blog sites

31
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 at para. 21; Bell ExpressVu Limited
Partnership v. Rex, [2002] 2 SCR 559 [Bell], at para. 26
32
Bell, ibid, at paras 28-29.
33
Libel and Slander Act, R.S.O. 1990, c. L. 12, subsection 1(1)
45

10

with multiple contributors, often written by respected journalists, may or may not qualify as a
newspaper under the LSA.

37. Furthermore, it is well-established that the LSA does not apply only to media
defendants. 34 Thus, it is unclear how the definition of newspaper would apply to non-media
defendants, such as individuals, website hosts, social media sites, Internet Service Providers and
even search engines, when defamation is posted online.

The Court of Appeal Refused to Consider the Definition of Broadcast

38. The OCA upheld the decision of the motion judge, in which the Honourable Trimble J.
stated that the weight of the jurisprudence favours the view that an internet posting or broadcast
is covered by the Act, unless specific facts dictate otherwise [emphasis added]. 35 Thus, the
motion judge essentially determined that the word broadcast in the LSA applies to online
publications. This may effectively lead to the courts finding that the LSA applies to other forms
of online defamation, including defamation posted on social media sites, pornography sites, and
cyberbullying cases. 36

Section 8(1) of the LSA

39. Section 8(1) of the Act expressly limits the defendants right to rely on the notice and
limitation provisions of the LSA as follows:

8(1) No defendant in an action for a libel in a newspaper is entitled to the benefit


of sections 5 and 6 unless the names of the proprietor and publisher and the
address of publication are stated either at the head of the editorials or on the front
page of the newspaper. 37 [emphasis added]

It is unclear how the language of section 8(1) can be reconciled with the anonymity afforded to
online publishers. Indeed, it is impossible to reconcile the identifying requirements of section
8(1) with the anonymity of the Internet.

34
Watson v. Southam Inc. (2000), 189 D.L.R. (4th) 695 (Ont. C.A.)
35
John v Ballingall et al., 2016 ONSC 2245, at para. 16 [Tab 2A]
36
See, for example, Rizvee v. Newman, supra at 4
37
Libel and Slander Act, R.S.O. 1990 c. L. 12, ss. 8(1)
46

11

The Internet has No Geographical Boundaries

40. Publications on the Internet are inherently extraterritorial and non-jurisdictional. As


recently stated by this Honourable Court in Google Inc. v. Equustek Solutions Inc.: 38

The Internet has no borders its natural habitat is global. 39

41. Section 7 of the LSA was intended to limit the application of this provincial statute to the
borders of Ontario. Yet, the OCA held that the notice and limitation provisions apply to online
publications, without giving any consideration to section 7 and its application to the
extraterritorial characteristics of the Internet. For example, a plaintiff in an online defamation
case may reside somewhere outside of Ontario or Canada and be defamed online by a publisher
with a head office in Ontario. Would that plaintiff be required to meet the notice and limitation
provisions of the Act, even though the plaintiffs reputation is being harmed in his or her
jurisdiction? Similarly, an Ontario plaintiff may be defamed by an online publisher with a head
office outside of Ontario or Canada. Would the foreign defendant be able to enjoy the benefit of
the strict requirements of the LSAs notice and limitation provisions? The OCAs decision leaves
these issues of public or national importance unanswered.

The Unique Characteristics of Online Defamation

42. The OCAs overly simplistic application of the LSA to online publications fails to
consider the unique characteristics of online defamation.

43. This Honourable Court has described the special nature of defamation published online
and distinguished it from any other form of publication, as follows:

Although Internet communications may have the ephemeral qualities of


gossip with regard to accuracy, they are communicated through a medium
more pervasive than print, and for this reason they have tremendous power
to harm reputation. Once a message enters cyberspace, millions of people
worldwide can gain access to it. Even if the message is posted in a
discussion forum frequented by only a handful of people, any one of them
can republish the message by printing it or, as is more likely, by
forwarding it instantly to a different discussion forum. And if the message

38
Google Inc. v. Equustek Solutions Inc., 2017 SCC 34
39
Ibid. at para. 41
47

12

is sufficiently provocative, it may be republished again and again. The


extraordinary capacity of the Internet to replicate almost endlessly any
defamatory message lends credence to the notion that the truth rarely
catches up with a lie. The problem for libel law, then, is how to protect
reputation without squelching the potential of the Internet as a medium of
public discourse. [Blair J.A.s emphasis removed.]

38 New activities on the Internet and the greater potential for


anonymity amplify even further the ease with which a reputation can be
harmed online:
The rapid expansion of the Internet coupled with the surging popularity of
social networking services like Facebook and Twitter has created a
situation where everyone is a potential publisher, including those
unfamiliar with defamation law. A reputation can be destroyed in the click
of a mouse, an anonymous email or an ill-timed Tweet. 40

44. The evolving realities of online defamation are also recognized by the Law Commission
of Ontarios ongoing project on Defamation Law in the Internet Age. One of the
commissioned papers in this study states, in pertinent part:

The effect of information technology granting individuals the capacity for


expression is that it broadens what is meant by free speech. Defamation
cases have primarily been between public figures (of some form) and
news media companies. The latter often arguing in favour of freedom of
speech. Since much of the litigation was taken by this litigant, the
arguments were steeped in democratic underpinnings. Social media
platforms, as one example of internet-based communication technology,
have now vaulted the individual into a novel dimension that challenges the
domain held by traditional news agencies. As noted by the European Court
of Human Rights, the internet has now become one of the principal
means by which individuals exercise their right to freedom of expression
and information, providing as it does essential tools for participation in
activities and discussions concerning political issues and issues of general
interest.

As a result of internet communication capabilities, a disconnect between
the legal and lay understandings of these media has emergedThe
perception of the medium does not fit with long-held distinctions in the

40
Crookes v. Newton, [2011] 3 SCR 269 at para 37, citing Lyrissa Barnett Lidsky, "Silencing
John Doe: Defamation and Discourse in Cyberspace" (2000), 49 Duke L.J. 855, at pp. 862-65
in Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 (ON CA) at para. 32; and at para.
38, citing Bryan G. Baynham, Q.C., and Daniel J. Reid, The Modern-Day Soapbox:
Defamation in the Age of the Internet, in Defamation Law: Materials prepared for the
Continuing Legal Education seminar, Defamation Law 2010 (2010), at p. 3.1.1.
48

13

law regarding liberties attached to speech. Disconnect between users


perceptions of the role of the medium and legal distinctions adds to this
complicated topic and also confirms the impact of the distinction between
slander and libel where, for the most part, the latter has been actionable
per se.

This is intriguing because the widespread use of internet


communications may provide an opportunity to rethink accepted
distinctions. In comparison to the various internet-based means of
communication, the spoken word now reaches a smaller audience. The
reach of the social media platforms (for example) makes it difficult to
separate damage from the vastness of the audience; for this must be
considered an aspect of the harm. 41

45. In conclusion, any statutory changes to the LSA should occur by the legislature, after
careful study and meticulous amendments to ensure complete harmonization of the LSA. By
reading in the word Internet into the definition of newspaper in the LSA, the OCA effectively
amended the statute. In the absence of clear legislative intent, automatically extending a statute
to the main mode of publication in Canadian society, and denying plaintiffs the remedy afforded
to them because of strict and burdensome notice and limitations periods passed in the 19th
century, is an issue of national or public importance that should be addressed by this Honourable
Court.

41
David Mangan, The Relationship Between Defamation, Breach of Privacy and Other Legal
Claims Involving Offensive Internet Content, Defamation Law in the Internet Age, Law
Commission of Ontario (July 2017), online: http://www.lco-cdo.org/wp-
content/uploads/2017/07/DIA-Commissioned-Paper-Mangan-1.pdf
49

14

Issue #2: Inconsistent Decisions of the Courts

46. The OCAs decision in this case is inconsistent and cannot be reasonably reconciled with
decisions of this Honourable Court, other decisions of the OCA, lower Ontario court decisions,
and appellate decisions from other provinces. The decision therefore gives rise to uncertainty in
an already unsettled and evolving area of law. This Honourable Court is the only forum in which
this uncertainty in the law can be resolved.

Inconsistent Supreme Court of Canada Decisions

47. To succeed in an action for defamation, the plaintiff must prove on a balance of
probabilities that the defamatory words were published, that is, that they were communicated to
at least one person other than the plaintiff. 42

48. Section 2 of the LSA creates a presumption of publication for defamatory words
published in a newspaper or broadcast, as follows:

Defamatory words in a newspaper or in a broadcast shall be deemed to be


published and to constitute libel. 43

49. Thus, in actions that are subject to the application of the LSA, the plaintiff is not required
to prove publication, a provision that is intended to benefit the plaintiff. The purpose of this
presumption is clear: if the plaintiff were required to prove publication in a print newspaper, he
or she would need to adduce at trial the oral testimony of each and every person who read the
defamatory statements. This places an unfair evidentiary burden on plaintiffs in such cases.
When defamation is published on the Internet, however, it is not necessary to call to testify each
person who read the defamatory postings. Rather, it is sufficient to adduce electronic evidence
illustrating that the defamatory statements were accessed or downloaded by third parties. This is
yet another significant distinction between online publications and print publications that was not
considered by the OCA.

42
Crookes v. Newton, 2011 SCC 47, [2011] 3 S.C.R. 269 at para. 1, citing Grant v. Torstar
Corp., 2009 SCC 61 (CanLII), [2009] 3 S.C.R. 640, at para. 28
43
Libel and Slander Act, R.S.O. 1990 c. L. 12, at s.2
50

15

50. This issue was considered and addressed by this Honourable Court in Crookes v. Newton
(hereinafter, Crookes). In Crookes, this Honourable Court considered the parallel section of
the British Columbia Libel and Slander Act (hereinafter, the B.C. Act) in the context of the
Internet, and concluded that there is no presumption of publication in relation to material
published on the Internet. 44 A plaintiff in an online defamation claim must prove that at least
one person has downloaded, viewed or accessed the defamatory content online. 45

51. Since Crookes, several Ontario trial level decisions have relied on this Honourable
Courts reasoning to find that, in Ontario, there is no presumption of publication on the
Internet. 46

52. The OCA in this case failed to consider section 2 of the LSA entirely, or to reconcile the
presumption of publication created by section 2 with this Honourable Courts decision in
Crookes. This failure results in inconsistency and uncertainty on the issue of whether there is, or
is not, a presumption of publication in Ontario. It also places the correctness of the Ontario trial
decisions that followed Crookes at issue.

53. Furthermore, the Ontario LSA should be interpreted consistently with the B.C. Act, which
contains definitions that are similar to the definitions of newspaper and broadcast in the
Ontario LSA. As indicated above, in the Crookes case, the Supreme Court of Canada considered
the B.C. Act in the context of online publications. In holding that the B.C. Act did not apply to
publications on the Internet, the Court essentially found that those definitions did not include the
technology of the Internet. 47

44
Crookes v. Newton, supra, at para. 14 (Abella C.J.C.) & para. 108 (Deschamps C.J.C.,
concurring).
45
Ibid.
46
Elfarnawani v. International Olympic Committee, 2011 ONSC 6784, at para. 34; Bernstein v.
Poon, 2015 ONSC 155, at paras. 90 & 91; Craven v. Chumra, 2013 ONSC 1552, at paras. 24 &
25; Smith v Baglow, 2015 ONSC 1175, at para. 167.
47
Libel and Slander Act, R.S.B.C. 1996, c. 263, s. 1 broadcast and public newspaper or other
periodical publication, BOA at tab B-10; Crookes v. Newton, supra, at para. 14 (Abella C.J.C.)
& para. 108 (Deschamps C.J.C., concurring)
51

16

54. The OCAs failure to consider the Crookes decision and to reconcile it with its analysis
of the relevant provisions of the LSA is therefore an issue of national or public importance that
should be addressed by this Honourable Court.

Inconsistent Ontario Court Decisions

55. The OCAs decision in this case is inconsistent with other OCA decisions and lower
court decisions that followed them.

56. In Bahlieda v. Santa, 48 (hereinafter, Bahlieda), which was decided in 2003, the OCA
held that a trial with a full evidentiary record, including expert evidence, is required in order to
determine whether the Act applies to defamation posted online. This principle was followed by
several subsequent Court decisions. 49

57. In contrast, in Weiss, which was decided in 2002, the OCA held in obiter, that the word
newspaper is broad enough to include an online publication. The Court in Weiss did not
consider whether an online publication is printed and published in Ontario and refused to
consider whether the word broadcast applied to the Internet, because of the lack of evidence on
that issue. 50

58. The issue came before the Court of Appeal again in Shtaif v. Toronto Life Publishing
Co., 51 (Shtaif), in 2013, more than a decade after the Weiss and Bahlieda decisions. The
Honourable Laskin C.J.A. considered the conflicting decisions in Weiss and Bahlieda and, in so
doing, pointed out the unstable foundation upon which the Weiss decision was based. The OCA
then proceeded to reject the reasoning in Weiss and to adopt the reasoning in Bahlieda:

In this case, I think the sensible course is that adopted in Bahlieda: to leave to
trial the question whether the internet version of the article is a newspaper
published in Ontario or a broadcast from a station in Ontario. I am not satisfied

48
Bahlieda v. Santa (2003), 68 O.R. (3d) 115 (Ont. C.A.)
49
Ibid., at para. 6; followed by Fromm v. Warman, 2008 ONCA 842 at paras. 76 92; St. Lewis
v. Rancourt, 2015 ONCA 513 para. 8; Kim v. Dongpo News, 2013 ONSC 4426 at para. 25;
Warman v. Grosvenor, 2008 CanLII 57728 (ON SC);
50
Weiss v. Sawyer, supra at para. 5; followed by Janssen-Ortho Inc. v. Amgen Canada Inc.,
2005 CarswellOnt 2265 (C.A.) at para. 41.
51
Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405
52

17

that the evidentiary record before us is sufficient to decide these questions, which
have broad implications for the law of defamation. [emphasis added] 52

59. The OCA in Shtaif concluded:


Therefore, I would hold that the issue whether the claim for libel in the internet
version of the article is subject to ss. 5(1) and 6 of the Act is a genuine issue
requiring a trial. [emphasis added] 53

60. In this case, the OCA adopted the reasoning in Weiss, without a satisfactory explanation
as to why it preferred the Weiss obiter analysis to that of Shtaif. Indeed, Weiss is distinguishable
on the facts alone, as the defendant was an individual who wrote a libelous letter and not a media
defendant, nor was there any evidence that the defamatory statement was published online. The
OCAs reliance on this case as its sole authority reinforces the concern that its decision will have
broader applicability to online defamation actions, and gives rise to definitional issues as to who
can receive the protections of the LSAs strict notice and limitation provisions.

61. Furthermore, in Shtaif, the OCA correctly noted that there is a need for legislative
amendments if the LSA is to apply to online defamation:

The Act was drafted to address alleged defamation in traditional print media and
in radio and television broadcasting. It did not contemplate this era of emerging
technology, especially the widespread use of the internet. The application of the
Act to internet publications will have to come about by legislative amendment
or through judicial interpretation of statutory language drafted in a far earlier era.
[emphasis added] 54

62. As indicated above, the LSA was amended post-Shtaif in 2015, without including any
reference to the Internet, an indication that the legislature considered the OCAs guidance in
Shtaif and intended to exclude online publications from the application of those statutory
provisions.

The Multiple Publication Rule

63. The Multiple Publication Rule stands for the preposition that each publication of a
defamatory meaning gives rise to a separate and distinct cause of action, even if the material in

52
Ibid. at para. 24
53
Ibid. at para. 26
54
Ibid. at para 20
53

18

each publication relates to matters previously published. If an action is brought for the most
recent publication, the limitation period begins at that point, and not on the date of the earlier
publication. 55

64. Defamatory words published in a newspaper, or on radio or television, cannot be altered


once published and, in most cases, are not repeated by the publisher. Online defamation,
however, is republished on a continuous basis and may be removed or altered by the publisher at
any time. The publisher may also remove the defamatory words from the Internet and republish
them again the next day or at a later date. Thus, every day that the defamation is posted on the
Internet, the publisher is making a conscious decision to republish it. Given this unique
characteristic of the Internet, for every day that the defamatory words are published online, a
new and distinct cause of action accrues, and a new limitation period begins to run. This
application of the Multiple Publication Rule in the context of the Internet was discussed by the
British Columbia Court of Appeal in Carter v. B.C. Federation of Foster Parents Assn.56
(Carter). It is also consistent with this Honourable Courts holding in Crookes that there is no
presumption of publication on the Internet. 57

65. In Shtaif, the OCA also implicitly confirmed this principle when it rejected the Single
Publication Rule, because the Single Publication Rule is essentially the opposite of the Multiple
Publication Rule. 58

66. The OCA in this case rejected the Multiple Publication Rule 59, citing a single lower court
decision as its authority, without considering the long-established common law principles of
defamation law, the analysis in Shtaif, the B.C. Court of Appeal analysis in Carter, and the
unique characteristics of online defamation, discussed above. A failure to do so further muddies
the law of online defamation, not only in Ontario but across Canada.

55
Prof. R. E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand,
United States 2nd. Ed., p. 17-312 (2016, Toronto Thomson Reuters)
56
Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398 [Carter]
57
Prof. R.E. Brown, ibid. at p. 17-386; Crookes, supra, at para 108; Carter, ibid at para. 20
58
Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405 at paras. 27 40.
59
John v Balligall, supra note 1 at para. 35 [Tab 2B]
54

19

Other Inconsistent Appellate Court Decisions

67. The OCAs decision is also inconsistent with appellate level decisions from other
provinces. The most recent is that of the Manitoba Court of Appeal in Canadian Broadcasting
Corporation et al v. Morrison 60. In that decision, the Manitoba C.A. cites Shtaif as the leading
authority on the interpretation of the LSA in Ontario, and states, in pertinent part:

It is well understood that the nature of the Internet as a communication medium


raises unique concerns regarding the question of publication separate and apart
from a broadcast through a television network (see Crookes v Newton, 2011 SCC
47 (CanLII) at paras 16-43; Shtaif at paras 23-24; and Matthew Collins, The Law
of Defamation and the Internet, 3rd ed (New York: Oxford University Press,
2010) at para 4.06). 61
68. Furthermore, as indicated above, the OCAs decision in this case is inconsistent with the
B.C. Court of Appeal decision in Carter on the Multiple Publication Rule and with the B.C.
Court of Appeal decision in Crookes on the application of the B.C. Libel and Slander Act to
online defamation. 62

69. Given that online publications are routinely distributed and read outside the jurisdiction
in which they are written, the lack of consistency across Canada is of national or public
importance.

Conclusion

70. This case raises issues of national or public importance regarding the evolving and
unsettled law of online defamation and privacy. The OCAs decision under appeal raises a
number of pragmatic problems in the implementation of the LSA, including the denial of
substantive rights to plaintiffs in online defamation cases, as well as the privacy and disclosure
implications for all parties involved.

71. By reading in the word Internet into the definition of newspaper in the LSA, the OCA
effectively amended the statute. With respect, such a fundamental statutory amendment should
only be made by the legislature. However, as of 2017, the Ontario legislature has chosen not to

60
Canadian Broadcasting Corporation et al v. Morrison, 2017 MBCA 36
61
Ibid., at para. 55
62
Crookes v. Newton, 2009 BCCA 392, at paras, 32 & 33
55

20

amend the LSA to cover the Internet, despite having made other amendments several times,
including as recently as 2015. This Honourable Courts review and consideration of the issues
raised in this case would go a long way to clarifying Canadian law protecting individuals from
online defamation.

72. Moreover, the OCAs decision is inconsistent with its own prior decisions, as well as
decisions of this Honourable Court, lower Ontario courts and appellate courts in other provinces.
These inconsistencies add uncertainty to an unsettled area of law.

73. That there is a decision of a Canadian appellate court in the year 2017 that concludes,
quite simply, that paper and the Internet are the same, is, with utmost respect to the
Honourable Court of Appeal, a national and international embarrassment that should be
addressed by this Honourable Court.

PART IV COST SUBMISSIONS

74. The Applicant requests his costs of this application in any event of the cause.

PART V ORDER SOUGHT

75. The Applicant respectfully requests leave to appeal the order of the Court of Appeal for
Ontario dated July 7, 2017, and that he be granted costs of this Application in any event of the
cause.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 28th day of September, 2017

Counsel for the Applicant


56

21

PART VI TABLE OF AUTHORITIES


Authority Cited at Paras
Ashford v. Johnson, [2014] O.J. No. 4755 ...............................................................................25
Attorney General of Quebec v. Carrires Ste-Thrse Lte, 1985 CanLII 35 (SCC),
[1985] 1 S.C.R. 831 .................................................................................................................23
Ayr Farmers Mutual Insurance Co. v. Wright, 2016 ONCA 789............................................25
Bahlieda v. Santa (2003), 68 O.R. (3d) 115 (Ont. C.A.) ..................................................56, 58
Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 (ON CA) .........................................43
Bernstein v Poon, 2015 ONSC 155 (S.C.J.) ............................................................................51
Canadian Broadcasting Corporation et al v Morrison, 2017 MBCA 36................................67
Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398 .........................64, 66, 68
Craven v. Chumra, 2013 ONSC 1552 (S.C.J.) ........................................................................46
Crookes v. Newton, [2011] 3 SCR 269 ...............................................................43, 47,50,53,68
Cuthbertson v. Rasouli, [2013] 3 S.C.R. 341...........................................................................25
Elfaranwani v International Olympic Committee & Ethics Commission, 2011 ONSC
6784 (S.C.J.) ............................................................................................................................51
Fromm v. Warman, 2008 ONCA 842 ......................................................................................56
GEA Group AG v. Ventra Group Co., 2009 ONCA 619 ........................................................18
Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 .............................................................40
Graff v. Mallick, 2016 unreported, (Ont. S.C.J., Small Claims Ct.) ..........................................9
Kim v. Dongpo News, 2013 ONSC 4426 .................................................................................49
Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405 ..................58, 59, 60,61, 62, 65,66,67
Smith v Baglow, 2015 ONSC 1175 (S.C.J.).............................................................................51
St. Lewis v. Rancourt, 2015 ONCA 513 .................................................................................56
Warman v. Grosvenor, 2008 CanLII 57728 (ON SC) .............................................................56
Watson v. Southam Inc. (2000), 189 D.L.R. (4th) 695 (Ont. C.A.) .........................................37
Weiss v. Sawyer (2002), 61 OR (3d) 526 (C.A.)................................................8, 27, 57, 58, 60
57

22

Secondary Sources
Jaani Riordan, The Liability of Internet Intermediaries (Oxford, Oxford University
Press, 2016) ..............................................................................................................................18
R. Sullivan, Sullivan on the Construction of Statutes, 6th Ed., at p. 248 (Toronto:
LexisNexis, 2014) ....................................................................................................................22
Lyrissa Barnett Lidsky, "Silencing John Doe: Defamation and Discourse in
Cyberspace" (2000), 49 Duke L.J. 855 ....................................................................................43
David Mangan, The Relationship Between Defamation, Breach of Privacy and Other
Legal Claims Involving Offensive Internet Content, Defamation Law in the Internet
Age, Law Commission of Ontario (July 2017), online: http://www.lco-cdo.org/wp-
content/uploads/2017/07/DIA-Commissioned-Paper-Mangan-1.pdf ......................................44

58

23

PART VII STATUTES, REGULATIONS AND RULES

An Act Respecting the Law of Libel, (1887) 50 Vic. c. 9 ............................................................24


An Act Respecting the Law of Libel, (1894) 57 Vic. c. 27 ...........................................................27
An Act to Amend the Libel and Slander Act ................................................................................29
Legislation Act, 2006, SO 2006, c 21, Sch F ................................................................................31
Libel and Slander Act, R.S.B.C. 1996, c. 263 ..............................................................................31
Libel and Slander Act, R.S.O. 1990, C. L. 12..............................................................................32
Protection of Public Participation Act, 2015, S.O. 23 .................................................................35
The Libel and Slander Act 1958, S.O. 1958, c. 51 .......................................................................36
59
24
An Act Respecting the Law of Libel, (1887) 50 Vic. c. 9

30 Chap. 9. LAW OF LIBEL. 50 Vrc.

VHAPTER .~:\D
SI:HJY.CT 0}'
,\CT.
48 V. c. 2, s. LLXE 5-By str.ikino out the words "Electoral District of
~,?,,E~~tn.ti~~e Corn wall and Stormont" and substituting the words "County
Act). of Stormont."

4 !i c. ~ rm By ~~ ub bhe, eco~cl paragraph of tLe Form of Oa-th


lB~ (Elec~o 11 and subs 1tutmg the followmg :-"That you n.r actuall o.ncl
Act), in goo l faith a re. i l nt. of and uomicil d within this ElectoTal
District" and by .inserting th following after paragraph (3
at. th fo t f the said form : " 4) Where the v ter i. a rrou. 'E-
HOLDER add, and have resiu d therein ontinu usly since th
completi n of theJ. t revi ed ass s ment roll of this ruunici-
t ality."
49 . c. IU, s. Lnm 1 of paragLaplt 19 (1)-By inserting between the words.
1
(Cndustrin.l "
R~iug for
unty" and "Court" the words "or District. "
(}iris).

CHAPTER 9.
An Act respecting the Law of Libel.
[Assented to ;gsrd April, 188'7.
ER MAJESTY, by and with the advice and consent of
H the Legislative Assembly of the Province of Ontario,
enacts as follows :-

R. s. o. c. 56, 1. ection 4 of chapter 56 of the Revi eel Statutes of Ontario


s. -l, rrmended. is hereby amended by adding thereto the following sub-
section
:Notice uf uch acti n shall li unles and until the plaintiff
act!t)n ,
to th efendant notice in writing, . pacifying th
.tabement complaineu of uch notice t. be erved in the !l~mt
manner as a plaintiff's sta.t ment of claim served or by
leli vet'ing the notice to sora gr wn-up person at the plac
Da~nagt.?s of bu in .. f th lefendant. The plaintiff' sha.llr cover acbul'l
re-;t.rich:d.
damages only, if it. ap] Mrs n the trial of th acti n, that th
articl was 1 ubli hed in good faith, an l that th re was reason-
all rroun l to believe that the arne was for the public benefit,
and j it di l not involve a crimino.l cbatge, and if it appenr
that the pn hlication took pla in mistake or mi. appr hen ion
f the facts, and that a full and :faJr rebl:actation of an
. tatem n.t therein aJ.leg d to be err ne us was I tiulisbe L
eithee in the next r gular issue of the newspaper, or other
periodical publication afor aid, or in any regular is ue thereof
publi heel within three days after the receipt of such notice,
an<l
60
25

1887. LAW OF LIBEL. Chap. 9. 31


OJld was o 1 u lished in as conspicuou a place aml type as
, as th article complained of,
(ct) Provided, how ver, that the provi ion f this Act
ball not apply to the crv of any lib 1 again. t
n.uy candi late for a pulJlic offi in tlri Province,
unless th retractation of the charge is made litori-
nUy in a conspicuous manner, at least five days
1 f r the election.

R. The wor 1 " a public meeting" in section 3 of Th 1\'[l!nu:i!'g nr


Ne;w~a;rte?' Libcl Act, 18 "' hall xtend to any lawful ~ P~~l111w_,~e t
m ting" I:' 'J!'t t ed an d of ' h'1ch announce- mg
h t b pu 1v'licare mv1
w 1nc v. o. o, s."' a.
ment lias b en mad y printe i or written notice thereof
being pos~ed up in at least . six; conspicuous place . in the
municipality wh re the moetll1g 1s held, 1.' by adv rtisemont
in n, pn lie newspaper pu bli~;~h d in . uch municipality, or if
tb e1e be n ne publi hed therein then in the one publishe
oeare t to the plac of meeting.

3. All reports of pr ceedings in any Court of Ju tice, pub- R ermtsof pro


Iish in a.ny public new po,per or other periodical publication, ceedings i? .1
. ll be priV
sJ1a. ' an d g urt~
' an d au tt.uen t1c
' il ege d , provt'd ecl t I111t th yare ['a u d. prtn -
without comments, unle s the clef ndant ha, refu. ea or neg-
[ oted to insert in th newspaper in which the report compln.ined
of appeared a reasonable letter or statement o explanation or
contradiction, by or on behalf of such plaintiff.

4 .-(1 In any action brought for libel containe iin any public i:lucu rit:y for
new parer or 1 eriodical publication, the d f nda.n t may, at any costij.
time after the filing of the statement of claim, apply to the
'ourt or a Judge for ecmity for costs, upon notice and an
affidavit by the le ndant or his agent, shewing th nature of
the action and of th e defence, and hewin rr that th plaintiff
is not p as s d of property ufficient t answ r the costs of
the action in ca e a ,~erdict or judgment be given in favour
of th uef n lant , and that the defeu.dant has a go cl defence
Ul on the merits and that the statem ent complained of were
pullishedingood faith, or that th gt un is of action are trivial
or frivol ns ; and t:.he Comt or Judge in its .or hi d.i screti n
may make an order that the plain till sh(lll give ecurity fo . the
co to l e incurred in ncb action, anu the s curity 0 mdercd
.-hall btl given in ace rdance with tb practice in cases wh re
a plaintiff r -ide out of tb Province, and uch order shall
!Je n.. tay of proceedings in th e action until the propers clll'ity
1. crt v n !'U afore n.i I.

(u) But wh ere the all gedli l invohe.s a criminn.l charge


the defendant shall not be entitled to secmit fo1
co t un e.~, th Act, unless he ati. fies the ourt
or Judge that the action is trivial or frivol u , or
thn,t the sev ra.l circum. tanc , which under said
S\lb-secti n. 2 of ection 4 of a1d chapt 1 56 of the
e\>i.~d
61
26

32 Chap. 10. l!~XEMPTIONS FROM SEIZURE. 50 VIc.

Revised Statutes entitle the defendant at the trial


to have the do.mag restricted to actual damages
appear to exist, except the circumstance that the
article complained of involves a criminal charge.
(2) For the purposes of th ect.ion the plaintiff or th e
llefenclant Ol' th ir ag nts may be examined upon oath at any
time -a fter the statement o claim bas been :fi.led.
Plnce of trial. 5 . Every action for libel contained in any public newspnper
or other periodicaL pnblication, . hall be tried jn the couuty
where the chief office of such newsp~tper or p riodical i , or in
th~ county wh rein the plaintiff resi les at th time the action
is brought; but upon the application of eithru; party th Court
or a Judge may direct the issu s to be tried or the damage to
be a . e 1 in any other count.y if it 1 e mad to appear t
be in tbe inter ts of justice, or that it will promote a fair trial,
and may imp s such terms as to payment of witness
fees, anrl oth nvise as n ay seem proper.
Applicatinn of 6. Thi::; Act shall not apply to pending action,c;, suits or pro-
Act. ceedings.

CHAPTER 10.
An Act relating to Exemptions llom Seizure under
Execution.
[Assented to 231'Cl Ap1il, 188'1.

ER by
Maj esty, with the advice and consent of the
and
Hfollow.
aR
L ai lative Assembly, of the Province of ntario, enacts
:-
R. s. o. c. 66, 1. Section 2 of The Act ?' 1 otin.g W1its of E xecntion is
~. '>. repen-led. hereby l' pealed, and the following substitut d th ref r:
Chattels ex 2. Tl1e followipg chattels ar hereby decla1ecl x mpt fr0111
empt frolll
Rei?.nre.
, izure 1,1nlle.J.' any writ, in re~'l')
'1:"'
ct of which t hi Pr vmce ha
legislative auth dty, is,ue lout of any ourt whatever, in lili .
Province, 11amely:
Bedding. 1. The bed, bedding and bedstead::s (including a cradle), in
ordinary use by the debtor and hi family ;
Appatel. 2. The neces. ary and ordinary wearing apparel of the
debtor and his family;
Fnrniture. 3. ne cooking stove with pip and :furnishing , n
heating tove with pipes, n mane and its tl.pp ndag , ne
pair of andirons, on s t ceo kino- n ten ils, one pair of t01w.
and . hov l, one coal t>cuttlo, on lamp, on.e tn.bL ix hair.,
one
;
62
27
An Act Respecting the Law of Libel, (1894) 57 Vic. c. 27

1894. LAW OF LIBEL. Chap. 27. 95

CHAPTER 27.
An Act respecting the Law of Libel.
A.ssented to 5th May, 1894.
ER MAJESTY, by and with th advice and consent of the
H
&s
L gislativc A&sembly of the P.r ince of Ontario enacts
follows :-
1. This Act may be cited as " The Lau of Libel Act, 1894." Short title.

2. In bhis Act th word "n w pap r" ha11 mean an:r. pap r Inter~;Jretation
. ntaioing public news, intelligence, or ccun nces, any " new&p&_per.
remarks or ol scrvll.tion there n, p1int d for sa.le and published
in th Province nbari p riodically, r in po.;r ts or numb rs,
at intervals n t exec ding tw nt.y-Rix days b tw n the pub-
licati n f an two such papers, part.& or numbe1-s, and any
pap pcint tl in r ler to b dispers >cl and made public, weekly
or ften , r o.t int rval not xc eding tw nty- i:x clays, cou-
taining only or principal1y ad yeriis ments.
3. Upon the trial of any action for libel contained in a. Evidence in
newspaper, tb~ defendant shall be at liberty t g ive in vi- mitigation of
dence, in nii.tigu.ti n of damages, bhat th e pla.intiH has alr ad damage!.
b'l' ugbt act.i ns for, or has recov cd cl~tmag s, or has r c i v d
or agreed to rec.eiv oompensati n in respect of a libel or
libels to the same purport or etfec~ 11.s the libel for which such
action has been brought.
4. Every nction for libel contained in a newspaper shall be Time within
commenc u within three months after the publication com- which 110tion
pla.ined o has come to th notic or knowledl1e f the per br~~tg~:.
son defamed. But where an a-ction is brought and if! main-
tainable f r any libel published within said period of throe
months . uch action may include a claim r claims for
any tbBr libel or libels publish ll against the plaintiff or
plaintiff.s by th defendant in the same uftwspaper within a
peri d of one year prior to the commencement of the action .
5 .-(1) Tt shall be compet ent for a judge of th igh Court Oon.~olidation
oi Ju ti upon an app licati~n by or on l:tehnl of two or more of fill
r~nt
det udMts, in any a tion for th sawe or suLstnntialJy tb :~n1ioo'i.
so.me libel, br ught by one and th same person, to mak an
orJ r for th c nsolidation of such actions, so that th y shall
b td d together ; and after such 0rd r has Loon made, and
be r th trial f the said actions, th d fencloo.ts1 in any n w
11.0tions, instituted in r e p ct to the same r snbstantiaUy the
ao.me libel, shall o.ls b entitl :"a to be joined in o. common
11.0tion upon a j in& application being mud by such new uefend-
a.n~ and tJ1 defendants in the actions already consolidated.
(2)
63
28

96 Chap. 27. LAW OF LIBEL. 57 Vwr.


How dltoma~oa (2) In a consolidated aetion under this section the jury
::s:dftfa~ch
ti:ned
an. sum,
sho.ll asses the whole amount of the da.mo.ges, if any, in one
but sepo.rate -verdict sho.ll be taken for or o.ga.inst each
&
cases. defendant in the same way as if the actions consolido.ted ha.d
been tried separately ; u.nd if the jury shall have found a vel'-
dict a.gains& the defendant or defendants, in more than one of
the adions so consolidated, they shall proceed to apportion the
amount of damages which they shall have so found between
and against the said last mentioned defendants ; and the judge
at the trial, in the event of the plaintiff being awarded the
costs of th action, shall thereup n mak ucb order as he
shall deem just for the apportionment of such costs betw en
and against such defendants.
Joind er o( 6 .-(J) In any action instituted fm th publication in a
c.;rtl\in per
so ns ns P!lrlT newspaper of any defamatory matt r which ha been com-
defendAnts. municat d in writing by any p r on to such newspaper
with a view to its publication th rein , th defent.lant
may at any stage of the pr ceedings, u n notic to SUQh p r-
son and an B~ffidavit v rifying th facts, apply to o. judge in
cham ers r an order joining ~uch person as a party defend-
ant Jn the action, and such p rson may b o joined n such
teuns as may app ar to b just and thereafter t.h de nda,n t
in tha acti n, who is charg with th publica.iion in tho
n wspap r f the defamatory matter coll'lplained f, may
claim in the action t~ga:in t the part.y so join d as af 1' d any
remedy over or 1elief t which, under tb circumsbn.nces he
may by law be entitled against such party.
(2) This sccti n shall not apply where the defamatory
matter wa known by tb defendaut to be untru or wus con-
tained in an anonymous communication.
~~~~t~0 for 7. An rder f 1 judge of th e High C urt granting or
c stll under refusing s curit for c sts in an action for libel contained in u.
~e~: 9 \o bi n ew paper, mad uud r section 9 of the .A ct .,. specting
fi~n l .Acticms for Lib l and S li.tnde1, hall ue final and shall n t e
subject to appeal, and wher the order is made by a l.ocal
judge t.he same may be appealed to a. judge of th Righ Court
sitbing in Chambers and the order made by ucb High Court
jud~ shn.ll be final and aha.U not ue nbject to a.ny appeal.
lllcoosistent
enactments. 8. AU Acts and part.c5 of A ts or rules of court or other
provisions having t1le force of la.w1 which o.r inconsistent witb
this Act are repeo.led so far as tl>le same relate to actions for
libels contained in newspapers.
Aotiu.cor
~&ted wHh 9. This .Act sha.Ll be read with and shall form part of the
" Sbt.
c. li1, and li!l
.Act rC<o&'lecting
~r BB and SlcMtder, and '1'/u Law of
.Actions of Libel
v ., c. 14. Sla'flder .A mend'T7te'ftt .A 1 9.
Rights of 10. Nothing in bhis .Act oonOO.ined shall be eonstrued all
~:~1i~~ri;oe taking away any right which & newspaper not published in
Ontario, the Pro-vince of Ontario ma.y have under the said .Act r~
~ev. iHat., peet:ing Aoei~m of Libel and Slander and llhe .A.ct amandiAg
Q.
57 ' the same.
CliAPTER
64
29
An Act to Amend the Libel and Slander Act

1980 LIBEL AND SLANDER Chap. 35 159

CHAPTER 35

An Act to amend The Libel and Slander Act


Assented to June 19th, 1980

ER MAJESTY, by and with the advice and consent of the


H Legislative Assembly of the Province of Ontario, enacts as
follows:

1.-(1) Clau e a of subsection 1 of section 1 of The Libel and Slander s. 1 O> laJ.
Act, b jng chapter 243 of the Revised Statute of Ontario, rr-cnactccl
1970, is repealed and the following substituted therefor:

(a) "broadcasting" means the dissemination of writing,


signs, signals, pictures and sounds of all kinds, intended
to be received by the public either directly or through the
medium of relay stations, by means of,

(i) any form of wireless radioelectric communica-


tion utilizing Hertzian waves, including
radiotelegraph and radiotelephone, or

(ii) cables, wires, fibre-optic linkages or laser


beams,

and "broadcast" has a corresponding meaning.

(2) Clause b of subsection 1 of the said section 1 is repealed and the ~~-~~~!~ 11 t,/,
following substituted therefor:

(b) "newspaper" means a paper containing public news,


intelligence, or occurrences or remarks or observations
thereon, or containing only, or principally, advertise-
ments, printed for distribution to the public and pub-
lished periodically, or in parts or numbers, at least
twelve times a year.

2. The said Act is amended by adding thereto the following section: s. 25,
enacted

25 . Where the defendant published defamatory matter that is Fair


. . expresse d 1) a n th er person, a de1ence
an opmwn r
of f a1r
. comment comment

by the defendant shall not fail for the reason only that the defen-
65
30

160 Chap. 35 LIBEL AND SLANDER 1980

dant or the person who expressed the opinion, or both, did not
hold the opinion, if a person could honestly hold the opinion.
Comln e nce- 3. This Act comes into force on the day it receives Royal Assent.
me nt

Short title- 4. The short title of this Act is The Libel and Slander Amendment Act,
1980.
66

31

Legislation Act, 2006, SO 2006, c 21, Sch F


Definitions Dfinitions
87 In every Act and regulation,
87 Les dfinitions qui suivent sappliquent
newspaper, in a provision requiring lensemble des lois et des rglements.
publication, means a document that,
(a) is printed in sheet form, published at journal Dans une disposition qui exige la
regular intervals of a week or less and publication, sentend dun document qui :
circulated to the general public, and
a) dune part, est imprim sur feuilles
(b) consists primarily of news of current events dtaches, parat des intervalles rguliers
of general interest; (journal) dune semaine au plus et est mis en circulation
dans le grand public;

b) dautre part, contient principalement des


actualits dintrt gnral. (newspaper)

Libel and Slander Act, R.S.B.C. 1996, c. 263

Definitions
1 In this Act:

"broadcasting" means the dissemination of writing, signs, signals, pictures, sounds or


intelligence of any nature intended for direct reception by, or which is available on subscription
to, the general public

(a) by means of a device utilizing electromagnetic waves of frequencies lower than 3 000 GHz
propagated in space without artificial guide, or
(b) through a community antenna television system operated by a person licensed under the
Broadcasting Act (Canada) to carry on a broadcasting receiving undertaking,
and "broadcast" has a corresponding meaning;
"public meeting" means a meeting genuinely and lawfully held for a public purpose, and for the
furtherance or discussion of a matter of public concern, whether the admission to it is general or
restricted;

"public newspaper or other periodical publication" includes

(a) a paper containing public news, intelligence or occurrences, or any remarks or observations in
it printed for sale and published periodically, or in parts or numbers at intervals not exceeding 31
days between the publication of any 2 papers, parts or numbers, and
(b) a paper printed in order to be dispersed and made public weekly or more often, or at intervals
not exceeding 31 days, and containing only, or principally, advertisements.
67

32

Libel and Slander Act, R.S.O. 1990, C. L. 12

Definitions Dfinitions
1 (1) In this Act, 1 (1) Les dfinitions qui suivent sappliquent
la prsente loi.
broadcasting means the dissemination of
writing, signs, signals, pictures and sounds of journal Journal qui contient soit des
all kinds, intended to be received by the public nouvelles dintrt public, des renseignements
either directly or through the medium of relay ou des rcits dvnements, ou des remarques
stations, by means of, ou observations leur sujet, ou qui contient
(a) any form of wireless radioelectric exclusivement ou principalement des annonces
communication utilizing Hertzian waves, publicitaires, imprim des fins de distribution
including radiotelegraph and radiotelephone, or au public et publi priodiquement en parties
ou en numros, au moins douze fois par anne.
(b) cables, wires, fibre-optic linkages or laser (newspaper)
beams,
radiodiffusion ou tldiffusion Diffusion
and broadcast has a corresponding meaning; dcrits, de signes, de signaux, dimages et de
(radiodiffusion ou tldiffusion, sons de toutes sortes destins tre reus par le
radiodiffuser ou tldiffuser) public directement ou par lintermdiaire de
stations de relais au moyen :
newspaper means a paper containing public
news, intelligence, or occurrences, or remarks a) soit de toute forme de communication
or observations thereon, or containing only, or radiolectrique sans fil au moyen dondes
principally, advertisements, printed for hertziennes, y compris la radiotlgraphie et la
distribution to the public and published radiotlphonie;
periodically, or in parts or numbers, at least
twelve times a year. (journal) R.S.O. 1990, b) soit de cbles, de fils, de couplages de fibres
c. L.12, s. 1 (1). optiques ou de faisceaux laser.

What constitutes libel Lexpression radiodiffuser ou tldiffuser a


2 Defamatory words in a newspaper or in a un sens correspondant. (broadcasting,
broadcast shall be deemed to be published and broadcast) L.R.O. 1990, chap. L.12, par. 1
to constitute libel. R.S.O. 1990, c. L.12, s. 2. (1).

Notice of action Nature du libelle diffamatoire


5 (1) No action for libel in a newspaper or in a 2 Les mots diffamatoires imprims dans un
broadcast lies unless the plaintiff has, within journal, ou radiodiffuss ou tldiffuss sont
six weeks after the alleged libel has come to rputs tre publis et constituer un libelle
the plaintiffs knowledge, given to the diffamatoire. L.R.O. 1990, chap. L.12, art. 2.
defendant notice in writing, specifying the
matter complained of, which shall be served in
the same manner as a statement of claim or by Avis de laction
delivering it to a grown-up person at the chief 5 (1) Nulle action dcoulant dun libelle
office of the defendant. R.S.O. 1990, c. L.12, diffamatoire imprim dans un journal, ou
s. 5 (1). radiodiffus ou tldiffus nest recevable
68

33

moins que le demandeur, dans les six semaines


Where plaintiff to recover only actual damages aprs que le fait diffamatoire allgu a t
(2) The plaintiff shall recover only actual port sa connaissance, nait donn au
damages if it appears on the trial, dfendeur un avis crit prcisant le fait
diffamatoire dont il se plaint. Lavis est
(a) that the alleged libel was published in good signifi de la mme faon quune dclaration
faith; ou en le remettant une personne adulte au
bureau principal du dfendeur. L.R.O. 1990,
(b) that the alleged libel did not involve a chap. L.12, par. 5 (1).
criminal charge;
Octroi de dommages-intrts compensatoires
(c) that the publication of the alleged libel took seulement
place in mistake or misapprehension of the (2) Le demandeur nobtient que des
facts; and dommages-intrts compensatoires si, au
procs, il appert :
(d) that a full and fair retraction of any matter
therein alleged to be erroneous, a) que le libelle diffamatoire allgu a t
publi de bonne foi;
(i) was published either in the next regular b) que le libelle diffamatoire allgu ne portait
issue of the newspaper or in any regular issue pas sur une accusation criminelle;
thereof published within three days after the
receipt of the notice mentioned in subsection c) que la publication du libelle diffamatoire
(1) and was so published in as conspicuous a allgu sest faite par erreur ou par suite dune
place and type as was the alleged libel, or mauvaise comprhension des faits;

(ii) was broadcast either within a reasonable d) quune rtractation complte et honnte des
time or within three days after the receipt of faits quon prtend errons a t, selon le cas :
the notice mentioned in subsection (1) and was
so broadcast as conspicuously as was the (i) publie soit dans le numro ordinaire
alleged libel. R.S.O. 1990, c. L.12, s. 5 (2). suivant du journal ou dans un numro ordinaire
publi dans les trois jours de la rception de
Case of candidate for public office lavis mentionn au paragraphe (1), et a t
(3) This section does not apply to the case of a publie aussi clairement, quant lendroit et
libel against any candidate for public office aux caractres, que le libelle diffamatoire
unless the retraction of the charge is made in a allgu lavait t,
conspicuous manner at least five days before
the election. R.S.O. 1990, c. L.12, s. 5 (3). (ii) radiodiffuse ou tldiffuse soit dans un
dlai raisonnable, soit dans les trois jours de la
rception de lavis mentionn au paragraphe
Limitation of action (1), et a t radiodiffuse ou tldiffuse aussi
6 An action for a libel in a newspaper or in a clairement que le libelle diffamatoire allgu
broadcast shall be commenced within three lavait t. L.R.O. 1990, chap. L.12, par. 5 (2).
months after the libel has come to the
knowledge of the person defamed, but, where Rtractation lgard dun candidat une
such an action is brought within that period, fonction publique
the action may include a claim for any other (3) Le prsent article ne sapplique pas dans le
69

34

libel against the plaintiff by the defendant in cas dun libelle diffamatoire contre un candidat
the same newspaper or the same broadcasting une fonction publique moins que la
station within a period of one year before the rtractation ne soit faite clairement au moins
commencement of the action. R.S.O. 1990, c. cinq jours avant llection. L.R.O. 1990, chap.
L.12, s. 6. L.12, par. 5 (3).

Application of ss. 5 (1), 6


Prescription de laction
7 Subsection 5 (1) and section 6 apply only to 6 Une action dcoulant dun libelle
newspapers printed and published in Ontario diffamatoire imprim dans un journal, ou
and to broadcasts from a station in Ontario. radiodiffus ou tldiffus est introduite dans
R.S.O. 1990, c. L.12, s. 7. les trois mois de la date o la personne vise a
eu connaissance du libelle diffamatoire.
Publication of name of publisher, etc. Toutefois, si laction est intente dans ce dlai,
elle peut comprendre une demande fonde sur
8 (1) No defendant in an action for a libel in a un autre libelle diffamatoire commis par le
newspaper is entitled to the benefit of sections dfendeur contre le demandeur, dans le mme
5 and 6 unless the names of the proprietor and journal ou la mme station de radiodiffusion
publisher and the address of publication are ou de tldiffusion, dans lanne qui prcde
stated either at the head of the editorials or on lintroduction de laction.
the front page of the newspaper. R.S.O. 1990, Application du par. 5 (1) et de lart. 6
c. L.12, s. 8 (1).
7 Le paragraphe 5 (1) et larticle 6 ne
sappliquent quaux journaux imprims et
publis en Ontario ainsi qu ce qui est
radiodiffus ou tldiffus par des stations
situes en Ontario. L.R.O. 1990, chap. L.12,
art. 7.

Publication du nom du propritaire et de


lditeur

8 (1) Le dfendeur dans une action dcoulant


dun libelle diffamatoire imprim dans un
journal ne peut se prvaloir des articles 5 et 6
que si le nom du propritaire et de lditeur
ainsi que ladresse du lieu de publication
figurent soit en tte des ditoriaux soit la
premire page du journal. L.R.O. 1990, chap.
L.12, par. 8 (1).
70

35

Protection of Public Participation Act, 2015, S.O. 23

4. The Libel and Slander Act is amended by 4. La Loi sur la diffamation est modifie par
adding the following section: adjonction de larticle suivant :
Communications on Public Interest Matters Communications sur des affaires dintrt
public
Application of qualified privilege
25. Any qualified privilege that applies in Application de limmunit relative
respect of an oral or written communication on 25. Limmunit relative qui sapplique
a matter of public interest between two or more lgard dune communication verbale ou crite
persons who have a direct interest in the matter portant sur une affaire dintrt public entre
applies regardless of whether the deux personnes ou plus qui ont un intrt direct
communication is witnessed or reported on by dans laffaire sapplique, que des reprsentants
media representatives or other persons. des mdias ou dautres personnes soient
tmoins de la communication ou en fassent
tat.

71
36
The Libel and Slander Act 1958, S.O. 1958, c. 51

1958 LIBEL AND SLANDER Chap. 51 203

CHAPTER 51

The Libel and Slander Act, 1958


Assented to March 27th, 1958
Session Prorogued March 27th, 1958

ER MAJESTY, by and with the advice and consent of


H the Legisla tive Assembly of the Province of Onta rio,
enacts as follows:

INTERPRETATION

1.-(1) In this Act, Interpre-


tation

(a) "broadcasting" means the dissemination of any form


of radioelectric communication, including radio-
telegraph, radiotelephone, the wireless transmission
of writing, signs, signals, pictures and sounds of all
kinds, by means of Hertzian waves intended to be
received by the public either directly or through the
medium of relay stations, and "broadcast" has a
corresponding meaning; New.

(b) "newspaper" means a paper containing public news,


intelligence, or occurrences, or remarks or observa-
tions thereon, printed for sale and published periodi-
cally, or in parts or numbers, at intervals not exceed-
ing thirty-one days between the publication of any
two of such papers, parts or numbers, and includes
a paper printed in order to be made public weekly
or more often or at intervals not exceeding thirty-
one days and containing only, or principally, adver-
tisements. R.S.O. 1950, c. 204, s. 1.

(2) Any reference to words in this Act shall be construed Meaning of


word ~:~
as including a reference to pictures, visual images, gestures e"tend ed
and other methods of signifying meaning. New.

LIBEL

2. Defamatory words in a newspaper or in a broadcast What con-


shall be deemed to be published and to constitute libel. New. Ti~~ytes

3.
72
37

204 Chap. 51 LIBEL AND SLANDER 1958


Prlvl!eged
reports 3.-(1) A fair and accurate report in a newspaper or in
a broadcast of any of the following proceedings that are
open to the public is privileged, unless it is proved that the
publication thereof was made maliciously:

1. The proceedings of any legislative body or any part


or committee thereof in the British Commonwealth
that may exercise any sovereign power acquired by
delegation or otherwise.

2. The proceedings of any administrative body that is


constituted by any public authority in Canada.

3. The proceedings of any commission of inquiry that


is constituted by any public authority in the British
Commonwealth.

4. The proceedings of any organization whose members,


in whole or in part, represent any public authority
in Canada.
Idem
(2) A fair and accurate report in a newspaper or in a
broadcast of the proceedings of a meeting bona fide and
lawfully held for a lawful purpose and for the furtherance of
discussion of any matter of public concern, whether the
admission thereto is general or restricted, is privileged, unless
it is proved that the publication thereof was made maliciously.
Publicity (3) The whole or a part or a fair and accurate synopsis in
releases
a newspaper or in a broadcast of any report, bulletin, notice
or other document issued for the information of the public
by or on behalf of any body, commission or organization
mentioned in subsection 1 or any meeting mentioned in
subsection 2 is privileged, unless it is proved that the publi-
cation thereof was made maliciously.
Decisions, (4) A fair and accurate report in a newspaper or in a
etc., of
certain broadcast of the findings or decision of any of the following
types of
association associations, or any part or committee thereof, being a finding
or decision relating to a person who is a member of or is
subject, by virtue of any contract, to the control of the
association, is privileged, unless it is proved that the publica-
tion thereof was made maliciously:

1. An association formed in Canada for the purpose of


promoting or encouraging the exercise of or interest
in any art, science, religion or learning, and em-
powered by its constitution to exercise control over
or adjudicate upon matters of interest or concern
to the association, or the actions or conduct of any
persons subject to such control or adjudication.

2.
73
38

1958 LIBEL AND SLANDER Chap. 51 205

2. An association form ed in Canada for the purpose of


promoting or safeguardi ng the interests of any t rade,
business, industry or p rofession, or of the persons
carrying on or engaged in any trade, business,
industry or profession, and empowered by its con-
stitution to exercise control over or adjudicate upon
matters connected with the trade, business, industry
or profession.

3. An association formed in Canada for the purpose of


promoting or safegua rding th e in t eres ts of a ny game,
sport or pastim e t o the pl ayi11g or exercising of which
members of t he p ubli c a re invited or admitted, and
empowered by its constitution to exercise control
over or adjudicate upon persons connected with or
taking part in the game, sport or pastime.

(5) Nothing in this section au thorizes any blasphemous, Improper


.
sed ttwus d ecent matter m
or m a newspaper or m
a b roa d cast. matter

(6) oth ing in this sect ion limits or abridges any privilege Saving
now by la w exist ing or protects th publi ation of any matter
not of public con ern or t he pu bli ation of wlu h is not for
the public benefit.

(7) T he pro tection afford ed by Lhi s section is not av ai lable W hen


as a defence in a n action for libel if the pla intiff shows lhat ~:f~~~afoL
the defe nd ant r~ fusecl t o insert in t he newspaper or to broad- ~~~1~~itt o n
cast, as the case may be, a reasonable s tatem -nt of explanation
or contrad iction by or on b ha lf of the plaintiff. R.S.O. 1950,
c. 204, s. 9, amended.

4 . -(1) A fair a nd a urate r por t w ithou t comment in a Repor~ or


newspa per or .m a b_roa d as t o-f proce d'm gs p ubl'lC1y .I1eard 1n
procoed
courtslngs
before a cour t of justice, if published in t he newspap r or
broadcast contemporaneously with such proceedings, is
absolutely privileged unless the defendant has refused or
neglected to insert in the newspap r in whi h the report
complained of app a red or t o broadcast, as the case may be,
a reasona ble statement of xplanation or cont radiction by
or on behalf of the plaintiff.

(2) Nothing in this section au thorizes any blasphemous, Improper


sed .ttlous
d ecent matter m
or 111 a newspaper or m
a b road cast. matter
R.S.O. 1950, c. 204, s. 10, a.mended.

5.-(1) No action for libel in a newspaper or in a broadcast No U~e or


lies unless the plai1ttiff has, wit nin six weeks after the a Ueged action
libel has come to his knowledge, given to the defendant notice
in writing, specifying the matter complained of, which shall

be
74
39

206 Chap. 51 LIBEL AND SLANDER 1958

be served in the same rnanner as a statement of claim or by


delivering it to a grown-up person at the chief office of the
defendant.

Where (2) The plaintiff shall recover only actual damages if it


plaintiff
to recover appears on the trial,
only
actual
damages
(a) that the alleged libel was published in good faith;

(b) that the alleged libel did not involve a criminal


charge;

(c) that the publication of the alleged libel took place


in mistake or misapprehension of the facts; and

(d) that a full and fair retraction of any matter therein


alleged to be erroneous,

(i) was published either in the next regular issue


of the newspaper or in any reg ular issue
thereof published withjn three days after the
receipt of the notice mentioned in subsection
1 and was so published in as conspicuous a
place and type as was the a lleged libel, or

(ii) was broadcast either with_in a reasonable


time or within three days after the receipt of
the notice mentioned in subsection 1 and was
so broadcast as conspicuously as was the
alleged libel.

Case of (3) This section does not apply to the ase of a libel against
candidate
for public
office
any andidate for publi office unless the retraction of the
charge is made in a conspi uous manner at least five days
before the election. R.S.O. 1950, c. 204, s. 7, amended.

Limitation
of actions 6. An a tion for a libel in a newspaper or in a broadcast
shall be commenced within three months after the libel has
come to the knowledge of the person defamed, but, where
such an action is brou ght witl1in that period, the action may
include a claim for any other libel against the plain tiff by the
defendant in the same n wspaper or t11e san1e broadcasting
station within a period of one year before the ornmencement
of the a tion. R.S.O. 1950, c. 204, s. 13, amended.

Application 7. Subsection 1 of section 5 and section 6 apply only to


or s. 5,
subs . 1, and
B. 6
newspapers printed and published in Ontario and to broad-
casts from a station in Ontario. R.S.O. 1950, c. 204, s. 17,
amend-ed.

8.
75
40

1958 LIBEL AND SLANDER Chap. 51 207


8.-(1) No defendant in an action for a libel in a newspaperPtbl!oatiop
is entitled to the benefit of sections 5 and 6 unless the na mes guGft:S,~r~
of the proprietor a nd publisher and the address of publication etc.
are stated either at the head of the ed itorials or on the front
page of the newspaper.

(2) The production of a printed copy of a n wspaper is Copy or



pnma r .
.1ac-w ev1"d ence o f t I1e pu bl'1catlon
. o f t he pnnte
. d copy to
newspaper
,be .
and of the truth of the statements mentioned in subsection 1. C;id'o~~gcu
R.S.O. 1950, c. 204, s. 14, amended.

(3) Where a person, by registered lett r ootaini.ng his i,i.h:,r~ not


address and addressed to a broadcasting station, alleg s that to apply
a libel against him has been broad ast from the station and
requ ests the name and address of the owner or operator of
the station or the names a nd addresses of the owner and the
operator of the station, se tions 5 and 6 do not apply with re-
spect to an action by such person against such owner or
operator for the alleged libel unle.ss the person whose 11ame
and address are so requested delivers the requ stet! information
to the first-mentioned person, or mails it by registered lett r
add ressed to him, '' ithin ten days fr rn the date on whi ch
the first-mentioned register d letter is rec ived at the broad-
casting station. New.

9.- (1) 1nan action for a li bel in a newspaper, the d fendant ft:~) 8 Pffaor
may plead in mitigation of damages that th li bel was UIS rtedin mlRgatlo n
. w1"th out actua I m a!"1ce an d w1
tl1ere1n "tl10ut gross neg 11.gence o r dam.a.ges
and that before the commencement of the action, or at the
earliest opportunity a fterwards, he ins rted in such news-
pap r a fu ll apology for the l.ibel or, if the newspaper in which
the libel appeared is one ordinari ly published at intervals
exceeding one week, t hat he offered to publish tl1e apology
in any newspaper to be selected by the plaintiff. R .. 0. 195 ,
c. 204, s. 6, amended.

(2) In a~ ac ~~n f?r a libel in a broadcast~ he defendant ~b~~d~t


may pl ead Ln m1ttgat10n of damages that the libel was broad- Jn mitigatio n
cast WJ"tl10ut actua I rna1"1 e an d w1t
. hout gross neg I"1gence an d f damages
that before the commencement of the action, or at the earliest
opportunity afterwards, he broadcast a full apology for the
libel. New.

10. J~~an action for a libel in a newspaper or in a broadcast, Evi , ctontee In


m 1"1~;ta 1on
tl1e d e fend ant may prove .m m1tigat10n
. . . o f d am ages t I1at t I1e or damngea
plaintiff has a lready brought actions for, or has recovered
damages, or has received or agreed to receive compensation
in respect of a libel or libels to the same purport or effect as
that for which such action is brought. R.S. . 1950, c. 204,
s. 16, amended.

11.
76
41

208
Payment
Chap. 51 LIBEL AND SLANDER 1958
1
Into court 1.1. A d fendant may pay into court wlth his defence a
sum of money by way of amends for the injury sustained
by the publi ation of any libel to which seclions 5 and 9
apply, and, e.'Xcept so fa r as rega rds the additional facts here-
inbefore required to be pi ad d by a defendant, such payment
has the same effect as payment into ourt in other cases.
R.S.O . 1950, c. 204, s. 8, ameud d.
Consolida- 12.-(1) The court, upon an application by two or more
tion of
different defendants in any two or more actions for the same or sub-
actions for
same libel stantially the same libel, or for a libel or libels the same or
substantially the same in diHerent newspapers or broadcasts,
brought by the same person or persons, may make an order
for the onsolidation of such actions so that they will be tried
together, and, after such order has been made and before
the trial of such actions, the defendants in any new actions
instituted by the same person or persons in respect of any
such libel or l.ibe ls shall also be entitl.cd to be joined in the
ommon action upon a joint application being made by such
n w defendants and the defendants .in th actions a lready
consolidat d . R.S.O. 1950, c. 204, s. 5 (1), amende&
Assessm nt (2) ln a con olidated action und er this s ction, th jur
or damagoo
shall
and a pp('lr-
tlonment of
assess the whole amount of the damages, if any, in one
damages swn, but a separate erdi t shall be taken for or against each
and cos ts
d f ndant in the sam way as if the actioz1s consolidated had
been tried separately and, if the jury finds a verdict against
the defendant or defendants in more than on of the aC"tions
so co nsolid a ted, the jury sha ll a pportion th am ou t of the
damages bet\ een and against the last-m n tioned cJ fendru1 ts,
and the jud ge at t he trial, in th event of the plaintiff b ing
awarded the costs of t h a tion, shall thereupon m ake such
order as he deems just for t he apportiozunen t of the costs
b n een a nd against su h defendants. R.S.O. 1950, c. 204,
s. 5 (2), a mend d.
Application (3) This section does not apply where the libel or lib Is
were contain cl in an advertisement. R.S.O. 1950, c. 204,
s. 5 (3), am end d.

Security 13.- (1) In an action for a libel in a newspaper or in a


for coats
broadcast, the defendant may, at any tim e after the delivery
of the stat m nt of laim or th expiry of he t.ime within
which it should have been delivered, apply to the court for
security for costs, upon notice and an affidavit by the de-
fendant or his ag n showing the na ture of the action and of
the defence, tbat the plaintiff is not possessed of property
sufficient to answer th costs of the action in case judgment
is given in favour of the defendant, that the defendant has
a good defence on the merits and that the statements com-
plained of were made in good faith, or that the grounds of

action
77
42

1958 LIBEL AND SLANDER Chap. 51 209

action are trivial or frivolous, and the court may make an


order for the plaintiff to give security for costs, which shall
be given in accordance with the practice in cases where a
plaintiff resides out of Ontario, and the order is a stay of
proceedings until the security is given.

(2) Where the all eg d libel involves a rimin a l ha rg , Whoro Ubel


. Ied to s cun.ty fot COilts un d er t I11s
. not en ttl
t I1e d e r nd ant IS . orlrnlnnt
ln,olves a
section unless he atisfi s the court tha t the action is tr] via l charge
or frivolous, or that the circumstances which under section 5
entitle the defendant at the trial to have the damages re-
stricted to actual damages appear to exist, except the cir-
cumstances that the matter complained of involves a criminal
charge.
(3) For the purpose of this section, the plaintiff or the Examination
. . of pnrtiM
defendant or their agents may be exammed upon oath at any
time after the delivery of the statement of claim.

(4) An order made under this section by a judge of the WJ?.en order
S upreme C ourt IS not su b'Ject to appeal , b ut, respe?t!ng
. fi na I an d IS of JUdge

where the order is made by a local judge, an appeal therefrom ~enc~nty


lies to a judge of the Supreme Court sitting in chambers,
whose order is final and is not subject to appeal. R.S.O. 1950,
c. 204, s. 11, amended.

14. An action for a lib I in a newspaper or in a broadcast Pla ce of


shall be tried in the county where the chief office of the tl'ial
newspaper or broadcasting station is, or in the county where
the plaintiff resides at the time the action is brought; but,
upon the application of either party, the court may direct
the action to be tried, or the damages to be assessed, in any
other county if it appears to be in the interests of justice or
that it will promote a fair trial, and may impose such terms
as to the payment of witness fees and otherwise as may seem
proper. R.S.O. 1950, c. 204, s. 12, amended.

15. On the trial of an action for libel, the jury may give Verdicts
a general verdict upon the whole matter in issue in the action
and shall not be required or directed to find for the plaintiff
merely on proof of publication by the defendant of the alleged
libel and of the sense ascribed to it in the action, but the court
shall, according to its discretion, give its opinion and directions
to the jury on the matter in issue as in other cases, and the
jury may on such issue find a special verdict, if they think
fit so to do, and the proceedings after verdict, whether general
or special, shall be the same as in other cases. R.S.O. 1950,
c. 204, s. 4.

16. An agreement for indemnifying any person against Agreements


ror lnclem-
civil liability for libel is not unlawful. New. nlty

SLANDER
78
43

---
210 Chap. 51 LIBEL AND SLANDER 1958

SLANDER

Slander of 17. In an action for slander for defamatory words spoken


women
of a woman imputing unchastity or adultery, it is not necessary
to allege in the plaintiff's statement of claim or to prove that
special damage resulted to the plaintiff from the utterance
of such words, and the plaintiff may recover damages without
averment or proof of special damage. R.S.O. 1950, c. 204,
s. 18 (1).

S la n der
affecting
18. In an action for slander for words calculated to dis-
ot'l'lcla l,
prorossl(mal
parage the plaintiff in any office, profession, calling, trade or
or bus i n ess business held or carried on by him at the time of the publica-
r e pu tation
tion thereof, it is not necessary to allege or prove special
damage, whether or not the words are spoken of the plaintiff
in the way of his office, profession, calling, trade or business,
and the plaintiff may recover damages without averment or
proof of special damage. New.
Slander of 19. In an action for slander of title, slander of goods or
title, etc.
other malicious falsehood, it is not necessary to allege or
prove special damage,

(a) if the words upon which the action is founded are


calculated to cause pecuniary damage to the plaintiff
and are published in writing or other permanent
form; or

(b) if the words upon which the action is founded are


calculated to cause pecuniary damage to the plaintiff
in respect of any office, profession, calling, trade or
business held or carried on by him at the time of the
publication,

and the plaintiff may recover damages without averment or


proof of special damage. New.

Security 20.-(1) In an action for slander, the d~fendant may,


for costs
at any time after the delivery of the statement of claim or
the expiry of the time within which it should have been
delivered, apply to the court for security for costs, upon
notice and an affidavit by the defendant or his agent showing
the nature of the action and of the defence, that the plaintiff
is not possessed of property sufficient to answer the costs of
the action in case judgment is given in favour of the defendant,
that the defendant has a good defence on the merits, or that
the grounds of action are trivial or frivolous, and the court
may make an order for the plaintiff to give security for costs,
which shall be given in accordance with the practice in cases
where a plaintiff resides out of Ontario, and the order is a stay
of proceedings until the security is given.

(2)
79
44

1958 LIBEL AND SLANDER Cha p. 51 211


(2) For the purpose of this section, the plaintiff or the ~xam}n a
defendant may be e.xamined upon oath at any time after the P<~:'u~
delivery of the statement of claim. R.S.O. 1950, c. 204,
s. 18 (2, 3), amended.

LIBEL AND SLANDER

21. In an action for libel or slander, the plaintiff may Averments


aver that the words complained of were used in a defamatory
sense, specifying the defamatory sense without any prefatory
averment to show how the words were used in that sense,
and the averment shall be put in issue by the denial of the
alleged libel or slander, and, where the words set forth, with
or without the alleged meaning, show a cause of action, the
statement of claim is sufficient. R.S.O. 1950, c. 204, s. 2,
amended.

22. In an action for libel or slander where the defendant Apologies


has pleaded a denial of the alleged libel or slander only, or
has suffered judgment by default, or judgment has been
given against him on motion for judgment on the pleadings,
he may give in evidence, in mitigation of damages, that he
m().de or offered a written apology to the plain tiff for such
libel or slander before the commencement of the action, or,
if the action was commenced before there was an opportunity
of making or offering such apology, that he did so as soon
afterwards as he had an opportunity. R.S.O. 1950, c. 204,
s. 3, amended.

23. In an action for libel or slander for words containing Justification


two or more distinct charges against the plaintiff, a defence
of justification shall not fail by reason only that the truth of
every charge is not proved if the words not proved to be true
do not materially injure the plaintiff's reputation having
regard to the truth of the remaining charges. New.

24. In an action for libel or sla nd er for word. consisting F a ir


.
1 o f a 11ega twns
party . o r opm10n,
o f fact and par tl y o f expression . . co mm ent
a defence of fair comment shall not fail by reason only that
the truth of every allegation of fact is not proved if the
expression of opinion is fair comment having regard to such
of the facts alleged or referred to in the words compla ined
of as are proved. New.

MISCELLANEOUS

25. This Act applies for the purposes of any proceedings Application
begun after the commencement of this Act regardless of when
the cause of action arose and nothing in this Act affects any

proceedings
80
45

212 Chap. 51 LIBEL AND SLANDER 1958

proceedings begun before the commencement of this Act,


which proceedings shall be continued as though this Act had
not been passed.
R.S.O. 1950, 26. The L1:bel and Slander Act is repealed.
c. 204,
repealed
Commence- 27. This Act comes into force on a day to be named by
ment
the Lieutenant-Governor by his Proclamation.
Short title 28. This Act may be cited as The Libel and Slander Act,
1958.

CHAPTER