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Torts - Defamation - Libel and Slander Act (LSA). Wurdell v. Paramount Safety Consulting Inc. & Ben Scipione
In Wurdell v. Paramount Safety Consulting Inc. & Ben Scipione (Div Court, 2023) the Divisional Court considers the application of s.5(1) ['Notice of Action'] of the Libel and Slander Act to a slander:[7] Section 5(1) of the Libel and Slander Act reads:Notice of action
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 plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant. ....
(b) Did the motion judge err in finding that s. 5(1) of the Libel and Slander Act applied?
[23] The Appellant’s position is that the motion judge was bound by Ontario Court of Appeal decisions that have held that a written communication sent by email or facsimile does not engage the notice requirement in s. 5(1) of the Libel and Slander Act. Further, the Ontario Divisional Court has held that a party seeking to rely on the s. 5(1) notice requirement must lead compelling evidence about its application and that was lacking in the materials before the motion judge. The Respondents did not lead any evidence that could support a finding that the Letter sent by email in this case constitutes a “publication” that triggered notice to have been provided pursuant to s. 5(1) prior to the claim being commenced.
[24] It is the Respondents’ position that the Appellant pleaded and relied on the Libel and SlanderAct and not the common law tort of defamation. As a result, the onus was on him to show how the Libel and Slander Act applied. Here, the Appellant’s defamation claim was statute-barred by operation of s. 5(1) and so the motion judge was correct in striking the defamation pleadings since it would be a waste of court time for the claim to proceed. It would be inappropriate and unfair to the Respondents for the motion judge to have “read in” the general common law tort of defamation when the Libel and Slander Act was specifically pleaded by the Appellant.
Discussion
[25] I conclude that the motion judge erred in his alternative finding that, if this is a case to which the Libel and Slander Act does apply, then the Appellant did not comply with the notice requirement under s. 5(1) of the Act and so his defamation claim should be struck.
[26] The purpose of the s. 5(1) notice is to bring an alleged libel to the publisher or broadcaster’s attention so that they may investigate and, if deemed appropriate, publish or air a retraction, correction, or apology; this enables the publisher or broadcaster to reduce or eliminate any damages: see Janssen-Ortho Inc. v. Amgen Canada Inc. (2005), 256 D.L.R. (4th) 407 (Ont. C.A.), 2005 CanLII 19660 (ON CA), at para. 38; and J.K. v. The Korea Times & Hankookilbo Ltd. (The Korea Times Daily), 2016 ONCA 375, at para. 19(iv).
[27] The Ontario Court of Appeal has affirmed that allegedly defamatory emails do not constitute a broadcast or a newspaper for the purposes of the Libel and Slander Act, and so the s. 5(1) notice requirement does not apply to them: see Janssen-Ortho Inc., at para. 6; and Weiss v. Sawyer, 2002 CanLII 45064 (ON CA), 61 O.R. (3d) 526, at paras. 28-30.
[28] The jurisprudence is also clear that oral communications made over a telephone call do not constitute a “broadcast” within the meaning of the Libel and Slander Act: see Elguindy v. Koren, 2008 CanLII 7744 (ON SC), at para. 27; and Bedessee Imports Ltd. v. K M Imports Inc., 2014 ONSC 1889, at para. 81.
[29] Section 5(1) is not triggered in this case. Simply pleading the Libel and Slander Act does not engage the s. 5(1) notice requirements. Rather, there must be an underlying newspaper publication or an underlying broadcast for s. 5(1) to apply. Here, there is no publication in a newspaper or broadcast alleged in the statement of claim. Nor was there any evidence led by the Respondents that there was a newspaper publication or broadcast at issue.
[30] The motion judge erred in finding that the Letter was subject to compliance with the notice required under s. 5(1) on the evidentiary record before him. It follows that it was not open to him to conclude that the defamation claim should be struck on this basis.
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