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by Toronto Defamation Lawyer, Gil Zvulony

Introduction

Every legal claim has an expiry date.  In legal terminology this is called a Limitation Period.  A limitation period is the maximum time after an event that legal proceedings based on that event may be initiated.  The limitation period for a defamation lawsuit in Ontario depends on a number of factors.  Simply put, if the lawsuit is for a libel in a newspaper or broadcast then a lawsuit must be commenced within three months after the libel has come to the knowledge of the person defamed.  The limitation period for libel and slander other than  in a newspaper or broadcast is two years from the day on which the claim was discovered or ought to have been discovered.  There is some uncertainty in the law whether the limitation period for libel on the internet is the same as in a broadcast (3 months) or is simply two years. Out of an abundance of caution it is recommended, whenever possible, to comply with the stricter limitation period of 3 months to satisfy all opinions.

Limitation Period is Found in the Libel and Slander Act

The notice requirements and limitation period found in the Libel and Slander Act (Ontario) governs libels in a newspaper or broadcast.

It reads:

Limitation of action
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. R.S.O. 1990, c. L.12, s. 6.

The Libel and Slander Act has very specific definitions for newspaper and broadcasting.  If the mode of libel falls under the definition of newspaper or broadcast then the limitation period of three months set out above applies.  The Libel and Slander Act defines newspaper and broadcast as follows:

1.  (1)  In this Act,

“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,

(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 télédiffusion”, “radiodiffuser ou télédiffuser”)

“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. (“journal”)

Note that the above definitions are very technical and may apply to libels that one might not have considered to be in a newspaper or broadcast such as a company newsletter or some forms of internet communications.

Notice Requirement

Subsection 5(1) of the Libel and Slander Act requires a libel victim to serve a timely libel notice on the defendant as a condition precedent to commencing an action.  Section 5(1) reads as follows:

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. R.S.O. 1990, c. L.12, s. 5 (1).

The above notice requirements and limitation period in the Libel and Slander Act applies to non-media defendants as well. In Watson v. Southam Inc. 2000 CanLII 5758 (ON CA) a unanimous Court of Appeal held at paragraph 53 that:

53     I see no principled basis for excluding any defendant from the benefit of the notice provision in s. 5(1) of the Libel and Slander Act. The purpose of the notice requirement is to give a defendant an independent opportunity to issue a retraction, correction, withdrawal or apology for allegedly defamatory statements, thereby mitigating potential damages. Whether the defendant is a media defendant appears to me to be irrelevant. The opportunity to mitigate damages should be available to all defendants.

Objective Standard of Knowledge of Libel Starts the Limitation Period Clock

As mentioned above, section 6 of the Libel and Slander Act states that a lawsuit must be commenced within 3 months “after the libel has come to the knowledge of the person defamed”.   The courts have consistently interpreted the word “knowledge” in section 6 of the Libel and Slander Act to have an objective component.  A plaintiff who suspects he was libeled has a positive duty to investigate.  The limitation clock does not start when the plaintiff has actual knowledge if material facts could have been discovered sooner.

In Bhaduria v. Persaud, 1998 CanLII 14846 (ON SC) the central issue before the court was whether the knowledge component in section 6 of the Libel and Slander Act was subjective or objective.  In Bahduria, the plaintiff did not subjectively know any material facts until two years after the alleged publication.  After a thorough analysis of the issue, the court held at paragraph 22: “Therefore, it is my conclusion that the Libel and Slander Act limitation period must be treated as having an objective component. It is sufficient that the plaintiff could reasonably have known of the libel; it is not necessary that actual knowledge on the part of the plaintiff be demonstrated.”  The court went on to hold that the plaintiff could reasonably have learned of the defamation sooner and dismissed the claim because the limitation period had expired.

This principle was also applied in the case of Macdonald v. Canadian Broadcasting Corp [2009] O.J. No. 6426 (ONSC).  In Macdonald, the plaintiff was advised that the defendant spoke about him on television but did not know what words were spoken about him.  He attempted to get a copy of the tape of the broadcast from the CBC but could not.
At paragraph 20 the court found that once the plaintiff knew of the broadcast he “was under a duty to act diligently and speedily to ascertain the relevant facts”.  A duty which he failed to discharge.  At paragraph 21 the court thought that it was significant that  there was “no evidence that he advised the CBC as to his legal concerns about the possibly defamatory content of the broadcast”.   The Macdonald case was upheld by the Ontario Court of Appeal (Macdonald v. Canadian Broadcasting Corp. [2011] O.J. No. 4593 (ONCA)) and leave to appeal to the Supreme Court was denied [2011] S.C.C.A. No. 513 .

Limitation Period for Defamation Not in a Newspaper or Broadcast is 2 Years

The limitation period for defamation in a publication (that is not in a “newspaper” or “broadcast”) is found in the Limitations Act, 2002 S.O. 2002.  Section 4 of the Limitations Act provides the basic limitation period of two years from when the claim was discovered.  It reads: Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”  Section 5(1)(iii) of the Limitations Act deems the date of discovery to be the same date as the date the act took place.  Section 5(2) of the Limitations Act creates a legal presumption that the claim was discovered on the day the “act” occurred.   Therefore, the limitation period clock would start ticking when the libel or slander was first published, unless it could be proven by the victim that it was not reasonable to discover it on that date.

Conclusion

Limitation period issues in defamation litigation tend to be more complicated than in other matters.  Actual knowledge of the defamation is not needed to start the limitation period clock.  Anyone who believes that they have been defamed has a positive duty to make reasonable inquiries to ascertain knowledge of the defamation.