Canada: The Second Opinion: Ontario Court Of Appeal Rejects "Single Publication" Rule

Should identical defamatory articles, one published in a magazine and the other on the Internet, be treated differently for the purposes of limitation periods? Should each be treated as a separate libel, or do they both constitute a single libel? The Ontario Court of Appeal recently weighed in on these questions, leaving the former open, but deciding on the latter that each libel was a separate libel and in so doing, rejected the American "single publication" rule.

Context

Shtaif v. Toronto Life Publishing Co. Ltd, 2013 ONCA 405 arose out of an allegedly defamatory article that appeared in Toronto Life magazine and later, on Toronto Life's website. At the time, the plaintiffs complained about the print article but did not sue. Shortly thereafter, the same article appeared online. The plaintiffs became aware of the online version and in October 2008, commenced a defamation and negligence claim with respect to the online version of the article.

In June 2011, the defendants moved to dismiss the action on the basis that defamation claim was outside the limitation period in section 6 of the Libel and Slander Act ("LSA") and that the negligence claim was not made out because they owed no duty of care to the plaintiffs. The plaintiffs brought a cross-motion to amend their claim to add a libel claim regarding the earlier print version of the article, under the "recapture" provisions of section 6 of the LSA.

Limitation Periods for Internet Publications

The threshold issue was whether the plaintiff's defamation claim with respect to the online article was subject to the limitation provisions in sections 5(1) and 6 of the LSA.

The limitation period in section 5(1) bars an action for libel in a "newspaper" or in a "broadcast" outside six weeks. Section 6 then states that such an action must be commenced within three months after the libel has come to the knowledge of the person defamed but also permits a previous libel to be "recaptured" in such an action. This allows plaintiffs to sue over previous libels by the same newspaper or broadcasting station in the one year period prior to the commencement of the action. Section 7 then restricts the application of sections 5(1) and 6 to "newspapers printed and published in Ontario and to broadcasts from a station in Ontario." The plaintiffs argued that their claims regarding the Internet publication were not subject to sections 5(1) and 6, and therefore the longer two-year limitation period in the Limitations Act would apply.

The Court of Appeal declined to rule on the motion, and decided that this question was a genuine issue for trial.

Single Publication Rule

The defendants argued that the American "single publication rule" should apply. Under this rule, a plaintiff has a single cause of action which arises at the first publication of an alleged libel, regardless of the number of copies of the publication distributed or sold. Applied here, this rule would mean that the limitation for both the print and online version of the article would have run out six weeks after the print article was first published. English and Australian courts have rejected the single publication rule, as has the B.C. Court of Appeal.

The Ontario Court of Appeal canvassed the law, ultimately finding that the single publication rule was anathema to the balancing of interests struck by the limitations provisions of the LSA. The Court expressed concern that the single publication rule was not adequate for all forms of communication and observed that while a print publication might have a limited circulation and lifespan, the lifespan and circulation of a publication on the Internet were potentially unlimited. As a result, the Court rejected the single publication rule, meaning that each republication of a libel should be treated as a distinct libel.

"Recapturing" Previous Libel

The Court also restricted the scope of the "recapture" provisions, finding that a recaptured libel is a separate cause of action – and must therefore be asserted within the limitation period set out in the LSA. Here, the claim for the recaptured libel would have to have been asserted in the action and therefore within three months after the libel sued on came to the plaintiff's knowledge. The Court found that this was not the case and that the claim therefore failed.

Finally, the Court granted summary judgment and dismissed the plaintiffs' negligence claim. While a negligence claim can proceed in tandem with a defamation claim, the negligence claim must be able to stand independently. Here, the Court found no pre-existing relationship between the parties sufficient to establish a duty of care and the claim failed for that reason.

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