Notice of Intended Action and Limitation Defences
| Author | Roger McConchie; David Potts |
| Profession | Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario |
| Pages | 61-107 |
C H A P T E R S I X
I
Notice
of
Intended Action
and
Limitation Defences
A
prospective
defamation
plaintiff
confronts
a
minefield
of
limitations issues.
If
the
libel
was
published
in a
newspaper
or a
broadcast,
defamation
statutes
in
most provinces require that
the
plaintiff
serve
a
notice
of
intended
action
on
each prospective defendant within
a
relatively
brief
period. Those
statutes almost invariably also
prescribe
a
very
short
limitation
period
for
fil-
ing
such libel litigation.
A
prudent
plaintiff
will
identify
and
diarize these
spe-
cial time limits
relating
to
libels
in the
media.
If the
newspaper
article
or
broadcast
was
distributed
in
more than
one
Canadian province,
the
plaintiff
should
identify
and
diarize
the
time limits applicable
to
each province.
If
the
defamatory
expression
was not
published
in a
newspaper
or
broad-
cast,
the
requirement
to
serve
a
statutory notice
of
intended action will
not
apply
to the
prospective
plaintiff.
However, statutory limitation periods
for
fil-
ing
defamation lawsuits
differ
from
province
to
province.
If the
defamatory
expression
has
been published
in
more than
one
province,
a
prudent
plaintiff
should
identify
and
diarize
each limitation period potentially applicable.
This
chapter
cannot
address
every nuance
of
provincial
and
territorial
limitation
law
relating
to
libel litigation. Further,
the law
concerning limita-
tion
defences
may
change
as a
result
of
legislative
amendment
or new
jurisprudence. Therefore
the law on the
subject
of
statutory notices
and
limitation periods
should
be
reviewed each time
a new
defamation claim
is
being considered.
A.
STATUTORY NOTICES
OF
INTENDED ACTION
Each Canadian province
and
territory except British Columbia
and
Saskatchewan prescribes
in its
defamation statute
a
very brief period with-
in
which
a
person
who
intends
to
institute
an
action
for
libel
in a
newspa-
61
62
CANADIAN
per or in a
radio
or
television broadcast must serve each prospective
defen-
dant with
a
written notice
of
intended legal action.
1)
Saskatchewan
and
British
Columbia
Saskatchewan requires that
a
notice
of
intention
to sue for
libel
be
given
five
days
before
filing
a
lawsuit against
a
daily newspaper,
and
fourteen
days
before
filing
a
lawsuit against
a
weekly. There
is no
requirement relating
to
broadcasts.
Act,
R.S.S.
1978,
c.
L-14,
s. 15.
British
Columbia does
not
require service
of a
notice
of
intention
to sue
for
defamation.
A
plaintiff
is
merely obliged
to let one
clear
day
pass
between publication
of the
libel
in a
newspaper
or
broadcast
and the
com-
mencement
of his or her
litigation.
Act,
R.S.B.C.
1996,
c.
263,
s. 5.
2) Six
Weeks: Ontario
The
shortest limitation period
for
service
of a
statutory notice
of
intended
action
is
only
six
weeks. Section
5(1)
of the
Ontario
Act,
R.S.O.
1990,
c.
L.12
provides:
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
knowl-
edge,
given
to the
defendant notice
in
writing
specifying
the
matter
com-
plained
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.
Section
5
applies only
to
newspapers printed
and
published
in
Ontario
and to
broadcasts
from
a
station
in
Ontario.
Act,
R.S.O.
1990,
c.
L.12,
s. 7
The
notice requirement
in
section
5(1)
does
not
apply where
the
defama-
tion
is not
found
in a
"newspaper"
or
"broadcast." Instead,
the
plaintiff
is
governed
by the
provisions
of the
Limitation
Act,
which
do not
require
the
plaintiff
to
provide notice beyond issuing
a
statement
of
claim.
Fotomaris
v.
Mantini-Atkinson,
[2002]
OJ.
No.
3202
per
LaForme
J. at
paras.
12-19
(S.C.J.) [defamation alleged
in a
psychological
assessment
report].
It
is not
entirely clear whether section
5
would apply where
a
defamatory
interview took place outside Ontario
and was
subsequently broadcast
by a
network throughout Canada including
from
an
affiliate
or
network station
Chapter Six:
Notice
of
Intended
Action
and
Limitation
Defences
63
in
Ontario.
A
prudent
plaintiff
should give notice
on the
assumption
such
an
interview will
be
considered
a
"broadcast
from
a
station
in
Ontario"
within
the
meaning
of
section
7.
Davies
v. De
Bane,
[1985]
OJ.
No. 363 per
Potts
J.
a)
The
Discoverability
Principle
The
phrase
"after
the
libel
has
come
to the
plaintiff's
knowledge"
in
section
5 has
been interpreted
as
having
an
objective component.
The
six-week
limitation
period therefore starts
to run
when
the
plaintiff
could have
known
of the
libel with
the
exercise
of
reasonable diligence.
It is
therefore
not
necessary that
a
defendant seeking
to
rely
on the
six-week limitation
period
for
notice prove actual knowledge
of the
libel
by the
plaintiff.
Con-
structive
knowledge
is
adequate.
Bhaduria
v.
Persaud
(1998),
40
O.R. (3d)
140
(Gen. Div.)
The six
week period
for
giving notice
is
therefore
subject
to the
concept
of
"discoverability,"
which
is an
important
and
well-established extension
of the
law
relating
to
limitation periods.
In
Misir
v.
Toronto
Star
Newspapers Limited
(1997),
105
O.A.C. 270,
Laskin
J.A. stated
at
paragraphs
14 and 15
(C.A.):
Section
5(1),
however, includes
the
element
of
discoverability.
The
six-week
period
for
giving notice does
not
commence until
the
alleged libel
has
come
to
the
point
of
knowledge
...
The
material
before
the
Motions Judge does
not
disclose when Misir
and
Metro Orthopedic became aware
of the
publication
of
the May
articles.
On
that ground alone
the
alleged libels
in the May
arti-
cles
cannot
be
held
to be
barred
by
section
5(1)
of the
Act.
Moreover,
even
if the
Plaintiff
had
knowledge
of the May
articles when
they
were published, still they would
not
give
effect
to the
limitation period
...
Section
5(1)
requires that
the
Plaintiff
have knowledge
of the
alleged libel
in
May. Misir
and
Metro Orthopedic
may
have knowledge
of the
publication
of
the May
article,
but not of the
libel.
The May
articles
may
have been
defam-
atory,
but
they were
not
reasonably capable
of
defaming these
plaintiffs
until
they were named
in the
September
30th
article. Accordingly,
the six
week
notice period
for the May
articles would
not
begin
before
the
publication
of
the
September
30th
article.
Where
the
plaintiff
is
clearly identifiable
in
each
of a
series
of
twenty-three
articles, there
is no
issue
of
discoverability relating
to the
fact
she was not
specifically
named.
Merling
v.
Southam
Inc.
(c.o.b.
Hamilton
Spectator)
(2000),
183
D.L.R.
(4th)
748,
per
McMurtry C.J.O.
at
para.
26
(Ont.
C.A.).
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