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

LIBEL

AND

SLANDER ACTIONS

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.

Libel

and

Slander

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.

Libel

and

Slander

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

Libel

and

Slander

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.

Libel

and

Slander

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.).