Shtaif et al. v. Toronto Life Publishing Co. et al., (2013) 306 O.A.C. 155 (CA)

• Judge: Laskin, Juriansz and Tulloch, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 29, 2012
• Jurisdiction: Ontario
• Citations: (2013), 306 O.A.C. 155 (CA);2013 ONCA 405

Shtaif v. Toronto Life Publ. Co. (2013), 306 O.A.C. 155 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JN.020

Michael Shtaif and Gregory Roberts (plaintiffs/appellants) v. Toronto Life Publishing Co. Ltd., Sarah Fulford, Jay Teitel, Veronica Maddocks, Angie Gardos, Matthew Fox and Claire Cooper (defendants/respondents)

(C54722; 2013 ONCA 405)

Indexed As: Shtaif et al. v. Toronto Life Publishing Co. et al.

Ontario Court of Appeal

Laskin, Juriansz and Tulloch, JJ.A.

June 17, 2013.

Summary:

Toronto Life published an article profiling a Canadian businessman, Shnaider, in the June 2008 edition of its "How to Piss Off a Billionaire" magazine. Toronto Life later posted the article on its website. The article referred to a business dispute between Shnaider and the plaintiffs, Shtaif and Roberts. The plaintiffs complained that the print version of the article libelled them, but did not sue over it. However, when they became aware of the internet version of the article in late August 2008, they gave notice under the Libel and Slander Act and commenced an action in October 2008 against Toronto Life et al., alleging defamation and negligence. In June 2011, Toronto Life moved for summary judgment to dismiss the action on the grounds that the defamation claim based on the internet version of the article was barred by the limitation period in the Act and the negligence claim was bound to fail because the defendants owed no duty of care to the plaintiffs. The plaintiffs brought a cross-motion to amend their statement of claim to add a claim for libel in the print version of the article, claiming that they could "recapture" that claim under s. 6 of the Act.

The Ontario Superior Court, in a decision reported [2011] O.T.C. Uned. 6732, granted the plaintiffs' motion to amend but granted summary judgment dismissing the claim for libel in the print version of the article. The court otherwise dismissed Toronto Life's motion for summary judgment. The plaintiffs and Toronto Life appealed, raising a number of issues.

The Ontario Court of Appeal dismissed the plaintiffs' appeal and upheld the motion judge's dismissal of their claim for libel in the print version of the article. The court allowed Toronto Life's appeal in respect of the plaintiffs' negligence claim and granted summary judgment dismissing that claim. In all other respects the court dismissed Toronto Life's appeal. Therefore, the plaintiffs' action for libel respecting the internet version of the article could proceed to trial. The court answered the questions raised on this appeal as follows:

Libel and Slander - Topic 1903

Publication - General - Single publication rule - The plaintiffs complained that a magazine article libelled them but did not sue - Later when the plaintiffs realized that the article was published on the internet, they sued the publisher for libel respecting the internet version - An issue arose as to whether the American "single publication rule" should be applied to bar the plaintiffs' libel claim - Under that rule, a plaintiff alleging defamation had a single cause of action, which arose at the first publication of an alleged libel, regardless of the number of copies of the publication distributed or sold - Applying that rule, the plaintiffs' action, which would have arisen no later than when the plaintiffs became aware of the print version of the article, was barred by the statutory limitation period - The Ontario Court of Appeal ruled that the single publication rule should not be applied to deny this claim - See paragraphs 27 to 40.

Libel and Slander - Topic 1945

Publication - What constitutes - Internet (world wide web) - [See Libel and Slander - Topic 6061 ].

Libel and Slander - Topic 6025

Practice - Actions - Concurrent liability in defamation and negligence - Toronto Life published an article profiling a Canadian businessman - The article referred to a business dispute between the businessman and the plaintiffs - The plaintiffs sued Toronto Life, the author, the fact checker et al. (defendants), alleging libel and negligence - The defendants moved for summary judgment, arguing that the negligence claim was bound to fail because the defendants owed no duty of care to the plaintiffs - The Ontario Court of Appeal granted summary judgment dismissing the plaintiffs' negligence claim - There was not a sufficiently close relationship of proximity to establish a duty of care - Two telephone calls, part of journalists' ordinary diligence in writing a story, did not establish a pre-existing relationship that gave rise to a duty of care - The plaintiffs' action was an action for defamation and nothing more - See paragraphs 74 to 86.

Libel and Slander - Topic 6061

Practice - Notice - General - Toronto Life published an article in its magazine and on the internet - The plaintiffs sued Toronto Life et al. for damages for libel respecting the internet version - Toronto Life moved for summary judgment dismissing the action - The motion raised issues as to whether the notice provision in s. 5(1) of the Libel and Slander Act and the limitation provision in s. 6 of the Act applied to the internet version of the article - The Ontario Court of Appeal held that the issue of whether the claim for libel in the internet version of the article was subject to ss. 5(1) and 6 of the Act was a genuine issue requiring a trial - The sensible course was to leave to trial the question whether the internet version of the article was a newspaper published in Ontario or a broadcast from a station in Ontario - See paragraphs 16 to 26.

Libel and Slander - Topic 6065

Practice - Notice - Sufficiency of content of notice - The plaintiffs complained that a magazine article libelled them but did not sue - Later when the plaintiffs realized that the article was published on the internet, they sued the publisher for libel respecting the internet version - Three years later, the plaintiffs sought to amend their statement of claim to add a claim for damages for libel in the print version of the article (i.e., to "recapture" that claim pursuant to s. 6 of the Libel and Slander Act) - The publisher claimed that the plaintiffs did not give adequate notice of the alleged libel - The Ontario Court of Appeal held that timely and adequate notice was given - The notice was given within the six week notice period - Further, the publisher had adequate notice of the matter complained of - The notice was a six page, single spaced-letter, which detailed what parts of the print version of the article concerned the plaintiffs and why - See paragraphs 53 to 60.

Limitation of Actions - Topic 3244

Actions in tort - Libel and slander - Limitation periods - Application of - In August 2008, the plaintiffs complained that a magazine article libelled them but did not sue - Later in August 2008, the plaintiffs realized that the article was published on the internet, and in October 2008 sued the publisher for libel respecting the internet version - In 2011, the plaintiffs sought to amend their pleadings to add a claim respecting the print version (i.e., to "recapture" that claim - Libel and Slander Act, s. 6) - The Ontario Court of Appeal, assuming that the internet version of the article was subject to s. 6, opined that the three month limitation period in s. 6 governed the recaptured claim - Here, the plaintiffs had knowledge of the internet claim in August 2008, thus they had three months, i.e., to November 2008, to commence their claim - The plaintiffs' claim, being asserted in June 2011, was long out of time - See paragraphs 61 to 73.

Limitation of Actions - Topic 3244

Actions in tort - Libel and slander - Limitation periods - Application of - [See Libel and Slander - Topic 6061 ].

Cases Noticed:

Weiss v. Sawyer (2002), 163 O.A.C. 2; 61 O.R.(3d) 526 (C.A.), refd to. [para. 21].

Bahlieda v. Santa, [2003] O.A.C. Uned. 430; 68 O.R.(3d) 115 (C.A.), refd to. [para. 21].

Churchill v. New Jersey (State) (2005), 876 A.(2d) 311 (N.J.C.A.), refd to. [para. 27].

Gelbard v. Bodary (2000), 706 N.Y.S.2d 801 (N.Y.C.A.), refd to. [para. 27].

Firth v. New York (State) (2002), 98 N.Y.2d 365 (N.Y.C.A.), refd to. [para. 27].

Traditional Cat Association Inc. v. Gilbreath (2004), 118 Cal. App. 4th 392, refd to. [para. 29].

Berezovsky v. Michaels et al., [2000] 2 All E.R. 986; 257 N.R. 201 (H.L.), refd to. [para. 31].

Loutchansky v. Times Newspapers Ltd., [2002] Q.B. 783 (C.A.), refd to. [para. 31].

Dow Jones and Co. Inc. v. Gutnick, [2002] H.C.A. 56; 2010 C.L.R. 575, refd to. [para. 31].

Carter v. B.C. Federation of Foster Parents Association et al. (2005), 215 B.C.A.C. 159; 355 W.A.C. 159; 42 B.C.L.R.(4th) 1; 257 D.L.R.(4th) 133; 2005 BCCA 398, refd to. [para. 31].

Kanarek v. Bugliosi (1980), 108 Cal. App. 3d 327, refd to. [para. 35].

Barrick Gold Corp. v. Lopehandia et al. (2004), 187 O.A.C. 238; 71 O.R.(3d) 416 (C.A.), refd to. [para. 38].

Misir v. Toronto Star Newspapers Ltd. (1997), 105 O.A.C. 270 (C.A.), refd to. [para. 42].

Ross v. Ross (1999), 181 N.S.R.(2d) 22; 560 A.P.R. 22; 1999 NSCA 162 (C.A.), refd to. [para. 46].

767269 Ontario Ltd. v. Ontario Energy Savings L.P. et al., [2008] O.A.C. Uned. 234; 2008 ONCA 350, refd to. [para. 46].

Frisina v. Southam Press Ltd. et al (1980), 30 O.R.(3d) 65 (H.C.J.), refd to. [para. 53].

Grossman v. CFTO-TV (1982), 39 O.R.(2d) 498 (C.A.), leave to appeal refused (1983), 46 N.R. 266 (S.C.C.), refd to. [para. 57].

Elliott et al. v. Canadian Broadcasting Corp. et al. (1993), 16 O.R.(3d) 677 (Gen. Div.), affd. (1995), 82 O.A.C. 115; 125 D.L.R.(4th) 534 (C.A.), refd to. [para. 75].

Fulton v. Globe and Mail et al. (1997), 207 A.R. 374; 152 D.L.R.(4th) 377 (Q.B.), refd to. [para. 75].

Young v. Bella et al., [2006] 1 S.C.R. 108; 343 N.R. 360; 254 Nfld. & P.E.I.R. 26; 764 A.P.R. 26; 2006 SCC 3, refd to. [para. 76].

Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 82].

Statutes Noticed:

Libel and Slander Act, R.S.O. 1990, c. L-12, sect. 1(1) [para. 12]; sect. 5(1) [para. 13]; sect. 6 [para. 14]; sect. 7 [para. 15].

Authors and Works Noticed:

Braun, Odelia, Internet Publications and Defamation: Why the Single Publication Rule Should Not Apply (2002), 32 Golden Gate U.L. Rev. 325, generally [para. 39].

Note, The Single Publication Rule in Libel: A Fiction Misapplied (1949), 62 Harv. L. Rev. 1041, generally [para. 39].

Potts, David A., Cyberlibel: Information Warfare in the 21st Century? (2011), generally [para. 39].

Restatement of the Law of Torts (2nd Ed.), s. 577A [para. 35].

Counsel:

Michael Shtaif, acting in person;

Gregory Roberts, acting in person;

Howard W. Winkler, for the respondents.

These appeals were heard on October 29, 2012, before Laskin, Juriansz and Tulloch, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court, by Laskin, J.A., on June 17, 2013.