



COURT OF APPEAL FOR ONTARIO

CITATION: Shtaif v. Toronto Life Publishing Co.
    Ltd., 2013 ONCA 405

DATE: 20130617

DOCKET: C54722

Laskin, Juriansz and Tulloch JJ.A.

BETWEEN

Michael Shtaif and Gregory Roberts

Plaintiffs (Appellants)

and

Toronto Life Publishing Co.
    Ltd., Sarah Fulford, Jay Teitel, Veronica Maddocks, Angie Gardos
,
    Matthew Fox and Claire Cooper

Defendants (
Respondents
)

Michael Shtaif, acting in person

Gregory Roberts, acting in person

Howard W. Winkler, for the respondents

Heard: October 29, 2012

On appeal from the order of Justice P. Theodore Matlow of
    the Superior Court of Justice, dated November 21, 2011, with reasons reported
    at 2011 ONSC 6732.

Laskin J.A:

A.

introduction

[1]

Toronto Life published an article in the June 2008 edition of its
    magazine titled How to Piss Off a Billionaire.  It later posted the article
    on its website, which could be accessed over the internet.  The article was a
    profile on Canadian businessman Alex Shnaider.  Part of the article referred to
    a business dispute between Shnaider and the plaintiffs, Michael Shtaif and
    Gregory Roberts.  The plaintiffs claim that the article libelled them.

[2]

Shtaif and Roberts complained about the print version of the article 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 in October 2008, brought this action.  They sued Toronto
    Life and several individuals who worked for it, including Jay Teitel who wrote
    the article.  They claimed damages both for defamation and negligence.

[3]

In June 2011, Toronto Life brought a motion for summary judgment to
    dismiss the action on the grounds that the defamation claim 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.  Shtaif and Roberts
    brought a cross-motion to amend their statement of claim to add a claim for libel
    in the print version of the article.  They contended that they could
    recapture this claim under s. 6 of the Act.  The motion judge granted the
    plaintiffs motion to amend and then dismissed the claim for libel in the print
    version of the article.  Otherwise, he dismissed Toronto Lifes motion for
    summary judgment.

[4]

Both the plaintiffs, Shtaif and Roberts, and Toronto Life, with leave,
    appeal from the motion judges decision.  Their appeals raise numerous issues,
    which I list and would answer as follows:

(a)     The claim
    for libel in the internet version of the article:

(1)     Is this
    claim subject to the notice and limitation provisions in the
Libel and
    Slander Act
?

Answer
: This issue is a genuine
    issue requiring a trial.

(2)     Should this
    court apply the American single publication rule to bar this claim?

Answer
: No.

(3)     Is the
    issue of discoverability properly before this court, and if so, is the claim
    barred because it was discoverable more than three months before the plaintiffs
    sued?

Answer
: Discoverability is not
    properly before this court and is a genuine issue requiring a trial.

(b)     The claim
    for libel in the print version of the article.

(1)     Did the
    plaintiffs give Toronto Life timely and adequate notice of this claim?

Answer
: Yes.

(2)     Does
    the three-month limitation period in s. 6 of the
Libel and Slander Act
bar this claim?

Answer
: Yes.

(3)     Alternatively,
    does the two-year limitation period in s. 4 of the
Limitations Act, 2002
bar this claim?

Answer
: Section 4 of the
Limitations
    Act, 2002
does not apply.

(c)     The claim
    for negligence

(1)     Did the
    motion judge err in holding that whether the defendants owed the plaintiffs a
    duty of care was a genuine issue requiring a trial?

Answer
: Yes. The negligence claim
    should be dismissed.

B.

background

(a)

The Parties

[5]

Shtaif is an accountant and a businessman.  Roberts is a lawyer and a
    businessman.  Toronto Life is a well-known local magazine.  The individual
    defendants were either employed by or were retained by Toronto Life.  Teitel is
    a journalist and wrote the article.  Maddocks checked the facts in the article
    for accuracy.  Fulford is the editor of the magazine, and Gardos is the
    executive editor.

(b)

The Article

[6]

The article was published in the June 2008 edition of the magazine but
    was in the newsstands the second or third week of May.  Toronto Life posted the
    article on its website on May 29, 2008.
[1]


[7]

The parties dispute when the article  especially the allegedly
    offending portion  could be accessed on the internet.  That dispute bears on
    the issue of discoverability, which I will discuss later in these reasons.

[8]

The article chronicles the life of Alex Shnaider.  The part of the
    article that implicates Shtaif and Roberts and prompted the articles title,
    How to Piss Off a Billionaire, concerns a business deal in Russia that turned
    sour.  Excerpts from the article that Shtaif and Roberts complain about
    include:

·

At first things went well, but in the summer of 2006, during a
    strangely bungled bank transaction in Moscow that could have been plucked from
    the pages of a John le Carré novel, $12 million in bonds that Shnaider had
    deposited with Shtaif in order to buy a small Siberian oil company called
    Sibintek somehow ended up, before the closing of the transaction, in the sole
    control of the seller, Arthur Poltoranin  a man who reportedly had spent five
    years in a Russian jail for murdering two business associates.  Suspecting that
    Poltoranin was trying to defraud him, and that Shtaif had at the least been
    negligent as CEO, Shnaider put his personal net-work of Russian contacts into
    action

·

In response, Shnaider accused Shtaif and Roberts of being
    extortionists and, possibly, conspirators in an elaborate fraud. This past
    March, he formalized the claims by countersuing Shtaif, Roberts and their
    colleagues for a total of $217 million.

·

The real problem, says a harried-sounding Ron Fine, is that anybody
    with $180 and an axe to grind can go to the media with a statement of claim and
    assassinate anybodys reputation

·

The issue for Shnaider clearly isnt finance, but face I cant
    really compare this situation to anything else Ive encountered, he says. Ive
    been lied to and cheated in the past  its unavoidable in business  but the
    difference here is that these people also attempted to damage my reputation by
    using the media to spread lies.

(c)

The Previous Decision of this Court

[9]

In 2009, the defendants brought a motion for summary judgment to dismiss
    Roberts claim on the ground that the words complained of in the article were
    not capable of being defamatory of him.  The motion judge granted the motion. 
    However, Roberts appealed.  This court allowed the appeal and set aside the
    summary judgment: see 2010 ONCA 82.  In a brief endorsement, the panel said:

In our view, reading this article as a whole, it is clear that
    the excerpts complained of are capable of being defamatory of the appellant Mr.
    Roberts.  The article clearly refers to Mr. Shtaif and Mr. Roberts and the
    allegations of criminal conduct are against both men.

(d)

Chronology

[10]

As
    the timeline is material for several of the issues raised on these appeals, I
    will set it out in chart format.  The relevant events and when they occurred
    are as follows.



Date

Event



Mid to late May 2008

The article published in Toronto Life magazine is available
          on the newsstands.



May 29, 2008

The article is posted to the Toronto Life website.



June 19, 2008

Shtaif becomes aware of the magazine version of the
          article.



June 23, 2008

Roberts becomes aware of the magazine version of the
          article.



August 1, 2008

Shtaif sends a letter to Toronto Life complaining about
          the magazine version of the article.



August 20, 2008

Shtaif and Roberts become aware of the internet version of
          the article.



September 29, 2008

Shtaif and Roberts give notice under s. 5(1) of the
Libel
          and Slander Act
that the internet version of the article libelled them.



October 22, 2008

Shtaif and Roberts start an action on the internet version
          of the article.



June 2011

The defendants move for summary judgment; Shtaif and
          Roberts bring a cross-motion to recapture a claim for libel in the print
          version of the article.



November 21, 2011

The motion judge dismisses the defendants motion for
          summary judgment and the plaintiffs claim for libel in the print version of
          the article.



C.

relevant provisions of the libel and slander act

[11]

The
Libel and Slander Act
, R.S.O. 1990 c. L.12 (the Act), governs many
    of the issues on these appeals.  The following provisions of the Act are
    relevant.

[12]

Section
    1(1) of the Act defines broadcasting and newspaper:

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.

Toronto Life magazine is a newspaper, published in
    Ontario.

[13]

Section
    5(1) requires notice of any action for libel in a newspaper or in a broadcast:

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 plaintiffs 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.

[14]

Section
    6 sets out a limitation period for bringing an action and also permits a
    previous libel to be recaptured:

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.

Section 6 governs the plaintiffs attempt to sue for
    libel in the print version of the article.

[15]

Section
    7 limits the application of ss. 5(1) and 6:

Subsection 5(1) and section 6 apply only to
    newspapers printed and published in Ontario and to broadcasts from a station in
    Ontario.

Section 7 is relevant to whether the internet version
    of the article is subject to the notice and limitation provisions of the Act.

D.

the claim for libel in the internet version of the article

(1)

Is this claim subject to the notice and limitation provisions of the
Libel
    and Slander Act
?

[16]

A
    threshold issue on these appeals is whether the notice provision in s. 5(1) and
    the limitation provision in s. 6 of the Act apply to the internet version of
    the article.  The issue is relevant to several submissions of the parties. 
    However, as will become apparent, on my proposed resolution of these
    submissions, it would have limited practical importance in this litigation.  The
    issue arises for two reasons: first, because of the way newspaper and
    broadcast are defined in s. 1 of the Act and second, because s. 7  of the Act
    limits the application of ss. 5(1) and 6 to newspapers printed and published in
    Ontario and to broadcasts from a station in Ontario.

[17]

Toronto
    Lifes submission that the claim of Shtaif and Roberts on the internet version
    of the article is out of time depends on that claim being subject to ss. 5(1)
    and 6.  If it is not, then the two-year limitation period in s. 4 of the
Limitations
    Act, 2002
, S.O 2002 c.24 would apply.  If a two-year limitation period
    governs the plaintiffs claim, then unquestionably it is not out of time.

[18]

Similarly,
    the plaintiffs submission that they can recapture a claim for libel in the
    print version of the article depends on their claim for libel in the internet
    version of the article being governed by s. 6.  If it is not, then standing on
    its own, the claim for libel in the print version of the article is out of
    time.  It is a separate cause of action asserted long after the three month
    limitation period in s. 6 and even more than two years after the limitation
    period in s. 4 of the
Limitations Act, 200
2.

[19]

The
    motion judge ruled that the internet version of the article was not subject to
    the notice and limitation provisions of the Act.  He held that a website
    posting is not a newspaper.  He also held that he had no evidence Toronto
    Lifes website was a broadcast as defined in the Act; moreover, as Toronto
    Lifes server is located in Texas, its website was not broadcast from a station
    in Ontario.

[20]

Both
    sides have questioned the correctness of the motion judges ruling.  The
    question whether or in what circumstances an internet publication is subject to
    ss. 5(1) and 6 of the Act is a difficult one.  The Act was drafted to address
    alleged defamation in traditional print media and in radio and television
    broadcasting.  It did not contemplate this era of emerging technology,
    especially the widespread use of the internet.  The application of the Act to
    internet publications will have to come about by legislative amendment or through
    judicial interpretation of statutory language drafted in a far earlier era.

[21]

Our
    court has grappled with the question in two decisions:
Weiss v. Sawyer
(2002), 61 O.R. (3d) 526 (C.A.) and
Bahlieda v. Santa
, (2003), 68 O.R.
    (3d) 115 (C.A.).

[22]

In
Weiss
, the evidence conflicted on whether the publication  an
    allegedly defamatory letter  was published over the internet.  Assuming that
    it was, Armstrong J.A. wrote, at para. 24, that he thought the word paper in
    s. 1(1) of the Act was broad enough to include a newspaper published on the
    internet.  He did not discuss whether the internet publication was published in
    Ontario though implicitly he held that it was, as he found that the notice
    requirement in s. 5(1) of the Act applied.  Armstrong J.A. did not decide
    whether the internet publication was also a broadcast as there was no
    evidence to make that determination.

[23]

In
Bahlieda
, this court held that in the light of the conflicting
    evidence in the case, the question whether an internet publication was a
    broadcast from a station in Ontario was an issue for trial.  The panel said, at
    para. 6: Summary judgment applications are not a substitute for trial and thus
    will seldom prove suitable for resolving conflicts in expert testimony
    particularly those involving difficult, complex policy issues with broad social
    ramifications.

[24]

In
    this case, I think the sensible course is that adopted in
Bahlieda
: to
    leave to trial the question whether the internet version of the article is a
    newspaper published in Ontario or a broadcast from a station in Ontario.  I am
    not satisfied that the evidentiary record before us is sufficient to decide
    these questions, which have broad implications for the law of defamation.

[25]

Leaving
    these questions for trial also makes practical sense.  On my proposed
    disposition of these appeals, the issue whether the claim for libel in the
    internet version of the article is subject to the notice and limitation
    provisions of the Act is relevant only to the issue of discoverability, an
    issue I would also leave to be determined at trial.

[26]

Therefore,
    I would hold that the issue whether the claim for libel in the internet version
    of the article is subject to ss. 5(1) and 6 of the Act is a genuine issue
    requiring a trial.

(2)

Should this court apply the American single publication rule to bar
    this claim?

[27]

Many
    American States, either by judicial decision or statute, have adopted a single
    publication rule for mass publications.  The rule holds that a plaintiff
    alleging defamation 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.  In other words, the entire edition of a
    newspaper, book or magazine is treated as a single publication when it is first
    made available to the public.  Later distributions of the same edition are
    relevant to the assessment of damages but do not create a new cause of action
    or a new limitation period.  See, for example,
Churchill v. State of New Jersey
(2005), 876 A. (2d) 311 (Sup. Ct. of N.J, App. Div.);
Gelbard v. Bodary
(2000) 706 N.Y.S.2d 801 (S. Ct. of N.Y., App. Div.); and
Firth v. State of
    New York
(2002) 98 N.Y.2d 365 (Court of Appeals of N.Y.); and
Calif.
    Civil Code
, 3425.1-3425.5.

[28]

The
    single publication rule is designed to prevent repeated litigation arising from
    the same material.  In
Churchill
, at p. 316, the court explained the
    policy reasons for the rule:

The single publication rule prevents the constant tolling of
    the statute of limitations, effectuating express legislative policy in favour
    of a short statute of limitations period for defamation.  It also allows ease
    of management whereby all the damages suffered by a plaintiff are consolidated
    in a single case, thereby preventing potential harassment of defendants through
    a multiplicity of suitsFinally the single publication rule is more consistent
    with modern practices of mass production and widespread distribution of printed
    information than the multiple publication rule.

[29]

Some
    American courts have extended the single publication rule to online postings,
    accessible on the internet.  See
Firth
;
The Traditional Cat
    Association, Inc. v. Gilbreath
(2004), 118 Cal. App. 4th 392.

[30]

Toronto
    Life submits that we should apply the single publication rule in Ontario and
    specifically to the plaintiffs libel claim.  Under a single publication rule,
    the plaintiffs libel action would arise no later than June 23, 2008 by which
    time both Shtaif and Roberts had become aware of the alleged libel in the print
    version of the article.  As they brought their action more than three months
    later  in October 2008  they failed to meet the limitation period in s. 6 of
    the Act.

[31]

However,
    the single publication rule has been rejected in England: see
Berezovsky v.
    Michaels
, [2000] 2 All E.R. 986 (H.L.);
Loutchansky v. Times Newspapers
    Ltd.
, [2002] Q.B. 783 (C.A.); in Australia: see
Dow Jones and Co. Inc.
    v. Gutnick
, [2002] H.C.A. 56, 2010 C.L.R. 575; and by the British Columbia
    Court of Appeal: see
Carter v. B.C. Federation of Foster Parents Assn.
,
    2005 BCCA 398, 257 D.L.R. (4
th
) 133.  And
    the motion judge refused to apply the rule in this case.

[32]

I,
    too, would not apply the single publication rule for three reasons.  First, the
    rule does not fit comfortably with the words of s. 6 of the Act.  The single
    publication rule is based on publication of an alleged libel.  Successive
    publications are considered a single publication and the date of the first
    publication triggers the running of the limitation period.  Under s. 6 of
    Ontarios Act, the date when the libel first came to the plaintiffs knowledge,
    not the date of publication, triggers the running of the limitation period.

[33]

Moreover,
    the recapture provision in s. 6 is inconsistent with a single publication rule.
    A simple example will illustrate the inconsistency. Take a case where the same
    libel is published and later republished, and the plaintiff sues for damages
    for the republished libel.  Section 6 would allow the plaintiff to recapture
    the earlier libel.  In effect, s. 6 recognizes two separate libels; the single
    publication rule recognizes only one.

[34]

Second,
    the jurisprudence of this court has, implicitly at least, rejected the single
    publication rule.  In
Weiss,
at para. 28, Armstrong J.A. affirmed the
    traditional English rule: Every republication of a libel is a new libel.

[35]

Third,
    even if we were to consider a single publication rule in Ontario, I would not
    apply it across different mediums of communication.  In my opinion, it would be
    unfair to plaintiffs to apply the rule to publications that are intended for
    different groups or that may reach different audiences.  Even in American states
    that apply the single publication rule, at least one state, California, has
    rejected its application for reprinting or republication in a different form:  see
Kanarek v. Bugliosi
(1980), 108 Cal. App. 3d 327.  Also, the
Restatement
    of the Law, Second: Torts
(American Law Institute, 1977) states that the
    single publication rule does not include separate aggregate productions on
    different occasions.  If the publication reaches a new group, the repetition
    justifies a new cause of action.  See s. 577A.

[36]

Applying
    the single publication rule where, as in this case, the original publication is
    in print and the republication is on the internet could create a serious
    injustice for persons whose reputations are damaged by defamatory material.  A
    plaintiff may not want to expend the time and resources to sue for an alleged libel
    in a magazine, which has a limited circulation and a limited lifespan.  The
    plaintiff may consider the magazines circulation insufficient to warrant a
    lawsuit.

[37]

However,
    a plaintiff may well want to spend the time and money to sue if the alleged libel
    is on the magazines website and accessible on the internet.  Unless the
    article is removed from the website, its circulation is vast, its lifespan is
    unlimited, and its potential to damage a persons reputation is enormous.  Yet,
    if a single publication rule is applied, the plaintiffs claim may be statute
    barred before real damage to reputation has occurred.

[38]

In
Barrick Gold Corp. v. Lopehandia
(2004), 71 O.R. (3d) 416 (C.A.), at
    paras. 32-34, my colleague Blair J.A. discussed the power of the internet to harm
    reputation.  He commented that the internets characteristics  its ubiquity,
    universality, and utility
[2]
 create challenges for libel actions. He noted that the internets mode and
    extent of publication must be key considerations in internet defamation cases.
    He then asked, at para. 32:

[32] .How does the law protect reputation without unduly
    overriding such free wheeling public discourse?  Lyrissa Barnett Lidsky
    discusses this conundrum in her article, Silencing John Doe: Defamation and
    Discourse in Cyberspace (2000), 49 Duke L.J. 855 at pp. 862-65:



Although Internet communications
    may have the ephemeral qualities of gossip with regard to accuracy, they are
    communicated through a medium more pervasive than print, and for this reason
    they have tremendous power to harm reputation.  Once a message enters
    cyberspace, millions of people worldwide can gain access to it.  Even if the
    message is posted in a discussion forum frequented by only a handful of people,
    any one of them can republish the message by printing it or, as is more likely,
    by forwarding it instantly to a different discussion forum.  And if the message
    is sufficiently provocative, it may be republished again and again.  The
    extraordinary capacity of the Internet to replicate almost endlessly any
    defamatory

message lends credence to the notion that the truth rarely
    catches up with a lie.  The problem for libel law, then, is how to protect
    reputation without squelching the potential of the Internet as a medium of
    public discourse.

[39]

At
    para. 34, Blair J.A. distinguished the publication of defamatory material on
    the internet from publication in the traditional media by its potential to
    damage the reputation of individuals and corporations, by the features
    described above, especially its interactive nature, its potential for being
    taken at face value, and its absolute and immediate worldwide ubiquity and
    accessibility. See generally, Odelia Braun, Internet Publications and
    Defamation: Why the Single Publication Rule Should Not Apply (2002), 32 Golden
    Gate U.L. Rev. 325; and Note, The Single Publication Rule in Libel: A Fiction
    Misapplied, 62 Harv. L. Rev. 1041 (1949); see also David A. Potts,
Cyberlibel:
    Information Warfare in the 21st Century?
(Toronto: Irwin Law, 2011).

[40]

I
    agree with my colleagues comments about the power of the internet to damage
    reputation.  I would answer no to the question whether we should apply the
    single publication rule to bar this claim.

(3)

Is the issue of discoverability properly before this court, and if so,
    is the claim barred because it was discoverable more than three months before
    the plaintiffs sued?

[41]

Assuming
    the Act applies to the internet version of the article, under s. 6 Shtaif and
    Roberts were required to bring their action within three months after the libel
    came to their knowledge.  They say that it came to their knowledge on August
    20, and therefore, as they started their action on October 22, 2008, they were
    well within the three month limitation period.

[42]

However,
    the discoverability principle applies to limitation periods under the Act. 
    See, for example,
Misir v. Toronto Star Newspaper Ltd.
(1997), 105 O.A.C.
    270, at paras. 14-16.  The three-month period in s. 6 begins to run when the
    person defamed knew or could have known about the libel by the exercise of
    reasonable diligence.

[43]

The
    defendants rely on discoverability.  They argue that the article was posted on
    Toronto Lifes website at the end of May 2008 and that through reasonable
    diligence, the plaintiffs could have discovered the article more than three
    months before they started their action.  Thus, their action is barred by the
    limitation period in s. 6.

[44]

Shtaif
    and Roberts, however, say that discoverability is not properly before this
    court because Toronto Life did not raise it before the motion judge.  They have
    moved to strike the paragraph on discoverability from the defendants notice of
    appeal.

[45]

I
    am inclined to agree with the plaintiffs position.  The defendants did not
    plead discoverability in their statement of defence; they did not rely on it in
    their amended notice of motion for summary judgment; they did not argue it in
    their factum on the motion; and the motion judge made no reference to
    discoverability in his reasons.

[46]

In
    limited circumstances, this court can entertain an issue not raised in the
    trial court.  But to do so we must have a satisfactory record to address the
    issue and be persuaded that if we do consider it, the party against whom the
    issue is raised will not be prejudiced: see
Ross v. Ross
1999 NSCA
    162, 181 N.S.R. (2d) 22;
767269 Ontario Ltd. v. Ontario Energy Savings L.P.
,
    2008 ONCA 350.  I expect that had the plaintiffs known discoverability was to
    be an issue before the motion judge, they would have filed a good deal of
    evidence to try to show that they could not reasonably have discovered the
    internet article earlier.  Thus, I cannot say that the plaintiffs would not be
    prejudiced were we to consider the issue for the first time in this court.

[47]

But
    even if we were to consider discoverability, the material filed before us shows
    that the date the article, and especially the alleged offending portion, could
    be accessed on the internet is disputed.  The defendants say that it could be
    accessed around the time it was posted, at the end of May.  The plaintiffs say
    that they could not access it until August.  In support of their assertion,
    they point to Shtaifs August 1 letter, which did not refer to the internet
    version of the article.

[48]

This
    dispute can only be resolved at trial.  Therefore, though I do not think that
    discoverability can properly be raised on this appeal, even if it could, it is
    a genuine issue requiring a trial.

E.

the claim for libel in the print version of the article

[49]

When
    the print version of the article was published in the June 2008 edition of the
    magazine, Shtaif and Roberts complained about it but did not to sue on it. 
    Three years later in their cross-motion in June 2011, they asked for an
    amendment to their statement of claim to add a claim for damages for libel in
    the print version of the article.  They sought to recapture this claim under
    s. 6 of the Act.

[50]

Section
    6 permits a plaintiff who did not sue in respect of a previous alleged libellous
    publication to recapture that libel in a properly constituted libel action.  In
    this case, Shtaif and Roberts seek to recapture the alleged libel in the magazine
    article in their properly constituted action on the internet article.  For ease
    of reference, I reproduce s. 6 of the Act:

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.

[51]

The
    motion judge allowed the amendment but then granted summary judgment dismissing
    the claim.  He gave no reasons.

[52]

Shtaif
    and Roberts appeal the dismissal of their claim.  Toronto Life opposes the
    appeal on two grounds: first, the plaintiffs did not give timely and adequate
    notice of the alleged libel; and second, the claim is statute barred because it
    is a new cause of action asserted after the three month limitation period in s.
    6 of the Act.

(1)

Did Shtaif and Roberts give Toronto Life timely and adequate notice of
    their claim?

[53]

The
    plaintiffs acknowledge that in order to recapture a previous libel under s. 6,
    they were required to give notice of that libel under s. 5(1).  Robins J.
    explained this requirement in
Frisina v. Southam Press Ltd. et al
(1980), 30 O.R.  (3d) 65 (H. Ct. J.), at p. 66-67:

The fact that the plaintiff seeks to add a claim for earlier
    related alleged libels to an existing properly-constituted libel action cannot
    cure the failure to provide the required statutory notice.  The amendment sets
    up additional causes of action based on the alleged defamatory material in the
    earlier publications and, just as lack of notice would preclude the assertion
    of such claims by way of separate writ of summons, so also it precludes their
    assertion by way of amendment to an existing action.  In short, unless notice
    is given in accordance with s. 5(1), no claim is subsequently maintainable.

[54]

The
    plaintiffs say that they gave notice: they rely on Shtaifs letter of August 1,
    2008.  Toronto Life says that the notice was neither timely nor adequate.

(a)

Timeliness

[55]

Shtaif
    became aware of the magazine version of the article on June 19, 2008.  Roberts
    became aware of the article on June 23, 2008.  Toronto Life acknowledges that
    though Shtaif wrote the letter, he wrote it on behalf of both himself and
    Roberts.  Section 5(1) requires that notice be give within six weeks after the
    alleged libel has come to the plaintiffs knowledge.  Therefore, the notice
    given on behalf of Roberts was timely  August 1 was within six weeks of June
    23.

[56]

Shtaifs
    position is not as clear.  August 1 was 43 days after June 19.  For this
    reason, Toronto Life says that the notice was out of time.  However, s. 5(1)
    speaks of weeks, not days.  Section 89(5) of the
Legislation Act, 2006
,
    S.O. 2006 c.21, Sch. F, stipulates that a period of time described as
    beginning before or after a specified day excludes that day.  Applying s.
    89(5), August 1 was six weeks after June 19, the day Shtaif had knowledge of
    the article.  Accordingly, in my opinion, the August 1, 2008 letter was timely
    for both plaintiffs.

(b)

Adequacy

[57]

Section
    5(1) requires that the notice be in writing and that it specify the matter
    complained of.  The adequacy of a notice must be assessed in the light of its
    purpose.  The purpose of the notice provision is to give the media an
    opportunity to review the matter and then decide whether a correction, apology,
    or retraction is called for.  See, for example,
Grossman v. CFTO-T.V. Ltd.
(1982), 39 O.R. (2d) 498 (C.A.), at p. 501; leave to appeal to SCC refused,
    [1983] S.C.C.A. No. 463.

[58]

Therefore,
    although no particular form of notice is required, to meet its purpose, the
    notice must contain enough information to allow the media to review the matter
    and decide how to respond.  A bare assertion that a publication is libellous would
    not amount to adequate notice.

[59]

I
    am satisfied that Shtaifs August 1, 2008 constitutes adequate notice.  It was
    a six page, single-spaced letter.  It set out in detail what parts of the print
    version of the article concerned Shtaif and Roberts and why.  Toronto Life, thus,
    had adequate notice of the matter complained of.

[60]

I
    would answer yes to the question did Shtaif and Roberts give Toronto Life
    timely and adequate notice of their claim.

(2)

Does the three-month limitation period in s. 6 of the
Libel and
    Slander Act
bar this claim?

[61]

Shtaif
    and Roberts seek to recapture under s. 6 of the Act their claim for libel in
    the print version of the article.  Assuming that s. 6 applies to the internet
    version of the article, they submit that the three-month limitation period in
    s. 6 governs their recaptured claim.  As they started their action for libel in
    the internet version of the article within the limitation period, they argue
    that their claim for libel in the print version of the article is not statute
    barred.

[62]

Toronto
    Life agrees that the limitation period in s. 6 governs.  However, it submits
    that the recaptured claim for libel in the print version of the article is out
    of time because the plaintiffs did not assert this claim within three months of
    August 20, 2008, the date they first became aware of the libel in the internet
    version of the article.

[63]

Assuming
    that the claim for libel in the internet version of the article is subject to
    s. 6, I agree with both parties that the limitation period in s. 6 governs the
    recaptured claim.  That is evident from ss. 19(1) and (4) of the
Limitations
    Act, 2002
:

19(1) A limitation period set out in or under another
    Act that applies to a claim to which this Act applies is of no effect unless,

(a) the provision establishing it is listed in the
    Schedule to this Act;



19(4) If there is a conflict between a limitation
    period established by a provision referred to in subsection (1) and one
    established by any other provision of this Act, the limitation period
    established by the provision referred to in subsection (1) prevails.

[64]

Section
    2(1) of the
Limitations Act, 2002
provides that that Act applies to
    claims in court proceedings other than specified exempted claims.  The libel
    claim is a claim in a court proceeding and is not an exempt claim under s. 2. 
    Therefore, the
Limitations Act, 2002
applies to a libel claim. 
    However, s. 6 of the
Libel and Slander Act
is listed in the schedule
    provided for in s. 19(1)(a).  Thus, under s. 19(4), the three-month limitation
    period in s. 6 of the
Libel and Slander Act,
not the two-year
    limitation period in s. 4 of the
Limitations Act, 2002,
governs the
    recaptured claim.

[65]

The
    more difficult question is how the three-month limitation period in s. 6 applies
    to the libel claim Shtaif and Roberts seek to recapture.  For convenience, I
    again reproduce s. 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.

[66]

The
    plaintiffs position is that the three-month limitation period in s. 6 applies
    only to their action on the internet libel, not to any earlier libel that might
    be recaptured.  As their action for libel in the internet version of the
    article was started on time, the only limitations in recapturing a claim are
    that the earlier libel must have been published in the one-year period before
    the action was started; and that the plaintiffs must have given notice of the
    earlier libel within six weeks after it came to their knowledge.  These
    limitations are satisfied because the magazine or print version of the article
    was published some six months before the plaintiffs brought their action and
    the plaintiffs gave notice of that libel within the six week period.

[67]

I
    do not accept the plaintiffs position.  It is inconsistent with the wording of
    s. 6 and fails to recognize that a recaptured libel is nonetheless a separate
    cause of action:  see
Frisina v. Southam
.

[68]

In
    this case, the plaintiffs say that the libel in the internet version of the
    article came to their knowledge on August 20, 2008.  They had three months from
    that date  November 20, 2008  to commence their action.  They brought their
    action on October 22, 2008, which was within the three-month limitation period
    in s. 6 of the Act.  Therefore, they were entitled to include a claim for libel
    in the magazine version of the article, because they gave proper notice of it
    and because that alleged libel was published in May 2008, which was within the
    year before October 22, 2008.

[69]

Indeed,
    the plaintiffs likely could have amended their claim or brought a fresh action
    at any time up to November 20, 2008 and included a claim for libel in the
    magazine version of the article, as the magazine was published within the twelve
    month period preceding November 20, 2008.

[70]

What
    the plaintiffs were not entitled to do is what they have attempted to do:
    recapture a claim for libel in the magazine version of the article after
    November 20, 2008.  A recaptured libel is a separate cause of action.  It can
    only be asserted within the time period set out in the Act.

[71]

In
    summary, a plaintiff who has brought a libel action against the media, may
    include in that action a claim for an earlier libel.  However, to include or
    recapture that earlier libel, the plaintiff must meet three timing
    requirements.  First, the earlier libel must have been published within the
    year period before the commencement of the action (s. 6).  Second, proper
    notice must have been given within six weeks after the earlier libel claim to
    the plaintiffs knowledge (s. 5(1)). Third, the claim for the earlier libel
    must be asserted in the action and therefore within three months after the libel
    sued on came to the plaintiffs knowledge (s. 6).

[72]

It
    is the third requirement that the plaintiffs failed to meet. Their claim for
    libel in the print version of the article could not be brought beyond the three-month
    limitation period provided for in s. 6.  In other words, it could not be brought
    after November 20, 2008.  As the plaintiffs did not assert this claim until
    June 2011, it is long out of time.

(3)

Does the two-year limitation period in s. 4 of the
Limitations Act
,
    2002 bar this claim?

[73]

For
    reasons I have already discussed, the limitation period in s. 6 of the
Libel
    and Slander Act
governs this claim.  Section 4 of the
Limitations Act,
    2002
does not apply.

F.

the claim for negligence

(1)

Did the motion judge err in holding that whether the defendants owed the
    plaintiffs a duty of care was a genuine issue requiring a trial?

[74]

In
    their statement of claim, Shtaif and Roberts included a claim for negligence as
    well as for defamation.  They allege that Toronto Life had an obligation to be
    mindful of their interests and to ensure that the article was accurate before
    they published it. They claim that Toronto Life breached this obligation
    because the author of the article, Teitel, and the fact checker, Maddocks,
    refused to review the documents relevant to the dispute between Shnaider and
    the plaintiffs or adequately investigate the facts pertaining to the dispute.
    The plaintiffs claim that because of the defendants negligence, they have
    suffered income and business losses beyond damage to their reputations.

[75]

In
    years past, judges resisted allowing plaintiffs to bring a negligence claim for
    what they viewed was in substance a defamation claim.  The judges concern was
    that negligence claims would subvert the balance defamation law strikes between
    protection of reputation and protection of freedom of expression, a balance
    reflected in defamation laws special notice and limitation provisions and
    special defences.  See, for example,
Elliott v. Canadian Broadcasting Corp.
(1993), 16 O.R. (3d) 677 (Gen. Div.), affd (1995), 25 O.R. (3d) 302 (C.A.);
Fulton
    v. Globe and Mail
(1997), 207 AR. 374 (Q.B).

[76]

However,
    in
Young v. Bella
, 2006 SCC 3, [2006] 1 S.C.R. 108, the Supreme Court
    said that a negligence claim can proceed alongside a defamation claim provided
    that the necessary elements of a cause of action in negligence have been
    established.  McLachlin C.J. and Binnie J. who co-authored the courts reasons
    wrote, at para. 56:

There is no reason in principle why negligence
    actions should not be allowed to proceed where (a) proximity and
    foreseeability have been established, and (b) the damages cover more than
    just harm to the plaintiffs reputation (i.e. where there are further
    damages arising from the defendants negligence): see
Spring v.
    Guardian Assurance plc
, [1994] 3 All E.R. 129 (H.L.). 
    In fact, all of the cases cited by the respondents as standing for the
    proposition that defamation had cornered the market on reputation damages
    were cases in which (unlike here) there was no pre-existing relationship
    between the parties that gave rise to a duty of care.

[77]

Proximity and foreseeability are the elements necessary to establish a
prima
    facie
duty of care.   In words now well-known in Canadian
    negligence law, a prima facie duty of care requires a sufficiently close
    relationship of proximity between the parties such that, in the reasonable
    contemplation of the defendant, carelessness on its part might cause damage to the
    plaintiff: see
Young v. Bella
, at para. 28.

[78]

The defendants, of course, acknowledge the principle in
Young
    v. Bella
but submit that on the facts of this case, which
    are undisputed, Shtaif and Roberts cannot make out a duty of care because there
    was no pre-existing relationship between the parties and thus, not a
    sufficiently close relationship of proximity.  The defendants asked the motion
    judge to grant summary judgment dismissing the plaintiffs negligence claim. 
    The motion judge declined to do so.  He held that whether the defendants owed
    the plaintiffs a duty of care raised a genuine issue for trial.

[79]

The defendants renew their submission on appeal.  They argue that the
    question whether the defendants owed the plaintiffs a duty of care can and should
    be resolved without a trial.

[80]

I agree with the defendants submission and would grant summary
    judgment dismissing the plaintiffs negligence claim.  The relevant facts are
    as follows:

·

The plaintiffs and the defendants had no
    relationship that pre-dated the writing and publication of the article.

·

Before publishing the article, Teitel telephoned
    Roberts. They had a four-hour telephone conversation in which Roberts explained
    at length his side of the dispute.  He invited Teitel to review various
    documents but Teitel never contacted Roberts again.

·

Maddocks telephoned Roberts to verify some
    statements Roberts had made to Teitel during their interview.  Maddocks
    declined Roberts invitation to have a follow-up conversation.

[81]

These two conversations are the only contacts between either of the
    plaintiffs and anyone at Toronto Life.  In my view, they do not establish a
    sufficiently close relationship of proximity to give rise to a duty of care.

[82]

In a general sense, members of the media have or should have an obligation
    to adequately investigate a story to be published, to ensure the accuracy of
    the facts about any person referred to in the story, and to obtain that
    persons side of the story: see
Grant v. Torstar Corp.
, 2009 SCC 61, [2009] 3 S.C.R. 640.  Teitel did contact and interview
    Roberts, and Maddocks contacted him to check the accuracy of some of his statements. 
    But to say, as the plaintiffs have, that these contacts by themselves gave rise
    to a duty of care would mean that in virtually every case a plaintiff could
    proceed with a negligence claim as well as a defamation claim.  The principle
    in
Young v. Bella
does not go that far.

[83]

Indeed, the facts in
Young v. Bella
show
    the kind of evidentiary record required to make out a duty of care.  The
    plaintiff was a university student.  She sued the university, one of her
    professors, and others in negligence for making false remarks about her.  The
    defendants argued that her action was in substance a claim for damages for loss
    of reputation, which could only be asserted in a defamation action.

[84]

The Supreme Court of Canada rejected that argument.  However, to make
    out her claim in negligence, the plaintiff had to establish that the university
    and its professors owed her a duty of care.   The court held, at para. 31, that
    the necessary proximity was grounded in the broader pre-existing relationship
    between the student and her university:

In short, in the present case, proximity was not
    simply grounded in a misguided report to CPS, but was rooted in the broader
    relationship between the professors at Memorial University and their
    students.  The appellant, even as a distant student, was a fee-paying
    member of the university community, and this fact created mutual rights and
    responsibilities.  The relationship between the appellant and the
    University had a contractual foundation, giving rise to duties that sound in
    both contract and tort:
Central Trust Co. v. Rafuse
, [1986] 2 S.C.R. 147.

[85]

The case before us is quite different.  Two telephone calls, part of
    journalists ordinary diligence in writing a story, do not establish a
    pre-existing relationship that give rise to a duty of care.  The plaintiffs
    action is an action for defamation and nothing more.   Even the claims for
    income and business losses are essentially consequential financial losses,
    compensable under the law of defamation.

[86]

I would, therefore, allow the defendants appeal on this issue and
    would grant summary judgment dismissing the plaintiffs negligence claim.  In
    all other respects, I would dismiss the defendants appeal.

G.

conclusion

[87]

I would dismiss the appeal brought by Shtaif and Roberts.  Therefore, I
    would uphold the motion judges dismissal of their claim for libel in the print
    version of the article.

[88]

I would allow the defendants appeal in respect of the plaintiffs negligence
    claim.  I would set aside the motion judges order allowing that claim to go to
    trial and, in its place, grant summary judgment dismissing that claim.  In all
    other respects I would dismiss the defendants appeal.  Therefore, the
    plaintiffs action for libel in the internet version of the article may proceed
    to trial.

[89]

The parties may make brief written submissions on costs within three
    weeks of the release of these reasons.

Released: JUN 17, 2013                                        John
    Laskin J.A.

JL                                                                     I
    agree R.G. Juriansz J.A.

I
    agree M. Tulloch J.A.





[1]
The internet version of the article is identical to the print version but for
    certain pull quotes and a sidebar unrelated to the plaintiffs.



[2]
This phrase was used by Kirby J. in
Dow
    Jones & Company Inc., supra
, at para. 78.


