



COURT OF APPEAL FOR ONTARIO

CITATION: John v. Ballingall, 2017 ONCA 579

DATE: 20170707

DOCKET: C62056

Doherty, Benotto and Trotter JJ.A.

BETWEEN

Darren John

Plaintiff (Appellant)

and

Alex Ballingall, Toronto Star Newspapers Ltd. and
    Torstar Corporation

Defendants (Respondents)

Maanit Zemel and Omar Ha-Redeye, for the appellant

Iris Fischer and Kaley Pulfer, for the respondents

Heard: April 24, 2017

On appeal from the order of Justice Jamie Trimble of the Superior
    Court of Justice, dated April 1, 2016, with reasons reported at 2016 ONSC 2245.

Benotto J.A.:

A.

Introduction

[1]

The appellant is a rapper who performs under the name of Avalanche the
    Architect. He sued the respondents for libel as a result of an online article
    written about him. The article was published on the Toronto Stars website on
    December 4, 2013 and in the print edition on December 9, 2013.

[2]

The appellants claim was struck on a motion under r. 21 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, because he did not comply with
    the six-week notice period and the three-month limitation period provided for
    in ss. 5(1) and 6 of the
Libel and Slander Act
,
R.R.O. 1990, c. L.12 (
LSA
 or the Act).

[3]

He appeals on the basis that the
LSA
does not apply to online
    articles. He submits the applicable limitation period is two years under s. 4
    of the
Limitations Act, 2002
, S.O. 2002, c. 24.

B.

Facts

[4]

Sometime prior to December 2013, the appellant wrote a rap titled Got
    Yourself a Gun. As a result of the lyrics to that rap, the appellant was
    charged with uttering threats to cause death or bodily harm and criminal
    harassment.

[5]

The respondent, Alex Ballingall, is a reporter who works for the
    respondents, the Toronto Star Newspapers Ltd. (the Star) and its parent
    company Torstar Corporation.

[6]

Ballingall sought to interview the appellant about the criminal charges.
    The appellant obtained legal advice and agreed to be interviewed and
    photographed. Ballingalls article was published in the online version of the
    Stars newspaper on December 4, 2013. The title to the article was Rapper says
    death threat just a lyric. The content of the article described the criminal
    proceedings.

[7]

The following day, the appellant sent the Star an electronic factual
    error message through the Stars website complaining about the article. In the
    message, he said, in part:

The title says I said death threat was just a lyric in the rap
    this is not true I did not admit to making death threat in my rap and in fact I
    at no point say I am going to commit any type of violence.

[8]

On December 9, 2013, the Star published the same article in its print
    newspaper, but with the headline Trial to decide if rappers rhyme is a
    crime.

[9]

There was no further communication between the parties until sixteen
    months later, on April 15, 2015, when the appellant sent an email to Ballingall
    complaining about the online version of the article, alleging libel, and
    threatening legal action. He said, in part:

All of these lines are not my words inaccurate and misleading
    as well as libelous so I ask that you please remove them and issue a retraction
    as the crown has used your story as a reference point as being my sediments (
sic
)
    and these claims of poetic license are not only not my words it is and never
    was my defence.

[10]

The appellant then issued a statement of claim on April 28, 2015,
    alleging the words Rapper says death threat just a lyric in the online
    version of the article are false, defamatory, and libellous. The statement of
    claim states: The significance of the title is that it suggests that the
    [appellant] thinks that he can make a death threat as long as it is in a song
    which [the appellant] knows is not a defence under the charter. The scope of
    the appellants action was limited to allegations about the online version of
    the article.

C.

Motion to Strike

[11]

The respondents brought a motion pursuant to r. 21.01(1)(a) requesting
    the action be struck on a point of law because it was statute-barred by ss.
    5(1) and 6 of the
LSA
.

[12]

The motion concerned one issue: whether the
LSA
applies to the
    newspapers electronic edition. The appellant did not contest the respondents
    submission that if the
LSA
applied, then failing to meet the notice
    requirement  both in content and regarding the timing of the notice  was
    fatal to the cause of action.

[13]

The motion judge concluded the notice and limitation periods in the
LSA
apply to the Stars online version. He further found the appellants message of
    December 5, 2013 did not meet the standard required of notice under s. 5(1) of
    the Act because there was no direct or implied assertion that the statements in
    the article were libellous or that the appellant contemplated legal action. Although
    the content of the email sent on April 15, 2015 satisfied the notice
    requirements, it was sent long past the six-week notice period imposed by the
LSA
.
    Similarly, the statement of claim was filed long past the three-month time
    limit set out in the Act.

[14]

The motion judge dismissed the claim.

D.

Issues on Appeal

[15]

As described below, the appellant sought to significantly expand the
    issues on appeal beyond the issue before the motion judge. The issues properly
    before this court on appeal are:

1.       Does
    the
LSA
apply to the online article?

2.       Was
    the
LSA
complied with?

3.       Did
    the motion judge err in applying r. 21.01(1)(a) to strike the action?

E.

Relevant Provisions of the
LSA

[16]

Section 5(1) of the
LSA
provides the notice requirement for an
    action in libel in a newspaper:

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. [Emphasis added.]

[17]

Section 6 provides the limitation period for an action:

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. [Emphasis added.]

[18]

Section 1(1) defines newspaper as follows:

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.

F.

Analysis

[19]

The appellant submits the motion judge erred in dismissing the claim. In
    support of his position he seeks to expand the issues on appeal to include
    matters not raised before the motion judge, including: (i) the application of
    the
LSA
to the Internet generally; (ii) the application of the
LSA
to various types of online postings; and (iii) whether an Internet posting is a
    broadcast under the
LSA
.

[20]

The only issue for this court to decide is the correctness of the motion
    judges decision on the facts of this case. This case did not involve the Internet
    or online postings generally, nor was it about a broadcast. The issue was
    whether the online version of a newspaper is  for the purposes of the
LSA
 a newspaper.

(1)

Does the Act apply to the online article?

[21]

The appellant submits the online version of the article is not published
    in a newspaper because there is no paper. He argues that because it is not
    printed on physical paper, it is excluded from the
LSA
. Further, he
    submits the legislature clearly intended not to include online versions of a
    newspaper because there has been no amendment to the
LSA
to cover this
    point.

[22]

I do not agree. In
Weiss v. Sawyer
(2002)
, 61 O.R. (3d) 526 (C.A.), this court considered the
    issue and concluded that a newspaper does not cease to be a newspaper when it
    is published online. In
Weiss
, an action was commenced against a
    writer without complying with s. 5(1) of the
LSA
. Lax J. dismissed the
    claim on the basis that notice had not been given. This court upheld the motion
    judge and addressed the same issue as is being considered here. At paras. 24
    and 25, Armstrong J.A. said:

The Act defines a newspaper in part as a "paper"
    containing certain categories of information for distribution to the public. I
    think the word "paper" is broad enough to encompass a newspaper which
    is published on the internet.

If I am wrong in my conclusion and the word "paper"
    is to be given a more restrictive meaning i.e. the substance upon which a
    newspaper is ordinarily printed, then arguably s. 5(1) is not available to the
    defendant. However, such a result would clearly be absurd. It would mean that
    if an action was commenced against a newspaper, without serving a s. 5(1)
    notice, it would be barred in relation to the newsprint publication but not so
    barred in relation to the online publication, unless of course it fell within
    the definition of "broadcast". The ordinary meaning rule of statutory
    interpretation articulated by Ruth Sullivan, in
Driedger on the
    Construction of Statutes
, is helpful:

(1) It is presumed that the ordinary meaning of a
    legislative text is the intended or most appropriate meaning. In the absence of
    a reason to reject it, the ordinary meaning prevails.

(2) Even where the ordinary meaning of a legislative text
    appears to be clear, the courts must consider the purpose and scheme of the
    legislation, and the consequences of adopting this meaning. They must take into
    account all relevant indicators of legislative meaning.

(3) In light of these additional considerations, the court
    may adopt an interpretation in which the ordinary meaning is modified or
    rejected. That interpretation, however, must be plausible, that is, it must be
    one of the words are reasonably capable of bearing.

In my view, the purpose and scheme of the notice provision in
    the
Libel and Slander Act
are to extend its benefits to those who are
    sued in respect of a libel in a newspaper irrespective of the method or
    technique of publication. To use the words of Justice Lax, "a newspaper is
    no less a newspaper because it appears in an online version." [Citations
    omitted.]

[23]

I agree with the analysis in
Weiss
that the word paper in the
    definition of newspaper is not restricted to physical paper. To hold
    otherwise would be to ignore principles of statutory interpretation, which are
    flexible enough to achieve the intent of the legislature in the context of evolving
    realities. As the Supreme Court of Canada held in
R v. 974649 Ontario Inc.
,

2001 SCC 81, [2001] 3 S.C.R. 575, at para. 38
:

The intention of Parliament or the legislatures is not frozen
    for all time at the moment of a statutes enactment, such that a court
    interpreting the statute is forever confined to the meanings and circumstances
    that governed on that day. Such an approach risks frustrating the very purpose
    of the legislation by rendering it incapable of responding to the inevitability
    of changing circumstances. Instead, we recognize that the law speaks
    continually once adopted. Preserving the original intention of Parliament or
    the legislatures frequently requires a dynamic approach to interpreting their
    enactments, sensitive to evolving social and material realities. [Citations
    omitted.]

[24]

The courts have interpreted legislation to apply to advances in
    technology that did not exist when the provision was enacted. For example,
    courts have found the
Telegraph Act
[1]
applies to telephones, and a fibre optic system is a cable within the meaning
    of the
Income Tax Act
[2]
,
    despite the fact that neither of these technologies existed at the time the relevant
    provisions were enacted: see
Attorney General v. Edison Telephone Co. of
    London Ltd.
(1880), 6 QBD 244; and
British Columbia Telephone Co. v
    Canada
(1992), 139 N.R. 211 (F.C.A.).

[25]

The regime in the
LSA
provides timely opportunity for the
    publisher to address alleged libellous statements with an appropriate response
    that could be a correction, retraction, or apology. Now that newspapers are
    published and read online, it would be absurd to provide different regimes for
    print and online versions.

[26]

The appellant submits that
Weiss
was overturned  or at least
    questioned  by this court in
Shtaif v. Toronto Life Publishing Co
.
Ltd.
, 2013 ONCA 405, 306 O.A.C. 155. In that case,
Shtaif
brought
    several claims against Toronto Life magazine arising from an online article. Initially,
    there was no claim on the basis of the print version.
Shtaif
also sued
    in negligence and, unlike here, alleged the publication was not broadcast from
    a station in Ontario and therefore was outside the scope of the
LSA
. The
    motion judge ruled the online version of the article was not subject to ss. 5
    and 6 of the
LSA
because a website posting is not a newspaper. He also
    held the article was not broadcast in Ontario. Both sides appealed.

[27]

This court determined the appropriate course was to have this issue
    determined by a trial. At paras 24-26, Laskin J. A. said:

I think the sensible course is  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.

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.

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.

[28]

The decision in
Shtaif
arises out of facts distinguishable from
    those here.

[29]

First, in
Shtaif
, unlike here, one of the primary issues was
    discoverability about which there was conflicting evidence. Second, the issue
    of broadcast location was in issue as the Toronto Life server was in Texas.
    This was a reason the court elected to follow the case of
Bahlieda
v. Santa
(2003), 68 O.R. (3d)
    115 (C.A.), which involved conflicting evidence on the issue of broadcast. In
    fact,
Bahlieda
was not a newspaper case, but rather involved a
    website. In the present case, the issue of broadcast was not raised before the
    motion judge. Third, Toronto Life moved against
Shtaif
for summary
    judgment, pre-
Hyrniak
[3]
,
    on the basis the limitation period had passed. The motion was not for a ruling
    on a point of law pursuant to r. 21, as is the case here.

[30]

I also do not accept the appellants submission that
Shtaif
called
    into question the
ratio
of
Weiss
. On the contrary, Laskin
    J.A. affirmed the need for judicial interpretation to deal with new
    technology. At para. 20, he referred to the
LSA
and commented:

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.
    [Emphasis added.]

[31]

That the court in
Shtaif
chose to send the matter to trial in
    the context of conflicting evidence on discoverability and the issue of
    broadcast does not call into question the decision in
Weiss
,
which remains binding on this court.

[32]

I conclude the
LSA
applies to the online version of the
    article.

(2)

Since the Act applies, was the action statute-barred?

[33]

The statutory notice requirement in the
LSA
provides media
    defendants with the timely opportunity to consider whether any retraction or
    apology is necessary and thereby mitigate any damages: see
Grossman v.
    CFTO-TV Ltd.
(1982), 39 O.R. (2d) 498
(C.A.), at p. 501, leave to appeal refused, [1983] S.C.C.A. No. 463.

[34]

The appellant submits the notice and limitation periods do not start to
    run until the article is no longer on the Internet. He suggests, for every day
    the defamatory words are published online, a new and distinct cause of action
    accrues and a new limitation period begins to run. The defamatory words were
    removed on April 29, 2015. Therefore, the last cause of action began to run on
    April 28, 2015. Based on the motion judges findings, the notice under the Act
    was delivered on April 15, 2015, which is 13 days before the last cause of
    action accrued. Thus, the appellant submits the notice was delivered within the
    six-week notice period under s. 5(1) of the Act. Further, the statement of
    claim was issued on April 28, 2015, which is the same day the last limitation period
    began to run. Therefore, the claim was issued within the three-month limitation
    period imposed by s. 6 of the Act and was not statute-barred.

[35]

I do not accept this submission. The appellant seeks to rely on an
    incorrect interpretation of the multiple publication rule. That concept provides
    that when an alleged libel is republished across different mediums, including
    the Internet, those republications are treated as distinct libels. In
Shtaif
,
the court rejected the notion that the
    limitation period for a suit about an
online
magazine article starts to
    run when the plaintiff becomes aware of the
printed
version. This was the basis
    for the conflicting evidence on discoverability in
Shtaif
. This
    decision does not mean that each day of online publication grounds a new cause
    of action. The court in
Vachon v. Canada Revenue Agency
,
2015 ONSC 6096, expressly rejected this
    interpretation of
Shtaif
. I concur with Hackland J., who said, at para.
    22:

The plaintiff argues that the alleged defamation should be
    taken as having been republished every day [while it] remained accessible on
    the internet
Shtaif
does not support that proposition  any
    limitation period based on discoverability will run from the point where the
    internet defamation is discovered.

[36]

The time by which the plaintiff must give notice under s. 5(1) and bring
    his action under s. 6 begins to run when the libel has come to the knowledge of
    the person defamed. There is no dispute here that, on December 5, 2013, when
    the appellant submitted the factual error message, he was aware of the facts
    on which his cause of action might be founded. He was aware of the statements,
    took exception to them as inaccurate, and demanded a correction. The clock began
    to run on December 5, 2013, when the appellant knew that statements were made
    that might be considered libellous.

[37]

The notice under s. 5(1) of the Act must identify the offending remarks
    to sufficiently enable the defendant to know which they are, to investigate,
    and amend or issue an apology or otherwise mitigate damages. The appellants message
    of December 5, 2013 did not meet the standard required of notice under s. 5(1).
    The message was a statement of factual errors in the article and there was no
    direct or implied assertion that they were libellous.

[38]

In addition to the appellants failure to comply with the six-week
    notice period, the three-month limitation period similarly expired long before
    the appellant issued his statement of claim, sixteen months later.

(3)

Does r. 21 apply to dismiss the claim?

[39]

The respondents motion was decided on the basis of r. 21.01(1)(a),
    which provides:

21.01 (1) A party may move before a judge,

(a) for the determination, before trial, of a
    question of law raised by a pleading in an action where the determination of
    the question may dispose of all or part of the action, substantially shorten
    the trial or result in a substantial saving of costs.

[40]

The appellant submits the motion judge incorrectly admitted evidence on
    the r. 21 motion. I do not accept this submission. It was the appellant who
    sought to file an unsworn affidavit. The respondents did not object and the
    judge granted him leave, but gave the evidence no weight. The only documents
    the motion judge referred to were those the appellant cited in his statement of
    claim: see
Web Offset Publications Ltd. v. Vickery
(1999), 43 O.R.
    (3d) 802 (C.A.), leave to appeal refused, [1999] S.C.C.A. No. 460.

[41]

The appellant submits there were necessary findings of fact to be made
    before the action could be dismissed. The record does not support this
    assertion. The appellant acknowledged he sent the December 2013 message. There
    is therefore no issue as to when time began to run for the purposes of the notice
    and limitation periods. Since I have concluded the
LSA
applies to the
    online newspaper article and the claim was not started in time, it is plain and
    obvious the action cannot succeed.

G.

Disposition

[42]

I would dismiss the appeal and request that the parties file brief
    written submissions (no more than seven pages) on costs within 15 days of the
    release of these reasons.

M.L. Benotto J.A.

I agree Doherty J.A.

I agree G.T. Trotter
    J.A.

Released: July 07, 2017





[1]

1868, c. 110.



[2]

S.C. 1970-71-72, c. 63.



[3]

Hyrniak v. Mauldin
, 2014 SCC 7,
    [2014] 1 S.C.R. 87, which significantly reformed the approach to motions for
    summary judgment.


