The Ontario Court of Appeal’s Decision in John v. Ballingall, 2017 ONCA 579
The appellant, Darren John (the “Appellant”) is a musician who performs under the name of Avalanche the Architect. The individual respondent, Alex Ballingall (“Ballingall”) is a reporter for the corporate respondents, Toronto Star Newspaper Ltd. and Torstar Corporation (collectively “Toronto Star”).
Prior to December 2013, the Appellant wrote a rap song, entitled “Got Yourself a Gun”. The lyric of this rap song resulted in the Appellant being charged with uttering threats to cause death or bodily harm and criminal harassment. Shortly after, Ballingall interviewed the Appellant with respect to the criminal charges.
On December 4, 2013, Ballingall’s article entitled “Rapper says death threat just a lyric” was published on the Toronto Star’s online version of its newspaper. The next day, the Appellant sent the Toronto Star an electronic “factual error” message function through the Toronto Star’s website. The Appellant’s message stated, 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.
On December 9, 2013, the Toronto Star published the same article in its print version of the newspaper and barring the headline “Trial to decide if rapper’s rhyme is a crime”.
No further communication between the parties occurred until April 15, 2016, sixteen (16) months after the article was published. The Appellant sent Ballingall email stating that the online version of the email was libelous and threatened legal action.
The Appellant issued a statement of claim on April 28, 2015. His claim alleged the title “Rapper says death threat just a lyric” in the online version of the article was untrue, defamatory and libellous. Specifically, the 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” (para 10). The scope of the Appellant’s claim was limited to the online version of the article.
Ballingall and Toronto Star (collectively the “Respondent”) brought a motion to strike, stating that the action is statute barred by sections 5(1) and 6 of the Libel and Slander Act, R.R.O. 1990, c.L.12 (the “LSA”). Specifically, the motion judge was tasked to determine whether the LSA applied to the newspaper’s electronic online edition. If the LSA applied, the Appellant failed to meet the notice requirement, which was not contested by the Appellant. The motion judge concluded that the notice and limitation periods pursuant to the LSA apply to the Toronto Star’s online version. Further, the Appellant’s message on December 5, 2013 did not meet the notice requirements under section 5(1) of the LSA. The motion judge noted that while the April 15, 2015, email satisfied the notice requirements it was sent well past the six-week period prescribed by the LSA. As such, the motion judge dismissed the Appellant’s claim.
The issues the Court considered were as follows:
(1) Does the LSA apply to the online article?
(2) Did the Appellant comply with the LSA?
(3) Did the motion judge err in striking the Appellant’s claim?
THE ONTARIO COURT OF APPEAL’S DECISION
(1) Application of the LSA
The Appellant argued that the online version of the article did not fall within the definition of “newspaper” under the LSA. Specifically, he argued that because the online version is not published in a physical paper, it is excluded from the definition of “newspaper” under LSA. The Court did not agree. Citing, Weiss v. Saywer (2002), 61 O.R. (3d) 526 (Ont.C.A.), the Court held that the definition of “newspaper” under the LSA is interpreted broadly as to encompass a newspaper which is published online. Further, the Court stated (para 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.
As such, the Court affirmed that the LSA applied to the online article.
(2) Was the action statute-barred?
The Appellant argued that the notice and limitation period did not start to run until the article was no longer available on the Internet. More specifically, he argued that every day that the online article remained posted was a new and distinct cause of action with new and distinct notice and limitation periods. The Court did no accept this submission. The Court noted that the “multiple publication rule” provides that when an alleged libel is republished across different mediums, the republications are considered distinct libels. This was not the case here.
Further, the Court clarified, stating “[t]he 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” (para 36).
Ultimately, the Court confirmed that in addition to the Appellant’s failure to comply with the six-week notice period, the three-month limitation period to issue a claim had long expired when the Appellant brought his claim sixteen months later.
(3) Dismissal of Claim
The Appellant argued that the motion judge erred in admitting evidence with respect to the motion to strike. The Court did not accept this submission. Rather, the Court found that the motion judge only referred to the documents cited by the Appellant in his claim. The Court held that after concluding hat the LSA applied to the online article, it was clear from the acknowledgements of the Appellant that the claim was not started within the notice and limitation periods. As such, the Court found that it was plain and obvious that the action could not succeed.
Ultimately, the Court dismissed the Appellant’s appeal.
The above discussion provides some clarity as to the application of the LSA. The Court confirmed that an online news article publication is a “newspaper” within the meaning of the LSA. As such, the LSA’s short notice and limitation periods that apply to print new paper article also apply to online postings of these articles. It was also made clear that the meaning of the “multiple publication rule” does not extend to include the proposition that every day an article remain on the Internet there is a fresh cause of action on that corresponding day.
Ultimately, if you become aware of a publication which you intended to allege to be libellous and/or defamatory, you should be mindful of the short notice and limitation periods.