In Shtaif v. Toronto Life Publishing Co. Ltd., 2013 ONCA 405, the Court of Appeal confirmed that the six-week notice requirement and three-month limitation period contained under the Libel and Slander Act, governs “recaptured” claims under s. 6 of the Libel and Slander Act, and not the two year limitation period under the Limitations Act, 2002. The Court also interpreted s. 6 of the Libel and Slander Act to provide that a plaintiff who has brought a libel action against the media may include a claim for an earlier libel so long as the plaintiff meets three timing requirements (discussed below).
The case involved a libel action stemming from a Toronto Life profile of a Canadian businessman. The article was published first in print and then online. The plaintiffs first became aware of the print article on June 23, 2008. They subsequently complained to the magazine but did nothing further. However, when they became aware of the internet version of the article on August 20, 2008, the plaintiffs gave the requisite 6 weeks notice under the Libel and Slander Act and eventually commenced an action on October 22, 2008 with respect to the internet version within 3 months after becoming aware of it.
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 Libel and Slander Act. The plaintiffs brought a cross-motion to amend their statement of claim to add a claim for libel in the earlier print version of the article as a “recapture” claim pursuant to section 6 of the Libel and Slander Act. That section states as follows:
An action for libel in a newspaper of 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.
The plaintiffs contended that they could “recapture” the claim with respect to the earlier print material pursuant to s. 6 of the Libel and Slander Act. The motion judge granted the plaintiffs’ motion to amend and then dismissed on the merits the claim for libel in the print version of the article. He also dismissed Toronto Life’s motion for summary judgment.
The Court of Appeal held that the applicable limitation period that governed “recaptured” claims under s. 6 was the three month limitation period contained in that very section, and not the two year limitation period under the Limitations Act, 2002. The limitation period in s. 6 of the Libel and Slander Act is specifically mentioned in Schedule B to the Limitations Act, 2002. It should be noted that the Court of Appeal’s analysis proceeded on the explicit assumption that s. 6 of the Libel and Slander Act applies to the internet version of the article (the court held that whether or not a claim for an internet version of an article is subject to the notice and limitation provisions contained in the Libel and Slander Act was a genuine issue requiring trial).
The Court of Appeal also provided guidance as to the proper interpretation of s. 6 of the Libel and Slander Act. The Court held that the provision provides that a plaintiff who has brought a libel action against the media may include in that action a claim for an earlier libel. However, to “recapture” that earlier libel, the plaintiff must meet three timing requirements:
- The earlier libel must have been published within the year before the commencement of the action.
- Pursuant to s. 5(1) of the Libel and Slander Act, proper notice must be given within six weeks after the plaintiff knew about the earlier libel.
- The claim for the earlier libel (i.e. the recaptured claim) must be asserted in the action and therefore within three months after the libel sued on came to the plaintiff’s knowledge.
The Court held that the plaintiffs failed to meet the third requirement, having brought their claim for libel in the print version of the article long after the three-month limitation period provided for in s. 6 of the Libel and Slander Act.