1. Introduction

The proposals affecting the present libel notice and limitation period provisions contained in sections 5(1) and 6 of the Libel and Slander Act (Ontario) (the "LSA") have a direct and substantial impact on matters of broad public interest and free expression. The present statutory notice and limitation provisions are part of the fabric of defamation law that has developed in this province and are reflected elsewhere in Canada. A delicate balance has been struck between the need for the media to publish and broadcast important information on a timely basis and the protection of individual reputations.

As a strict liability tort, libel imposes a heavy onus on defendants who must prove with admissible evidence each of their available defences. Damages are at large and are subject to minimal appellate review. Conduct after publication right through the course of litigation can be held against defendants to establish malice and increase damage awards. The LSA has been used over time to ameliorate this strong bias in favour of the plaintiff under the common law. The legislation has stood well the test of time, and we are not aware of concerns raised by members of the public, the legal profession or the courts against the existing provisions. No changes should be made without carefully considering their impact on all aspects of the law.

2. Ad IDEM

Ad IDEM was formed in November 1998 as a national association of lawyers who practice media law, representing most of the major media organizations and their journalists across Canada. Our members have day-to-day experience in dealing with laws that impact on freedom of expression, affecting the role of journalists and the content of what the media can publish and broadcast. In particular, the law of defamation affects the media and the duties of our members in advising them more dramatically than any other area of the law. Defamation law is the single greatest legal factor in decisions on what may be published or broadcast in this country, and no group of lawyers has more direct and extensive experience in this area of the law.

One of Ad IDEM’s principal goals is to enlarge and enhance the freedom of expression of all Canadians, recognizing that many in this country, as listeners and readers, rely on the media to provide them with information on public affairs and other matters affecting their lives. This essential role in a democracy deserves careful protection, as recognized by s. 2(b) of the Canadian Charter of Rights and Freedoms.

3. Broad Public Interest

It is not just the interests of potential plaintiffs and defendants in libel proceedings that are at stake. In fact, the notice and limitation periods have a direct impact on the broad-based public interest in ensuring that information put before the public flows freely and is as accurate as possible. The notice and retraction provisions and the extraordinarily short three-day period for publishing a retraction reflect a concern that the public record be corrected as quickly as possible. In a democracy, meaningful public discussion and participation depends substantially on what is published and broadcasted by the media, as has been well recognized by our courts. (Edmonton Journal v. Alberta, [1989] 2 S.C.R. 1326). The public are best served by requiring plaintiffs to respond quickly to any perceived errors in what has been published or broadcast and, correspondingly, in the rapid correction of such errors in the media.

The present provisions recognize that the rapid flow of information in our society inevitably means that mistakes will be made and erroneous information will be published. The legislation assists in reducing the inevitable chilling effect and self-censorship caused by defamation law’s strict liability, helping to ensure the flow of information. It also provides a direct incentive, on the one hand, for plaintiffs to come forward quickly and, on the other hand, for defendants to publish timely retractions.

While such an approach seems particularly important to election campaigns, it has broad application whenever information of benefit to the public is disseminated. This public policy consideration of correcting the public record as soon as possible for the benefit of the public at large was specifically recognized recently by the Ontario Court of Appeal in Merling v. Southam Inc. [2000] O.J. No. 123, 42 C.P.C. (4^th) 26 (C.A.) (per McMurtry CJO). In fact, this very important aspect of the legislation was recognized from the very beginning. The libel notice and retraction provisions and related limitation periods have been in force some 100 years or more, beginning in 1887. As noted by John King, K.C., in his The Law of Defamation in Canada (Toronto, 1907) at page 238:

This statutory law, Provincial and Dominion, is presumably a recognition by the local and federal legislatures of the exceptional position occupied by the newspaper press, the public and, at times, the perilous nature of its duties, and its public usefulness. It is "legislation (which) appears to be unique, and the intention is to protect newspapers reasonably well conducted with a view to the information of the public" (per Boyd C., Bennett v. Empire Printing Co. (1894), 16 O.P.R. 63 at p. 69).

4. Balance of Free Expression and Reputation

Unlike other torts governed by present limitation provisions, defamation directly involves an express right guaranteed under the Charter. The courts have explicitly recognized that freedom of expression is directly affected by the law of defamation and that Charter values should be used to interpret and apply the common law of libel. As a result, important modifications in the common law have been introduced by the courts in recent years, in order to broaden defences. (Hill v. Scientology, [1995] 2 S.C.R. 1130 (at pp. 1188-92); Pizza Pizza Limited v. Toronto Star (1998), 42 O.R. (3d) 36 (Div. Ct.); aff’d [2000] O.J. No. 228, 49 O.R. (3d) 254 (C.A.)).

Any change in the existing statutory scheme will have a direct impact on the present balance struck between free expression and protection of reputation: "whatever is ‘added to the field of libel is taken from the field of free debate’." (as cited by Cory J. in Hill v. Scientology, supra, at p. 1172). This raises constitutional concerns that will render already complex litigation even more so in the future. Certainly, defamation should not be treated as just another tort.

5. Effects of Uncertainty

At present, both libel notice and limitation periods are not triggered until the plaintiff has knowledge of the alleged libel. The concern with discoverability of the tort is built right into the present statute. (Misir v. Toronto Star, [1997] O.J. No. 4960 (C.A.)). This contrasts with the principle in United States jurisdictions where a "single publication rule" applies and limitation periods commence with the date of first publication, without regard to the plaintiff’s knowledge. The U.S. approach clearly produces greater certainty for both plaintiffs and defendants. However, our statute prefers to avoid depriving plaintiffs of a cause of action before they even have knowledge of it, trading certainty for perceived equity.

However, the proposal to enforce the libel notice period only when defendants can show they have been prejudiced by late delivery would create an even greater degree of uncertainty. When, and on what evidence, would a court be satisfied that a defendant has been prejudiced? What degree of prejudice is sufficient? Should the plaintiff not be required to offer a reasonable excuse for the delay? Once again, the onus would fall on the defendant, to the plaintiff’s benefit. This greater sense of uncertainty would add to the difficulty of libel litigation. It would also undermine the effect of the retraction provisions, as outlined above. It would, particularly when coupled with the proposed two-year limitation period, create new opportunities for gold-digging plaintiffs less interested in their reputations than in some monetary return. This invitation to engage in ambush tactics flies in the face of other civil procedure reforms. It would clearly take some time for the courts to sort out these issues.

In the extremely fast-paced world of the media, it is absolutely essential to know as soon as possible when a harmful error might have been published. Sources have to be contacted. Notes and tapes have to be set aside, stored and protected, rather than reused or discarded. Additional information will only be available when the subject-matter is still fresh. Of the hundreds of stories published and broadcast in any one day, the media will not have any certainty as to which ones will at some point give rise to potential litigation. Further, all post-publication conduct can be relied on by a plaintiff and give rise to additional damages, even when the defendants are not aware of any complaint.

All of these factors will inevitably increase caution and potential expense for the media, inhibiting freedom of expression and reducing the flow of useful and important information to the public. It is worth noting that only British Columbia of all the Canadian common law jurisdictions lacks the requirement of a libel notice as a condition precedent to litigation. A committee struck there to review the law of defamation specifically recommended the institution of a libel notice provision.

6. Related Issues in the Law of Defamation

There are a host of issues that have been raised recently in relation to the law of defamation in this province. A number of these were reviewed by the Attorney General’s Advisory Committee on the Law of Defamation and referred to in its 1990 report. These include: increasing the present three-day period for publishing a retraction following receipt of a libel notice (which is by far the shortest such a period in Canada); eliminating the presumption of falsity and harm and shifting the onus from defendant to plaintiff; expanding the scope of the defence of qualified privilege, including the specific statutory defences; clarifying the application of the LSA to electronic publishing; and reflecting various amendments made recently in both the United Kingdom and the United States affecting liability for defamatory material published on the Internet.

Given the delicate balance of interests, the impact on Charter rights and the long-standing nature of the provisions being affected, any changes of the notice and limitation periods should only take place as part of a comprehensive review of this area of law. This would avoid dealing with these particular provisions in isolation and recognize the complex issues and factors to be taken into account in this area of the law.

7. Conclusion

Other than a desire for symmetry, we are not aware of any general concern over the present libel notice and limitation period provisions. There is no evidence of a problem that must be resolved. The fact is that defamation is a unique tort. It should not be lumped with others in view of the extremely important public values affected. Its special status is well-known to members of the legal profession, and plaintiffs who really believe they have been wronged have always been expeditious to seek redress. They are most interested in repairing their reputations and ensuring the public record is corrected. A retraction (and apology) can, in fact, repair the damage in a timely and effective manner. Unlike other torts, monetary compensation at the end of lengthy litigation is not the only redress. This is another factor distinguishing defamation from other torts and emphasizes the importance of section 5 of the LSA.

There are broad public policy concerns involved which strike at the core of what freedom of expression in a democracy really means. The present provisions require plaintiffs to respond quickly once they know about the alleged libel, and these provisions demand on even quicker response from media defendants on receiving a libel notice. The public at large is best served by these requirements, which ensure the public record is corrected as soon as possible. No changes should be made without careful consideration of their impact on this aspect of the present law, and on Charter protection for freedom of expression.
 

Brian MacLeod Rogers
President

October 13, 2000