Libel Notice

A claim for libel in a newspaper cannot stand unless proper notice has been given. The bar for failure to give a notice is absolute.

The recent Master's decision in Iovate Health v. Welch, 2008 CanLII 17560 makes this point very clear.

The Court says:

(A) Libel/Defamation Allegations

Statutory Notice under The Libel and Slander Act

[12] Subsection 5(1) of the Libel and Slander Act (LSA) states:

5(1) 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 plaintiff's 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.

Therefore, before commencing an action for libel in a newspaper, a plaintiff must serve a libel notice within six weeks of the libel coming to his/her attention.

[13] The court of Appeal in Frisna v Southam Press Ltd. (1981), 33 O.R. (2d) 287 (C.A.) held that failure to comply with s. 5(1) constitutes an absolute bar to the proceeding. The policy reasoning is to permit proposed defendants the opportunity to rectify and to apologize for its alleged wrong-doing.

[14] Iovate's evidence is that it had knowledge of the alleged defamation by the proposed defendant Ward on or before March 28, 2007. Therefore, the limitation for giving notice to Ward expired on May 9, 2007. Iovate never gave notice to Ward or to any of the proposed defendants.

[15] The plaintiff assumes that the proposed defendants were aware of the alleged libel because they were aware of these proceedings from the time the original Statement of claim was served. The Court of Appeal in Janssen-Ortho Inc. v Amgen Canada Inc. [2005] O.J. 2265 (C.A.) held that an originating process may not serve as a libel notice.

[16] Section 6(1) of the LSA stipulates:

An action for libel in a newspaper shall be commenced within three months after the libel has come to the knowledge of the person defamed

In the case at bar, because there has been no notice of the libel to the proposed defendants, it is clear that the limitation period has expired. Further, no action was commenced against the proposed defendants within the three month limitation period.

[17] Section 19(1) of the Limitations Act, 2002 provides that the limitation period under another Act that applies to a claim to which this Act applies is of no effect unless the provision establishing it is listed in the Schedule to this Act. The LSA is referenced in the Schedule.

Section 21(1) of the Limitations Act, 2002 states:

21(1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

[18] By virtue of s. 21(1) of the Limitations Act, if a limitation period has expired the claim shall not be pursued by adding the person as a party to an existing proceeding. In St. Jean v Cheung at p. 3, the Court notes that s. 21(1) of the Limitations Act is a mandatory provision. It removes from the Court any discretion to add parties after the expiration of a limitation period. Therefore, if a court finds that there has not been service of notices of libel, then it follows that there has been non-compliance with the Limitations Act. Failure to comply with the Limitations Act renders the claim against the proposed defendants untenable at law. Further, the failure to comply with a limitation period gives rise to irreparable prejudice.

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4