Notice under the Libel and Slander Act must be given for a claim for libel in a newspaper or broadcast. What if the defamation comes from a non-media individual who communicates the defamation to the media? Must a notice be given for a claim against the individual? According to TPG Technology Consulting Ltd. v. Canada (Industry Canada), 2012 ONCA 87 such notice must be given:
[26] As I have already noted, the amended statement of claim alleges that the respondents provided the media with false and defamatory information about them which formed the basis of several media articles. Several of the publications in which the allegedly defamatory statements appeared are Ontario publications. In response to a request to admit, the appellants admitted that they did not provide notice of their claim pursuant to s. 5 (1) of the Libel and Slander Act, R.S.O. 1990, c. L-12, which states: Notice of action [27] (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.
[28] As the motion judge struck the entire defamation claim, he did not deal with this issue.
[29] The appellants argue that no notice was required on the ground that their claim is for slander for transmitting words to the media rather than for the publication of the words by the media.
[30] I am unable to accept that submission.
[31] In my view, it is clear from the amended statement of claim that the appellants did not plead a claim for slander. That claim would necessarily be limited to damages flowing from the communication and not include damages flowing from the publications that followed. Rather, the appellants are alleging that the respondents were the source of the allegedly defamatory information that was published by the media and which, they say, caused damage to their reputation. As framed, the claim for defamation is based on the fact that the information was published “in a newspaper or in a broadcast” and the notice requirement imposed by s. 5(1) therefore applies.
[32] As explained by Brown on Defamation, at pp. 7-30 to 7-31, a person who communicates a defamatory remark to a newspaper will be held responsible for libel, rather than slander, as though he or she published it him- or herself:
Thus, it has been said by the Supreme Court of Canada that a person who communicates a defamatory remark to a newspaper reporter will be deemed to have authorized that reporter to publish the remark in the newspaper and will be held responsible as though he published it himself. […] If the defamation is published in the newspaper, the liability will sound in libel rather than slander even if the defendant communicated it orally to the reporter
[33] The rationale behind s. 5(1) “is to give a defendant an opportunity to correct, retract, justify, apologize for, or otherwise consider what mitigating steps are appropriate” : Siddiqui v. Canadian Broadcasting Corporation (2000), 50 O.R. (3d) 607 (C.A.) at para. 16. The section and the rationale have been applied to non-media defendants by several decisions of this court: Janssen-Ortho Inc. v. Amgen Inc. (2005), 256 D.L.R. (4th) 407 (Ont. C.A.); Watson v. Southam Inc. (2000), 189 D.L.R. (4th) 695 (Ont. C.A.); DeHeus v. Niagara Regional Police Services Board [2001] O.J. No. 4201 (C.A.); Weiss v. Sawyer (2002), 61 O.R. (3d) 526 (C.A.). In Watson v. Southam Inc.,Weiler J.A. noted that the application of the section to non-media defendants had been criticized, but concluded that the parties had not made out a case for overruling it. The same observation applies to this case.
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