Single publication rule in defamation does not apply in Ontario

Shtaif v. Toronto Life Publishing Co. Ltd., 2013 ONCA 405 holds the single publication rule in defamation does not apply in Ontario:

[27]       Many American States, either by judicial decision or statute, have adopted a "single publication rule" for mass publications.  The rule holds that a plaintiff alleging defamation has a single cause of action, which arises at the first publication of an alleged libel, regardless of the number of copies of the publication distributed or sold.  In other words, the entire edition of a newspaper, book or magazine is treated as a single publication when it is first made available to the public.  Later distributions of the same edition are relevant to the assessment of damages but do not create a new cause of action or a new limitation period.  See, for example, Churchill v. State of New Jersey (2005), 876 A. (2d) 311 (Sup. Ct. of N.J, App. Div.); Gelbard v. Bodary (2000) 706 N.Y.S.2d 801 (S. Ct. of N.Y., App. Div.); and Firth v. State of New York (2002) 98 N.Y.2d 365 (Court of Appeals of N.Y.); and Calif. Civil Code, 3425.1-3425.5.

[28]       The single publication rule is designed to prevent repeated litigation arising from the same material.  In Churchill, at p. 316, the court explained the policy reasons for the rule:

The single publication rule prevents the constant tolling of the statute of limitations, effectuating express legislative policy in favour of a short statute of limitations period for defamation.  It also allows ease of management whereby all the damages suffered by a plaintiff are consolidated in a single case, thereby preventing potential harassment of defendants through a multiplicity of suits…Finally the single publication rule is more consistent with modern practices of mass production and widespread distribution of printed information than the multiple publication rule.

[29]       Some American courts have extended the single publication rule to online postings, accessible on the internet.  See Firth; The Traditional Cat Association, Inc. v. Gilbreath (2004), 118 Cal. App. 4th 392.

[30]        Toronto Life submits that we should apply the single publication rule in Ontario and specifically to the plaintiffs' libel claim.  Under a single publication rule, the plaintiffs' libel action would arise no later than June 23, 2008 by which time both Shtaif and Roberts had become aware of the alleged libel in the print version of the article.  As they brought their action more than three months later – in October 2008 – they failed to meet the limitation period in s. 6 of the Act.

[31]       However, the single publication rule has been rejected in England: seeBerezovsky v. Michaels, [2000] 2 All E.R. 986 (H.L.); Loutchansky v. Times Newspapers Ltd., [2002] Q.B. 783 (C.A.); in Australia: see Dow Jones and Co. Inc. v. Gutnick, [2002] H.C.A. 56, 2010 C.L.R. 575; and by the British Columbia Court of Appeal: see Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398, 257 D.L.R. (4th) 133.  And the motion judge refused to apply the rule in this case.

[32]       I, too, would not apply the single publication rule for three reasons.  First, the rule does not fit comfortably with the words of s. 6 of the Act.  The single publication rule is based on publication of an alleged libel.  Successive publications are considered a single publication and the date of the first publication triggers the running of the limitation period.  Under s. 6 of Ontario's Act, the date when the libel first came to the plaintiffs' knowledge, not the date of publication, triggers the running of the limitation period.