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Torts - Defamation - Libel Notice

J.K. v. The Korea Times & Hankookilbo Ltd. (The Korea Times Daily) (Ont CA, 2016)

In this case the Court of Appeal pronounced usefully on principles applicable to the giving of statutory notice under s.5(1) of the Libel and Slander Act:
[17] Subsection 5(1) of the Libel and Slander Act, provides:
Notice of action
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.
[18] If s. 5(1) is applicable, compliance is a condition precedent to bringing an action in libel such that failure to provide adequate notice will bar the action: Grossman v. CFTO-T.V. Ltd. et al. (1982), 1982 CanLII 1768 (ON CA), 39 O.R. (2d) 498 (C.A.), at p. 501, leave to appeal refused (1983), 39 O.R. (2d) 498 (note) (S.C.C.); Misir v. Toronto Star Newspapers Ltd. (1997), 1997 CanLII 717 (ON CA), 105 O.A.C. 270 (Ont. C.A.), at p. 273.

[19] A review of the authorities considering s. 5(1) of the Libel and Slander Act reveals the following principles:
i. There is no prescribed form of notice. The notice must identify the “matter” complained of and need not describe the “statement” complained of or specify the exact words: Grossman, at pp. 501-502.

ii. Notices need not contain the same level of particularity as a statement of claim: Canadian Union of Postal Workers v. Quebecor Media Inc., 2016 ONCA 206 (CanLII), at para. 5; World Sikh Organization of Canada v. CBC/Radio Canada, 2007 CarswellOnt 7649 (S.C.), at para.12.

iii. The adequacy of the notice must be assessed in the light of its purpose: Shtaif v. Toronto Life Publishing Co., 2013 ONCA 405 (CanLII), 366 D.L.R. (4th) 82, at para. 57.

iv. The purpose of the notice is to call the publisher’s attention to the alleged libellous matter, so that the publisher may investigate and, if it deems it appropriate, publish a retraction, correction, or apology. This will permit the publisher to reduce or eliminate any damages: Grossman, at p. 501; see also Janssen-Ortho Inc. v. Amgen Canada Inc. (2005), 2005 CanLII 19660 (ON CA), 256 D.L.R. (4th) 407 (Ont. C.A.), at para. 38; Siddiqui v. Canadian Broadcasting Corp. (2000), 2000 CanLII 16920 (ON CA), 50 O.R. (3d) 607 (C.A.), at para. 16, leave to appeal refused (2001), 271 N.R. 196 (note) (S.C.C.); and Canadian Union of Postal Workers, at para. 6.

v. The appropriate test for the sufficiency of the notice is whether the notice fairly brings home to the publisher the matter complained of to permit the publisher to review the matter and decide how to respond: Grossman, at pp. 504-505; see also Siddiqui, at para. 18; Canadian Union of Postal Workers, at para. 6; Gutowski v. Clayton, 2014 ONCA 921 (CanLII), 124 O.R. (3d) 185, at para. 36; and Shtaif at para. 58.

vi. Courts can assess the adequacy of the notice in the light of all of the surrounding circumstances: Grossman, at p. 505; see e.g. Pringle v. Channel 11 Limited Partnership, 2015 ONSC 2699, at paras. 20-22; Boyer v. Toronto Life Publishing Co. (2000), 2000 CanLII 22369 (ON SC), 48 O.R. (3d) 383 (S.C.), at paras. 17-19.

vii. A plaintiff may also benefit from the notice, because a timely correction, retraction, or apology may constitute a better remedy than damages: Grossman, at p. 501.

viii. There is a preference in the case law to have matters determined on the merits, rather than terminating them on technical grounds: see Grossman, at p. 505; Telegram Printing Co. v. Knott, [1917] 55 S.C.R. 631, 3 W.W.R. 335, at p. 342; Sentinel-Review Company Limited v. John R. Robinson, 1928 CanLII 9 (SCC), [1928] S.C.R. 258, at pp. 262-63; Pringle, at paras. 33-34; Boyer, at para. 19.
[20] In summary, in considering the adequacy of a notice, the court must have regard to the purpose of s. 5(1) and the circumstances of the particular case to determine whether it fairly alerts the publisher to the matter complained of, so that the publisher may take appropriate action.

[21] In conducting this analysis, the court must be careful to ensure that the notice provision is not abused to shield publishers from legitimate defamation claims. Subsection 5(1) of the Libel and Slander Act was not enacted to reward publishers who are deliberately obtuse. Rather, it is designed to ensure that publishers have sufficient information to permit them to take appropriate steps to mitigate or to eliminate potential damages, if they choose to do so.

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