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Tort - Defamation - L&SA - Notice and Limitations
MORE CASES
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. Massoudi v. Vice Media LLC [IMPORTANT re these LSA s.5-8 issues]
In Massoudi v. Vice Media LLC (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against the "dismissal of his libel action against the respondents".
The court considers the interplay between the LSA ss.5-8 libel notice and limitation provisions, here in an internet libel context and focussing on the geography the libel publication:[1] .... The summary judgment motion judge concluded that the action was subject to a three-month time bar in s. 6 of the Libel and Slander Act, R.S.O. 1990, c. L.12 (the “LSA”), and that it was time-barred.
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Relevant provisions of the LSA
[9] Sections 5(1) and 6 of the LSA require a person alleging libel in a newspaper to give notice to the defendant. Both notice of and any action for the libel must be given within short deadlines, failing which an action in libel may be struck: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.
6. An action for a libel in a newspaper or in a broadcast shall be commenced within three months after the libel has come to the knowledge of the person defamed, but, where such an action is brought within that period, the action may include a claim for any other libel against the plaintiff by the defendant in the same newspaper or the same broadcasting station within a period of one year before the commencement of the action. [10] A defendant may only claim the benefit of the time bars in ss. 5 and 6 of the LSA, however, if threshold requirements in ss. 7 and 8 are met. Section 7 states:Subsection 5 (1) and section 6 apply only to newspapers printed and published in Ontario and to broadcasts from a station in Ontario. [11] Section 8(1) states that:No defendant in an action for a libel in a newspaper is entitled to the benefit of sections 5 and 6 unless the names of the proprietor and publisher and the address of publication are stated either at the head of the editorials or on the front page of the newspaper. ....
The motion judge did not err in interpreting and applying section 7 of the LSA
[19] The portion of s. 7 relevant to this appeal says that ss. 5(1) and s. 6 “apply only to newspapers printed and published in Ontario”. Given the scarcity of appellate decisions applying the geographic requirement in s. 7 to an exclusively online publication, I think it important for this court to provide some guidance on the issue, even if the appeal is allowed on the second ground advanced by Mr. Massoudi.
[20] Mr. Massoudi admits that the online edition of Vice Canada’s magazine, owned and published by Vice Media Canada Inc., is a “newspaper” as defined in the LSA. This is important because a “newspaper” is defined at s. 1(1) of the LSA to mean:[A] paper containing public news, intelligence, or occurrences, or remarks or observations thereon, or containing only, or principally, advertisements, printed for distribution to the public and published periodically… . [Emphasis added.]. In conceding that Vice Canada meets the LSA definition of a “newspaper”, Mr. Massoudi implicitly acknowledges that it is “printed for distribution to the public”.
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The motion judge did not err in finding that Mr. McGuire’s article was printed and published in Ontario
[24] Mr. Massoudi contends that the motion judge failed to give any consideration to where Mr. McGuire’s article was printed. Had she done so, he argues that she would have necessarily found that the place of printing was the State of Virginia, and therefore that the article was not printed in Ontario for the purposes of s. 7. He argues that, “[i]n referring to the place where a newspaper is printed, s. 7 refers to the place where a newspaper is produced as an object” and that, where a newspaper is published exclusively online, the court must look to the location where the data generating the online content is housed. The uncontradicted evidence in this case is that the data for Mr. McGuire’s article, and in fact for all content on the VICE.com website, is housed on a server in the State of Virginia.
[25] I do not agree that the motion judge misinterpreted s. 7. She correctly relied on this court’s approach to and application of s. 7 in the context of online newspapers in Weiss v. Sawyer (2002), 2002 CanLII 45064 (ON CA), 61 O.R. (3d) 526 (C.A.), and John v. Ballingall, 2017 ONCA 579, 136 O.R (3d) 305, leave to appeal refused, [2017] S.C.C.A. No. 337.
[26] In Weiss, the court concluded that an online magazine falls within the LSA’s definition of a newspaper and that the s. 5 notice requirement accordingly applies to it. Justice Armstrong observed that a contrary interpretation would lead to the absurd result that an action against a newspaper would be subject to the time limits for notice and legal proceedings under the LSA with respect to its newsprint edition but not its online publication. He relied on the principle that, “[e]ven where the ordinary meaning of a legislative text appears to be clear, the courts must consider the purpose and scheme of the legislation, and the consequences of adopting this meaning”: Weiss, at para. 25.
[27] Justice Armstrong concluded that “the purpose and scheme of the notice provision in the Libel and Slander Act are to extend its benefits to those who are sued in respect of a libel in a newspaper irrespective of the method or technique of publication” (emphasis added) and he endorsed the motion judge’s observation that “a newspaper is no less a newspaper because it appears in an online version”: Weiss, at para. 25.
[28] In John, the court reiterated that the LSA applies to newspapers printed online. The appellant in that case argued that the online version of the content at issue was not published “in a newspaper”, as that term is defined at s. 1 of the LSA, because no physical paper was printed. They contended that the court should not interpret s. 6 to extend to internet publications, since the legislature had not amended it to include online publications.
[29] The court rejected these submissions. Justice Benotto endorsed the conclusion in Weiss that the word “paper” in the definition of “newspaper” “is not restricted to physical paper”, agreeing that “[t]o hold otherwise would be to ignore principles of statutory interpretation, which are flexible enough to achieve the intent of the legislature in the context of evolving realities”: John, at para. 23.
[30] Justice Benotto noted the Supreme Court of Canada’s direction in R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 38, that legislation is always speaking, and must be interpreted in the context of evolving social realities:The intention of Parliament or the legislatures is not frozen for all time at the moment of a statute's enactment, such that a court interpreting the statute is forever confined to the meanings and circumstances that governed on that day. Such an approach risks frustrating the very purpose of the legislation by rendering it incapable of responding to the inevitability of changing circumstances. Instead, we recognize that the law speaks continually once adopted. Preserving the original intention of Parliament or the legislatures frequently requires a dynamic approach to interpreting their enactments, sensitive to evolving social and material realities. [Citations omitted.] [31] She cited instances where courts have interpreted legislation to apply to new technologies that did not exist when it was enacted: see John, at para. 24, citing Attorney General v. Edison Telephone Co. of London Ltd. (1880), 6 Q.B.D. 244 (Eng. Ex. Div.); British Columbia Telephone Co. v. Canada, 1992 CanLII 15155 (FCTAD), [1992] 1 C.T.C. 26 (C.A.).
[32] Having regard to the purpose of the notice requirements in the LSA, Justice Benotto concluded at para. 25 of John, as the court had in Weiss, that they should apply equally to online and traditional print publications:The regime in the LSA provides timely opportunity for the publisher to address alleged libellous statements with an appropriate response that could be a correction, retraction or apology. Now that newspapers are published and read online, it would be absurd to provide different regimes for print and online versions. [33] Mr. Massoudi relies on cautionary language used by this court in Shtaif v. Toronto Life Publishing Co. Ltd., 2013 ONCA 405, about the LSA’s application to internet publications. In Shtaif, the defendant moved for the summary dismissal of a defamation action based on an online article. The defendant argued that it was time-barred under s. 6 of the LSA. This court upheld the dismissal of a newspaper’s summary judgment motion, concluding that the action should be tried. Justice Laskin observed at para. 20 of Shtaif that:The question whether or in what circumstances an internet publication is subject to ss. 5(1) and 6 of the Act is a difficult one. The Act was drafted to address alleged defamation in traditional print media and in radio and television broadcasting. It did not contemplate this era of emerging technology, especially the widespread use of the internet. The application of the Act to internet publications will have to come about by legislative amendment or through judicial interpretation of statutory language drafted in a far earlier era. [34] The court concluded that there were genuine issues that could only be resolved at a trial, including the applicability of the LSA’s provisions to the online publication at issue in that case: Shtaif, at paras. 24-26.
[35] Although I agree with Laskin J.A.’s observations about the challenges in applying the LSA’s provisions to online publications, Shtaif does not assist Mr. Massoudi. The court in that case concluded that a determination of complex and interrelated questions of discoverability and the application of ss. 5 and 6 to an online publication could not be made in the context of a summary judgment motion, because these issues should be decided on a full trial record: Shtaif, at paras. 24-26, 46-48. By contrast, the issue on this appeal (whether the Vice Canada newspaper in which Mr. McGuire’s article appeared was printed in Ontario) is far narrower and straightforward. Mr. Massoudi does not suggest that it cannot be decided on the record before the court. On the contrary, he contends that the evidence dictates a finding that the geographical publication and printing requirement in s. 7 is not met here.
[36] Furthermore, the decision in Shtaif did not call into question the holding in Weiss that the notice and time bar provisions in the LSA apply to online newspapers: John, at para. 31. The motion judge correctly observed that this court’s binding interpretation in Weiss and John is that, for the purpose of the notice/time bar regime in the LSA, “a newspaper does not cease to be a newspaper because it is printed online”.
[37] These decisions from our court establish that, where a newspaper only appears online, the s. 7 requirement may be met even though content is “printed” exclusively in a digital format. The policy rationale for the shortened time bar in the LSA applies equally to online newspapers and newsprint versions, and s. 7 must be interpreted to reflect the reality of how most media today is created and consumed. In my view, there is no authority or principled basis to find that s. 7 requires evidence of a physical object generated in Ontario, as Mr. Massoudi contends. In the circumstances of this case, the place of printing for the purpose of s. 7 is the same as the place of publication.
[38] A defendant seeking to rely on the time bar restriction for notice in s. 5 of the LSA retains the onus to prove that the online newspaper at issue meets the s. 7 geographical preconditions for its application: St. Lewis v. Rancourt, 2015 ONCA 513, 337 O.A.C. 15, leave to appeal refused, [2015] S.C.C.A. No. 407, at para. 8. The same onus applies where the defendant seeks to rely on the time bar for commencing an action in s. 6 – the defendant must show compliance with s. 7. It would be insufficient to simply show that a publication was accessible online to Ontario readers; this could capture content that had no connection whatsoever to Ontario and render s. 7 meaningless. In my view, factors relevant to showing the place where exclusively online content was published (and therefore printed) could include (but would not necessarily be limited to): where the content was created; who created it and in what capacity; the location of the publisher and proprietor of the online content; the content’s target audience and subject matter; any indication on the website about the place of publication or printing; and the location of persons who accessed and read the content.
[39] The evidence in this case supports the motion judge’s finding that Mr. McGuire’s article was printed and published in Ontario. The article concerned the activities of the mayor of Toronto and his staff, based on tips received from a confidential source also located in Toronto; it was written in Toronto by a Toronto-based journalist working in the Toronto office of Vice Canada’s publisher, Vice Media Canada Inc.; and Mr. Massoudi claimed to have suffered damages in Ontario.
[40] The motion judge also accepted evidence adduced by the respondents that the article was accessed predominantly by Ontario readers:Vice Media retained KPMG who concluded that most of the page views of the Article came from Ontario. Massoudi retained his own expert who cast doubt on that finding, suggesting that some of the identical page view numbers were indicative of automated traffic or “bots.” These identical page views were from locations other than Ontario. However, KPMG prepared another report after consulting Google Analytics and still concluded that the single highest number of page views came from Ontario. I accept this conclusion, and it accords with the Toronto-centric content of the Article. [41] The motion judge found that the location of the readership was relevant given that, “[i]n the case of Internet communications, the publication of defamatory statements occurs when they are read or downloaded by the recipient” (emphasis in original) and “the situs of Internet-based defamation is the place where the defamatory statements are read, accessed or downloaded by the third party” (emphasis in original): Haaretz.com v. Goldhar, 2018 SCC 28, [2018] 2 S.C.R. 3, at para. 36.
[42] The motion judge noted that the server used by VICE was located in the U.S. and that some editorial oversight was exercised there. She found, however, that these factors were outweighed by the evidence supporting a finding that s. 7 applied.
[43] I find no error of law or principle in the motion judge’s conclusion on this issue. . Hamilton v. Vaughan
In Hamilton v. Vaughan (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's appeal, here from a dismissal of an 'anti-SLAPP motion' in a defamation action brought by their former legal counsel.
Here the court considers the Libel and Slander Act notice requirements [under s.5(1),6 LSA]:[5] On the limitations issue, the motion judge found that the LSA imposes two limitation periods: s. 5(1) requires notice to be given within six weeks of discovery if the comments were made in a newspaper or in a broadcast and s. 6 requires an action to be commenced within three months for comments in a newspaper or a broadcast. The appellant’s comments were not published in a newspaper, so she had to establish that the comment constituted a “broadcast” to trigger ss. 5(1) and 6 of the LSA. The motion judge rejected the appellant’s submission that her comments constituted a “broadcast”. Relying on Levant v. Day, 2019 ONCA 244, the motion judge held that the comments were not a broadcast because the appellant had failed to present any evidence regarding the platform where she made the comments nor did she advance any policy reasons for justifying an extension of the word “broadcast”. Therefore, the action was not statute barred by the LSA. . Wurdell v. Paramount Safety Consulting Inc. & Ben Scipione
In Wurdell v. Paramount Safety Consulting Inc. & Ben Scipione (Div Court, 2023) the Divisional Court considers the application of s.5(1) ['Notice of Action'] of the Libel and Slander Act to a slander:[7] Section 5(1) of the Libel and Slander Act reads:Notice of action
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. ....
(b) Did the motion judge err in finding that s. 5(1) of the Libel and Slander Act applied?
[23] The Appellant’s position is that the motion judge was bound by Ontario Court of Appeal decisions that have held that a written communication sent by email or facsimile does not engage the notice requirement in s. 5(1) of the Libel and Slander Act. Further, the Ontario Divisional Court has held that a party seeking to rely on the s. 5(1) notice requirement must lead compelling evidence about its application and that was lacking in the materials before the motion judge. The Respondents did not lead any evidence that could support a finding that the Letter sent by email in this case constitutes a “publication” that triggered notice to have been provided pursuant to s. 5(1) prior to the claim being commenced.
[24] It is the Respondents’ position that the Appellant pleaded and relied on the Libel and SlanderAct and not the common law tort of defamation. As a result, the onus was on him to show how the Libel and Slander Act applied. Here, the Appellant’s defamation claim was statute-barred by operation of s. 5(1) and so the motion judge was correct in striking the defamation pleadings since it would be a waste of court time for the claim to proceed. It would be inappropriate and unfair to the Respondents for the motion judge to have “read in” the general common law tort of defamation when the Libel and Slander Act was specifically pleaded by the Appellant.
Discussion
[25] I conclude that the motion judge erred in his alternative finding that, if this is a case to which the Libel and Slander Act does apply, then the Appellant did not comply with the notice requirement under s. 5(1) of the Act and so his defamation claim should be struck.
[26] The purpose of the s. 5(1) notice is to bring an alleged libel to the publisher or broadcaster’s attention so that they may investigate and, if deemed appropriate, publish or air a retraction, correction, or apology; this enables the publisher or broadcaster to reduce or eliminate any damages: see Janssen-Ortho Inc. v. Amgen Canada Inc. (2005), 256 D.L.R. (4th) 407 (Ont. C.A.), 2005 CanLII 19660 (ON CA), at para. 38; and J.K. v. The Korea Times & Hankookilbo Ltd. (The Korea Times Daily), 2016 ONCA 375, at para. 19(iv).
[27] The Ontario Court of Appeal has affirmed that allegedly defamatory emails do not constitute a broadcast or a newspaper for the purposes of the Libel and Slander Act, and so the s. 5(1) notice requirement does not apply to them: see Janssen-Ortho Inc., at para. 6; and Weiss v. Sawyer, 2002 CanLII 45064 (ON CA), 61 O.R. (3d) 526, at paras. 28-30.
[28] The jurisprudence is also clear that oral communications made over a telephone call do not constitute a “broadcast” within the meaning of the Libel and Slander Act: see Elguindy v. Koren, 2008 CanLII 7744 (ON SC), at para. 27; and Bedessee Imports Ltd. v. K M Imports Inc., 2014 ONSC 1889, at para. 81.
[29] Section 5(1) is not triggered in this case. Simply pleading the Libel and Slander Act does not engage the s. 5(1) notice requirements. Rather, there must be an underlying newspaper publication or an underlying broadcast for s. 5(1) to apply. Here, there is no publication in a newspaper or broadcast alleged in the statement of claim. Nor was there any evidence led by the Respondents that there was a newspaper publication or broadcast at issue.
[30] The motion judge erred in finding that the Letter was subject to compliance with the notice required under s. 5(1) on the evidentiary record before him. It follows that it was not open to him to conclude that the defamation claim should be struck on this basis.
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