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Tort - Defamation - L&SA - Notice and Limitations (2). Massoudi v. Vice Media LLC
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 focussing on the s.8 ['Publication of name of publisher, etc.'] requirement regarding prominent publication of the "names of the proprietor and publisher and the address of 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 committed a reversible error in interpreting and applying section 8 of the LSA
[49] Section 8(1) states that, in order for a defendant in an action for libel in a newspaper to be entitled to the benefit of ss. 5 and 6, “the names of the proprietor and publisher and the address of publication [must be] stated either at the head of the editorials or on the front page of the newspaper.”
50] The motion judge’s interpretation of s. 8(1) was driven by her finding as to its purpose, and her understanding that, in Weiss, this court had endorsed a “non-technical” reading of the provision:The purpose of section 8 is to ensure that plaintiffs have sufficient notice of who is responsible for the publication so that they may take appropriate steps in commencing a legal action. The threshold to meet section 8 is “substantial compliance”. The provision does not require the rigid application of a technical requirement: Weiss, at para. 21. [51] The motion judge found that Vice Media Canada Inc. was the proprietor and publisher of the allegedly defamatory article and that, where the publisher and proprietor of a newspaper are the same, the requirements of s. 8(1) are satisfied by the identification of the publisher: Scown v. Herald Publishing Co. (1918), 1918 CanLII 55 (SCC), 56 S.C.R. 305, at p. 311; Weiss, at paras. 20-22.
[52] The motion judge concluded that information on a Vice masthead linked to the online article substantially complied with the requirements of s. 8(1). She found as follows:The masthead was accessed by clicking on the “About Us” tab, which I am satisfied is the digital equivalent of “flipping a page” to the masthead of a print publication. The “About Us” tab was located at the bottom of every page on the website, rendering it obvious and accessible.
The content of the masthead was taken directly from the print magazine. It listed the publisher of Vice Canada as Ryan Archibald. The Article displayed the word “Vice” in bold font at the top-left corner of the webpage, and “Canada” at the top-right corner. In my view, it was clear that [Vice Media Canada Inc.] was the publisher. The Canadian editorial leadership, their email addresses, and the Toronto address of the Vice Toronto office were listed on the masthead. [53] Based on these findings, the motion judge concluded that “[a]ny reader, including [Mr.] Massoudi, would have no difficulty in determining who published the material, thereby providing them the notice needed to take any necessary legal action.” She furthermore determined that Mr. Massoudi had received the notice that s. 8 required, based on his conduct after the article was published.
[54] In my view, the motion judge misread the appellate caselaw forgiving partial non-compliance. As a result, she mistakenly found that the respondents’ non-compliance with the key requirement of s. 8(1), the posting of the name and location of the publisher/owner of Vice Canada, was unproblematic so long as Mr. Massoudi received adequate notice of their identity by some means. The motion judge’s finding that Mr. Massoudi received such notice was moreover inconsistent with the evidence on the motion record.
[55] Courts have allowed defendants in libel actions to benefit from the protection of the very short time bar in s. 6 where they have imperfectly complied with s. 8. In no case, however, has an unmitigated failure to comply with any of the s. 8(1) requirements been condoned. Here, there was such an unmitigated failure. The name Vice Media Canada Inc. – found by the motion judge to be the publisher and proprietor – appears nowhere. The name of a different person – Ryan Archibald – is instead listed as the publisher.
[56] In Scown, the name of the publisher of the defendant newspaper appeared at the head of the editorial along with the address of publication. The Supreme Court of Canada found that, since the publisher and proprietor were one and the same, the defendants had substantially complied with the section of the Alberta Libel and Slander Act corresponding to s. 8(1) of the LSA: pp. 306, 311. The failure to identify the proprietor was unimportant because, in the circumstances, this information was redundant and all other s. 8(1) requirements (the publisher’s name, the address of publication, and the placement of this information at the head of the editorials) were satisfied.
[57] This court’s decision in Elliott v. Freisen et al., (1984), 1984 CanLII 1922 (ON CA), 45 O.R. (2d) 285 (C.A.) arose in the context of libel actions against two newspapers, The Standard and The Sudbury Star. The publisher’s name was printed as required in s. 8 of the LSA in The Standard, but the proprietor’s name was omitted: pp. 287-288. The publisher’s name was printed at the top of The Sudbury Star’s editorial page, but the proprietor’s name appeared only at the bottom: p. 288. The court nonetheless held that the defendants had substantially complied with s. 8 in both publications:In our opinion, a defendant in an action for libel against a newspaper is entitled to the benefit of ss. 5(1) and 6 of the Libel and Slander Act if the names of the proprietor and publisher, as well as the address of publication of the newspaper are given and there is substantial compliance with the spirit of s. 8(1) so that the complainant is able to give the requisite notice. It is, of course, necessary that this information be contained in bold character on the editorial page with some attempted compliance at the head of the editorial page. The information in The Sudbury Star meets this requirement. We think that it was sufficient in the case of The Standard to name the proprietor and publisher, who are the same company. [Emphasis added.] [58] Elliott did not eliminate the requirement that the publisher and proprietor’s name and the address of publication be provided nor establish that s. 8 could be satisfied absent any of this information. It reaffirmed that, if the publisher and proprietor are one and the same, it suffices to identify them only once; and held that the failure to print the required information at the head of the editorials page, as opposed to the bottom, is not necessarily fatal. The court in Elliott held that the failure to meet some technical requirements can be overlooked if the defendants demonstrated “attempted compliance” with s. 8 requirements, and the plaintiff had sufficient information to meet the s. 5 notice requirement: p. 289.
[59] In Hermiston v. Robert Axford Holding Inc. (1994), 1994 CanLII 10574 (ON CTGD), 21 O.R. (3d) 211 (Div.Ct.), the Divisional Court upheld a motion judge’s decision that the printing of the names of a newspaper’s publisher and proprietor in a box at the bottom of the editorial page, instead of the top, did not amount to substantial compliance with s. 8(1). Writing for the majority, Saunders J. noted that, in other cases where substantial compliance was considered sufficient, “there was some attempt at compliance”: Hermiston, at p. 213. He deferred to the motion judge’s determination, on the material before him, that the defendants’ efforts did not amount to substantial compliance.
[60] In Weiss, a magazine published an allegedly libelous letter. The name of the magazine’s publisher and the magazine’s address were set out in a masthead that was prominently displayed at the head of a page containing an editorial and an editorial cartoon: at paras. 19-20. The proprietor’s name was omitted. In these circumstances, this court upheld the motion judge’s determination that, although the masthead did not identify the magazine’s proprietor, the publication substantially complied with the requirements in s. 8(1): at para. 22.
[61] This caselaw establishes that, although a failure to comply with every technical requirement of s. 8(1) may not strip a defendant of the protection of ss. 5 and 6 of the LSA, a defendant newspaper must show at least partial compliance or an attempt to comply. The motion judge declined to follow the majority’s decision in Hermiston, instead adopting a passage from Justice Southey’s dissent at p. 216 emphasizing the need to interpret the LSA in a purposive manner.
[62] Neither the majority nor the minority reasons in Hermiston support the proposition that the key requirement in s. 8(1) ― the identification of the publisher or proprietors, the parties who can be held responsible for publication of libel ― can be waived entirely.
[63] Here, the respondents failed to substantially comply with s. 8(1) because the critical information required for effective notice was entirely absent.
[64] As noted above, the name “Vice Media Canada Ltd.” is not found anywhere on the “About Us” webpages or masthead. The motion judge found that a reader would infer that Vice Canada Media Inc. was the publisher, because the word “Vice” appears at the top of the masthead and the word “Canada” at the upper right-hand corner. She does not explain why a reader would make this inference when the name of the Canadian company did not appear anywhere, and “Ryan Archibald” was identified as the publisher of “Vice Canada”.
[65] The failure to identify Vice Canada Media Inc. at all, in any capacity, anywhere on the VICE.com website excerpts produced in evidence cannot be overlooked. In another set of circumstances, the motion judge could fairly have found the listing of publication information on the “About us” webpages, as opposed to an editorial page or front page, to be substantially compliant. The respondents’ failure to identify Vice Media Canada Inc. as the proprietor could also be overlooked, since it was also the publisher. What could not be overlooked is the requirement that the publisher be unequivocally identified in a prominent location. To require less is to strip s. 8(1) of its purpose.
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[77] Applying s. 8(1) to the evidence, I conclude that the respondents did not substantially comply with its requirements. The respondents are accordingly not entitled to the benefit of the time bar at s. 6. I further note that [at paras 66-76] the court addresses what it finds to be a misapprehension of evidence error which may be unique to the internet newspaper context - and thus may bear review in this under-litigated area of law.
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