Weiss v. Sawyer [Indexed as: Weiss v. Sawyer]

61 O.R. (3d) 526

[2002] O.J. No. 3570

Docket No. C37351

Court of Appeal for Ontario

Catzman, Weiler and Armstrong JJ.A.

September 19, 2002

Limitations -- Defamation -- Notice -- Defendant libelling plaintiff in letter sent by e-mail to editors of magazine -- Libelous letter published in newsprint edition of magazine and online on its internet webpage -- Defendant also libelling plaintiff in letter sent by fax to editors of newspaper but editors not publishing letter in newspaper -- Plaintiff failing to give notice to defendant pursuant to s. 5(1) of the Libel and Slander Act -- Non-media defendant entitled to rely on notice provisions of the Act -- Notice under s. 5(1) not required for the libels published in the letters sent by fax or by e-mail -- Notice required for the libels published in the magazine and on the webpage -- Libel and Slander Act, R.S.O. 1990, c. L.12, ss. 5, 6, 7, 8.

Limitations -- Defamation -- Notice -- Defendant libelling plaintiff in letter published in newsprint edition of magazine and online on its internet webpage -- Plaintiff failing to give notice to defendant pursuant to s. 5(1) of the Libel and Slander Act -- Non-media defendant entitled to rely on notice provisions of the Act -- Defendant entitled to rely on s. 5(1) if newspaper had substantially complied with the information requirements of s. 8 of the Act -- Definition of newspaper including newspaper published online on the internet -- Libel and Slander Act, R.S.O. 1990, c. L.12, ss. 5, 6, 7, 8. [page527]

The plaintiff Weiss wrote a negative book review of a science fiction novel written by the defendant Sawyer. The review was published in Realms Magazine ("Realms") on November 19, 1997. Sawyer responded with a letter, which was sent by e-mail to the editors of Realms. The letter, which was published in Realms' December 3, 1997 edition, stated that Weiss's review was prompted by a personal dispute between them. Sawyer also sent a letter by fax to the editor-in-chief of the North York Mirror and to the managing editor of the Post Newspapers attaching his letter to Realms. There was some evidence that Sawyer's letter to Realms appeared on its website. Weiss alleged that he had been libelled and sued Sawyer, the publisher of Realms, and partners of the publisher for defamation. The action was commenced on February 3, 1998. No notice under s. 5(1) of the Libel and Slander Act was served on any of the defendants. Weiss eventually settled with the media defendants, and the action continued against Sawyer. Sawyer moved for a summary judgment dismissing the action on the ground that no notice was served within six months after the alleged libel came to the plaintiff's knowledge as required by s. 5(1) of the Act. Lax J. granted the motion for summary judgment. Weiss appealed.

Held, the appeal should be allowed.

Weiss's argument that Sawyer was not entitled to the benefit of s. 5(1) of the Act because he was a non-media defendant was incorrect. The Court of Appeal's judgment in Watson v. Southam was authority that in an action for libel in a newspaper or a broadcast, a non-media defendant is entitled to the benefit of s. 5(1) of the Act. There was also no merit in Weiss's argument that his failure to give notice pursuant to s. 5(1) was relieved by s. 6. There was nothing in s. 6 that relieved compliance with s. 5(1).

Sawyer was therefore entitled to the benefit of s. 5(1), provided the publications of the alleged libel were in a newspaper or broadcast, and the statutory requirements of s. 7, which require that the newspaper be published in Ontario, and s. 8(1), which requires that the name and address of publication are stated either in the head of the editorials or the front page of the newspaper, were satisfied.

The faxes to the North York Mirror and to the editor of the Post Newspapers were separate publications of the allegedly libelous material since every republication of a libel is a new libel. However, the faxes were not published by the newspapers and, therefore, s. 5(1) did not apply. Accordingly, the appeal should be allowed with respect to the faxes, and Weiss was entitled to continue his libel action in regard to them. The original e-mail transmission to the editors of Realms fell into the same category as the faxes, and Weiss was entitled to continue his action in regard to the e-mail transmission.

Turning to the other publications of the allegedly libelous letters, Realms was a newspaper within the Act's definition of newspaper. Its masthead contained the following information: "Realms Magazine -- Published by Antope Publications -- 28 Woodcrest Drive -- Etobicoke, Ontario -- M9A 4J2". This information provided a sufficient basis for drawing the inference that the magazine was published in Ontario. Although the name of the proprietor, as required by s. 8 of the Act, was omitted, there was substantial compliance with s. 8, and this was sufficient for Sawyer to rely upon the notice provision of s. 5(1) with respect to the publication of the libel in the magazine.

Sawyer was also entitled to rely on s. 5(1) with respect to the letter published on the Realms website. The Act defines a newspaper, in part, as a "paper" containing certain categories of information for distribution to the public. The word "paper" was broad enough to encompass a newspaper that is published on the internet. The contrary position was inconsistent with the purpose of the notice [page528] provisions of the Act and would lead to the absurd result that an action against a newspaper would be covered by s. 5(1) with respect to its newsprint but not its online publication, unless the online publication was a broadcast. It was not necessary to consider whether an internet publication was a broadcast.

APPEAL from an order dismissing an action on a motion for summary judgment.

Cases referred to Elliott v. Freisen (1984), 1984 1922 (ON CA), 45 O.R. (2d) 285, 1 O.A.C. 376, 6 D.L.R. (4th) 338, 42 C.P.C. 43 (C.A.), affg (1982), 1982 3124 (ON SC), 37 O.R. (2d) 409, 136 D.L.R. (3d) 281 (H.C.J.); Scown v. Herald Publishing Co. (1918), 1918 55 (SCC), 56 S.C.R. 305, [1918] 2 W.W.R. 118, 40 D.L.R. 373, affg 1917 425 (AB SCAD), [1917] 3 W.W.R. 925, 12 Alta. L.R. 127, 38 D.L.R. 43 (C.A.); Watson v. Southam Inc. (2000), 2000 5758 (ON CA), 189 D.L.R. (4th) 695 (Ont. C.A.) Statutes referred to Libel and Slander Act, R.S.O. 1990, c. L.12, ss. 1(1) "newspaper""broadcast", 5(1), 6, 7, 8(1) Authorities referred to Gatley, C., P. Milmo and W.V.H. Rogers, eds., Gatley on Libel & Slander, 9th ed. (London: Sweet & Maxwell, 1998) Sullivan, R., Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994)

Ellis Fabian, for appellant. Edward Hore, for respondent.

The judgment of the court was delivered by

[1] ARMSTRONG J.A.: -- This is an appeal by the plaintiff from an order dismissing his action on a motion for summary judgment.

Background

[2] The appellant, Allan Weiss ("Weiss"), describes himself as a freelance journalist, writer, contract bibliographer and part-time university instructor.

[3] The respondent, Robert J. Sawyer ("Sawyer"), is a science fiction writer. Sawyer was the author of a novel, Starplex, which won the 1997 Aurora Award in science fiction for the best long form work in English.

[4] Weiss wrote a negative book review of Sawyer's novel which was published in Realms Magazine ("Realms") on November 19, 1997. Realms is described in its masthead as "a free bi- weekly publication dedicated to serving the Science Fiction and Fantasy audiences".

[5] Sawyer took very strong exception to Weiss's review of his book and after communicating his verbal displeasure to the editors [page529] of Realms, he wrote them a letter sent by e- mail (the "Sawyer letter") which was published in the magazine's December 3, 1997 edition. The letter alleged that Weiss was in a conflict of interest due to a prior personal dispute between the two and that Weiss wrote his review in an attempt to "get" Sawyer. Sawyer offered other negative comments concerning Weiss in his letter. Weiss alleges the letter is libellous.

[6] Sawyer also faxed a letter to the editor-in-chief of the North York Mirror and to the managing editor of the Post Newspapers with a copy of his letter to the editors of Realms attached. Weiss alleges that the covering letter is also libellous. Neither the North York Mirror, nor the Post Newspapers published either letter. Sawyer testified in cross- examination that he did not intend either the North York Mirror or the Post Newspapers to publish his letter to the editors of Realms. He said that he had sent the letter to the North York Mirror because it had covered his work in the past and also that Weiss had an intermittent history of working for the paper. He described it as a "heads up on a private matter". The letter to the Post Newspapers was sent on the same basis in the mistaken belief that Weiss had a connection with that organization.

[7] Weiss alleged that the Sawyer letter also appeared on the internet website of Realms. On the motion before Justice Lax, an acquaintance of Weiss deposed that he "observed and read a vitriolic letter highly abusive of Weiss . . . and [which] discussed . . . Weiss's review of a novel, Starplex, written by . . . Robert J. Sawyer". Sawyer, on the other hand, deposed that he had been informed by one of the editors of Realms that the letter never appeared on its website.

The Action

[8] Weiss commenced this action against Sawyer, the publisher of Realms and three partners of the publisher, two of whom were also the editors of the magazine. The action is a libel action although there is reference in the statement of claim to intentional infliction of mental suffering, unlawful interference with economic interests and injurious falsehood. In this court, the argument proceeded on the basis that this is a libel action. It would appear from the reasons of Lax J. that the same approach was taken before her.

[9] The action was commenced on February 3, 1998. No notice was served on any of the defendants in accordance with s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12 (the "Act") which provides: [page530]

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.

[10] Weiss eventually settled with the media defendants and the action continued against Sawyer as the sole defendant.

The Motion for Summary Judgment

[11] Counsel for Sawyer brought a motion for summary judgment on the ground that no notice was served upon Sawyer within six weeks after the alleged libel came to the plaintiff's knowledge as required by s. 5(1) of the Act.

[12] Counsel for Weiss argued, before Lax J. and in this court, that Sawyer was a non-media defendant and therefore he was not entitled to the benefit of s. 5(1) of the Act in regard to the letter published in Realms. He further argued that if Sawyer was entitled to rely upon s. 5(1) of the Act, he could only do so if the magazine was printed and published in Ontario in accordance with the provisions of s. 7 of the Act. His position was that there was no evidence from which to conclude that it was printed in Ontario. Counsel for Weiss also argued that Sawyer was not entitled to rely upon s. 5(1) of the Act because the technical requirements of s. 8(1) were not satisfied:

8(1) No defendant in an action for 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.

[13] Justice Lax decided all of the above issues in favour of Sawyer. She also addressed the issue of whether there had been a publication of the letter on the Realms website and if so, whether s. 5(1) was applicable. The motions judge said that it was unclear whether the letter was published on the website, but that she was prepared to adopt the evidence most favourable to the plaintiff and assume that it was published online sometime in February 1998. She then concluded that a newspaper is no less a newspaper because it appears in an online version and therefore the protection of s. 5(1) of the Act was available to Sawyer.

[14] Lax J. therefore dismissed the action on the basis of the failure to deliver a libel notice to Sawyer pursuant to s. 5(1) of the Act. In doing so, she made no express reference to whether the section applied to the two faxes sent to the North York Mirror and the Post Newspapers. However, I assume that she must have concluded that the section applied to the faxes as well as to the other publications of the alleged libellous material. [page531]

The Appeal

[15] On the appeal counsel sought to persuade us, as he had in the court below, that s. 5(1) of the Act does not apply to non-media defendants. In this regard, Justice Lax correctly applied the judgment of this court in Watson v. Southam Inc. (2000), 2000 5758 (ON CA), 189 D.L.R. (4th) 695 (Ont. C.A.). In that case, Justice Abella, for the court, made it clear that in respect of an action for libel in a newspaper or in a broadcast, it is irrelevant whether the defendant is a media defendant. The motions judge was therefore correct in extending the benefit of s. 5(1) to Sawyer provided the publications of the alleged libel were in a newspaper or broadcast and the other statutory prerequisites in s. 7 and s. 8(1) were satisfied.

[16] In this case, the alleged libellous material was published by four different means:

(a) in Realms Magazine;

(b) on the internet (on the assumption there is evidence of publication on the Realms website);

(c) by the fax transmissions to the North York Mirror and the Post Newspapers; and

(d) in the original e-mail transmission to the editors of Realms Magazine.

I will consider each of these in turn.

(a) Realms Magazine

[17] The Act defines newspaper to mean:

1(1) . . . [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, or in parts or numbers, at least twelve times a year.

On the return of the motion before Lax J. counsel for the appellant filed a copy of the December 3, 1997 edition of the magazine. I have no doubt that the contents of the magazine fall within the broad description in the above definition. It is also clear from the masthead of the magazine that it is published biweekly and therefore satisfies the periodic publishing requirement in the definition.

[18] As indicated above, counsel for Weiss argued that there was no evidence before Justice Lax that the December 3, 1997 edition of the magazine was printed in Ontario (as required by s. 7 of the Act), and therefore Sawyer lost the benefit of the notice provision. [page532] He further argued that it was incumbent on counsel for Sawyer to provide such evidence and that the motions judge had improperly reversed the onus. In this regard Justice Lax stated at para. 10:

The moving party did not adduce evidence that Realms is printed in Ontario. The Respondent submits that this disentitles the Plaintiff to the protection afforded by the notice provisions in s. 5(1). It seems to me that in order for this to raise a triable issue, the Respondent is obliged to bring forward some evidence that the newspaper is in fact printed outside of Ontario. This he has not done.

[19] I am not prepared to say that Justice Lax is in error in regard to the obligation on Weiss to lead evidence that the newspaper is in fact printed outside of Ontario. However, I approach the issue on a different basis. As I have already said, it was the plaintiff who put before the court the December 3, 1997 issue of the magazine containing the masthead which includes the following information:

Realms Magazine Published by ANTOPE Publications 28 Woodcrest Drive Etobicoke, Ontario M9A 4J2

In the absence of any evidence to the contrary, I think this provides a sufficient basis for the court to draw the inference that the magazine was printed in Ontario.

[20] The appellant also argued non-compliance with s. 8(1) of the Act as a basis for disentitling Sawyer to rely upon the notice provision in s. 5(1). The name of the publisher and the address of the publication are set out in the masthead which is prominently displayed at the head of the page containing an editorial and an editorial cartoon. The name of the proprietor is omitted.

[21] Justice Lax, relying upon the judgment of this court in Elliott v. Freisen (1984), 1984 1922 (ON CA), 45 O.R. (2d) 285, 6 D.L.R. (4th) 338, stated that in order to have the benefit of the statutory limitation period, there must be substantial compliance with the requirements of s. 8(1). In Elliott, this court adopted the reasoning of the Supreme Court in Scown v. Herald Publishing Co. (1918), 1918 55 (SCC), 56 S.C.R. 305 at p. 311, 40 D.L.R. 373. Much like the situation here, the name of the publisher of the newspaper in Scown appeared at the head of the editorial page, but the name of the proprietor was omitted. Nevertheless, the majority in the Supreme Court held that there had been substantial compliance with the relevant section of Alberta's Libel and Slander Act.

[22] Justice Lax concluded, at para. 9 of her reasons:

There is sufficient evidence before me to allow me to conclude that Realms is a "newspaper" (as this is defined under the Act), that it is published in [page533] Ontario (section 7), and that the names of the proprietors, publisher and the address of Realms are in substantial compliance with section 8(1).

I agree with her conclusion.

(b) The Internet

[23] There is conflicting evidence as to whether the Sawyer letter was published on the Realms Magazine's website. Like Justice Lax I am prepared to assume the most favourable position to the appellant, i.e. there was an online publication of the letter. This then raises the issue of whether the respondent, Sawyer, is entitled to the benefit of the notice provision in s. 5(1) of the Act in regard to the publication on the internet. As already stated, s. 5(1) only applies to the publication of a libel in a newspaper or in a broadcast as defined in the Act. Is the website of Realms a newspaper, a broadcast, or both?

[24] The Act defines a newspaper in part as a "paper" containing certain categories of information for distribution to the public. I think the word "paper" is broad enough to encompass a newspaper which is published on the internet.

[25] If I am wrong in my conclusion and the word "paper" is to be given a more restrictive meaning, i.e. the substance upon which a newspaper is ordinarily printed, then arguably s. 5(1) is not available to the defendant. However, such a result would clearly be absurd. It would mean that if an action was commenced against a newspaper, without serving a s. 5(1) notice, it would be barred in relation to the newsprint publication but not so barred in relation to the online publication, unless of course it fell within the definition of "broadcast". The ordinary meaning rule of statutory interpretation articulated by Ruth Sullivan, in Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994) at p. 7 is helpful:

(1) It is presumed that the ordinary meaning of a legislative text is the intended or most appropriate meaning. In the absence of a reason to reject it, the ordinary meaning prevails.

(2) Even 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. They must take into account all relevant indicators of legislative meaning.

(3) In light of these additional considerations, the court may adopt an interpretation in which the ordinary meaning is modified or rejected. That interpretation, however, must be plausible, that is, it must be one of the words are reasonably capable of bearing.

In my view, the purpose and scheme of the notice provision in the Libel and Slander Act are to extend its benefits to those who are [page534] sued in respect of a libel in a newspaper irrespective of the method or technique of publication. To use the words of Justice Lax"a newspaper is no less a newspaper because it appears in an online version."

[26] Based upon the above conclusion it is not necessary to consider whether the online publication of the Sawyer letter constitutes a "broadcast" within the meaning of the Act. There is also good reason to decline to decide this issue in the case at bar. There is simply no evidence on the record that the online publication of the Sawyer letter falls within the statutory definition of broadcast:

1(1) "[B]roadcasting" means the dissemination of writing, signs, signals, pictures and sounds of all kinds, intended to be received by the public either directly or through the medium of relay stations, by means of,

(a) any form of wireless radioelectric communication utilizing Hertzian waves, including radiotelegraph and radio telephone, or

(b) cables, wires, fibre-optic linkages or laser beams,

and "broadcast" has a corresponding meaning[.]

The determination of this issue is better left to another day when the evidentiary record will permit the court to make an informed decision.

[27] The appellant also argued in connection with the publication on the internet that the failure to serve notice, if notice was required, was cured by s. 6 of the Act which provides:

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.

I see no merit in this argument. There is nothing in s. 6 which relieves a plaintiff from the obligation of serving a notice in regard to an action for libel in a newspaper or in a broadcast as required by s. 5(1).

(c) The fax transmissions to the North York Mirror and Post Newspapers

[28] It is admitted by the defendant that the two faxes were addressed and sent to particular persons, David Fuller of the North York Mirror and Catherine Teasdale of the Post Newspapers. There is evidence that the fax to Catherine Teasdale was received and read by her. It is a reasonable inference that the fax to Fuller was received and read by him. In my view, each of these [page535] faxes represents separate publications of the allegedly libellous material. [See Note 1 at end of document] Every republication of a libel is a new libel. [See Note 2 at end of document] The faxes, although addressed to newspaper editors, were not published by the newspapers. In my view, a s. 5(1) notice has no application to the two faxes and the plaintiff is entitled to continue his libel action in regard to the faxes if he chooses to do so.

(d) The original e-mail transmission to the editors of Realms Magazine

[29] I note that there is no mention of the e-mail transmission to the editors of Realms Magazine, as constituting a separate libel, in the reasons of the motions judge. I do not know whether this matter was argued before her. However, the e- mail transmission is pleaded in the Statement of Claim and it was raised as an issue before us without objection so I will address it.

[30] The original e-mail transmission of the Sawyer letter to the editors of Realms falls into the same category as the faxes. Since they were sent to and received by the editors this represents a separate publication of the alleged libellous material. The subsequent publication of the Sawyer letter in the Realms of December 3, 1997 is also a separate publication. As in the case of the faxes, no s. 5(1) notice is required in regard to the e-mail transmission. The plaintiff therefore is entitled to continue his action in regard to the e-mail transmission if he chooses to do so.

Conclusion

[31] The appeal is dismissed in regard to the publication of the Sawyer letter in Realms and in regard to the alleged publication on the website of the magazine. I would allow the appeal related to the two faxes and the e-mail transmission and permit the action to continue in regard to those publications.

Costs

[32] In this court, the appellant was able to salvage only a fairly small part of his action. In the circumstances I would make no order as to costs of the appeal. In regard to the costs order in the motions court, although a portion of the motions judge's order has now been set aside, most of the action remains dismissed. [page536] I would therefore leave the costs order of Justice Lax in place since it was a fairly modest award in favour of the respondent.

Order accordingly.

Notes

Note 1: "In order to constitute publication, the matter must be published to (communicated to) a third party, that is to say, at least one person other than the plaintiff." See Gatley on Libel & Slander, 9th ed. (London: Sweet & Maxwell, 1998), at p. 127.

Note 2: See Gatley, supra, at p. 150.