ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-08-368821
DATE: 20130607
BETWEEN:
SHIRLEY BROWNE
Plaintiff
– and –
TORONTO STAR NEWSPAPERS LIMITED, JAGODA PIKE, DALE BRAZAO, DON BABICK and CATHERINE MANUEL
Defendants
Charles Campbell, Shelina Ali for the Plaintiff
Paul Schabas, Iris Fischer, Adam Lazier for the Defendants Toronto Star Newspaper Limited, Jagoda Pike, Dale Brazao and Don Babick
HEARD: June 6, 2013
LAX J.
Ruling on Republication Evidence
[1] This is a defamation action against the Toronto Star Newspaper in respect of an article that was published in its print edition and also on its website. The Statement of Claim alleges in Paragraphs 5, 9 and 12 as follows:
The Toronto Star is distributed widely throughout southern Ontario and published on the Internet.
The online version of the story posted on the Toronto Star website, at thestar.com/News/GTA/article/503452, includes the defamatory statements referenced in paragraph 8 above.
The words complained of have caused grievous damage to the Plaintiff’s good name and reputation, have caused her deep personal suffering, and have caused a loss of business at Whispering Pines.
[2] The trial is proceeding and the plaintiff has testified. The plaintiff now seeks to adduce evidence of republication based on the results of Internet searches that her partner conducted using Google and perhaps other search engines. The plaintiff referred me to the decision of the Ontario Court of Appeal in Barrick Gold Corp. v. Lopehandia, 2004 12938 (ON CA), [2004] O.J. No. 2329 (C.A.) where the Court concluded that defamation on the Internet is different given the “ubiquity, universality and utility” of this medium. The Court said at para. 34, “The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.”
[3] This is not an Internet defamation case per se, but the defendant does not dispute that if it is liable, the fact of publication on the Toronto Star website is a consideration in assessing damages. The parties differ as to whether or not the plaintiff is permitted to adduce evidence of republication on websites other than that of the Toronto Star.
[4] It is uncontroversial that every republication of a libel is a new libel and each publisher is responsible for his act. If this were not the case, the original publisher would become responsible for the acts of those over whom it has no control. In the very old case of Speight v. Gosnay (1891), 60 L.J.Q.B. 231, a case involving slander, the court identified exceptions to this rule. The one in question here is whether the repetition is the natural and probable consequence of the original publication.
[5] In Cohl v. Donovan, [1996] O.J. No. 3857, per O’Driscoll J., the plaintiffs pleaded the fact of republication as follows:
The impugned paragraphs of the Statement of Claim state:
Further, the publicity generated by the publications at issue has resulted in the widespread republication of the false and defamatory statements in the print and electronic media. The republication of the statements was a natural and probable consequence of the publications. The defendants are therefore liable for the further damage caused by the republication.
As a result of the republication of the allegations, the plaintiffs have suffered further substantial damage.
[6] In addition, the plaintiffs provided detailed particulars of the republication as known to them at that time. On a motion to strike the paragraphs of the Statement of Claim, the defendant argued, among other things, that expanding the exception of a republication would greatly complicate libel cases and seriously prejudice defendants. The defendant also argued that a plaintiff’s interest is amply protected by the fact that publication of a libel in a newspaper of wide and general circulation (like the Toronto Star, for example) can lead to substantial damages which are at large.
[7] The court rejected these arguments and concluded that the exception in Speight v. Gosnay applied. In doing so, it distinguished the decision of Montgomery J. in Basse v. Toronto Star Newspapers Ltd. et al. (1983), 1983 1989 (ON SC), 44 O.R. (2d) 164, on the basis that the exception had not been pleaded in that case. In Basse, the impugned paragraphs were these:
The libel of plaintiff was further aggravated by the fact that communications media throughout the country reported the words published by the defendants as aforesaid which reporting of such words repeated and perpetuated the libel complained of, causing further and irreparable harm and damage to the reputation of the plaintiff.
The plaintiff further complains that in publishing the words complained of the corporate defendants and their agents or employees knew or ought to have known that statements made to them by the defendant, Sydney Brown, were defamatory and libellous and, further, that such words would have been repeated by other communications media throughout the Dominion of Canada.
[8] In Cohl, the court noted that in the cases that came after Basse, motions to strike had failed where one or other of the exceptions had been pleaded: see, Jaffe v. Americans for International Justice Foundation et al. (1987), 22 C.P.C. (2d) 286 (Ont. Master); Reichman v. Toronto Life Publishing Co. et al. (1988), 27 C.P.C. (2d) 37 at 39-40 (Ont. H.C.). See also, Jordon v. Talbot, [1998] O.J. No. 1876 (Gen. Div.) where the motion to strike succeeded because the precise exception relied on had not been pleaded.
[9] In Cohl, O’Driscoll J. noted at para. 13 that in libel cases, pleadings play a crucial role because the words complained of and their meaning form the basis of the claim. For that proposition, the court relied on the 8th edition of Gatley on Libel and Slander at p. 440-441 and on Brown, The Law of Defamation in Canada (2nd ed.), p.19-2. Similarly, this is noted by Jennings J. in Jordon at para. 1.
[10] More importantly, it is noted in Lysko v. Braley, a decision of the Ontario Court of Appeal, reported at 2006 11846 (ON CA), [2006] O.J. No. 1137. This was an appeal from a decision striking the statement of claim, which included a defamation claim. The Court reminds us at para. 91, that “pleadings in defamation cases are more important than in any other class of actions”.
[11] In Lysko, the plaintiff set out general allegations about the defamation claims in paragraphs 166 to 169. The motions judge struck these paragraphs as offending the requirements of Rule 25.06. Paragraph 169 reads:
- The makers of the words complained of, and other representatives of the league and member clubs, have subsequently re-published the defamatory statements in various contexts, and they continue to do so.
[12] In regard to this paragraph, the Court stated at para. 129:
… I also agree that para. 169 must be struck, as it is too vague. Further, to the extent that the appellant is alleging publication by persons other than the initial publisher, para. 169 ignores the general rule that the initial publisher is not liable for damage caused by the republication of his defamatory statement unless the initial publication falls under an exception to the rule and that exception is specifically pleaded. See Jordon v. Talbot, [1988] O.J. No. 1876 (Gen. Div.) at para. 3. [Emphasis added]
[13] Here, the exception has not been specifically pleaded. Moreover, the defendants informed the plaintiff in January 2010 that the defendants took the position that the issue of republication of the article by other Internet sites was not covered by the pleading. No amendment was sought.
[14] While there may be cases of notoriety where, absent a specific pleading of an exception, a court might be prepared to find that the fact of publication of an article on the Internet was sufficient to raise the issue of republication by other Internet providers, this is not such a case. I conclude that the plaintiff may not adduce evidence of republication.
LAX J.
Released: June 7, 2013
COURT FILE NO.: CV-08-368821
DATE: 20130607
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHIRLEY BROWNE
Plaintiff
- and -
TORONTO STAR NEWSPAPERS LIMITED, JAGODA PIKE, DALE BRAZAO, DON BABICK and CATHERINE MANUEL
Defendants
RULING ON REPUBLICATION EVIDENCE
LAX J.
Released: June 7, 2013