Derfel Injury Law Successfully Defends Client In Defamation Trial
The Internet has had an incredible impact on the way people communicate. With continuing advances in technology and new ways for the sharing of thoughts and ideas being constantly developed, the court system has had to reconsider how certain issues of law should be understood. Take for example a recent case heard before the Ontario Superior Court of Justice where Derfel Injury Law’s David Derfel represented the defendant. In the case, the court was tasked with determining whether the limitation period in s.4 of the Limitations Act applies to defamation on the internet where the words at issue continue to be made available to read. In these situations, the defamation continues to exist long after the words were first said.
The incident began when the defendant hired the plaintiff, a cosmetic surgeon, to perform procedures on her to treat wrinkles. The procedures took place in October 2015. Unsatisfied with the results of her treatment, the defendant posted critical comments about the plaintiff on Yelp, Google, and Twitter. By the time the plaintiff commenced the action for defamation on April 23, 2018, the posts were still available online.
The issue of the limitation period
Upon realizing that the limitation period for defamation had lapsed, the plaintiff amended their claim, arguing that the defamatory words “have been continuously accessed and downloaded by third parties since April 23, 2016,” adding “each instance of a third party accessing or downloading the reviews is a separate and new instance of publication and, therefore, defamation.”
The defendant sought to strike the claim on the basis that the action was commenced after the expiry of the two-year limitation period. S.4 of the Limitation Act states, “Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”
The plaintiff argued that the expiry of a limitation period is a defence to an action, and must be pleaded before the court issues a ruling.
The court’s reasoning
The court referred to a 2001 Ontario Court of appeal decision which held, “The expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded.” This was subsequently upheld in a later decision where the court said that only in the “rarest cases” could a limitation period expiry defence be ruled on without hearing from both parties.
However, in this case, the court determined it was one of those rare cases. Since the issues are not “legally or factually complex.”
The court relied on a 2017 Ontario Court of Appeal decision which “rejected the proposition that just because defamatory words remain online and are available to be downloaded and read indefinitely, there is continuous publication allowing limitation periods to be ignored.” The decision also found that the “republication rule” of the Act only referred to the republishing across different mediums.
In this case, the court found there to have been no republication or repetition by the defendant on the Internet or anywhere else. The court held that the words were discovered by the plaintiff more than two years before the action was commenced
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