Effective Strategies for Maximizing Your Profit When Selling Gold Jewelry
Ee defamation prejudice
1. The risks of taking partial
responsibility for an employee
defamation claim
Dan Michaluk
November 2, 2013
2. The reasons not to get involved
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One - takedown is not as simple as it seems and
will often require commitment through to trial
•
Injunctive relief not ordinarily available - Canada
Metal (Ont Div Ct)
•
Outsiders have nothing to lose and are looking for a
fight
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3. The reasons not to get involved
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Two – the duty to takedown is questionable
because takedown is enabled by a (personal)
defamation action
•
You can have a "nexus" and safety related duties
without a duty to takedown - Correctional Services
(K. O'Neil)
•
No duty to protect reputation – Tipple (FC)
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4. The reasons not to get involved
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Three – the outsider may be right
•
Quite an obvious conflict if the defamatory
publication relates to an employee's work
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Must investigate first before taking a position
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5. The reasons not to get involved
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Four – unfair to the employee and engenders
prejudice through reliance
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Interests are not as aligned as they seem
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Let's discuss
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6. Limitation period prejudice
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Libel and Slander Act special limitation period
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Six weeks from point of knowledge must serve
notice of intended action in libel
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Commence action within three months
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Newspapers printed and published in Ontario
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Broadcasts from a station in Ontario
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7. Limitation period prejudice
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Libel and Slander Act special limitation period
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Applies to newspapers published on the internet –
Weiss (OCA)
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Whether it applies to other internet publications as
“broadcasts” is likely a matter for trial – Shtaif (OCA)
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8. Limitation period prejudice
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Okay, but how does it work?
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When does publication occur?
•
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Upload? Or download?
Does the single publication rule apply?
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A plaintiff has a single cause of action that arises at
the first publication of an alleged libel regardless of
the number of copies of the publication distributed or
sold
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9. Limitation period prejudice
•
Okay, but how does it work
•
When does publication occur?
•
•
Upload? Or download?
Does the single publication rule apply?
•
A plaintiff has a single cause of action that arises at
the first publication of an alleged libel regardless of
the number of copies of the publication distributed or
sold
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10. Limitation period prejudice
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When does publication occur?
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Occurs on download – Breeden v Black (SCC)
•
Upload does not support an inference of
downloading – Elfarnawi (Ont SCJ)
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Rely on web page counters at your client’s peril!
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11. Limitation period prejudice
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Does the single publication rule apply?
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Shtaif (OCA) is about publication from print to online
•
•
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Print version discovered June 19th
Internet version discovered August 20th
Notice given on September 29th
•
Court finds publication on internet a new cause of
action – i.e. no single publication rule cross-medium
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Some uncertainty about repeat downloads remains
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12. Limitation period prejudice
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Does the single publication rule apply?
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Carter (BCCA) is stronger but non-binding authority
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Knowledge of defamatory comment on bulletin
board that remained published for over two years
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Court says, “If comments remain published an
individual ought to have a remedy”
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Action may proceed so plaintiff can prove
“subsequent publication”
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13. Limitation period prejudice
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Loutchansky (CA - Eng) is stronger but nonbinding authority
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Court denies leave to amend to assert a limitation
period defence to "continuing publication" claim
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Principled attack on English theory of republication
made – public interest in internet archiving
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Court says no – but "scale of publication and
resulting damage likely to be modest"
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14. Limitation period prejudice
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The risk is very moderated but exists in Ontario
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There is other prejudice
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Loss of damages for prior causes of action subject
to one year of “recapture” – which rests on the
provision of timely notice (see Shtaif, see
Loutchansky)
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Loss of evidence of publication
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Strategic prejudice
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15. In practice
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There are lots of practical reasons to talk an
employee down, so you may not recommend
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But you must advise of the risk right away
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If the matter hits a threshold of intensity they
should have a talk with the employee
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Referral to independent counsel is appropriate
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16. The risks of taking partial
responsibility for an employee
defamation claim
Dan Michaluk
November 2, 2013