1. The risks of taking partial
responsibility for an employee
defamation claim
Dan Michaluk
November 2, 2013

2. The reasons not to get involved
•
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
2

3. The reasons not to get involved
•
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)
3

4. The reasons not to get involved
•
Three – the outsider may be right
•
Quite an obvious conflict if the defamatory
publication relates to an employee's work
•
Must investigate first before taking a position
4

5. The reasons not to get involved
•
Four – unfair to the employee and engenders
prejudice through reliance
•
Interests are not as aligned as they seem
•
Let's discuss
5

6. Limitation period prejudice
•
Libel and Slander Act special limitation period
•
Six weeks from point of knowledge must serve
notice of intended action in libel
•
Commence action within three months
•
Newspapers printed and published in Ontario
•
Broadcasts from a station in Ontario
6

7. Limitation period prejudice
•
Libel and Slander Act special limitation period
•
Applies to newspapers published on the internet –
Weiss (OCA)
•
Whether it applies to other internet publications as
“broadcasts” is likely a matter for trial – Shtaif (OCA)
7

8. 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
8

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
9

10. Limitation period prejudice
•
When does publication occur?
•
Occurs on download – Breeden v Black (SCC)
•
Upload does not support an inference of
downloading – Elfarnawi (Ont SCJ)
•
Rely on web page counters at your client’s peril!
10

11. Limitation period prejudice
•
Does the single publication rule apply?
•
Shtaif (OCA) is about publication from print to online
•
•
•
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
•
Some uncertainty about repeat downloads remains
11

12. Limitation period prejudice
•
Does the single publication rule apply?
•
Carter (BCCA) is stronger but non-binding authority
•
Knowledge of defamatory comment on bulletin
board that remained published for over two years
•
Court says, “If comments remain published an
individual ought to have a remedy”
•
Action may proceed so plaintiff can prove
“subsequent publication”
12

13. Limitation period prejudice
•
Loutchansky (CA - Eng) is stronger but nonbinding authority
•
Court denies leave to amend to assert a limitation
period defence to "continuing publication" claim
•
Principled attack on English theory of republication
made – public interest in internet archiving
•
Court says no – but "scale of publication and
resulting damage likely to be modest"
13

14. Limitation period prejudice
•
The risk is very moderated but exists in Ontario
•
There is other prejudice
•
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)
•
Loss of evidence of publication
•
Strategic prejudice
14

15. In practice
•
There are lots of practical reasons to talk an
employee down, so you may not recommend
•
But you must advise of the risk right away
•
If the matter hits a threshold of intensity they
should have a talk with the employee
•
Referral to independent counsel is appropriate
15

16. The risks of taking partial
responsibility for an employee
defamation claim
Dan Michaluk
November 2, 2013