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In a previous article published on this website, the strict limitation periods associated with a defamation action were discussed; particularly, the six week period for a Notice of Libel and the three month period for the commencement of an action in defamation, as is required under sections 5 and 6 of the Libel and Slander Act, R.S.O. 1990, c. L.12 of Ontario.

The problem that has occurred for some is that the Internet and online defamatory comments can be posted by, and usually are posted by; anonymous persons without the traditional address for service accompanying the comments and, therefore, service poses a unique challenge.

However, putting aside for a moment the avenues that are available for the identification of these individuals, courts have recently allowed some unique means by which service can be affected and further, lawyers have utilized these unique means for service.

One has to remember that the rationale for “personal service” (whereby a person is personally handed the documentation) is to ensure that the litigation specifically or the step in the proceeding has been brought to the attention of the person who is going to be affected by the order of the court.

By way of example, a default judgment is usually brought against a person who has not defended a claim and therefore the plaintiff becomes the moving party in a motion whereby, if the plaintiff is successful, he/she or it can obtain a judgment which is as good as if they had won after a lengthy trial. However, what does become an issue at a default judgment motion, in addition to damages, of course, is the affidavit of service of the statement of claim. Judges are extremely cautious against signing a judgment in favour of a plaintiff when there is reason to believe that the statement of claim was not properly served and the litigation has not been brought to the attention of the defendant.

Now, with respect to the steps in a defamation action, and particularly the condition precedent of a notice of libel, as per section 5 of the Act, which reads:

Notice of action
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.

Most recently, in Toronto, prior to the outcome of the election having been determined, a worker on the Olivia Chow campaign served a John Tory campaign worker with a notice of libel via his Twitter account. The rationale behind same is that the alleged defamatory comments were tweets and that, not only would the notice of libel come to the attention of the account holder, it provides an opportunity for any retraction or apology or clarification to be made in the same forum.

That is part of the rationale for a notice of libel. Traditionally, it provided a newspaper or a radio station with an opportunity to broadcast or publish an apology or retraction or correction. In the event that the matter goes to trial and the alleged comments are found to be defamatory by a judge, the way in which the guilty party responded to the notice of libel may reduce the potential damages they may have to pay to the defamed.

Another unique high profile case occurred when Brian Burke, the former Maple Leafs president and general manager who is now the president of the Calgary Flames, and his legal team were faced with the unique task of serving anonymous bloggers who posted allegedly defamatory comments on a message board with a “Notice of Action”.

By way of application, without notice, Burke’s lawyers requested of the court that it validate service of seven defendants to the defamation action by a method other than personal service, specifically, by service of the initiating pleading via a private message to the Internet message board accounts maintained by the Defendants, also known as “NoFixedAddress”, “Slobberface” “Tulowd” etc.

The application was successful. Master MacNaughton wrote in his decision:

[13]        The particular method of service proposed by Mr. Burke has not been the subject of any decisions of this court, although substituted service through active email accounts and other social media sites such as Facebook has been permitted both in this court, elsewhere in Canada, and in other Commonwealth countries.

[14]        Many such applications are not reported. They are granted on affidavit evidence which confirms that the person proposed to be served maintains an active email or profile on social media sites. They reflect the reality of today’s methods of communication which are increasingly electronic.[1]

This is indeed the new reality; and it is commendable that while the legislation may be antiquated, judges are keen to allow new and innovative ways to deal with the realities of service in litigation.

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