5 Feb

Employment letter not subject to six-week notice deadline for defamation actions (Wurdell v. Paramount Safety Consulting Inc.)

Monday, February 5, 2024James R.G. CookLitigation, Employment Lawlibel, slander, Wrongful Dismissal, Defamation

The Divisional Court of the Ontario Superior Court of Justice affirmed that an otherwise private letter may be subject to a defamation claim by the person discussed therein even if it was not intended to be viewed by any other parties.

In Wurdell v. Paramount Safety Consulting Inc. & Ben Scipione, 2024 ONSC 669 (CanLII), the plaintiff had commenced an action alleging wrongful dismissal against his former employer in the Ontario Small Claims Court.

During the proceedings, the employer filed documents that included a letter sent by the employer’s owner to the employment agency that had referred the plaintiff to them. The letter indicated that it was sent via fax and email, and referred to a telephone conversation between the owner and the employment agency which explained why they had terminated the plaintiff’s employment.

The plaintiff then added a defamation claim against the employer and its owner. The defendants brought a motion to strike the defamation claims under Rule 12.02(1)(c) of the Rules of the Small Claims Court on the basis that the letter could not give rise to a defamation claim since it was not a publication or a newspaper that was intended to be viewed by the public.

Alternatively, the defendants argued that the claim was statute-barred since notice had not been given under section  5(1) of the Libel and Slander Act (the “Act”), which provides:

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. 

The Small Claims Court agreed with the defendants and struck the defamation claims.

On appeal, the Divisional Court concluded that the motion judge erred in finding that the letter was not a publication that could give rise to defamation or that the plaintiff was required to comply with the notice requirement under section 5(1) of the Act.

The test for defamation set out by the Supreme Court of Canada in Grant v. Torstar Corp., 2009 SCC 61, requires a plaintiff to establish three elements to prove defamation:

(i) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

(ii) that the words in fact referred to the plaintiff; and

(iii) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.

The motion judge had struck the claim on the basis that the letter was a “private correspondence in a closed, unpublished environment,” and was not a communication to the public or a communication to third parties. Since the letter was not “published” to more than one person it could not ground a defamation claim.

However, Grant v. Torstar affirmed that words can be “published” by way of a written communication sent from one person to at least one other person. It was not necessary that the written communication at issue be sent to more than one recipient.

In the appellate court’s view, the motion judge erred in holding that a defamatory statement must be made to third parties (plural) or that it must be “disseminated to the public”. A letter can be “published” even if it is a private communication between two parties, not intended to be publicized or shared outside of the two of them.

Whether the letter was private, or protected by qualified privilege or other available defences was a matter for trial rather than a pleadings motion.

The Divisional Court further concluded that the motion judge erred in striking the claim based on the notice requirements under section 5(1) of the Act.

The appellate court noted that the historical purpose of the notice requirement was to bring an alleged libel to the publisher or broadcaster’s attention so that they could investigate and publish a retraction, correction, or apology if appropriate: J.K. v. The Korea Times & Hankookilbo Ltd. (The Korea Times Daily), 2016 ONCA 375, at paragraph 19(iv).

Prior Ontario Court of Appeal decisions have affirmed that allegedly defamatory emails do not constitute a “newspaper” or “broadcast” for the purposes of section 5(1) of the Act: Janssen-Ortho Inc. v. Amgen Canada Inc. (2005), 2005 CanLII 19660 (ON CA), at paragraph 6; Weiss v. Sawyer, 2002 CanLII 45064 (ON CA), 61 O.R. (3d) 526, at paras. 28-30.

Further, oral communications made over a telephone call do not constitute a “broadcast”: Elguindy v. Koren, 2008 CanLII 7744 (ON SC), at paragraph 27; Bedessee Imports Ltd. v. K M Imports Inc., 2014 ONSC 1889, at paragraph 81.

In the appellate court’s view, section 5(1) of the Act was not triggered since there was no underlying newspaper publication or broadcast alleged in the statement of claim. The motion judge therefore erred in finding that the letter was subject to compliance with the six-week notice requirement.

In the result, the appeal was allowed and the decision striking the defamation claims was set aside.

The decision shows that an otherwise private letter between two individuals may potentially be subject to a defamation claim as it meets the criteria for publication under Grant v. Torstar. Further, the short notice requirements in the Act will not generally apply to a publication that is not contained in an underlying newspaper or broadcast.  The plaintiff’s defamation claims against his former employer will continue and be subject to the available defences for the employer at trial, including qualified privilege, justification, or fair comment. A PDF version is available for download here.

James Cook
James Cook
T 416.865.6628


(This blog is provided for educational purposes only, and does not necessarily reflect the views of Gardiner Roberts LLP).


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