In Nanda v. McEwan, 2019 ONSC 125, the Ontario Superior Court of Justice (“ONSC”) considered whether a Deputy Judge erred in finding that WhatsApp messages were subject to the notice requirements in the Libel and Slander Act (the “Act”) which apply to newspapers and broadcasts.

The ONSC held that the deputy judge did not have enough evidence to decide the issue.

This case reaffirms that Ontario courts require a strong factual basis in order to apply the Act to new media platforms that did not exist when the legislation was first drafted.

Facts

 The Plaintiff in this case was Irwin Nanda, who was running for the position of President of the Toronto Local of the Canadian Union of Postal Workers (“CUPW”). The Defendants were members of CUPW who opposed Nanda’s candidacy.

The Plaintiff claimed that from mid-to-late January 2017, the Defendants made statements in two WhatsApp groups, which Nanda alleges were defamatory.

WhatsApp is an invitation-only internet group messaging service. The first WhatsApp group, the “United Gateway East Group”, had 183 members. The second WhatsApp group, the “Parcel Group”, had 100 members in it.

On February 6, 2017, Nanda commenced an action in the Ontario Small Claims Court claiming damages in the amount of $25,000 for defamation. Notably, Nanda sent a libel notice to the Defendants on February 9, 2017, three days after the action was commenced.

The Decision of the Court Below

The Deputy Judge in the Small Claims Court found that the WhatsApp messages were subject to the notice provisions in the Act, which require a plaintiff to deliver a notice to the defendant specifying the matter complained of prior to commencing a claim. If the plaintiff fails to deliver this notice, the claim will be dismissed.

The Deputy Judge held that the Act applied because the WhatsApp messages were a “broadcast” within the meaning of the Act. Notably, the Deputy Judge did not consider whether the broadcast was “from a station in Ontario” – another requirement for the application of the Act.

The Decision of the Ontario Superior Court of Justice

The ONSC held that the reasoning of the Deputy Judge was fatally flawed.

The ONSC found there was no evidence in the record which would “permit a proper factual determination of whether the WhatsApp Statements were or were not a ‘broadcast’ … or whether the WhatsApp Statements were made from a station in Ontario”.

Justice Ricchetti reasoned that the court requires evidence to determine whether a new media platform should be subject to the Act.

 He found that the Act was drafted to address defamation in traditional print media and radio and television broadcasts.

With respect to the type of evidence required to make this determination, Justice Ricchetti quoted a recent case where the parties argued the Act should apply to “tweets”. In that case, the court found that evidence regarding “the nature, characteristics and functioning of the Twitter technology” and “social policy reasons for interpreting or extending the meaning or definition of broadcast to include Twitter” was required in order to extend the application of the Act.

As the parties presented no evidence that WhatsApp messages should be subject to the Act due to the functionality or for policy reasons, the ONSC held, the Deputy Judge was wrong to dismiss the claim on the basis that the Plaintiff failed to comply with the notice requirements in the Act.

Comment

The Libel and Slander Act was drafted well before new media platforms such as Twitter and WhatsApp existed.

This case reaffirms that Ontario courts will be wary to dismiss a plaintiff’s defamation claim for lack of notice under the Act if it involves statements made on new media platforms.

Defendants seeking to rely on the Act should be prepared to present cogent arguments as to why a particular media platform should be subject to the Act.

Emma Romano is an associate at Bersenas Jacobsen Chouest Thomson Blackburn LLP, with a focus on media and defamation, aviation, commercial and general civil litigation.