December 13, 2018
Ayangma v Saltwire 2018 PESC 48
Since the mid-90’s serial self-represented litigant Noel Ayangma has commenced dozens of lawsuits in PEI, primarily alleging discrimination and defamation.
In May 2016 the Charlottetown Guardian published two stories, both in print and online: one was news, reporting on a recent ruling, and the other an opinion piece commenting on Mr. Ayangma’s excessive use of the courts. In the online versions a hyperlink in the news report linked to the commentary.
The commentary’s headline referred to Mr. Ayangma as a “vexatious litigant.” A 2003 decision had in fact declared him a vexatious litigant, but was overturned on appeal. While many of his suits had been dismissed as vexatious, since 2004 Ayangma had not been declared a vexatious litigant by the court.
In October 2017, 17 months after the Guardian published the news article and commentary, Mr. Ayangma served notice of intended action alleging both stories defamed him. He sued two weeks later. The Guardian moved for summary judgment dismissal.
Justice Key’s decision granting summary judgment addresses or confirms several media law principles of recent interest.
1. Online version of newspaper = newspaper. The online version of a newspaper is still a “newspaper” for purposes of PEI’s Defamation Act (adopting the substance of Ontario’s 2016 John v. Ballingall decision).
2. Initial publication starts the clock. The limitation period did not reset every day the stories remained available on the web. It runs from the date an article is published: in this case May 2016.
3. A hyperlink, even to another page of the same website, does not publish. Justice Key confirms that Crookes applies even to a hyperlink to another story on the same website, between two writers for the same employer, and when there’s an explicit invitation for viewers to click-through.
4. Discoverability. Under sections 14 and 15 of PEI’s Defamation Act a litigant must give a newspaper notice of intended action within three months – and sue within six months – of the date the publication “has come to his notice or knowledge.” While the Act articulates a subjective standard – when did the publication come to Mr. Ayangma’s knowledge? – Justice Key concludes, with support from the Ontario Supreme Court in Bhaduria v. Persaud, that an objective element must be read-in: “would a reasonable person exercising reasonable diligence have found the articles?” The court concludes with reasonable diligence Mr. Ayangma should have become aware of the online stories.
Having dismissed the action Justice Key declined to rule on defamatory meaning.