J.K. v The Korea Times et al 2016 ONCA 375

The appellants, J.K. and S.K., appealed the order of the motion judge dismissing their defamation claims for failure to comply with the notice provision contained ins. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12.

The appeal was allowed as the Court found that the motion judge erred in law in her analysis of the sufficiency of the notice in issue, including by failing to consider the notice in the context of all of the surrounding circumstances.

The ONCA found that a proper analysis of the notice made plain that it conveyed to the respondents the essence of the matter complained of so that they could take appropriate steps to mitigate any damages, if they chose to do so. Therefore, it complied with the notice provision in the Libel and Slander Act.

The Court summarized the analysis required in considering adequacy of notice:

[20] In summary, in considering the adequacy of a notice, the court must have regard to the purpose of s. 5(7) and the circumstances of the particular case to determine whether it fairly alerts the publisher to the matter complained of, so that the publisher may take appropriate action.

[21] In conducting this analysis, the court must be careful to ensure that the notice provision is not abused to shield publishers from legitimate defamation claims. Subsection 5(1) of the Libel and Slander Act was not enacted to reward publishers who are deliberately obtuse. Rather, it is designed to ensure that publishers have sufficient information to permit them to take appropriate steps to mitigate or to eliminate potential damages, if they choose to do so.