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Defamation claims have the shortest deadlines in Ontario civil litigation and the highest early risk of dismissal. Before you sue, you need to know about the six-week notice rule and about section 137.1.
Book My Consultation →Section 5(1) of the Libel and Slander Act requires notice in writing within six weeks after the alleged libel came to the plaintiff knowledge, and section 6 requires the action to be commenced within three months, for libel in a newspaper or a broadcast.
For libel in a newspaper or a broadcast, section 5(1) of the Libel and Slander Act requires written notice within six weeks after the libel came to your knowledge, and section 6 requires the action to be commenced within three months of that knowledge. Other defamation claims are subject to the two-year basic limitation period under the Limitations Act, 2002.
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To establish defamation in Ontario a plaintiff must prove three things: that the words complained of were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; that the words in fact referred to the plaintiff; and that the words were published, meaning communicated to at least one person other than the plaintiff. Once those three elements are proved, falsity and damage are presumed. The burden then shifts to the defendant to establish a defence.
Libel is defamation in a permanent form, including writing, print, broadcast and material published online. Slander is defamation in a transitory form, principally spoken words, and at common law it generally requires proof of actual damage, subject to established exceptions such as words impugning a person in the way of their office, profession or trade. The Libel and Slander Act, R.S.O. 1990, c. L.12, modifies the common law in important ways, including by providing that broadcast words are treated as published in a permanent form.
Every repetition is a fresh publication. A person who repeats a defamatory allegation is generally liable for it as though they had originated it, subject to the available defences, which is why forwarding, sharing or reposting damaging material carries real exposure. Corporations as well as individuals can sue in defamation for statements damaging their business reputation, although a corporation cannot recover for injured feelings and its claim is more closely tied to demonstrable commercial harm.
The presumption of falsity and damage makes defamation unusual among civil claims: the plaintiff does not have to prove that the statement was untrue. That apparent advantage is heavily offset by the defences available, by the very short deadlines that apply to some publications, and by the anti-SLAPP regime that allows a defendant to seek early dismissal of proceedings arising from expression on matters of public interest.
Section 5(1) of the Libel and Slander Act provides that 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. Section 6 requires such an action to be commenced within three months after the libel has come to the plaintiff's knowledge. These are not the ordinary limitation rules, and they are strictly applied.
| Publication type | Written notice required | Time to commence the action |
|---|---|---|
| Newspaper libel | Yes, within six weeks of knowledge, under s.5(1) | Three months from knowledge, under s.6 |
| Broadcast libel | Yes, within six weeks of knowledge, under s.5(1) | Three months from knowledge, under s.6 |
| Other written libel | Not required by the Act | Two years from discovery, Limitations Act, 2002 s.4 |
| Slander, spoken words | Not required by the Act | Two years from discovery, Limitations Act, 2002 s.4 |
Whether a particular online publication falls within the statutory definitions of newspaper or broadcast is a question that has generated substantial litigation, and the answer is not always obvious for websites, blogs, streamed content and social media. Because the consequence of getting it wrong is the loss of the claim, the prudent approach is to serve a section 5(1) notice promptly in every case where the argument is even arguable, and to treat the three-month period as the operative deadline. Serving a notice costs very little; failing to serve one can end the matter.
By the time most people decide to consult a lawyer about a damaging publication, weeks have already passed. If you believe you have been defamed, obtain advice immediately and preserve the publication with dated screen captures and archived copies, because online material is frequently edited or deleted once a complaint is made.
Justification is the complete defence of truth. A defendant who proves that the statement was substantially true wins outright, however damaging the statement was and whatever the motive for publishing it. Fair comment protects expressions of opinion on a matter of public interest, provided the comment is based on facts that are true and stated or sufficiently indicated, and that it is an opinion a person could honestly express. Both defences can be defeated by proof of express malice.
Absolute privilege protects statements made in judicial and parliamentary proceedings and cannot be defeated by malice. Qualified privilege protects statements made in the discharge of a duty or in the protection of an interest to a person with a corresponding duty or interest to receive them, which covers many employment references, complaints to regulators and internal reports. Qualified privilege is defeated by malice or by publication beyond the scope of the occasion. The defence of responsible communication on matters of public interest protects publication of matters of public interest where the publisher acted responsibly in verifying the allegation, and it is available to bloggers and other publishers as well as to traditional media.
The Libel and Slander Act also affects damages. Where a newspaper or broadcaster publishes a full apology in a manner and within the time the Act specifies, the plaintiff may be limited to actual damages in defined circumstances, and an apology or retraction is in any event a substantial mitigating factor. Conversely, republication of the allegation after notice, or an aggressive defence maintained without foundation, can increase both general and aggravated damages.
Section 137.1 of the Courts of Justice Act is the single most important development in Ontario defamation practice. It allows a defendant to move to dismiss a proceeding that arises from an expression relating to a matter of public interest. Once the defendant establishes that the proceeding arises from such an expression, the burden shifts to the plaintiff, who must satisfy the court that there are grounds to believe the proceeding has substantial merit and that the defendant has no valid defence, and that the harm suffered by the plaintiff is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression.
The consequences are severe for a plaintiff who fails. Section 137.1(7) provides that a defendant who succeeds on the motion is entitled to costs on a full indemnity basis unless the court determines that such an award is not appropriate. Section 137.1(5) stays other steps in the proceeding, including discovery, until the motion is disposed of. Section 137.2 requires the motion to be heard on an expedited basis. In practice this means a plaintiff who sues over commentary on a matter of public interest may face a full indemnity costs award before ever reaching discovery.
Matters of public interest are construed broadly and are not limited to political speech. Commentary about a business, a professional, a public institution, consumer experiences or community affairs can qualify. That is why we assess anti-SLAPP exposure at the very first meeting on any prospective defamation claim, before a notice is served. On the defence side, section 137.1 is often the most efficient answer to a claim brought to silence criticism rather than to vindicate a reputation.
General damages in defamation compensate for injury to reputation and to feelings, and are presumed rather than proved. The assessment is at large, and the factors a court weighs include the seriousness of the allegation, the plaintiff's standing, the extent of publication and the audience reached, whether the allegation was repeated or persisted in, the conduct of the defendant before and during the proceeding, and whether any apology or retraction was made. Special damages compensate for provable pecuniary loss, such as lost contracts or clients, and must be pleaded and proved with evidence.
Aggravated damages may be awarded where the defendant's conduct increased the injury, for example by maliciously repeating the allegation or by persisting in an unfounded plea of justification. Punitive damages are exceptional and are directed at conduct deserving of denunciation rather than at compensating the plaintiff. Where the claim succeeds, a court may also grant a permanent injunction restraining repetition of the defamatory statement, which is frequently the outcome a plaintiff actually wants.
Set against that is the cost picture. Defamation actions are evidence-heavy, the defences are numerous, and the section 137.1 exposure is real. A plaintiff should treat vindication rather than money as the realistic objective in most cases, and should assess whether a correction, retraction or negotiated removal achieves that objective at a fraction of the cost and without amplifying the original publication.
Capture dated screenshots, the full URL, the author handle and any comment thread, and archive the page. Online content is routinely edited or removed as soon as a complaint is made, and a claim about a post nobody can produce is very difficult to run.
Consider whether the statement is fact or opinion, whether it is substantially true, whether it concerns a matter of public interest, and what harm can actually be proved. This is the point at which many prospective claims should stop.
Where the Libel and Slander Act may apply, serve the section 5(1) notice within six weeks. A demand for removal and retraction resolves a meaningful proportion of matters without proceedings and mitigates damages either way.
Where the author is unknown, a Norwich order may be sought compelling a third party such as a platform or service provider to disclose identifying information. The test is demanding and the application is not inexpensive.
Three months for newspaper or broadcast libel under section 6, otherwise the two-year basic period under the Limitations Act, 2002. An interlocutory injunction to restrain publication is available only in the clearest cases.
Courts are extremely reluctant to grant injunctions restraining defamatory publication before trial, because doing so is a prior restraint on expression. Such relief is confined to the clearest cases where the statement is plainly defamatory and no defence could conceivably succeed. Anyone told that a publication can simply be enjoined next week should treat that advice with caution.
Defamation litigation is public. The statement of claim is a public document, the hearing is open, and suing frequently gives an obscure publication a far larger audience than it would otherwise have reached. That dynamic has to be weighed alongside the legal merits. In some matters the right advice is a targeted demand and a communications strategy rather than a proceeding, and we will say so.
Where a claim should be brought, we move quickly because the deadlines require it, and we assess anti-SLAPP exposure candidly before committing you to a proceeding that could produce a full indemnity costs award against you. We also act for defendants, including businesses, journalists, reviewers and individuals facing claims arising from criticism. Contact us as soon as the publication comes to your attention.
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