Stewart McKelvey

an apology and retraction promptly, thereby limiting claims for damages. By contrast, in New Brunswick, recent amendments to the Limitations Act have eliminated the notice requirement and allow a plaintiff to start a claim two years from when he knew or ought to have known about the defamation to a maximum of 15 years from the date of publication in all cases. While media can respond to such an action and mitigate, they cannot take advantage of the statutory limits on damages if the apology is not published before the action is filed. Where it is a non-media defendant, notice is not required (unlike Ontario, for example) and the Nova Scotia Limitations Act imposes a one year deadline on actions in slander and six years in the case of libel. In addition, Nova Scotia has a peculiar discretionary provision in its Limitations Act. This permits a court to disallow a limitations defence, giving the plaintiff an additional four years to initiate a claim so long as the balance of prejudice favours the plaintiff. The Court of Appeal, in Butler et al v. Southam Inc. et al, ruled that this discretion applies equally to defamation claims (including against media). The Newfoundland and Labrador Limitations Act and the Prince Edward Island Statute of Limitations both impose a two year limitation on defamation claims against non-media. Innocent Dissemination Nova Scotia's Defamation Act stands alone in Canada in its inclusion of a defence based on "innocent dissemination". Although yet to be tested in a court, this defence may be helpful to persons or corporations in the context of websites that host message boards or allow for commenting on posts as it seeks to draw a line between active "publishers" and passive "distributors". Under this section, a potential defendant can make an offer of amends if the words were "published by him innocently". To succeed, one must establish that the publisher did not intend to publish the words in question about the plaintiff and did not know of circumstances that link the words to the plaintiff. Alternatively, the publisher must establish that the words were not defamatory on the face of them, and the publisher did not know of circumstances that made them defamatory of the plaintiff. If accepted, the parties collaborate on a suitable correction/ apology and the recovery is limited to costs. Nova Scotia's statutory defence differs somewhat from the common law defence. At common law, a court will consider factors related to the defendant's ability to prevent or remedy the defamation. For example, whether there was any editorial control or notice of defamatory communications being published on its system or whether upon being informed of the defamation reasonable steps were taken to have the statements removed. A court will also consider whether there was any negligence in failing to be aware of the existence of the defamatory statements or in failing to deal with the effects of defamatory statements, once becoming aware of them. Jury Trials In Atlantic Canada, the rules governing trials in defamation claims are particular to each province. In Nova Scotia, all actions for defamation must be tried by a jury unless the parties consent or waive their rights. Manitoba is the only other province that presumes defamation claims will be tried by juries. In New Brunswick and Newfoundland and Labrador, upon request from a party, a defamation claim shall be tried by a jury, unless a judge orders otherwise. In Prince Edward Island, a defamation action is on the same footing as other civil actions which may be tried by a jury unless a judge orders otherwise. Defamation is a tricky field of law, based on statutes, English common law and evolving defences. Any misstep in the litigation can enhance damages if the defendant is ultimately found liable. Please contact any of Stewart McKelvey's Media Law practitioners to or to assist in responding to threatened or actual defamation claims. We will ensure that your client's interests are protected. Nancy Rubin Halifax, NS 902.420.3337 nrubin@stewartmckelvey.com Karen Bennett-Clayton Halifax, NS 902.420.3377 kbennettclayton@stewartmckelvey.com Maggie Stewart Halifax, NS 902.444.1731 mstewart@stewartmckelvey.com DOING BUSINESS IN ATLANTIC CANADA FALL 2012 3 provide pre-publication advice

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