Limitation Period Avoided: Claims Of Republication Of Libel By Third Party Allowed To Be Added Action Because Stories Were On Internet

• Published date: 02 February 2021
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, IT and Internet, Trials & Appeals & Compensation, Libel & Defamation
• Law Firm: Gardiner Roberts LLP
• Author: Mr Stephen Thiele

Across the country, limitation periods have been enacted to regulate the time in which an action can be commenced. Defendants are entitled to finality, and therefore an action that is started outside of a limitation period is improper and will be dismissed.

Limitation periods apply to defamation actions. However, as demonstrated in the recent decision of Terrigno v. Butzner, 2021 ABCA 18, a statutory limitation period can potentially be avoided in certain circumstances. Here, Alberta's general limitation period did not prevent the plaintiff from amending his statement of claim to add claims against the defendant for republication by a third party of defamatory comments years after the alleged defamatory statements were first made and published. Critical to the case was that news stories published by the third party were available online.

The underlying facts to the plaintiff's action began on February 27, 2015 when following a Calgary Planning Commission hearing, the plaintiff and defendant got into argument over a land re-designation. The defendant told a Calgary Herald reporter about the exchange. A series of media articles followed and the plaintiff's land re-designation got rejected.

On February 24, 2017, an action was commenced by a company against the defendant and others in connection with the rejected land re-designation. Among other causes of action, the defendant was accused of 'making defamatory comments about alleged threats made by an agent' of the company. The agent was not identified by name and the plaintiff was not a party to the claim. This claim was later amended to add the plaintiff and to only seek recovery against the defendant. The amended claim further particularized that the defendant had made defamatory comments specifically about the plaintiff to the reporter.

In December 2019, the plaintiff sought to amend the claim again to add claims of republication by the Calgary Herald. In support of his motion that the claims of republication should be added despite the expiry of the general limitation period, the plaintiff argued that since the articles were available online the running of the limitation period started afresh every time someone accessed the article.

The plaintiff further argued that the allegations contained all of the necessary elements to fall within s. 6(2)(b) of Alberta's Limitations Act. Under this section, a defendant is not entitled to immunity even though a limitation period has expired if the added claim is...