Law Times

Law Times • November 13, 2017 Page 7 www.lawtimesnews.com Time for dedicated internet libel legislation BY ROBERT B. COHEN I t is often said that you can't fit a square peg in a round hole. However, it certainly hasn't stopped the Ontario courts from giving it a try in at- tempting to apply Ontario's antiquated Libel and Slander Act to defamatory publications on the internet. Without doubt, the internet has become the most effective way to publish defamatory material through- out the entire world. Hardly a single day goes by without inf luential people complaining about fake news. And we also now know that foreign nations use the internet to manipu- late perceptions and inf luence elections. In Ontario, there have been a number of cases that have considered whether the long-standing six-week notice and three-month limitation period defences in the LSA apply to internet publications, even though the legislation has never expressly referenced internet publications. Hence, it's like trying to fit a square peg into a round hole. In the 2017 decision of John v. Ballingall, the On- tario Court of Appeal held that the online publication of the Toronto Star was protected by the notice and limitation period provisions of the LSA on the basis that "a newspaper does not cease to be a newspaper when it is published online." But what if a defendant publishes an online article without also publishing a traditional print newspaper? Should the statutory protections apply only to those online publishers who also happen to publish tradi- tional newspapers? And while an Ontario Superior Court judge found on a summary judgment motion that a publication on the internet was a "broadcast" so as to trigger the notice and limitation period provisions of the LSA in the 2003 case of Bahlieda v. Santa, the Court of Appeal over- turned that decision later that year on the basis that adjudication by trial of the parties' conf licting expert evidence (as to whether publication on the internet was a "broadcast") was required to decide the issue. Predictably, the Bahlieda v. Santa case never went to trial, leaving the issue unresolved to this day. To be clear, one would be hard-pressed to advocate for internet defamation claims being subject to the no- tice and limitation period obstacles currently in place under the LSA. In fact, one would think that such provisions are unduly restrictive and unfair considering that many defamatory postings on the internet are made by in- dividuals who only find the courage to publish outra- geous lies about others through anonymity. And if you have ever had to decide whether it is worth actually starting a claim against "John Doe" within three months and then pursuing a Norwich or- der at great expense to later find out that the publisher is a 16-year-old kid in a foreign jurisdiction whose only asset is his computer, you will know what I am talking about. From a historical perspective, newspapers have had statutory assistance in defending defamation claims since the 1870s. In 1894, the Ontario legislature passed legislation that imposed a three-month limitation period on suing newspapers for libel and, in 1909, a six-week mandato- ry notice provision was enacted to protect newspapers even further. Why was this done? It was apparently believed that imposing such ini- tial hurdles would provide newspapers with an op- portunity to publish retractions on a timely basis. At that time, newspapers were the most common mode of mass communication. A reader of a libellous article in a newspaper was also likely to read future publications of that same newspa- per in which an editor had an opportunity to mitigate the damage (and pacify a likely plaintiff ) by the publi- cation of an effective apology and retraction. Thus, it was a no-harm, no-foul policy that balanced the rights of individuals to protect their reputations while simultaneously protecting newspapers from dated defamation claims. However, in 1958, and with the proliferation of radio and television, parallel protections were af- forded for "broadcasting" libellous material, presum- ably with the same policy in mind. But what about the internet? It has often been observed that an impeccable repu- tation achieved over a lifetime may be shattered in the few seconds it takes to falsely defame that person, and that observation is most apt when one considers the impact of internet defamation. The recent passing of Ontario's Protection of Pub- lic Participation Act — legislation designed to protect individuals who express views on matters of public in- terest from strategic defamation litigation — will surely be of great comfort to internet defamers, who will be emboldened to spread false news and to attack per- sonal and professional reputations under the cloak of freedom of expression. However, while the legislature must get some credit in seeking to promote free speech in this fashion, did it miss an opportunity to go further and legislate other issues that pertain to internet defamation, including anonymous postings, limitation periods, the impact of publishing timely retractions on damage awards and the like? Rather than ask our courts to try to jam that square peg into a round hole in determining whether the LSA applies to all internet publications, our legislators must recognize that the internet is not only here to stay, it has also become a very powerful and dangerous weapon for reputational attacks so as to warrant dedicated leg- islation. There is no doubt that there will be many challenges and policy considerations to consider in legislating in- ternet defamation, but it is the proverbial elephant in the room and it is not going away any time soon. LT uRobert B. Cohen is a partner at Cassels Brock & Black- well LLP. He practises in the field of commercial and se- curities litigation and litigates cases in various areas of law. Enforceability of marriage contract considered BY MARTA SIEMIARCZUK F or many years now, the issue of en- forceability of a Maher marriage contract as well as its interrelation- ship with provincial family law property regimes has been considered by our courts. This issue was put before the Ontario Court of Appeal very recently in Bakhshi v. Hosseinzadeh, 2017 ONCA 838 and the court's analysis of this particular Ma- her is worthy of review by those practising family law in Ontario. In Bakhshi, the parties married in Iran in 1995 and entered into the Maher. Some time after the marriage, the couple emi- grated to Canada and separated in On- tario in 2013. At this point, the wife initiated an ap- plication for divorce and ancillary relief related to support, equalization of net family property and parenting issues. The primary appellate issue in this case was whether the wife's Maher en- titlement ought to be treated as excluded property pursuant to s. 4(2) of the Fam- ily Law Act or whether her entitlement should be included in her net family property for purposes of the equalization calculation. Ontario courts recognize the Maher as a valid marriage contract, provided that it meets the general test of formation of a valid marriage contract, including that it is written, signed, dated and witnessed. In this case, the Maher was determined to comply with Ontario's legal requirements for a valid marriage contract and was deemed enforceable. The issue was how to treat the entitlement in the context of our equalization scheme. The trial judge, relying on the Court of Appeal's earlier decision in Khanis v. Noor Mohamed, 2011 ONCA 127, held that the Maher, which in this case provided the wife with the right to receive 230 gold coins upon her request (an approxi- mately $80,000 value), was deemed to be "excluded property" pursuant to s. 4(2) of the Family Law Act. This was the primary issue on appeal by the husband, along with several other issues related to the trial judge's calcula- tions themselves. Upon appeal, what became apparent to the court was that the actual terms of this particular Maher were not carefully con- sidered by the trial judge when making a determination of the treatment of the as- set to which the wife was entitled in the context of the equalization scheme. While the court of appeal endorsed its prior decision in the Khanis case, the court was mindful to consider the lan- guage of both contracts. In Khanis, the contract provided that the wife was to receive the as- set from the husband "in addi- tion and without prejudice to and not in substitution of all my obligations provided by the laws of the land," said the rul- ing. In the case at bar, the Ma- her did not contain any such language. The trial judge held the Ma- her did not say that the pay- ment is "in substitution of the husband's obligations arising out of the marriage" in con- cluding that it was excluded property. However, the Court of Appeal was quick to clarify that this was not the issue but, rather, whether the Maher contract brought the asset entitlement within the exception to the equalization scheme un- der s. 4(2) of the act, allowing for it to be treated as excluded property. Absent language in the Maher contract that would bring the asset into the realm of excluded property, the Court of Appeal reversed the trial judge on this issue and recalculated the equalization payment ac- cordingly. The Maher was treated as the wife's as- set in the sense that it was money owed to her, and it was also treated as a debt of the husband. As a result, the equalization payment was significantly reduced, but the court did confirm and ordered that, in addition to the equalization payment, the husband was to also pay the wife the amount at which the Maher was valued. This case, especially read in con- junction with prior decisions on Maher contracts and other similar contracts, supports the conclusion that Maher con- tracts are valid and enforceable marriage contracts in Ontario as long as they meet the statutory requirements of a marriage contract under the provisions of the Fam- ily Law Act. However, they are also susceptible to being set aside if the circumstances un- der which they were formed warrant this, such as not being understood by one of the parties or being entered into under duress and, just as any other marriage contract, they must be interpreted and applied based on their actual terms. If there have been any misapprehen- sions historically about whether prop- erty entitlements under a Maher are ex- cluded or included property, those have now been put to rest in Ontario, and the answer is we must look carefully at the language of the contract, just as we would any other marriage contract. LT uMarta Siemiarczuk is a lawyer practis- ing family law litigation and collabora- tive family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@nelligan.ca. u SPEAKER'S CORNER COMMENT Family Law Marta Siemiarczuk

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