Issue 40 Vol II, May 31, 2007

T H I S  O U R  C A N A D A

There is a change in law in some western countries for bringing a lawsuit in a libel action for defamatory material published either in a newspaper or broadcast. Prescribing a short limitation period for serving a prior notice on each of the respondents is a welcome step in the legal history of the law of libel and slander.

Discoverability principal, sets in motion, the starting point of limitation, from the date an aggrieved person, attains knowledge of publication or broadcast. Having come to know the libel, he must serve a notice, in the form of a Statement of Claim on the respondent, on his residence or office. Mere knowledge of the publication or broadcast does not set forth the period of limitation.  Rather, it is the point of knowledge of the material being defamatory, the starting point.

The rationale behind the principle of discoverability and requirement of serving a notice within the prescribed period is manifold.  Most pertinent is to controvert effectively the media trial. A person named or not specifically named but is identifiable in the news item or article or series of them should serve a notice of intended legal action by giving his version or denial with supporting material so as to clear his image in the minds of the readers, viewers or listeners in the time span when it is vividly fresh in their memory.  It also provides an opportunity to the respondents to correct, retract or apologize and to take other measures to undo the damage caused, if the material contained in the notice justifies.  The matter may end without a lawsuit.

It also enables the defendant to locate and preserve evidence, sources of information including people interviewed, informants, tapes and other materials consulted or relied upon, when it is still fresh if the respondent insists on contesting the claim.

In case of series of articles or news stories, the timely notice may help the author to take legal advise, mould, mend or cease to write subsequent articles.

The Nova Scotia Court of Appeal in Canada is of the view that notice of intended action has a constitutional dimension arising form the fundamental clash in defamation law suits between the democratic values of protection of reputation and freedom of press.

In Hayward vs. Thompson, the English court of appeal held that a newspaper cannot avoid an action for libel by publishing a series of articles but linking the plaintiff to defamation by identifying them only in the last article.  In this case the previous eleven articles were identified to be linked with the last one and the defendant’s liability to each one of them was the legal consequence.  In such cases discoverability principle would commence from the last article.

The Ontario libel and Slander Act provides a notice period of only 6 weeks from the date of knowledge of the publication or broadcast.  So is the provision in the states of British Columbia and Saskatchewan.  In all other states it is 3 months.

A Prince Edward Island Court has held that the libel notice requirement applies to a defamatory posting on an Internet website which was not operated by the newspaper or broadcasters.

Failure to serve notice within the specified period completely bars the lawsuit unless the statute authorizes the court specifically to condone delay in certain circumstances.  It helps curtailing delayed actions where available evidence has either been lost or evaporated.

The question sometimes may arise as to what is a ‘Newspaper’ because it has been differently defined in various defamation statutes.  “A paper containing public news, intelligence or occurrences---- published at least 12 times a year.”  Says Ontario Statute but Alberta State laws say---- printer for sale---- and published periodically or in parts or numbers at intervals not exceeding 31 days----.”  There being a growing trend of free distribution of newspapers and some printed only once or twice may get protection ‘for not being for sale’ of not falling in the definition clause in some states, whereas, the same material would entail civil and criminal liability in some other states.  It requires re-thinking and re-assessment of the prevailing laws in ever changing social and economic situations.

The laws of libel and slander have to be very precise, strict and potent. The field of coverage being beyond national boundaries, it requires global assessment.

Most of the countries including India do not have separate statute covering libel and slander actions.  It is covered by general law of torts.  There is no provision of statutory notice followed strictly as in some advanced countries.  It requires urgent attention of other  countries.

[Joginder Singh Toor is a senior lawyer and commentator on public affairs from Chandigarh is currently in Toronto, Canada.]
[jogindersingh_toor@yahoo.com]

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Canada unearths scam: same guests at 42 Indian weddings

IT is some kind of brilliance at work. Imagine 42 wedding albums - submitted by 42 different Indians applying for citizenship - in which the guests in the photos are identical. Is not wonder of wonders!  Reports from Toronto, the largest metropolis of Canada and favoured destination for immigrants from Asia indicate that Canadian immigration officials have discovered this new scam.

Mendel Green, president of Green and Spiegel, an immigration law firm finds it intriguing.  "You'd have to believe that 42 weddings had the same guests." All the weddings had supposedly taken place at the same wedding venue in Chandigarh, India’s newest planned metropolis that houses two states.

"Yes, people have brought fake photos to us," said Ravi Jain, a partner with Green and Spiegel. "We have seen people posing in the photos. We have seen the same wedding halls, the same guests over and over again."

Statistics show about 60,000 Canadians marry overseas each year and file international spousal sponsorships. About 15 per cent are rejected by the Canada Citizenship and Immigration department. In the case of India, the rate is 23 per cent.  Worried at this kind of fraud, the   Canadian immigration officers have also started over-scrutinising all family class applications and genuine marriages.

Liberal MP Roy Cullen said many Indo-Canadians had expressed concern over this abuse of the system. "They are telling me it is becoming like an epidemic and it is being seriously abused and so sometime back I spoke with former immigration minister Monte Solberg. I suggested to him - and I am soon going to write to his successor Diane Finley - that immigration rules could be amended to issue spousal visas on probation of say three to five years and if at the end of this period the couple is still in marital relationship, they should be given permanent landed status."

Who is to blame? The Canadians immigrant laws and their tough implementation or the infinite desire of Indians to migrate to greener pastures. Who does not wish to live well and both America and Canada besides host of countries offer opportunities. Once Europeans were migrating and now Asians and that too in a big way. Globalization has meant only more movement of goods and a bit of services and not of labour as that does suit the rich western world. It is the globalization of the rich and powerful. If Canada needs as we told repeatedly 2.5 lakh immigrants why does it design better laws, simpler and easier to understand? And, what that joke is point system. A doctor migrates under that system as a physician and ends up as a taxi driver while patients remained queued up outside  hospitals in that rich country.

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