Butler v. Southam Inc.

Butler v. Southam Inc. Court Court of Appeal Date 2001-09-07 Citation 2001 NSCA 121 Docket CA 169237 Judge/Registrar/Adjudicator Roscoe, Elizabeth A. (Honourable Justice) (CA); Cromwell, Thomas A. (Honourable Justice); Chipman, David (Honourable Justice) Document Type Decision Relations Library Sheet - Butler v. Southam Inc. - 2001 NSCA 121 - 2001-09-07 - Library Sheet Decision Content Date: 20010907 Docket: CA 169237 NOVA SCOTIA COURT OF APPEAL [Cite as: Butler v. Southam Inc., 2001 NSCA 121] Roscoe, Chipman and Cromwell, JJ.A. BETWEEN: D. WAYNE BUTLER, FLOYD HEMEON, HEIKKE MUINONEN, MILLARD MacKENZIE and LEE KEATING Appellants - and - SOUTHAM INC., as publisher of THE DAILY NEWS and PARKER BARSS DONHAM Respondents REASONS FOR JUDGMENT Counsel: W. Dale Dunlop for the appellants Alan V. Parish, Q.C. and Brian Casey for the respondents Appeal Heard: May 31, 2001 Judgment Delivered: September 7, 2001 THE COURT: Appeal allowed in part per reasons for judgment of Cromwell, J.A.; Chipman and Roscoe, JJ.A. concurring. CROMWELL, J.A.: I. INTRODUCTION: [1] Between April of 1997 and November of 1999, the respondent, The Daily News, published articles written by the respondent Mr. Donham and others concerning allegations of physical and sexual abuse of children in five provincially run training facilities. The articles stated that hundreds of children had been physically and sexually abused over a 50 year period, that there had been persistent and systemic efforts to cover up this abuse and that the government was badly mishandling the program to compensate the victims. [2] The appellants are current and former provincial employees at the Shelburne School for Boys, one of the five institutions referred to in these articles. In late August of 2000, more than three years after publication of the first article and roughly nine months after the publication of the last, they started an action against the respondents claiming that 17 of these articles defamed them. [3] The respondents applied to a judge in Supreme Court chambers to strike out the statement of claim and dismiss the action. The respondents’ position, in brief, was that even if the articles were defamatory, they did not refer to the appellants and therefore could not be defamatory of them; moreover, their action should fail because the required notice was given late and the action was commenced out of time. In response, the appellants claimed that the articles were capable of being defamatory of them and, with respect to the missed notice and limitation periods, applied to the judge to disallow these defences. [4] The applications were heard together by Nunn, J. who dismissed the appellants’ action in reasons now reported at (2001), 191 N.S.R. (2d) 158 (S.C.). He decided that: (a) with one exception, the allegedly defamatory passages in the stories did not refer to the plaintiffs and therefore could not be defamatory of them; (b) the appellants’ action was statute barred as a result of failure to give the required notice and to commence the action in time; and (c) he would not disallow these limitation defences. [5] The appellants appeal these rulings and raise two issues. First, did the judge err in finding that all but one of the allegedly defamatory passages were not, in law, capable of being found to be defamatory of these appellants. Second, did the judge err in refusing to disallow the limitation defences? [6] In my view, the judge erred in finding that the articles were not capable of being defamatory of the appellants Muinonen, Butler and Keating and in refusing to disallow the limitation defences with respect to the appellants Butler and Keating. I would, therefore, allow the appeal in part. My reasons for these conclusions follow. II. THE DEFAMATION ISSUE: 1. Overview of the facts and decision of the chambers judge: (a) The allegedly defamatory articles: [7] The words the plaintiffs say defame them are set out in the appendix to my reasons. For convenience, a brief description of the articles is in order. I emphasize, though, that it is not the court’s task, or right, at this stage of the proceedings to interpret these passages definitively. It follows that nothing in my description is intended to suggest that one potential meaning should be preferred to another. [8] The statement of claim alleges that the appellants are all current or former provincial employees at the Shelburne Youth Centre. The timing of their employment and the positions held are as follows: Appellant Years Positions D. Wayne Butler: 1971 - 1995 counsellor, acting supervisor, acting senior counsellor Floyd Hemeon: 1981- present counsellor, janitor Heikke Muinonen: 1974 - 1995 assistant superintendent, superintendent Millard MacKenzie: 1964 - 1975 counsellor, teacher, social services department Lee Keating: 1959 - 1989 counsellor, building supervisor, head of shift, supervising counsellor, chief supervisor, senior manager. [9] The articles to which the appellants object deal with allegations of abuse of children in provincial facilities and criticism of the compensation program set up by the province for the alleged victims. The articles condemn the abuse, its cover-up and the treatment of the victims in the compensation program. The following few paragraphs of the first article set out the themes: Over the last 30 years, some of Nova Scotia’s most senior and trusted public officials received reports of criminal assaults by government employees against children housed in provincial institutions. Their first and last impulse was to avoid ruffling feathers. Because of their negligence, hundreds upon hundreds of boys and girls, some as young as seven or eight years old, were raped, seduced, beaten, and forcibly subjected to all manner of degrading physical and sexual assaults. Most Nova Scotians know at least the broad outlines of this criminal activity and the bureaucratic indifference that allowed it to continue. Disgust at what took place must be close to universal. Despite this, a sinister process is unfolding whereby those who protected sexual abusers may themselves escape responsibility for the human devastation their inaction allowed. ... They were children. They had no means of escape. Government employees visited criminal assaults upon them. The responsible officials of the day ignored, or failed to follow up adequately on reports of the abuse. [10] The articles claim that the abuse was widespread and brutal. They state that “hundreds of children were allowed to be beaten, molested and raped for decades in the province’s youth facilities” (April 28, 1997); that “for more than 50 years, hundreds upon hundreds of boys and girls suffered unspeakable abuse while in the care and custody of the provincial government” (July 20, 1997); that the scope of the abuse was “staggering”; that it ranked “as a crime spree of epic proportions.” (July 20, 1997); and that the RCMP “are preparing to lay charges against hundreds of current and former government officials” (Sept. 9, 1997) . [11] According to the articles, people in authority either chose not to notice or actively covered up the abuse. One article reports employees of Shelburne and Waterville as stating that “abuse has occurred in the past with no consequences and with the present leadership will likely continue.”(April 25, 1997); another says that many officials “turned a blind eye to reports of abuse or failed to follow-up on clear cut evidence of criminal assaults.” (April 27, 1997). Such behaviour is said to be “systemic” (April 27, 1997 and July 20, 1997) and that within the system, “when somebody screws up, everybody closes ranks” (April 27, 1997). The October 12, 1997 article quotes a solicitor as saying that “[i]f [certain] documents come to the light of day, it’s not going to serve any of the people who were in charge well ... because every one of those people stand at risk of being charged with criminal negligence causing bodily harm. That’s a real charge and a real risk.” (b) The decision of the chambers judge: [12] The respondents argued before the chambers judge that none of the passages complained of referred to the appellants and therefore could not be defamatory of them. In considering this submission, the judge asked himself whether a reasonably informed reader could find the excerpts defamatory of the plaintiffs. With one exception, he concluded that the answer was no. He reasoned that references in the articles, such as those to “bureaucratic indifference”, “government officials”, “current leadership”, “people in authority”, “big shots”, “superintendents”, and “supervisors” could not be found by a reasonably informed reader to refer to the appellants. The judge noted that statements which defamed all members of a group could, in some circumstances, be actionable by individual members of that group. He found, however, that “... none of the impugned passages ... fit[s] into this category.” [13] As noted, there was an exception to the judge’s conclusion. It related to the appellants’ allegation in paragraph 10(p) of the statement of claim. That complaint arises from a November 21, 1999 article about a television program. The program alleged that there were many fraudulent claims for compensation, that the provincial employees affected had been treated unfairly and that some were distraught and even suicidal as a result. The article, describing this television program, referred to “accused guards [who] were shown tending their gardens or strolling arm in arm with loved ones.” The judge held that these references were to two of the appellants, Mr. Keating and Mr. Butler and declined to strike out the paragraph of the statement of claim setting out this allegation. The judge’s decision on this point is not challenged by the respondents. 2. Did the judge err in concluding that the stories were not defamatory of the plaintiffs?: (a) Overview of submissions and summary of conclusions: [14] The appellants argue that the judge’s role was not to decide whether the articles were defamatory of them, but rather to decide whether it was so clear that they were not capable of being so in the view of a reasonably informed reader that the appellants’ claim should be dismissed on a preliminary application. They submit the judge erred in four respects in carrying out this role: first, by failing to bear in mind the “heavy onus” on the defendants seeking to strike a statement of claim at this preliminary stage; second, by deciding the proper interpretation of the articles himself rather than limiting his consideration to the interpretations open to a reasonably informed reader; third, by failing to situate the reasonably informed reader within the communities in which the appellants live and work; and fourth, with respect to Messrs. Butler and Keating, in failing to find that their identification in the November 21, 1999 article could serve to identify them in the earlier articles. [15] The respondents say that the judge applied the right test and reached the right conclusion. They submit that the appellants were neither singled out nor were they members of a small group which was defamed so that each member could sue. [16] For the reasons I will set out at length, there was, in my view, no error in the way the judge stated the applicable legal principles. However, and with respect, in my opinion he did err in the way he applied them to the appellants Butler, Muinonen and Keating and their claims ought not to have been struck out on this basis. (b) Analysis: (i) The test: [17] “[I]t is an essential element of the cause of action for defamation that the words complained of should be published ‘of the plaintiff’.”: Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 at 118 (H.L.(E.)). This requirement is fundamental: the law of defamation exists to protect the plaintiff’s reputation from unlawful injury by requiring those who publish defamatory material to pay compensation. As Raymond E. Brown put it in The Law of Defamation in Canada, Carswell (2d, 1999) at pp. 298 - 99, “In an action for defamation, it is the plaintiff’s reputation that must be adversely affected. ... [I]n order to recover, the plaintiff must plead and prove that he or she is the one to whom the defamatory statement refers, that is, it must be shown to have been published ‘of and concerning the plaintiff’.” [18] The rule that allegedly defamatory material must be published of and concerning the plaintiff is, thus, a practical expression of the law’s objective to protect against injury to the plaintiff’s reputation. That this is a worthy goal cannot be doubted. The reputation of an individual is fundamentally important. A good reputation fosters an individual’s self-image and sense of self-worth. Legal protection of that reputation, therefore, reflects the innate dignity and privacy of the individual, two of the values which underlie rights and freedoms guaranteed by the constitution (see, e.g. Cory, J. in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 107 ff.). [19] While the law of defamation seeks to protect the plaintiff’s right to unjustified interference with his or her reputation, it does so in a way which recognizes other important values. Prime among them is freedom of expression, a fundamental right and the life-blood of democracy. As Cory, J. put it in Hill, supra at § 101, “Without ... freedom to express ideas and to criticize the operation of institutions and the conduct of individual members of government agencies, democratic forms of government would wither and die.” [20] Defamation law, therefore, must reconcile protection of reputation with the competing demands of free speech; Professor Fleming has gone so far as to call this its central problem. He noted that both freedom of expression and protection of reputation are dearly prized in our society and that the “... complex web of checks and balances which characterizes the contemporary law of defamation can be explained in part as the law’s ... attempt to come to terms with this difficult dilemma”: John G. Fleming, The Law of Torts (9th, 1998) at 580. It follows that, in defamation law, both the formulation of legal principles and their application to specific cases must take due account of these important, but often, competing values. [21] This appeal concerns the legal adequacy of the plaintiffs’ case on the face of their statement of claim, not whether it should or will succeed at trial. This distinction was clearly stated by Viscount Simon, L.C. in the Knupffer case at p. 121: There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law — can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact — Does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him? (Emphasis added) [22] In the same case, Lord Porter explained the first question in these words: The question whether the words refer in fact to the plaintiff or plaintiffs is a matter for the jury or for a judge sitting as a judge of fact, but as a prior question it has always to be ascertained whether there is any evidence on which a conclusion that they do so refer could reasonably be reached. In deciding this question the size of the class, the generality of the charge and the extravagance of the accusation may all be elements to be taken into consideration, but none of them is conclusive. Each case must be considered according to its own circumstances. I can imagine it being said that each member of a body, however large, was defamed where the libel consisted in the assertion that no one of the members of a community was elected as a member unless he had committed a murder. (Emphasis added) (at p. 124) [23] The Canadian cases have adopted the same approach. For example, in Sykes v. Fraser, [1974] S.C.R. 526, the majority speaking through Ritchie, J., referred to the first question as being: “... a question of law as to whether the statement complained of can, having regard to its language, be regarded as capable of referring to the respondent.” (at 541). Laskin, J. (later C.J.C.), for the other four judges (who dissented, but not on this point,) referred to Knupffer with approval, stating that the requirement that the words complained of be capable of referring to the plaintiff means “... there is evidence upon which such a finding may be made ...[ and] that this is a reasonable conclusion in the circumstances.”(at 559). See also Arnott v. College of Physicians and Surgeons of Saskatchewan, [1954] S.C.R. 538 at 554. [24] So it is important to distinguish between the role of the judge deciding this question of law and the role of the jury at trial. The judge is entrusted with the task of setting the outer limits of potential liability; the jury with deciding whether to attach liability, within these limits, in the particular case. In fixing these outer limits, the judge must be mindful of the fundamental objective of the law of defamation and acutely sensitive to the delicate balance required to protect both individual reputation and free speech. [25] A judge of first instance may be required to rule on these outer limits in two situations. The first arises where, as in this case, the defendant applies by preliminary application to strike out the statement of claim as disclosing no reasonable cause of action. The second, unlike the situation here, arises at trial when the defendant applies to the trial judge at the end of the plaintiff’s case for a directed verdict on the basis that there is no case to answer. [26] The judge, whether hearing a preliminary application to strike the statement of claim or deciding at trial whether there is a case for the defendant to answer, is performing roles distinct from that of the jury deciding the case on its merits after a full trial. However, the judge cannot properly discharge either of these preliminary roles without due regard to the ultimate question which the jury will have to decide at trial. These respective roles of the judge and jury are distinct, but both relate to different aspects of closely related questions. [27] Lord Pearson made this point in the course of addressing the role of the trial judge ruling on a submission of no case to answer in Morgan, supra at 1184: Although the functions of judge and jury are distinct, they are by no means unconnected. The judge has in relation to matters of fact a regulatory function. The decision rests with the jury, and their decision is conclusive on any question of fact so long as there is evidence on which their decision can be founded. The question for the judge in a case such as this is not something separate and independent from the question for the jury, but is whether there is evidence on which a reasonable jury, properly directed and acting properly, could give an answer in favour of the plaintiff. (Emphasis added) [28] In my view, the ultimate question for the jury is also relevant to the judge’s decision in a case like the present one in which the defendants apply to strike the statement of claim on the basis that the words could not be found defamatory of the plaintiffs. It is, therefore, necessary to consider the question that would be before the jury on this point if the case went to trial. [29] The plaintiff must prove at trial that the allegedly defamatory statements are ‘of or concerning the plaintiff’; the jury must be satisfied that the statements lead reasonable people, who know the plaintiff, to the conclusion that the statements refer to the plaintiff: see, for example, Knupffer, supra per Viscount Simon, L.C. at 118. Steele, J. in Mouammar v. Bruner (1978), 84 D.L.R. (3d) 121 (Ont. H.Ct.) at 123 adopted a passage from Gatley on Libel and Slander, 7th ed. (1974) to describe the approach: The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognised; and whether that description takes the form of a word-picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him. (Emphasis added) [30] Some immediate suspicion on the part of the reader that the article refers to the plaintiff is not enough. For example, in Knupffer, evidence of witnesses called by the appellant to the effect that their mind went to him when they read the article in question was not sufficient to justify a reasonable conclusion that the articles referred to him: see Viscount Simon, L.C. at 121 and Lord Russell of Killowen at 123. This point was also made by Lambert, J.A. in Booth v. British Columbia Television Broadcasting System (1982), 139 D.L.R. (3d) 88 (B.C.C.A.) at 95 - 96: ... in my opinion, the words “two on the Narc Squad that are high up – right on the top” and the other words that surround them do not, in law, have a link with the other nine plaintiffs. It is true that the evidence indicates that there was immediate suspicion of all of the members of the narcotics squad and indeed there may well have been suspicion beyond that into the morality squad, into the vice squad as a whole, but that suspicion is more a matter of the mind of the person who heard the statement and his or her association with particular members of the police force. A neighbour who knows only one police officer, for example, and hears something about the police force would think immediately of that police officer, whether the words that are used have any real link to that police officer or not. So, an immediate suspicion is not necessarily an indication that the words are capable of being considered as published of and concerning the particular plaintiff. ... (emphasis added) [31] This principle was applied in the context of an application to strike out a statement of claim, for example, in Roach v. Random House of Canada Ltd., supra at § 11. To put the matter another way, the issue is whether any potential harm to the individual’s reputation is so diluted that it falls below the threshold of legal recognition: Brady v. Ottaway Newspapers, 445 N.Y.S. (2d) 786 (S.C.A.D.) at § 33. [32] Where the judge is asked to rule on the outer limits of liability in defamation by means of an application to strike out a statement of claim, the judge should grant the application only if it is very clear that, assuming the alleged facts are true, the action must fail. So, for example, Abella, J.A. in Elliott v. Canadian Broadcasting Corp. (1995), 125 D.L.R. (4th) 534 (Ont.C.A.); leave to appeal to Supreme Court of Canada refused March 7, 1996; [1995] S.C.C.A. No. 393 stated that the test is whether, assuming the facts alleged in the statement of claim are proved, it is plain and obvious that the action cannot succeed. To similar effect, MacDonald, A.C.J.S.C. applied the “obviously unsustainable” test in Keating v. Southam Inc. (2000), 189 N.S.R. (2d) 153 (S.C.); application for leave to appeal dismissed 2001 NSCA 5; N.S.J. No. 7 (Q.L.)(C.A.). See also Roach v. Random House of Canada Ltd., [2000] O.J. No. 2585 (Q.L.) (S.C.) at § 8; Aiken v. Ontario (Premier) (2000), 45 O.R. (3d) 266 at 275. This point was addressed by the House of Lords in a leading defamation case, Morgan v. Odhams Press Ltd., [1971] 2 All E.R. 1156 (H.L.). Lord Reid stated the test to be whether “... it is plain and obvious that the plaintiff has no case.”: at 1159. Similarly, Lord Guest referred to the question as being whether the plaintiff’s case is “certain to fail” : at 1174. Lord Pearson said that the power to strike out a statement of claim is one to be used only in “plain and obvious cases” and only where it is “not arguable” that the words are capable of referring to the plaintiff: at 1182 - 3 (See also, for example, Aiken v. Police Review Publishing Co. Ltd., [1995] E.W.J. No. 5681 (C.A.) at § 18). [33] It follows that the question for the judge on the preliminary application to strike the statement of claim on the basis that the allegedly defamatory statements were not published ‘of and concerning’ the plaintiff, is whether, on the facts alleged in the statement of claim, the allegedly defamatory statements are clearly (which term I equate with plainly and obviously) incapable of supporting a reasonable conclusion, by persons acquainted with the plaintiff, that the statements refer to the plaintiff. In answering this question, the role of the judge is not to give the articles a definitive interpretation. But that does not mean that the judge should not interpret the articles at all. Rather, it means that the judge must assess the range of meanings which the articles could reasonably bear from the perspective of the reasonable and sensible reader in light of the pleaded facts and apply to that range of meanings the appropriate legal standard. Only where it is plain and obvious that the words are incapable, in light of the pleaded facts, of being found by a reasonable and sensible reader to be defamatory of the plaintiff should the statement of claim be struck out. [34] The chambers judge quoted relevant passages from three leading texts on defamation and from Keating v. Southam Inc., supra. In Keating, MacDonald, A.C.J.S.C. observed that a statement of claim will be struck out and the action dismissed only if it is obviously unsustainable and described the question before him as whether “... a reasonably informed reader [could] find these excerpts defamatory of the Plaintiff ...”. While, of course, there are variations in the words used to formulate the test, the statements to which the chambers judge referred and which he adopted, in substance, correctly set out the judge’s role at this preliminary stage. [35] The appellants take issue with the judge’s statement in § 62 of his reasons to the effect that “... it is not enough to say that by some person the words might be understood in a defamatory sense. Where there are a number of good interpretations it is unreasonable to seize upon the only bad one to give a defamatory sense to the words in question.” Although the judge does not refer to the case, this passage is obviously founded on the words of Lane, J. in Hodgson v. Canadian Newspapers Co. (1998), 39 O.R. (3d) 235 (Gen.Div.) at 252 - 253; varied on other grounds 49 O.R. (3d) 161 (C.A.); application for leave to appeal to Supreme Court of Canada dismissed May 3, [2000] S.C.C.A. No. 65 (Q.L.); as cited in Boyer v. Toronto Life ( April 18, 2000; Ont.S.Ct.). This way of expressing the test may be traced back to the speech of Lord Blackburn in Capital & Counties Bank v. Henty (1882), 7 A.C. 741 (H.L.) at 786. By this way of putting it, I understand the chambers judge to have meant that the question must be assessed from the perspective of a reasonable or sensible reader. This is made clear in the passage from Hodgson on which the judge’s statement is based. In Hodgson, Lane, J. said at 252 - 3: In deciding whether the words are capable of a defamatory meaning the trial judge will construe the words according to the meaning they would be given by reasonable persons of ordinary intelligence, and will not consider what persons setting themselves to work to deduce some unusual meaning might succeed in extracting from them. It is not enough to say that by some person or another the words might be understood in a defamatory sense. Where there are a number of good interpretations, it is unreasonable to seize upon the only bad one to give a defamatory sense to the words in question ... . (emphasis added) [36] The chambers judge was saying that unreasonable interpretations may not be relied on in determining whether the words were capable of defaming the appellants. Understood in this way, the chambers judge did not, in my view, misstate the substance of the applicable principle. [37] I conclude that the judge did not err in the way he stated the substance of the test. The question, therefore, is whether he erred in the way he applied it. (ii) The ‘of and concerning’ requirement - general principles: [38] The issues in this appeal illustrate two different but related principles concerning the requirement that the defamatory statement must be published ‘of and concerning’ the plaintiff. It will be helpful to consider each in turn. [39] The first is that statements which do not refer to the plaintiff by name will nonetheless meet the ‘of and concerning’ requirement if they may reasonably be found to refer to the plaintiff in light of the surrounding circumstances. Sykes v. Fraser, supra, is an example. The defamatory remarks in that case concerned the approach taken by the representatives of certain developers. These statements were found by a majority of the Supreme Court of Canada to refer to the plaintiff who was the developers’ lawyer and who had made submissions on their behalf: see Ritchie, J. at 544. Further examples are given by Lawrence H. Eldredge in his text The Law of Defamation (1978) at p. 55: ... [T]he general proposition [is] that a disgruntled individual may, without violating the law of defamation, vent his spleen and publish his extreme beliefs that all lawyers are sly and devious pick-pockets, all surgeons are drunken, bloodthirsty butchers, and all clergymen are sanctimonious, psalm-singing hypocrites. But if he makes this statement in a small town in which there is only one lawyer who had recently successfully sued him, and utters the words before the congregation of the town’s only church who have been discussing some criticism of their minister, and quite visibly glares at the town’s only surgeon who is seated nearby, may it not be said that this intemperate man has published defamatory statements which his audience will reasonably, and probably correctly, believe he is making about these three presumably leading citizens, and that each of them has been individually defamed? ... [40] In cases involving more than one allegedly defamatory article, the jury may be entitled to look at all of the articles in considering the question of whether a particular one refers to the plaintiff. Hayward v. Thompson, [1982] 1 Q.B. 47 (C.A.) is a well known example of this principle in operation. In that case, a weekly paper published an article which did not identify Mr. Hayward by name, but referred to “a wealthy benefactor of the Liberal party”. (Mr. Hayward was wealthy and had made a substantial donation to that party.) The next week, an article dealing with the same subject-matter named Mr. Hayward. At trial, the judge ruled that the jury could look at the second article in order to see to whom the first referred. That ruling was upheld by the Court of Appeal. Lord Denning said at p. 60, “The second article was admissible in evidence so as to show that [... the first article...] aimed at Mr. Jack Hayward and intended to refer to him: and therefore that the first article was published “of and concerning” Mr. Hayward.” [41] The same principle was applied in a different context by the Ontario Court of Appeal in Misir v. Toronto Star Newspapers Ltd. (1997), 105 O.A.C. 270; O.J. No. 4960 (Q.L.). Dr. Misir alleged that he had been defamed by a series of 12 articles published over five months, only the last of which mentioned him by name. As described by Laskin, J.A. for the Court, the articles alleged that doctors and others participated in abuse of the auto insurance system through dubious injury claims and questionable treatments. The first nine articles were published over four days in May and none of them mentioned the plaintiff. Two more articles on the same subject appeared in mid-September but did not refer to him. At the end of September, the final article was published and it referred to the plaintiff by name. The plaintiff gave notice and commenced action within six weeks of the September articles, but four and one-half months after the May articles appeared. The defendants argued that the claims in relation to the May articles were statute barred. [42] The Court disagreed. Laskin, J.A. stated at § 15: “... The May articles may have been defamatory, but they were not reasonably capable of defaming these plaintiffs until they were named in the September 30 article.” After citing Hayward with approval, he said at § 18 “... the trier of fact will be entitled to find that the May articles were defamatory of the plaintiffs because of the publication of the September 30 article ...”. [43] This is the principal basis on which the appellants Butler and Keating submit that they are referred to in the articles published prior to November 21, 1999. There is no dispute for the purposes of this appeal that the November 21, 1999 article is capable of referring to them. They submit, therefore, that it would be open to the jury at trial to conclude that they are described in that article as “accused guards” and that they are therefore referred to in the earlier articles which made allegations in relation to “guards” and Shelburne employees generally. [44] In the present case, the judge ought to have considered whether the earlier articles in the series were capable of being defamatory of Messrs. Butler and Keating as a result of them being identified in the November, 1999, article. In other words, he should have asked himself whether it would be clearly unreasonable, on the facts alleged in the pleading, to find that the earlier articles were defamatory of these plaintiffs in light of the publication of the November, 1999 article. [45] In my opinion, the answer to this question is no. It is not plain and obvious that no reasonable reader of the November 21, 1999 article could reasonably conclude that the “accused guards” included Messrs. Butler and Keating and that they were accused of physical and sexual abuse of children in Shelburne. If a reader drew that meaning from the November, 1999 article, it is similarly not plain and obvious that the allegations made in the earlier articles could not reasonably be interpreted as referring to conduct of which Messrs. Butler and Keating, among others, were “accused”. [46] For example, the April 20, 1997 story (statement of claim paragraph 10(a)), contains references to Shelburne and to “criminal activity”, “depraved predators” and “government employees [who] visited criminal assaults upon [the children]”. In light of the subsequent identification of Messrs. Butler and Keating as “accused guards” in relation to Shelburne, it is not plain and obvious that a jury could not reasonably conclude that the allegations made in the earlier article referred to them. The same may be said of virtually all of the other articles published before November 21, 1999. [47] The respondents submit that this reasoning should not be applied in the present case because of the much longer period of time between the articles in this case compared with cases such as Misir. They point out that the article in which Messrs. Butler and Keating are “singled out” was in November of 1999, that the closest article in time to which it could be linked was in January of the same year and that the articles complained of extend back to April of 1997. While I think that the time between articles is a relevant consideration, I do not think that, in all of the circumstances here, it is plain and obvious that a jury, acting reasonably, could not conclude that Messrs. Butler and Keating were referred to by the allegations throughout the articles as a result of their identification as “accused guards” in November of 1999. In other words, this is a point for trial. [48] To summarize on this point, it is not plain and obvious that a jury, if persuaded that Messrs. Butler and Keating were described as “accused guards” in the November 21, 1999 article, could not reasonably find that the allegations of abuse referred to throughout the other articles related to them, among others. The statement of claim relating to the earlier articles should not have been struck out in relation to these two plaintiffs. With respect, the chambers judge erred in law by deciding otherwise. [49] I turn now to the second principle concerning the requirement that the defamatory statement be published ‘of and concerning’ the plaintiff. It deals with what is often, although perhaps too loosely, called group defamation. The principle is that, in some circumstances, defamatory statements about a group may be defamatory of its members individually even though they are not otherwise identified. [50] The appellants make two submissions based on this principle. All of the appellants submit that the allegations made in the articles are so sweeping and so all-inclusive of Shelburne employees, that everyone who, like the appellants, worked at Shelburne is defamed by them. Four of the appellants, Messrs. Butler, Keating, Muinonen and MacKenzie, submit that they are referred to in the articles concerning managers, bureaucrats and similar terms. [51] What I understand to be the true case of “group defamation” occurs where the sting of libel attaches to the plaintiff solely by reason of the plaintiff’s membership in the group concerning which the defamatory statements were made. This was described by Viscount Simon in Knupffer as a situation in which “... the language used in reference to a limited class may be reasonably understood to refer to every member of the class.”: at 119. Although much subtlety and a degree of technicality have grown up in this area, the fundamental point is that defamation is concerned with the defendant unjustifiably interfering with the plaintiff’s reputation. [52] The judge rejected the appellants’ submissions based on this group defamation principle, stating that he was “... aware of the law and authorities supporting a defamation suit by an individual member of a group or class when the impugned words refer to all members of the group or class. I have found none of the impugned passages ... fit into this category.”: at § 65 of his reasons. [53] There are no special legal rules concerning individual claims of defamation based on statements made about a group: see, for example, Raymond E. Brown, the Law of Defamation in Canada (2d, 1999) at pp. 324 - 325. In this sort of case, as in others, the fundamental question remains whether the statements could reasonably be found to be defamatory of the named plaintiffs. Some authorities in some jurisdictions have attempted to define the limit of liability by reference to the size of the group: see, for example, Joseph Tanenhaus, “Group Libel” (1950), 35 Cornell Law Quarterly 261 at 263 and Jeffrey S. Broome, “Group Defamation: Five Guiding Factors” (1985), 64 Texas Law review 591 at 595 ff). However, Knupffer, the leading case in the Anglo-Canadian jurisprudence, holds that although the size of the group is relevant, it is not a controlling factor. Lord Atkin in that case stressed that the group aspect of the defamatory statements should not distract the court from the real issue, namely whether the published words refer to the plaintiff. In a famous passage he stated at p. 122: ... There can be no law that a defamatory statement made of a firm, or trustees, or the tenants of a particular building is not actionable, if the words would reasonably be understood as published of each member of the firm or each trustee or each tenant. The reason why a libel published of a large or indeterminate number of persons described by some general name generally fails to be actionable is the difficulty of establishing that the plaintiff was, in fact, included in the defamatory statement, for the habit of making unfounded generalizations is ingrained in ill-educated or vulgar minds, or the words are occasionally intended to be a facetious exaggeration. Even in such cases words may be used which enable the plaintiff to prove that the words complained of were intended to be published of each member of the group, or, at any rate, of himself. Too much attention has been paid, I venture to think, in the textbooks and elsewhere to the ruling of Willes J. in 1858 in Eastwood v. Holmes, a case at nisi prius in which the judge non-suited the plaintiff both because he thought there was no evidence that the words were published of the plaintiff and for other reasons, and, so far as the first ground is concerned, it appears to me on the facts to be of doubtful correctness. His words (2): “it only reflects on a class of persons” are irrelevant unless they mean “it does not reflect on the “plaintiff,” and his instance (2) “All lawyers were thieves” is an excellent instance of the vulgar generalizations to which I have referred. It will be as well for the future for lawyers to concentrate on the question whether the words were published of the plaintiff rather than on the question whether they were spoke of a class. (Emphasis added) [54] While the size of the group is not a controlling factor, it is a relevant one. Courts have generally been reluctant to find statements made about large groups to be defamatory of individual members. As Professor Fleming put it, “... the practice in this instance has not erred on the side of liberality.”: Fleming, supra at 592. Several reasons have been advanced in support of this reluctance. One is the concern about a multiplicity of claims and the risk of imposing virtually indeterminate liability. A second is that, as the size of the group becomes larger, it becomes increasingly difficult to say that the words could reasonably be understood to refer to any specific individual. A third (which may be an aspect of the second) is that group defamation lacks a tendency to cause personal harm and a fourth is concern that these sorts of defamation claims risk stifling free speech, particularly criticism of government and other public institutions: see, generally, Fleming, supra at 591; Irvine Wilner, “The Civil Liability Aspects of Defamation Directed Against a Collectivity” (1942) 90 University of Pennsylvania Law Review 414 at 417 - 421; Ellyn Tracy Marcus, “Group Defamation and Individual Actions: A New Look at an Old Rule” (1983) 71 California Law Review 1532 at 1533 - 1534; Joseph H. King, Jr., “Reference to the Plaintiff Requirement in Defamatory Statements Directed at Groups” (2000), 35 Wake Forest Law Review 343 at 359 -360. [55] In Knupffer, Lord Porter provided a list of relevant considerations to guide the determination of whether a statement about a group libels an individual member of it. These included the size of the group and the generality and extravagance of the allegations. He stressed, though, that these factors are not determinative and that each case must be considered according to its own circumstances. [56] One way of considering the issue is to assess the “intensity of suspicion” the articles could reasonably be thought to create in the mind of a sensible reader that the words refer to the plaintiff. For example, this approach is advocated by Sir Brian Neill and Richard Rampton in Duncan and Neill on Defamation (2d, 1983) at § 6.13: 6.13 It is submitted, though there is no satisfactory modern English authority on the matter, that the right approach is that even a general derogatory reference to a group may affect the reputation of every member, and that the court would adopt as its test the intensity of the suspicion cast upon the plaintiff. Where therefore allegations are made against members of a class the question for consideration is whether, having regard to the size of the class, the nature and gravity of the imputation, the number of members of the class against whom the allegation is made and any other relevant circumstance, reasonable persons would understand that the plaintiff himself had actually done the act alleged or (as the case may be) was reasonably to be suspected of having done it. ... (Emphasis added) [57] So far as I can determine, this “intensity of suspicion” approach was first advanced in a 1934 note in the Columbia Law Review: “Liability for Defamation of a Group” (1934) 34 Columbia Law Review 1322 at 1324 - 6. The point was developed by the author as follows: A more realistic approach would recognize that even a general derogatory reference to a group does affect the reputation of every member, and would adopt as its test the intensity of the suspicion cast upon the plaintiff. This involves a purely factual inquiry, to be undertaken in the light of an objective theory of defamation. Because of the great variation in the types of groups which may be defamed, the formulation of definite rules governing liability seems impossible. Several factors, however, would appear significant. The probability of recovery would seem to diminish with increasing size of the class, since the injury to the reputation of any individual member tends to become negligible. On the other hand, where the class includes but few persons, reference to the plaintiff is sometimes regarded as being so obvious that the issue of class defamation is ignored. Definiteness in the number and composition of the group, as well as its degree of organization, are similarly factors favorable to recovery, since they tend to focus the accusation more clearly upon each member. Charges levelled at such bodies as juries or public boards are thus generally held actionable. (Emphasis added) [58] The “intensity of suspicion” approach recognizes two significant aspects of the analysis. First, it acknowledges the common sense proposition, no doubt keenly felt by the appellants, that even general derogatory statements about a group can, to some degree, affect the reputation of each of its members. It also addresses the point that not every derogatory remark about a group that may, however slightly, affect the reputation of its members is actionable. [59] In my view, this “intensity of suspicion” approach is consistent with Lord Porter’s speech in Knupffer and does not describe some new or different test. Lord Porter emphasized that the size of the group, while relevant, is not the controlling factor and that, in addition matters such as the generality and extravagance of the allegation may be taken into account. These considerations, collectively, relate to the strength or intensity of suspicion that could be created in the mind of a reasonable reader that the plaintiff is a person hit by the defamatory statements. Assessing the intensity of this suspicion is helpful because it tends to focus the analysis on the strength of the link between the allegedly defamatory words and the individual plaintiff’s reputation. This, in turn, helps ensure that as the judge rules on the outer limits of permissible recovery in defamation, the analysis is rooted firmly in the law’s fundamental purpose, the protection of the plaintiff’s personal reputation. In addition, the “intensity of suspicion” approach takes into account the nature of the allegedly defamatory statement, a consideration which helps ensure that due attention is given to the important balance between protection of individual reputation and free speech. I think, therefore, that a preliminary assessment of the “intensity of suspicion” that the plaintiff is an individual referred to by the allegedly defamatory words is a helpful approach in determining whether the allegations are clearly incapable of referring to the named plaintiffs. [60] From the authorities and references which I have reviewed, it is possible to develop a non-exhaustive list of relevant factors which may be taken into account in determining whether statements are clearly incapable of being defamatory of the plaintiff. These factors, following Lord Porter’s lead in Knupffer, may be grouped under two main headings: the nature of the group and the nature of the allegedly defamatory statements. 1. Nature of the group: [61] As noted earlier, the larger the group, the more difficult it will be, generally speaking, for plaintiffs to show that the words referring to the group were published ‘of and concerning’ them. As Lord Atkin pointed out in the passage of his speech in Knupffer which I quoted earlier, a libel published of a large and indeterminate number of persons described by some general name generally fails to be actionable because of the difficulty of establishing that the plaintiff was, in fact, included in the defamatory statement: at 122. This point is also made in America Law Institute, Restatement of the Law (Second) Torts 2d (1977) at § 564A: As a general rule no action lies for the publication of defamatory words concerning a large group or class of persons. ... The words are not reasonably understood to have any personal application to any individual unless there are circumstances that give them such an application. The extreme example is the statement of David that “All men are liars,” which in a sense defames all mankind and yet could not reasonably be taken to have any personal reference to each member of the human race. On the same basis, the statement that “All lawyers are shysters,” or that all of a great many persons engaged in a particular trade or business or those of a particular race or creed are dishonest cannot ordinarily be taken to have personal reference to any of the class. (emphasis added) [62] Related to the size of the group is its identity. If, for example, a group has a clearly defined membership, organization and hierarchy and its members are highly visible in the community, these factors may tend to support the inference that an individual member could be defamed by references to the group. For example, in A.U.P.E. v. Edmonton Sun, [1986] A.J. No. 1147 (Q.B.), the facts that membership in the group of correctional officers at the Fort Saskatchewan Correctional Centre was well-defined and its members wore distinctive uniforms recognized in the community were relied on to support the finding that words concerning the group were defamatory of the individual plaintiffs who were members. [63] The fact that the group has a clear organizational structure may be important. For example, there is no doubt that individuals may be defamed by statements made in relation to positions or status which they hold within a larger group or organization. Two contrasting cases from Ontario illustrate the point. In Aiken v. Ontario (Premier), supra, a defamation action by a number of teachers arising out of statements made by the defendant concerning teachers was struck out because it was plain and obvious that the words were not capable of referring to one or more of the individual plaintiffs. However, in Lennon v. Ontario (Premier) (1999), 45 O.R. (3d) 84 (Sup. Ct.), an action by several presidents of teachers’ unions arising out of the defendant’s remarks concerning teachers’ “unions” and “union bosses” was allowed to proceed. MacDonald, J. reasoned as follows at p. 90: The words in issue referred repeatedly to what the bosses of teachers’ unions want. Desire is often an individual’s emotion. In their ordinary sense, the words in issue are capable of meaning that all the individual bosses of teachers’ unions want certain specified things. ... I, therefore, conclude that it is not plain and obvious that the words in issue were not spoken “of and concerning” the plaintiffs individually, and it is not plain and obvious that the words in issue could not have led reasonable people who knew one or more of the plaintiffs to conclude that the words were spoken about one or more of them. [64] Similarly, in Booth, supra, statements made to the effect that two officers on the Narcotics Squad “that are high up — right on top” took bribes were found to be defamatory of the senior detectives in charge of the undercover street group and the trafficking group, but not of other members of the narcotics squad. [65] This reasoning is also supported by the learned editors of Gatley on Libel and Slander (9th, 1998) at § 7.12: ... there will be cases in which the inference will be irresistible that the words refer to an individual employed by the person [or institution] directly named by the words. For example, to say that “the financial affairs of the University of X have been allowed to fall into chaos” would be defamatory of the finance director and perhaps of the Vice-Chancellor. [66] A group’s organizational structure and hierarchy may also, of course, support the opposite inference. In Elliott v. Canadian Broadcasting Corp., supra, Grange, J.A. (Labrosse, J.S., concurring) found that the broadcast in issue could not be defamatory of the plaintiffs. They were surviving airmen of Bomber Command, but the Court concluded that the broadcast was not aimed at them but “... at the British High Command who ordered the bombing and, particularly, at its overall commander, Air Marshall Sir Arthur Harris.” In other words, the allegations, read in the context of the well-defined organizational structure of the air forces at the time, referred to the highest levels of the group’s leadership rather than to all the members of the group. [67] The fact that membership is restricted in particular ways may also tend to strengthen the reference to the plaintiff. Lord Porter gave a famous example in Knupffer, when he said that “... each member of a body, however large, [could be] defamed where the libel consisted in the assertion that no one of the members of a community was elected as a member unless he had committed a murder.”: at 124. While, of course, other relevant factors are in play in this example, the fact that the alleged libel ties the imputed misconduct to the restriction on membership in the group tends to strengthen the inference that members of it are individually hit by the libel. 2. The nature of the alleged defamatory statement: [68] In Knupffer, Lord Porter referred to the generality and extravagance of the allegedly defamatory statement: at 124. These factors relate to two aspects of the defamatory statement. The first is that the more serious or inflammatory the allegation, the wider may be its sting. Lord Porter follows the reference to this factor with his example of a statement that every member of a group must commit murder to join it. Implicit in this reference and example is that the libel is of the gravest nature and thus, while made in sweeping terms, is reasonably capable of being defamatory of the individual member. The second aspect is that some types of allegations are understood not to be taken literally. This was referred to in Lord Atkin’s speech in the same case where he said that the reason that statements about “large or indeterminate number of persons described by some general name” generally are not actionable is the difficulty of showing that they refer to the plaintiff “... for the habit of making unfounded generalizations is ingrained in ill-educated or vulgar minds, or the words are occasionally intended to be facetious exaggeration.”: at 122. [69] The way in which the allegations relate to the group is also a relevant consideration. For example, a defamatory statement may clearly relate to each and every member of the group. Lord Porter’s reference, which I set out at § 21 above, to a group of murderers is a good example; the allegation is clearly made in relation to each and every member of the group without exception. Similarly in A.U.P.E., this factor was relied on in support of the conclusion that all correctional officers at the institution were referred to. [70] The nature of the defamatory statement may also be relevant to consideration of the extent to which free speech interests are implicated in the particular case. The balance between the protection of individual reputation and freedom of expression may be particularly sensitive where the allegedly defamatory publications address, in broad and general terms, government institutions, actions and decisions. The right to vigorously criticize government and public institutions is of special importance in a democracy. As one American court put it in an old case, “It is far better ... that some occasional consequential injury to an individual ... should go without remedy, than that free discussion on the great questions of politics, or morals, or faith, should be checked by the dread of embittered and boundless litigation.”: see Ryckman v. Delavan (1837) 17 Wend. 49 (N.Y. Sup. Ct.), quoted in Jeffrey S. Bromme, Note, Group Defamation: Five Guiding Factors (1985) 64 Texas Law Review 591 at 618 and approved in Elliott, supra. Sweeping generalizations, even unfounded ones, may not only be the stuff of cruel invective, but sometimes also of political debate and institutional critique. I am not suggesting here that existing common law rules relating to the ‘of and concerning’ requirement are inconsistent with the right to freedom of expression, but simply that in developing and applying these principles, this important Charter value should be given due weight: see Hill, supra at para. 91 - 99. (iii) General references to Shelburne employees: [71] I turn to apply these considerations to the questions of whether references in the articles to Shelburne employees generally are clearly incapable of being defamatory of the appellants. [72] The size of the group militates heavily against the appellants. The number of persons who could be considered defamed by the articles if the appellants’ submission were accepted is so large as to be indeterminate. Although no evidence is admissible at this stage on the point, it is common ground between counsel that the group of Shelburne employees alone would number in the hundreds. The articles are not limited to discussion of Shelburne employees or to alleged incidents that took place there. The group is thus not clearly defined. No facts are pleaded with respect to the group’s organization, structure or hierarchy. If these general allegations are defamatory of the appellants, they are also defamatory of hundreds of other former provincial employees at other institutions and over a period of 50 years. (That is the time period over which the alleged abuse is said in one of the articles to have extended.) The traditional concerns about the risk of a multiplicity of law suits and the imposition of indeterminate liability are relevant factors in this case and they both support the position of the respondents. [73] Turning to the nature of the alleged defamatory statements, they are general in character in the sense that they refer to very widespread abuse and coverup. The articles emphasize the allegedly epic proportions of the misconduct. The conduct alleged is certainly among the most serious that could be imagined and is clearly not in the nature of “facetious exaggerations” or of broad generalizations which could not reasonably be taken literally. On the other hand, it would be clearly unreasonable to conclude that these articles accuse every single former and present Shelburne employee of the acts referred to. To adopt the language used by Mr. Dunlop, the articles do indeed cast their net very widely. But, contrary to his submission, I do not think it could be a reasonable reading of the articles to say that they include all employees. [74] The large size of the group, the lengthy period of the alleged misconduct, the absence of pleaded facts relating to the organization and hierarchy of the group or the visibility of its members and the fact that the articles do not purport to accuse every member of the group result in a very low intensity of suspicion that these appellants are the subject of the allegedly defamatory remarks. As noted earlier, the fact that the articles could raise some immediate suspicion that the appellants did the things alleged is not, of itself, sufficient to ground liability. [75] The allegations in the articles are concerned with the systemic failings of government. To permit a jury to reach the conclusion that these general statements refer to every one of the hundreds of employees at provincial institutions over 50 years and thus to these plaintiffs would, in my respectful view, pose an unacceptable risk of improperly stifling the sort of hard-hitting critique of government institutions which is at the core of constitutionally protected free speech. This consideration, too, supports the respondents’ rather than the appellants’ position. [76] The appellants rely strongly on the decision of an Alberta trial judge in A.U.P.E. v. Edmonton Sun, supra, but, in my view, it does not assist them. In that case, the judge found that twenty-five individual plaintiffs, who were Correctional Officers or guards at the Fort Saskatchewan Correctional Centre, had been defamed by an article which referred to guards at that institution in relation to specific incidents over a short period of time as “bumbling yo-yo’s”, “goons”, “a joke”, and as “not having the brains to be Nazis”. The trial judge concluded at p. 152 (Alta. L.R.): Here the ordinary meaning of the words taken in the context of the whole article includes all guards employed at the Fort Saskatchewan Correctional Centre. The author made no effort to limit his remarks to specific individuals or to the incident itself. I am satisfied that the ordinary, sensible reader would reasonably believe that comments were made generally of guards employed at the Fort Saskatchewan Correctional Centre. A reader who either knew one of the plaintiffs and was aware that he performed such duties at the Fort Saskatchewan Correctional Centre or who identified one of the Plaintiffs by the distinctive uniform which he wore would be of the opinion that this article referred to that individual. The group (approximately 200 individuals) is not so large as to make it improbable that any ordinary reader would identify the plaintiffs as being referred to in the statements. Nor are the claims of such a generalized or exaggerated nature that no individual could reasonably identify them with the plaintiffs. (Emphasis added) [77] The decision concerning whether a statement about a group is reasonably capable of defaming particular individuals, as Lord Porter wisely pointed out in Knupffer, must be made in light of all of the particular circumstances of the case. In the present case, compared with A.U.P.E., the group is much larger, the time-frame much longer and the statements more highly generalized. Unlike in A.U.P.E., it is not a reasonable reading of the articles to say that they refer to all employees without exception. In each of these ways, the circumstances of the present case are significantly different from those in A.U.P.E. I do not think the A.U.P.E. case assists the appellants. [78] To conclude on this point, I agree with the chambers judge that it is plain and obvious that none of the plaintiffs could reasonably be said to have been defamed by the allegations in these articles on the basis that the articles refer to Shelburne employees generally. (iv) References to “management” and similar terms: [79] I turn next to the submission that the appellants, other than Mr. Hemeon, could be referred to by allegations in the articles concerning management and bureaucratic personnel, groups to which it is pleaded the four other appellants belong. There is no pleading that Mr. Hemeon was either a manager or a bureaucrat and no argument was made suggesting that any of the articles could reasonably be said to be defamatory of him on that basis. [80] Several of the passages complained of could not reasonably be found to refer to individual management personnel at Shelburne. Paragraphs in the statement of claim dealing with passages in this category are paragraphs 10(f), 10(g), 10(i), 10(j), 10(m), 10(n), 10(o), and 10 (q). These paragraphs, therefore, cannot be sustained on the basis that the appellants are defamed by references to management personnel. [81] The other four appellants fall into three categories for the purposes of this analysis. I will, therefore, consider first the claims advanced on behalf of Mr. MacKenzie, then turn to Mr. Muinonen and finally to Messrs. Butler and Keating. [82] Paragraph 4 of the statement of claim pleads that Mr. MacKenzie “worked in the Social Services Department at the Shelburne Youth Centre.” Paragraph 10(b) of the statement of claim alleges that the April 21, 1997 article implies that “government officials in bureaucratic and managerial positions, which would include four of the plaintiffs described, were hypocrites who protected abusers and thus actively condemned the children under their care to lives of psychological torture and personality disorders.” On a generous reading, this pleading alleges that Mr. MacKenzie was a bureaucrat and an official and therefore is referred to by terms such as “government officials in bureaucratic positions” (paragraph 10 (b)) or “bureaucratic indifference” (paragraph 10(a)) or “officials” (paragraph 10(d)). No additional facts relating to the nature or prominence of his position or the number of persons in comparable positions are pleaded. [83] In my view, the analysis with respect to Mr. MacKenzie is the same as with respect to the allegations against Shelburne employees generally. There are no facts pleaded in the statement of claim nor, in my view, no reasonable inference that references to bureaucrats or officials in the articles could reasonably be taken as pointing to him. [84] I, therefore, agree with the chambers judge, in relation to Messrs. Hemeon and MacKenzie, that it is clear that the passages about which they complain could not reasonably be found to be defamatory of them. [85] I turn to Mr. Muinonen. He pleads that he was assistant superintendent and superintendent at Shelburne between 1974 and 1995. [86] There are references in the articles to “responsible officials”, “school administration”, “present leadership”, “people in authority”, “people who were in charge”, “superintendents” and “management”. There are also a number of specific references to Shelburne and to time frames corresponding to the period during which the statement of claim alleges that Mr. Muinonen was employed there. Nothing would be served by setting out all of the relevant passages, but an example may be helpful. Paragraph 10(k) of the statement of claim deals with the article of October 12, 1997. The article mentions the “Shelburne abuse scandal” in its first paragraph and states that the production of certain records will not “... serve any of the people who were in charge well ... every one of those people stand at risk of being charged with criminal negligence causing bodily harm.” (Emphasis added) [87] These statements, in relation to the Assistant Superintendent or Superintendent of Shelburne, are significantly different than generalized allegations of abuse which potentially could relate to hundreds of unnamed Shelburne employees. The group consisting of assistant superintendents and superintendents may reasonably be inferred to be much smaller than the group of all employees. Assistant superintendents and superintendents could reasonably be understood to be “people in charge” and such persons would also likely be much more prominent within the group of employees generally. Unlike the generalized allegations in relation to employees, the article I have quoted expressly asserts that “every one of those people” who were in charge is at risk, by virtue of documented conduct, of being charged with a specific criminal offence. [88] This article is not simply a sweeping and generalized critique of government action. It could reasonably be taken as alleging the existence of documents showing specific criminal wrong doing by each and every member of a finite, identifiable and prominent group of individuals of which the plaintiff Muinonen, by virtue of his positions, could be found to be one. It is not plain and obvious that a finding to that effect, on the facts alleged in the pleading, would be wrong in law. I would reach the same conclusion in relation to Mr. Muinonen with respect to paragraphs 10(a), (c), (e), (h), and (l) of the statement of claim. [89] I turn now to the claims by the appellants Butler and Keating. I consider here only the submissions that they could be defamed by references to management and similar terms. The statement of claim pleads that Mr. Butler was employed at Shelburne from 1971 to 1995 holding the positions of counsellor, acting supervisor and acting senior counsellor. The appellant Mr. Keating is stated to have been employed at Shelburne from 1959 to 1989 occupying the position of counsellor, building supervisor, head of shift, supervising counsellor, chief supervisor and senior manager. The statement of claim, on a generous reading, alleges that they were defamed by references in the articles to “ government officials”, “management personnel”, “supervisors” and similar terms. [90] Several of the passages complained of, while capable of being found to refer in one way or another to management personnel, could not reasonably be found to thereby refer to Messrs. Butler or Keating. I will review these briefly. [91] Paragraph 10(a) of the statement of claim, relating to the April 20, 1997 article, refers to “responsible officials of the day”. Given the generality of the allegation and the positions held by Messrs. Butler and Keating, I do not think these allegations could reasonably be found to refer to them. [92] Paragraph 10(b) alleges that the clear implication of a passage in the April 21, 1997 article is “... that government officials in bureaucratic and managerial positions ... were hypocrites who protected abusers and thus actively condemned the children under their care to lives of psychological torture and personality disorders.” However, viewing the relevant passage in context, it is clear that it refers to a specific court decision involving a home for girls in Truro. This passage is, therefore, clearly incapable of being found by a reasonable reader as referring to Shelburne or to the appellants. [93] Paragraph 10(d) of the statement of claim pleads as follows with respect to the April 27, 1997 article: This entire article is defamatory and implies that the employees of Shelburne, management in particular, are the same as the people who ran concentration camps in Nazi Germany. The intended inference is that Shelburne employees acted without conscience and, like Nazi soldiers, blindly obeyed orders and thereby perpetuated cruelty and abuse on their charges. The article is further defamatory in quoting lawyer Ed Dunsworth as stating that there was a system in effect that promoted and covered up abuse at the institution. It implies that management was aware of abuses and failed to do anything because of a systemic and amoral disregard for the well-being of children. [94] In my opinion, the passages complained of in the April 27, 1997 article clearly could not be found to refer to Messrs. Butler or Keating by virtue of an implied reference to management. The article deals in general terms with abuse at residential institutions in Nova Scotia and elsewhere and is directed generally at an alleged “ingrained tradition of patronage” for which no one in particular is alleged to be at fault. It is clearly institutional critique and not directed at or capable of being construed as relating to individual managers or bureaucrats. [95] Paragraph 10(e) of the statement of claim pleads that the article of April 28, 1997 “... implies that management personnel at Shelburne were actively involved in a criminal conspiracy to conceal the extent of the alleged abuse at Shelburne and other provincial facilities ... and that those in authority have protected their employees from being held accountable.” The article does refer specifically to Shelburne, among other places, and to “people in authority - very significant, very important people in government”. This could not reasonably be taken as referring to anyone other than those in the most senior positions of authority, positions not held by Messrs. Butler or Keating. [96] Paragraph 10(h) pleads that the phrase “... official condonation and protection offered to these men who were paedophiles, over a period of a decade...” in the July 19, 1997 article implies that there was “... an integral role for those in managerial capacities generally and thus defames the plaintiffs in this case ...”. Read in context, however, the only reasonable interpretation of the article is that it deals with a law suit by Martin Douglas Smith against the province for sexual assault by counsellor Patrick MacDougall and another man. The allegations concerning “official condonation” of that abuse is explicitly directed to former ministers, a named former deputy minister and other “high-level bureaucrats in the department.” These references, reasonably viewed in the context of the article as a whole and the pleaded facts, are clearly incapable of referring to persons in the positions occupied by Messrs. Butler and Keating. [97] Paragraph 10(c) alleges that the article of April 25, 1997 defames the appellants by representing that abuse was condoned and covered up by management and that it continues to exist. For the purposes of this appeal, the issue is not whether the passage is defamatory, but rather, assuming it is defamatory, whether it could reasonably be found defamatory of these plaintiffs. They are clearly not included in the phrase “the present leadership” and in my view the phrase “abuse has occurred in the past with no consequences” does not arouse more than minimal suspicion that these plaintiffs are included in those accused of wrongdoing. [98] To summarize, I agree with the chambers judge that the passages relied on paragraphs 10(a) through 10(j), 10(m), (n) (o) and (q) in the statement of claim are clearly not reasonably capable of referring to the plaintiffs Butler and Keating by references to management and bureaucratic personnel or similar terms. I think, however, that a different result should be reached with respect to paragraphs 10(k) and (l). [99] Paragraph 10(k) of the statement of claim relates to the October 12, 1997 article. It alleges that the article implies that “... written records exist that would prove abuse by former employees and management of Shelburne [and] generalizes all government employees as being either abusive or negligent ...”. While the statement of claim does not specifically allege that management personnel are singled out, the article deals with the “Shelburne abuse scandal”, refers to “any of the people in charge” and states that “any one of the people” are at risk of being charged with a specific criminal offence. While very close to the line, it is not in my view plain and obvious that these statements could not reasonably be found to refer to these plaintiffs. The article refers specifically to Shelburne, to everyone of the people who were in charge and makes a specific allegation concerning a specific criminal charge. [100] Paragraph 10(l) of the statement of claim pleads that a January 17, 1998 article implies that “management personnel at Shelburne were involved in a gross and evil coverup of the actions of employees ...”. The article refers to superintendents and supervisors. Messrs. Butler and Keating could be found to fall within the latter group. The question of whether the words are defamatory is not before us; in my view and assuming the words are defamatory, it is not plain and obvious that the reference to supervisors in the context of this article about suicides among former Shelburne employees could not reasonably be found to refer to Messrs. Butler and Keating. [101] Paragraph 10(p) deals with the November 21, 1999 article. It was not struck out by the chambers judge and there is no appeal by the respondents from that ruling. (c) Conclusions on the first issue: [102] I summarize my conclusions on the defamation issue as follows: 1. The judge did not err in finding the impugned articles are clearly incapable of being found, reasonably, to be defamatory of the appellants Hemeon and MacKenzie. I would therefore uphold the judge’s order dismissing the action in relation to them. 2. The judge erred in failing to find that the identification of the appellants Butler and Keating in the November 21, 1999 article could not reasonably support a finding that they were defamed by the earlier articles complained of. 3. The judge erred in finding that the appellants Butler and Keating could not reasonably be found to have been defamed by the articles referred to in paragraphs 10(k) and (l) of the statement of claim by virtue of references in the relevant articles to “everyone of those people” [i.e. the “people in charge”] and “supervisors”. 4. The judge erred in failing to find that the articles referred to in paragraphs 10(a), (c), (e), (h), (k), and (l) of the statement of claim were reasonably capable of being defamatory of the appellant Muinonen. [103] It is now necessary to consider the issues relating to the limitation of actions with respect to the appellants Muinonen, Butler and Keating. III. THE LIMITATION ISSUE: 1. Introduction: [104] In the circumstances of this case, the Defamation Act, R.S.N.S. 1989, c. 122 required the appellants to give the respondents seven days notice of their intention to sue. This notice must be given “...within three months after the publication of the defamatory matter has come to [the appellants’] notice or knowledge...” and “...no action shall lie” unless this has been done: Defamation Act, ss. 17 and 18. The Act also provides that, in the circumstances of this case, the action must be commenced “... within six months after the publication of the defamatory matter has come to the notice or knowledge of the person defamed”: s. 19. [105] The appellants did not meet either of these requirements. The final article about which they complain was published on November 21, 1999; the first on April 20, 1997. There is no disagreement that the appellants were aware of the articles at the time of publication. They served the notice of intended action on June 15, 2000 and started the action on August 25, 2000, both well outside the statutory time limits, even if counted from the final article. [106] As noted earlier, the respondents applied to strike out the notice of intended action and the statement of claim on the basis that the notice was served late and the statement of claim was filed out of time. The appellants then applied under s. 3(2) of the Limitation of Actions Act, R.S.N.S. 1989, c. 258 for an order disallowing the time limitation defence asserted by the respondents. [107] The judge found that both the giving of notice and the commencement of the action were out of time. He refused to disallow the limitation defences, struck out the statement of claim and dismissed the action. After referring to ss. 18 and 19 of the Defamation Act, he concluded his reasons as follows: [54] In my opinion the remedial sections of the Limitations of Actions Act were never intended to overcome time limit prohibitions in a situation such as this. There are no equities under any of these factors which fall in the plaintiffs favour in the circumstances here. [55] As a result the application to strike the Notice of Intended Action and the Originating Notice (Action) as being out of time pursuant to Sections 18 and 19 of the Defamation Act is granted and both are struck. Since the Limitation of Actions Act was vigorously argued by both parties and to that extent and for purposes of clarity, the plaintiffs' right of action is terminated pursuant to Section 3(3) of that Act and if this hearing was construed to be an application for relief from the time limits that is denied. (emphasis added) [108] The appellants attack these conclusions on several bases. It is submitted that the judge erred in principle by failing to apply s. 3(2) of the Limitation of Actions Act liberally, that he misapprehended and over-emphasized the significance of the missed time period for giving notice of action in the context of this case and erred in law in dismissing the appellants’ action on the basis of the limitation defences when there was no such application before him. The appellants also argue that the judge’s finding that the “... evidence of the defendants would certainly be less cogent and the defendants would be at a considerable disadvantage because of the time delay...” is not supported by the evidence that was before him. [109] The respondents reply that the judge, if he had jurisdiction at all to disallow these defences, did not err in refusing to do so. They also question his jurisdiction. By way of notice of contention, they argue that the judge had no jurisdiction under s. 3(2) of the Limitation of Actions Act to disallow the limitation defences available under the Defamation Act and invite us to reconsider the decision of this Court in MacIntyre v. Canadian Broadcasting Corporation (1985), 70 N.S.R.(2d) 129. 2. Standard of review: [110] The limitation aspect of the judge’s decision was a discretionary one because the judge was exercising discretion conferred by s. 3(2) of the Limitation of Actions Act. His order had a terminating effect on the appellants’ action and was not, therefore, an interlocutory order in the true sense of that term: see MacCulloch v. McInnes, Cooper & Robertson (1995), 140 N.S.R.(2d) 220 (C.A.) at § 56 - 61. The applicable standard of appellate review of a discretionary order is to determine whether the chambers judge applied wrong principles of law or his order gives rise to a patent injustice. However, as Chipman, J.A. pointed out in Minkoff v. Poole (1991), 101 N.S.R. (2d) 143 (C.A.) at 145 - 6, “... [t]he importance and gravity of the matter and the consequences of the order, as where an interlocutory application results in the final disposition of a case, are always underlying considerations.” 3. Jurisdiction to disallow Defamation Act limitation defence: [111] As noted, the respondents argue on their notice of contention that s. 19 of the Defamation Act precludes disallowance of that limitation defence pursuant to s. 3 of the Limitation of Actions Act. They submit that the MacIntyre case holding otherwise was wrongly decided. [112] In MacIntyre, this Court held that the Court has discretion, under (what is now) s. 3 of the Limitation of Actions Act, to disallow the limitation defence in (what is now) s. 19 of the Defamation Act. The argument to the contrary, which was advanced to the Court and rejected, was that the six month limitation period in the Defamation Act was stated by the statute to operate “Notwithstanding the Statute of Limitations ...”. That language, it was argued, precluded resort to the Court’s discretionary power to disallow limitation defences because that power is found in the Limitation of Actions Act. Macdonald, J.A. for the Court reasoned, in essence, that the words “notwithstanding the Statute of Limitations” meant that the time limitation in the Defamation Act was to prevail over any conflicting time limitation in the Statute of Limitations and that these words did not preclude resort to the remedial provisions of what is now s. 3 of the Limitation of Actions Act. [113] The respondents submit that there is a conflict between the Defamation Act and the Limitation of Actions Act because the former provides that its six month limitation period is to operate “notwithstanding the provisions of the Limitation of Actions Act...” while the later Act purports to give a discretion to disallow a defence based on that limitation period. The argument is that this conflict should be resolved by the principle that the general enactment, which it is submitted is the Limitation of Actions Act, must yield to the special enactment which is said to be the Defamation Act: see Burke v. MacKinnon (1985), 66 N.S.R.(2d) 346 (S.C.A.D.) at 353; R. v. Greenshields, [1958] S.C.R. 216 at 226; U.F.A.W.U. v. British Columbia (1994), 1 B.C.L.R. (3d) 151 (S.C.). [114] The principle on which the respondents rely is a maxim of statutory interpretation which comes into play in the event of conflict between legislative provisions. It is one of two such maxims as described by Professor Pierre-André Côté in his text The Interpretation of Legislation in Canada (2d, 1991) at 301: Two maxims of Roman law are used to help ascertain parliamentary intent, in the case of truly inconsistent provisions where there is no express legislative solution to the conflict: leges posteriores priores contrarias abrogant (the more recent law takes precedence) and generalia specialibus non derogant (general laws do not derogate from special ones). [115] These maxims are presumptions to resolve conflict between Acts; the respondents’ submission, in essence, is that the Court in MacIntyre selected the wrong one for that purpose. With respect, this submission overlooks a fundamental point: these presumptions only come into play once, as a matter of proper statutory interpretation, there is, in fact, a conflict between the relevant provisions. What in effect this Court held in MacIntyre is that there is no such conflict between these provisions when they are properly interpreted. In my view, that conclusion was and is correct. [116] Macdonald, J.A. reasoned that the words “notwithstanding the Statute of Limitations” (and his reasoning applies equally although the name of the statute has since changed) mean that the time limits in the Defamation Act are to prevail over the time limits in the limitations statute: see MacIntyre at § 12. This interpretation is strongly supported by the words used viewed in the context of the relevant provisions, their legislative history and purpose. [117] Section 19 of the Defamation Act deals with the length of the limitation period for actions against owners of newspapers and broadcasting stations. There are also limitation periods for libel and slander in the Limitation of Actions Act: one year is specified for slander in s. 2(1)(a) and six years for libel in s. 2(1)(e). As Macdonald, J.A. pointed out in MacIntyre, the limitation provision in the Defamation Act was first enacted in 1960 (S.N.S. 1960, c. 4) while the power to disallow limitation periods as now set out in s. 3 of the limitations statute was only enacted in 1982 (S.N.S. 1982, c. 33). It follows, as he observed at § 16 of his reasons that only the time limitations for defamation set out in the limitations statute as it then stood “... could have been of concern to the Legislature at the time the Defamation Act was enacted...” and that “... what was intended by the opening words of s. [19] of the Defamation Act ... was that the six-month limitation period prescribed in s. [19] was to override the six-year limitation period for commencing an action for libel as prescribed by the Statute of Limitations. It could not have been the intention to override an equitable relief provision that did not exist.” [118] Moreover, as Macdonald, J.A. points out, the objectives of the two sets of provisions are distinct. As he put it, what is now s. 3 of the Limitation of Actions Act “... was enacted in 1982 for the obvious purpose of providing relief where justified from the structures of time limitations as provided by that Act or by any other enactment ”: at § 10 (emphasis added); the limitation provisions of the Defamation Act were to establish a common and shortened limitation period for what would previously have been governed by the two periods under the limitations statute relating respectively to slander and libel. [119] The fact that the discretionary power to relieve against limitation periods is expressly stated to apply to time limitations under any other enactment reinforces the interpretation adopted by the Court in MacIntyre. [120] That interpretation is also consistent with the mandatory provisions of s. 9(5) of the Interpretation Act, R.S.N.S. 1989, c. 235 as amended. That subsection requires that every enactment shall be deemed remedial and interpreted to ensure the attainment of its objects by considering (among other matters) (b) the circumstances existing at the time it was passed; (c) the mischief to be remedied; (d) the object to be attained; (f) the consequences of a particular interpretation; and (g) the history of the legislation on the subject. The discussion concerning legislative history and purpose as set out by Macdonald, J.A. in MacIntyre responds fully to the matters mentioned in paragraphs (b), (c), (d) and (g) of section 9(5) of the Interpretation Act. I would add a word only about (f), the consequences of a particular interpretation. [121] In my view, the adoption of the respondents’ position concerning the interpretation of this legislation would have the following consequences. The provisions of s. 3 of the Limitation of Actions Act, which provide a detailed code relating to the disallowance of all limitation and notice provisions generally would be found not to apply to the very short limitation periods under the Defamation Act. Thus, this remedial legislation would not achieve its purposes with respect to the Defamation Act time limitations. This result would be arrived at on the basis of the opening words of s. 19 (“notwithstanding the Limitation of Actions Act”) even though they were enacted long before any such code for disallowance of limitation defences existed in the Limitation of Actions Act. This result would also ignore the fact that the legislative history reveals a more sensible interpretation which is completely consistent with the words used in both enactments and results in the new provisions of the Limitation of Actions Act achieving their purposes. In my view, there is nothing in the text of the enactments, when read in light of their purpose and history, to commend the respondents’ interpretation. [122] I conclude, therefore, that the chambers judge was right to conclude that he had jurisdiction under s. 3 of the Limitation of Actions Act to relieve against both the notice and limitations requirements in ss. 18 and 19 of the Defamation Act. 4. The exercise of the judge’s discretion: [123] The remaining issue is whether the judge erred by refusing relief in this case. As in my view the claim of the appellants Hemeon and MacKenzie were correctly dismissed on the basis that the allegedly defamatory words could not reasonably be taken as referring to them, I will address the limitations point only in relation to the other appellants. [124] In my respectful view, the judge made three errors in his approach to the limitations issue in this case. He erred in finding the delay by the appellants Butler and Keating inordinate, in failing to give any weight to the prejudice to them caused by the limitation provisions and in finding that, with respect to them, the delay prejudiced the respondents’ defence on its merits. (a) The interpretation of s. 3 of the Limitation of Actions Act: [125] Section 3 of the Limitation of Actions Act gives the Court, within specified limits, discretion to disallow a defence based on a time limitation and to allow an action to proceed that would otherwise be statute barred. This discretion is to be exercised when it is equitable to do so taking into account the degree to which the time limitation prejudices the plaintiff and the degree to which the disallowance of the defence would prejudice the defendant. The provision directs the Court to have regard to all the circumstances and, in particular, to the matters set out in ss. 3(4)(a) through (g). For convenience, I will reproduce the most relevant provisions here: 3 (1) In this Section, ... (b) "notice" means a notice which is required before the commencement of an action; (c) "time limitation" means a limitation for either commencing an action or giving a notice pursuant to (i) the provisions of Section 2, (ii) the provisions of any enactment other than this Act, (iii) the provisions of an agreement or contract. (2) Where an action is commenced without regard to a time limitation, and an order has not been made pursuant to subsection (3), the court in which it is brought, upon application, may disallow a defence based on the time limitation and allow the action to proceed if it appears to the court to be equitable having regard to the degree to which (a) the time limitation prejudices the plaintiff or any person whom he represents; and (b) any decision of the court under this Section would prejudice the defendant or any person whom he represents, or any other person. . . . (4) In making a determination pursuant to subsection (2), the court shall have regard to all the circumstances of the case and in particular to (a) the length of and the reasons for the delay on the part of the plaintiff; (b) any information or notice given by the defendant to the plaintiff respecting the time limitation; (c) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought or notice had been given within the time limitation; (d) the conduct of the defendant after the cause of action arose, including the extent if any to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiffs’ cause of action against the defendant; (e) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (f) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. [126] As pointed out by this Court in McGuire v. Fermini (1984), 64 N.S.R. (2d) 60 at 66, these provisions are remedial in nature and should be interpreted liberally to ensure that their objectives are attained. In my view, this requires, in addition to consideration of the particular circumstances of the case and the statutory factors, an analysis of the purposes of the limitation provision relied on by the defendant as well as of the purposes of the discretionary power to disallow that reliance. (i) The purposes of the Defamation Act limitation and notice periods: [127] The main purposes of limitation periods are to provide certainty and finality and to help assure the cogency of evidence on which matters will be judged: see generally Graeme Mew, The Law of Limitations (1991) at 7- 8. These purposes were well expressed by the Ontario Law Reform Commission in its Report on Limitation of Actions (1969) at page 9: Lawsuits should be brought within a reasonable time. This is the policy behind limitation statutes. ... Underlying the policy is a recognition that it is not fair that an individual should be subject indefinitely to the threat of being sued over a particular matter ... Furthermore, evidentiary problems are likely to arise as time passes. Witnesses become forgetful or die: documents may be lost or destroyed. Certainly, it is desirable that, at some point, there should be an end to the possibility of litigation in any dispute. A statute of limitation is sometimes referred to as an “Act of peace.” [128] The degree to which these purposes are relevant may vary depending on the particular limitation period in issue and on the circumstances of a particular case. For example, in the case of a fairly long time limit such as the six year period for contract actions, the cogency of evidence objective is obviously very much a secondary consideration. While the existence of even this lengthy period will facilitate the preservation of relevant records, the time limit permits an action to be commenced long after the events giving rise to it occurred. The passage of time permitted by such a lengthy limitation period will likely adversely affect witnesses’ availability and memory of the relevant events. However, where the time limit is shorter, assuring that cogent evidence is available is likely to be a more important legislative objective. In addition to this general legislative purpose, assuring the cogency of evidence may be a significant consideration on the facts of particular cases. For example, it may be clear in some cases that important evidence has been lost since the expiry of the limitation period thus making the cogency of evidence objective highly relevant in the particular situation. [129] The notice and limitation periods under the Defamation Act in issue on this appeal are very short: three and six months respectively. It is reasonable to conclude, therefore, that assuring the cogency of evidence is an important statutory objective. The learned chambers judge, in a passage of his reasons with which I completely agree, referred to the special importance of this as follows: As well, it is undoubtedly directed to enabling the newspaper to prepare a defence to a claim when the sources of the information, including people interviewed, informants, notes, tapes and other materials are still available and the subject matter is fresh. It is obvious that masses of information are fed into the input side of a daily newspaper to support what is actually published and equally obvious that there is little archival space to retain this information for lengthy periods. (Emphasis added) [130] The notice and limitation provisions of the Defamation Act relied on here have purposes in addition to finality and cogency of evidence. The notice provision in s. 18 of the Defamation Act gives the defendant an opportunity to avoid or reduce liability and provides an expeditious potential remedy for the plaintiff. This purpose was succinctly described by Cory, J.A. (as he then was) in Grossman v. CFTO-TV Ltd. (1982), 39 O.R. (2d) 498 (C.A.) at 501: [15] [The notice requirement] stands as a condition precedent to the commencement of an action for libel. It constitutes an absolute bar. The purpose of the notice is to call the attention of the publishers to the alleged libelous matter. When it is received an investigation can be made, and if the publisher deems it appropriate, a correction, retraction or apology can be published. In this way the publisher can avoid or reduce the damages payable for the publication of a libelous statement. The plaintiff, as well, may benefit from the notice. A timely correction, retraction or apology can often constitute a better remedy than damages. ... (Emphasis added) [131] The provisions of the Defamation Act which link the newspaper’s ability to limit damages to the notice requirement are as follows: 21 (1) The defendant may prove in mitigation of damages that the defamatory matter was inserted in the newspaper or was broadcast without actual malice and without gross negligence, and that before the commencement of the action, or at the earliest opportunity afterwards, the defendant (a) inserted in the newspaper in which the defamatory matter was published a full and fair retraction thereof and a full apology for the defamation, or, if the newspaper is one ordinarily published at intervals exceeding one week, that he offered to publish such retraction and apology in any newspaper to be selected by the plaintiff; or ... 22 (1) The plaintiff shall recover only special damage if it appears on the trial that (a) the alleged defamatory matter was published in good faith; (b) there was reasonable grounds to believe that the publication thereof was for the public benefit; (c) it did not impute to the plaintiff the commission of a criminal offence; (d) the publication took place in mistake or misapprehension of the facts; and (e) where (i) the alleged defamatory matter was published in a newspaper, a full and fair retraction of and a full apology for any statement therein alleged to be erroneous were published in the newspaper before the commencement of the action, and were so published in as conspicuous a place and type as was the alleged defamatory matter, ... (emphasis added) [132] The chambers judge noted these provisions in these words: [34] Section 21 provides for the publication of a full and fair retraction and a full apology to be proved in mitigation of damages but the retraction and apology must be made before the commencement of the action or at the earliest opportunity afterwards. [35] Section 22 provides that only special damages are recoverable in certain situations where a full and fair retraction and apology were published, one exclusion being where the publication imputes to the plaintiff the commission of a criminal offence. [36] Clearly these provisions were enacted to permit only timely action by a person claiming to be defamed by a newspaper publication not only to cause a plaintiff alleging defamation to strike while the iron is hot so to speak, but also to permit the newspaper to review its articles and sources but to assess the complaint in a timely fashion so as to determine its reaction to the complaint, and, if it so decides, to issue a full and fair retraction and apology. ... [133] The notice provision may have special importance in relation to a series of articles. Timely notice of complaint about one article may afford an opportunity to the author and publisher to evaluate planned subsequent articles in the series in light of that complaint. [134] In summary, assuring the cogency of evidence generally is an important statutory objective of these Defamation Act provisions and, in this respect, they may be contrasted with many other, longer, limitation provisions. In addition, the Defamation Act limitation and notice provisions have special purposes relating to the avoidance and limitation of liability on the part of the media defendant. [135] Underlying all of this is the delicate balance between freedom of expression and protection of reputation. As Brown puts it in The Law of Defamation in Canada (2d, 1999) at p. 1155, a purpose of these provisions is “... to partially insulate the communications media from the severe constraints of the common law of defamation, and the imposition of excess damages, and thereby encourage a more active and vigorous press”. The chambers judge developed the point in this way: [37] All in all it is apparent that these provisions create a special situation for newspaper publishers, limiting liability claims as well as damages yet providing mechanism for action, both legal and to obtain an apology, when a person claims to be defamed by a particular article published. [38] They recognize that a defamation is a personal insult involving loss of reputation and esteem and other injury in a community and that the injury is immediate, upon publication, and provide a fair window of opportunity for the person claiming to be defamed to deal with the matter as he sees fit up to and including commencement of legal action. At the same time it acknowledges the freedom of the press by requiring timely notification of a defamation complaint for, to allow claims of this nature to exist for long periods of time such as for tort or contract claims without notification or commencement of legal proceedings would not only deprive a newspaper publisher of a full and fair defence but it would impose an unreasonable burden on its record keeping and on the memories of its writers and leave the publisher open to any number of unknown claimants with possible large damage claims without any ability to mitigate against such damages. To my mind such a situation would be most destructive to the operation of a daily newspaper and inconsistent with the principle of the freedom of the press. The Act, in effect, creates a reasonable balance between the interests of the press and those of a person alleging defamation. (Emphasis added) [136] These important purposes of the notice and limitation provisions in the Defamation Act must be considered when exercising the equitable discretion under s. 3 of the Limitation of Actions Act to, in effect, excuse the appellants’ failure to comply with them. (ii) The purposes of s. 3 of the Limitation of Actions Act: [137] Limitation and notice provisions are blunt instruments. They defeat a plaintiff’s claim no matter how meritorious the case, no matter how diligent the plaintiff and no matter how little the defendant in fact has been prejudiced. Section 3 of the Limitation of Actions Act provides for a measure of judicial discretion to be used on equitable grounds to prevent unduly harsh results from the strict application of limitation and notice provisions. Underlying this grant of discretion is recognition by the Legislature that limitation and notice provisions may lead to harsh and unjust results by barring actions where, in the particular case, there is little reason to do so. In other words, the Legislature’s decision to permit the court to disallow limitation defences recognizes that such defences may result in prejudice to the plaintiff which is disproportionate to the importance, in a particular case, of the achievement of the purposes for which the limitation period exists. [138] The crucial assessment under s. 3 is the one required by ss. 3(2): the determination of what is equitable having regard to the degree which the decision will prejudice the plaintiff and the defendant. It may be convenient to speak of this as a comparison of the relative degrees of prejudice (see, for example, MacCulloch v. McInnes Cooper and Robertson, supra at § 48 - 55). However, as Goodfellow, J. pointed out in Smith v. Clayton, (1994), 133 N.S.R. (2d) 157; N.S.J. No. 328 (Q.L.)(S.C.) at § 42 - 44, the decision about what is equitable cannot be based solely on the relative degrees of prejudice. This is because, in one sense, the prejudice to either party is total whichever decision the Court makes. If the limitation period is disallowed, the defendant is totally prejudiced in the sense that he or she is deprived of a complete defence to the action: see, Hallett, J. (now J.A.) in Anderson v. Co-operative Fire and Casualty Co. (1983), 58 N.S.R. (2d) 163 at § 18; aff’d (1983), 62 N.S.R. (2d) 378 (S.C.A.D.). Conversely, if the limitation defence is not disallowed, the prejudice to the plaintiff is absolute in the sense that the cause of action is lost: see Anderson per Hallett, J. at § 16; Smith at § 42 - 44. [139] In considering what is equitable, a fundamental consideration is whether the harsh result to the plaintiff of the loss of a cause of action is disproportionate to the purposes served by giving effect to the limitation provision in issue in the particular case. For example, if the primary purpose served by the relevant limitation period is finality, furtherance of this objective at the cost of the loss of the plaintiff’s cause of action may often be regarded as disproportionate, particularly where the delay in relation to the limitation period is short. This is implied by the fact that the Legislature has addressed the issue of finality by restricting the length of time by which a limitation period may be extended: see ss. 3(6) and 3(7) and by providing a mechanism for a potential defendant to apply to terminate a right of action: see ss. 3(3). The situation may well be different when other purposes of the limitation period are in issue in the particular case. For example, there may be concerns that the plaintiff’s delay has prejudiced the defendants in their defence. The limitation period’s objective of preserving the cogency of evidence must be carefully considered both generally, and in relation to the specific prejudice to the defendants in the particular case. [140] Where, as here, the limitation provision in issue has purposes in addition to those of finality and preservation of the cogency of evidence, the extent to which these other purposes are defeated by the disallowance of the limitation period should be considered as an aspect of assessing the relative degrees of prejudice to the plaintiff and the defendant. [141] The prejudice to the plaintiff flowing from the loss of the cause of action cannot generally be controlling on its own; if it were, disallowance of the limitation defence would be virtually automatic because such prejudice is absolute: see Smith at § 44. The specific matters to be considered which are set out by the Legislature in ss. 3(4)(a) - (g) make it clear that the diligence of the plaintiff, broadly defined, in pursuing his or her rights is an important factor in exercising the discretion to disallow a limitation defence. For example, s. 3(4)(a) refers to the length and the reasons for the plaintiff’s delay, s. 3(4)(e) to any disability of the plaintiff after the date of the accrual of the cause of action; s. 3(4)(f) to the extent to which the plaintiff acted promptly and reasonably once he or she knew the defendants’ acts might be capable of giving rise to an action and s. 3(4)(g) to the steps taken by the plaintiff to obtain expert advice and the nature of that advice. All of these factors, in my view, relate to aspects of the plaintiff’s diligence in pursuing the claim. Such diligence is, therefore, an important aspect of the assessment of the prejudice to the plaintiff resulting from the limitation defence. [142] This concern with the plaintiff’s diligence reflects both an underlying purpose of limitation periods and a widely accepted principle of fairness. The idea that plaintiffs should act with diligence underlies statutory limitation periods generally: see, for example, J.S. Williams, Limitation of Actions in Canada (2d, 1980) at 5. Moreover, concern with the plaintiff’s diligence is consistent with s. 3(2)’s focus on what is equitable. It will generally be less equitable for a limitation defence to defeat the claim of a diligent plaintiff than of one who has sat on his or her rights. This reflects the old equitable maxim that delay resulting from lack of diligence defeats equity: vigilantibus, non dormientibus, jura subveniunt: see Sir Robert Megarry and P.V. Baker, Snell’s Principles of Equity (27th, 1973) at 33. [143] In assessing the prejudice to the defendant it is important to focus on prejudice attributable to delay after the expiry of the limitation period. This is made clear, for example, in s. 3(4)(c) which requires consideration of the impact of delay on the cogency of evidence compared to what it would have been had the action been started within the time limit. The cases have consistently recognized this: see, for example, Bollivar v. Hirtle’s Estate (1990), 97 N.S.R. (2d) 247 (S.C.A.D.) at § 11; Fern v. Christie’s Estate (1986), 76 N.S.R. (2d) 271 (T.D.) at p. 275; Vickery v. Murphy and Yarmouth Regional Hospital (1986), 73 N.S.R. (2d) 429 (S.C.) at § 23. [144] With these general points in mind, I now turn to detailed consideration of the judge’s decision. It will be helpful to do so under headings reflecting the two fundamental issues of prejudice to the appellants and prejudice to the respondents. (b) Prejudice to the appellants: [145] The judge found there were no equities on the side of the appellants: the delay was long and there was no reasonable excuse for it. He said: [50] ... (a) the length and reasons for the delay on the part of the plaintiff The delay for the 1997, 1998 and early 1999 publications is inordinate ranging from just short of three years for the first publications complained of to 14 months for the last before any Notice of Intended Action was filed. While the delay for the last article complained of was 4 months, that article was one of a whole series which each of the plaintiffs was fully aware and, in view of the attitude to all of these articles expressed by all the plaintiffs in their evidence it is unreasonable to accept that this delay, though not as long as the others, was not also inordinate. No adequate reasons for the delay were given in the evidence by the plaintiffs. One suggestion that they could not obtain a lawyer to represent them or take their case is totally without merit in the circumstances here. I shall deal with legal advice and disability under the appropriate heading of the Act. [146] In my respectful view, the judge erred by failing to give significant weight to the prejudice flowing to the plaintiffs from the fact that the notice and limitation provisions would foreclose their action. While, as noted, this is not a controlling factor, it is entitled to significant weight. It must not be discounted completely as the chambers judge seems to have done; this consideration is not mentioned anywhere in his extensive reasons. [147] I agree with the judge’s conclusion that Mr. Muinonen’s delay was inordinate. The delay from the last article which could reasonably be found defamatory of him (January 17, 1998) to the commencement of the action (August, 2000) was over two and one-half years — over three if measured from the first article of April 20, 1997. This is between five and six times the legislated limitation period. As I will discuss shortly, there is little evidence of diligent pursuit of the cause of action by Mr. Muinonen. Delay of this length also undercuts, fundamentally, the special protection these limitation periods were intended to provide to newspapers. [148] In my opinion, however, the judge erred in determining that the length of the delay on the part of the appellants Butler and Keating was inordinate. With respect to them, it is critical to bear in mind that it was on November 21, 1999 that the article which most clearly referred to them was published. At that point, I think that any reasonable legal advisor would have told them that the potential for a successful defamation action increased considerably and that it was arguable, at least, that this subsequent identification rendered some or all of the earlier articles defamatory of them. While it is arguable that they were defamed by articles published on October 12, 1997 and January 17, 1998 by references to “people in charge” and “superintendents”, the whole nature of their potential action, unlike the case of Mr. Muinonen, changed with the publication of the November 21, 1999 article. [149] Measured from the November article, the delay by Messrs. Butler and Keating in giving notice and commencing action exceed the statutory time limits by between twelve and sixteen weeks compared with the two and one-half to three years in the case of Mr. Muinonen. [150] The judge was apparently of the view that all the appellants felt aggrieved by all of the articles so that the fact that the delay in relation to the November 21, 1999 article was only a few weeks did not exempt that delay from being “inordinate”. With respect, I cannot agree with this analysis. [151] In my view, each defamatory article starts its own limitation and notice period running and each is entitled to be considered on its own merits. As regards the appellants Butler and Keating, the judge’s approach to this issue is, with respect, backwards. The limitation period does not start to run against a potential plaintiff when that person believes they have been defamed, but when statements are published (and, as the statute provides, come to the plaintiff’s attention) which are, in law, capable of being defamatory of them. If, as it might be found, most of the earlier articles became defamatory of them only with the publication of the November 21, 1999 article, these appellants can hardly be faulted for not suing before they had been defamed; in other words (and apart from the arguably defamatory articles of October 12, 1997 and January 17, 1998), any delay on their part in proceeding prior to November of 1999 was attributable to their only being identified by the respondents, and thus acquiring a right of action with respect to the earlier articles, at that time. Contrary to the judge’s reasoning, in these circumstances, the long delay in giving notice and starting action after publication of the earlier articles cannot fairly be used to characterize the delay by Messrs. Butler and Keating after publication of the November 21, 1999 article as inordinate. [152] The judge also considered the appellant’s submissions in relation to their alleged disabilities and their attempts to retain counsel. I will quote his reasons on these points at length: [50] ... (e) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action. This factor requires the Court to look at a disability which arose, in this case, after the publication or publications complained of, to determine if such disability alleged was of such a nature as to prevent a person from acting during the limitation period. The evidence is that neither of the plaintiffs Keating and MacKenzie allege any disability while the plaintiff Butler's mental and emotional problems began before the impugned articles appeared and, given the articles may have caused him further stress, his affidavit evidence and cross‑examination clearly show that he was not under the type of disability contemplated here. He stated that he was under medical care and between 1995 and 1998 his mental state was such that he was in no condition to contemplate any legal action (with the implication that he could from 1998 onward) but during the same period he wrote "countless letters to various politicians, civil servants, union representatives and others in an attempt to exonerate myself ...". As well he consulted four lawyers regarding both the articles and his attempts to prove other allegations against him were untrue. Throughout the whole time involved here he managed his affairs and performed one's usual daily activities. The plaintiff Hemeon suffered from depression and stress leading to his going on long term disability. His affidavit states that "on many occasions I thought about taking legal action against the Daily News and Parker Barss Donham ... but I did not have the emotional strength to bring action on my own". On cross‑ examination, however, he also performed his daily activities, managed his affairs with the help of his wife, attended meetings of the group and understood what was going on and the advices received. Again, I cannot conclude that a true disability as contemplated by the Act existed here. The plaintiff Muinonen suffered from anxiety related symptoms, allegedly caused by the articles, during 1997 but was substantially recovered by the summer of 1998, after which he participated in the group meetings, fully understanding what was going on and the advices received. He also sought legal advice in 1997 regarding one article and was advised there was nothing he could do. He, as well, managed and conducted his affairs throughout the whole period involved here. Again, there is insufficient evidence to establish that the plaintiff was under any disability of the nature contemplated by the Act. (f) the extent to which the plaintiffs acted promptly and reasonably once they knew whether or not ... (the publications) might be capable at that time of giving rise to an action for damages. Nothing in the evidence shows any prompt or reasonable acts when these articles were published. Each of the plaintiffs felt wronged from the first publications, discussed them regularly and received legal advices but took no acts towards the defendants to further any possible claim. . . . [51] They were meeting together weekly and, among other things discussed these articles. They felt defamed and sought legal advice, not once, but on a number of occasions from Cameron MacKinnon, a lawyer whose advice ranged from "it is not worthwhile to proceed" to "received little encouragement" (Keating evidence); "none (lawyers) had indicated a willingness to take the case" (MacKenzie evidence); after consulting four lawyers "I did not receive from these lawyers any advice or assurances that such a suit was a practical undertaking" (Butler's evidence); "on many occasions I thought about taking legal action" (Hemeon evidence); "was advised there was nothing I could to" (Muinonen evidence). [52] Clearly each plaintiff accepted the advice given and failed to proceed to any action within the time limits. There is nothing in the evidence to indicate whether the plaintiffs were or were not informed of time limits but that is irrelevant here as they clearly took the advices given and did not proceed further. [53] Keating testified that their present counsel was retained by the group, Past Employees for Restorative Justice, in 1998. Yet it was only in the Spring of 2000 that the plaintiffs were advised they had a basis of a suit for defamation and only when as a group that the plaintiffs gave notice. [153] In my respectful view, the judge adopted too strict a test for determining disability within the meaning of s. 3(4)(e). Although the judge does not make explicit what meaning he attached to “disability”, my reading of his reasons is that he was looking for a condition that rendered the plaintiffs’ incapable of pursuing their legal rights. In my view, the relevant consideration under s. 3(4)(e) is whether a plaintiff had reduced physical or mental abilities as a result of matters arising after the accrual of the cause of action which could excuse, in whole or in part, the plaintiff’s failure to comply with the limitation provisions. [154] I do not accept the respondents’ argument that “disability” in s. 3(4)(e) is restricted to those matters set out in s. 4 which, if they exist at the time the cause of action accrues, essentially stop the time from running. The only reference to “disability” in s. 4 is in the heading which, according to s. 12 of the Interpretation Act, forms no part of the enactment. Moreover, one of the items referred to in s. 4 is absence from the province which is not a disability in any normal sense of the word. The purpose of s. 4 is to set out matters which prevent the running of time; the purpose of s. 3(4) is to set out a list of factors to be considered, along with all the relevant circumstances, in determining where the equities of the specific case lie. There is no reason as a matter of interpretation to equate disability in the header of s. 4 with disability in the text of s. 3(4) and in my view it is inconsistent with a liberal construction of these remedial provisions to do so. Moreover, a broader definition of disability in s. 3(4)(e) is more consistent with the section’s focus on the plaintiff’s diligence in pursuing the claim. [155] That said, I think this factor was entitled to little weight in the circumstances of the appellants Butler and Muinonen. The appellant Keating did not allege any disability and so this factor is not relevant to him. Mr. Muinonen conceded on cross-examination that he was well enough to discuss the articles with a lawyer in 1997 and that he was “somewhat improved” by 1998. He also conceded that, after August of 1997, he was no longer constrained by his position as a government employee from pursuing a legal action as he had thought he was prior to that date. While Mr. Butler gave evidence that he was on disability leave from 1995 onwards and that he suffered from severe depression, he nonetheless sought, received and understood legal advice from a number of lawyers, wrote “countless letters to ... politicians, civil servants, union representatives and others...” concerning what he felt were untrue allegations against him. He continued to drive his car and manage his own affairs. As the judge found, both Mr. Muinonen and Mr. Butler participated in group meetings, managed and conducted their own affairs and sought legal advice. Their disability cannot fairly be said to have inhibited to any significant extent their ability to pursue their legal remedies. [156] Finally I think the judge erred in his assessment of s. 3(4)(g), that is, the steps taken by the plaintiffs to obtain legal advice and the nature of such advice. The judge found that they sought advice and followed it and concluded that this was “... the most fatal factor for those plaintiffs.” [157] The evidence was that the plaintiffs were either advised there was nothing they could do or at best received little encouragement to proceed. In my opinion, the fact they sought legal advice is some evidence of diligence on their part; the fact that the advice was not favourable to proceeding tends to suggest that the delay is to a degree attributable to that advice rather than simply to the appellants “sleeping on their rights”. [158] Although I think the judge was wrong in his approach to s. 3(4)(g), I do not think this factor weighs very strongly in favour of the appellants. Their present counsel was retained by the group Past Employees for Restorative Justice in 1998, but this action was not commenced until August of 2000. In saying this, I do not in any respect fault Mr. Dunlop; the nature of his retainer by the group is not before us and it appears from his submissions on this point that the defamation issues with respect to these particular appellants were not initially the focus of his work for the group. However, his subsequent opinion and willingness to pursue the defamation action on behalf of the appellants suggest that, with reasonable diligence, a lawyer whose advice was not completely discouraging and who was willing to take the case could have been found. [159] In summary, the judge erred in failing to give weight to the fact that the refusal to extend the notice and limitation periods had the effect of taking away the appellants’ cause of action and in finding that the delay with respect to the appellants Butler and Keating was inordinate. I would also part company with the judge in the other respects to which I have referred, but I would not find those other matters, individually or collectively, to be sufficiently significant to justify interference on appeal with the exercise of his discretion. (c) Prejudice to the Defendants: [160] The judge’s main conclusion on this aspect was that evidence of the defendants would be less cogent and the defendants would be at a considerable disadvantage because of the time delay. He said: [50] ... I am satisfied on the evidence presented that the evidence of the defendants would certainly be less cogent and the defendants would be at a considerable disadvantage because of the time delay. [161] There were two main types of disadvantage relied on by the respondents: the loss of cogent evidence through destruction or loss of documentation and general memory loss and the loss of the opportunity to reassess the articles or take advantage of the provisions which would allow them to limit their liability. In my view, there is a distinction between the claims of Mr. Muinonen on one hand and Messrs. Butler and Keating on the other. [162] As noted earlier, the delay by Mr. Muinonen is very long in relation to this six month time limitation period. The first article reasonably capable of defaming him was published on April 20, 1997 and the last on January 17, 1998. Action was commenced in August of 2000 so that, even measured from publication of the last article, the delay is over 2½ years which is five times the length of the limitation period. This sort of delay undermines, fundamentally, the limitation and notice periods’ objectives of requiring prompt action against a newspaper and of providing special protection for newspapers against defamation actions. [163] With respect to Messrs. Butler and Keating, the delay, measured from November 21, 1999 is between 12 and 14 weeks, so that little decline of the cogency in evidence or any significant undermining of that purpose of the limitation period may reasonably be inferred. This makes consideration of any specific allegations of prejudice to the defendants said to result from this delay especially important. This relatively short delay is also much less repugnant to the other objectives of the limitation and notice periods than is the delay in the case of Mr. Muinonen. [164] Section 3(4)(c) is concerned with the impact on the cogency of evidence of the delay from the expiry of the limitation (or notice) period. This is an illustration of the general principle that prejudice to the defendant is to be assessed by comparing the present position of the defendant with the position the defendant would have been in if the action had been started on the day before the limitation period expired. The judge appears to have overlooked this point and considered the impact of the passage of time generally rather than limit his consideration to the impact of the missed notice and limitation periods. For example, while there was evidence that tapes of interviews had been lost through recycling of the tapes, it was clear that this recycling was done without regard to the notice or limitation periods. In other words, the loss through recycling of tapes was no greater after the expiry of the limitation period than it would have been before it. The loss cannot, therefore, be attributed to the delay in proceeding after the notice and limitation periods had expired. [165] More fundamentally, the cogency of evidence does not turn simply on whether every piece of paper or every conceivable witness is available or on whether conversations and sources have been forgotten. The primary consideration should be the significance of any loss of cogency for the proper disposition of the case on its merits having regard to the issues to be determined at trial. [166] The evidence before the chambers judge did not justify his conclusion that the respondents would be at a “considerable disadvantage” in defending on the merits in relation to the claims of Messrs. Butler and Keating. The evidence offered by the respondents about what was or might be missing was vague in the extreme and made no attempt to link the possibly missing evidence to issues to be determined at trial. Indeed, the respondents’ application to dismiss the action on the basis of the limitation and notice period was made before any defence was filed. It is, therefore, difficult to assess the relevance, let alone the cogency, of evidence and it is premature to assume that the sort of possibly missing evidence referred to in the respondents’ material is of any real significance to the defence of the action. To justify a finding that the respondents have been, or are, at risk of being prejudiced in their defence on the merits by a delay of 12 to 14 weeks, more is required than vague suggestions that the details of some interviews have been forgotten, or that some witnesses or documents of unstated relevance might be lost to the defendants. With respect to the contrary view, that is all the respondents presented here. [167] I think, therefore, that the judge over-emphasized any potential loss of cogent evidence with respect to the defence of the claims by Messrs. Butler and Keating. [168] The respondents submit that they suffered prejudice resulting from the appellants’ delay in another way. They forcefully rely on the importance of the notice provision for their ability to limit liability and to vet subsequent articles. [169] In my view, one aspect of the respondents’ ability to limit liability is only marginally relevant on the facts of this case. While the notice of intended action was served very late, it was nonetheless served prior to the commencement of the action. As a result, the notice afforded the respondents the chance, if so inclined, to publish a full and fair retraction and apology prior to commencement of the action, or at the earliest opportunity afterwards. Moreover, s. 22 of the Defamation Act, which limits the plaintiff’s recovery to special damages, is likely inapplicable here because it does not apply where the defamatory material imputes to the plaintiff the commission of a criminal offence: see s. 22(1)(c). While it is not appropriate at this interlocutory stage to make any final determination about the meaning of the articles, it is necessary to address this point for the limited purposes of considering potential prejudice to the respondents resulting from the failure of the appellants to give timely notice. The articles repeatedly refer to criminal conduct and police investigations. If they are defamatory of the plaintiffs, they may be taken for the purposes of this interlocutory appeal to allege that the plaintiffs committed criminal offences. [170] The late notice, however, did deprive the respondents of another opportunity to limit their liability. Had timely notice been given, it would have provided the opportunity to the respondents to reconsider their intention to publish further articles in the series or of vetting them before publication with these complaints in mind. On this aspect, there are distinctions between the position of Messrs. Butler and Keating on one hand and Mr. Muinonen on the other. [171] The dates of publication of the articles that might be found defamatory of Mr. Muinonen are as follows: Statement of Claim paragraph number Publication date 10(a) April 20/97 10(c) April 25/97 10(e) April 28/97 10(h) July 19/97 10(k) October 12/97 10(l) January 17/98 [172] It is apparent, therefore, that if the respondents had received timely notice of Mr. Muinonen’s complaint with the first article (i.e., had the notice been served within three months of April 20/97,) the respondents would have had the opportunity to review at least all of the articles they published on or after July 20, 1997; the failure to give timely notice did not, however, deprive them of any such opportunity with respect to the articles complained of which were published between April and July of 1997. [173] The analysis with respect to Messrs. Butler and Keating is, in my opinion, quite different. It must be approached on the assumption that it will be open to a jury to conclude the earlier articles became defamatory of them only upon publication of the November 21, 1999 article. They make no complaint about any subsequent articles. If their obligation to give notice arose only on November 21, 1999, their failure to give earlier notice could not be found prejudicial to the opportunity for the respondents to reconsider the publication of subsequent articles and is, therefore, irrelevant for the purposes of determining the extent of prejudice to them. However, two of the earlier articles (those referred to in paragraphs 10(k) and (l) of the statement of claim) are arguably defamatory of them on the basis of references to people in charge and supervisors. The respondents can justly claim that the failure to give them notice of these complaints about the first of those articles in a timely way deprived them of the opportunity to limit their liability and to reconsider publication of the second of those articles. (d) Conclusions: [174] The delay in commencing the action by Mr. Muinonen was over 2½ years even if measured from the most recently published article. In the context of a six month limitation period, this is a long delay. It is also one that undermines substantially the purposes of the limitation period of requiring actions against newspapers to be commenced promptly. The failure to give timely notice deprived the respondents of the opportunity to reconsider and vet articles published after July 20, 1997 (i.e. the final two which are arguably defamatory of Mr. Muinonen). Mr. Muinonen did not pursue his rights diligently and there is little to justify this lack of diligence. Considering all the relevant principles and considerations, I do not think that the judge improperly exercised his discretion in not disallowing the respondents’ limitation defences as against Mr. Muinonen. It follows that I would uphold the judge’s order to that effect. [175] The situation is fundamentally different, in my view, with respect to the appellants Butler and Keating. The delay measured from the November 21, 1999 article is substantially shorter. A delay of between 12 and 14 weeks does not undercut in any significant way the special purposes of the notice and limitation periods. As discussed above, and with the exception of the two articles mentioned earlier, the failure to give notice did not deprive the respondents of any opportunity to limit their liability or to reconsider the publication of subsequent articles. There is no satisfactory evidence that any specific prejudice to the respondents was caused by the delay in giving notice or commencing action. I would, therefore, set aside the judge’s order dismissing their action and in its place make an order disallowing the limitation defence with respect to all of the articles complained of except those referred to in paragraphs 10(k) and (l) of the statement of claim. [176] The appellants submit that the judge erred by going beyond ruling on their application to disallow the defence and, having decided to deny it, to make a further order dismissing the action. In light of my proposed disposition of the appeal, this is only a relevant point in relation to Mr. Muinonen. I agree with Mr. Dunlop’s submission that there was no application by the respondents to terminate the appellants’ right of action under s. 3(3) of the Limitation of Actions Act. However, there were applications before the judge by the respondents to strike out the notice of intended action and to strike the statement of claim on the basis of the missed notice and limitation periods. There is no suggestion here that, absent relief under section 3(2) of the Limitation of Actions Act being granted to the appellants, there were further factual issues to be determined in relation to the limitation defences. (For a case in which there were, see K.A.S. v. Reddick (1997), 160 N.S.R. (2d) 5; N.S.J. No. 262 (Q.L.)(C.A.)) I think, therefore, that the judge’s decision to strike the statement of claim and dismiss the action in relation to Mr. Muinonen was correct. [177] I would also note that the chambers judge struck out the negligence claims pleaded in the statement of claim and that there is no appeal in relation to that aspect of his decision. It follows that paragraphs 18, 19 and 21(c) of the statement of claim should be struck out. IV. DISPOSITION: [178] I would allow the appeal in part and delete the paragraphs numbered 2, 3 and 4 from the judge’s order dated February 21, 2001 and substitute the following: “2. the application by the plaintiffs D. Wayne Butler and Lee Keating for relief from the missed limitation and notice periods is granted except with respect to the claims asserted in paragraphs 10(k) and (l) of the statement of claim which are hereby struck out; 3. the application for relief from the missed limitation and notice periods by the plaintiffs Floyd Hemeon, Heikke Muinonen and Millard MacKenzie is dismissed; 4. the application by the defendants to strike the notice of intended action and the statement of claim in relation to the plaintiffs Hemeon, Muinonen and MacKenzie is granted and the action, insofar as it relates to them, stands dismissed; 5. the application by the defendants to strike the notice of intended action and the statement of claim in relation to the plaintiffs Butler and Keating is dismissed; 6. the application by the defendants to strike out paragraphs 18, 19 and 21(c) of the statement of claim is granted. 7. the plaintiffs Hemeon, Muionen and MacKenzie shall pay to the defendants jointly and severally costs in the amount of Three Thousand Dollars ($3,000); the defendants shall pay to the plaintiffs Butler and Keating jointly and severally the sum of Three Thousand Dollars ($3,000).” [179] As success on appeal has been divided, the costs of the appeal, fixed at $2500 inclusive of disbursements, will be costs in the cause of the main action. Cromwell, J.A. Concurred in: Chipman, J.A. Roscoe, J.A. Appendix The allegedly defamatory articles are as follows: a) Column on April 20, 1997, They were children once by Parker Barrs Donham: Their first and last impulse was to avoid ruffling feathers. Because of their negligence, hundreds upon hundreds of boys and girls, some as young as seven or eight years old, were raped, seduced, beaten, and forcibly subjected to all manner of degrading physical and sexual assaults. Most Nova Scotians know at least the broad outlines of this criminal activity and the bureaucratic indifference that allowed it to continue. Disgust at what took place must be close to universal. Despite this, a sinister process is unfolding whereby those who protected sexual abusers may themselves escape responsibility for the human devastation their inaction allowed. . . . The public sees not terrified children in the clutches of depraved predators, but middle-aged drug addicts, ex-cons, and sundry low-lifes lining up for government cheques. . . . It is true that many of those requesting compensation are less than model citizens. But if we accept that subjecting children to prolonged and horrific sexual and physical assaults is likely to damage them, then what should we expect to find, 20 and 30 years later, but damaged lives? The key fact to bear in mind is that they were children when the abuse occurred. Richard Robichaud, whose recollections of Shelburne appear on page 17, was seven years old when he went to Nova Scotia School for Boys. None of assault victims was older than 16. . . . They were children. They had no means of escape. Govern-ment employees visited criminal assaults upon them. The responsible officials of the day ignored, or failed to follow up adequately on reports of the abuse. . . . b) An article on April 21, 1997, entitled MONDAY PROFILE: Bullying the bullies by Robert Martin: . . . “It established that there was an atmosphere of toleration of pedophilia by the male guards toward the female children,” Leahey says, and that is the crux of the issue. “You can’t change pedophiles. They are what they are,” he says. “but as far as I’m concerned, the people who protected (them) are worse by far. They, who professed to be good, God-fearing Christians, condemned these children to a life of psychological torture and personality disorders.” . . . c) An article April 25, 1997 entitled Sex abuse noted as recently as ‘95 by David Rodenhiser: Incidents of sexual and physical abuse of kids at provincial juvenile institutions were documented as recently as two years ago. In a March 1995 report to then-justice minister Bill Gillis, consultant Viki Samuels-Stewart concluded that “young offenders are victims of abuse while in custody at both the Shelburne and Waterville youth centres.” . . . Her report preceded by three months that of retired New Brunswick chief justice Steuart Stratton. Stratton found a shocking pattern of abuse in Nova Scotia youth facilities, but focused on beatings, molestations and rapes that occurred in the 1950s, ‘60s and ‘70s. Samuels-Stewart’s report is significant in that it shows abuse was still taking place while Stratton was compiling his highly publicized findings. . . . Some staff members were candid in their anonymous remarks to Samuels-Stewart. She reported that 40 per cent of staff respondents from Waterville and 11 per cent of staff respondents from Shelburne admitted being “aware of offenders who were victims of abuse while in custody.” Among employee revelations: - “Services are not adequate in that abuse is and has been covered up. There is no mechanism to protect anyone at the centre.” - “Abuse has occurred in the past with no consequences, and with the present leadership will likely continue.” . . . d) An article on April 27, 1997, entitled A classic case of obedience over conscience by Parker Barss Donhom: Two troubling questions underlie the disclosure of rampant sexual abuse at residential institutions in Nova Scotia and elsewhere: how were so many child molesters drawn to these schools? And why were officials who got wind of despicable activities so reluctant to rock the boat? . . . Many of the officials who turned a blind eye to reports of abuse, or failed shamefully to follow up on clear-cut evidence of criminal assaults, are respected, even honored, members of helping professions. If they lived next door to you, or attended your church, you would doubtless know them to be honest, God-fearing citizens. So why did they fail to heed the anguished cries of children to whom they owed a duty of care? . . . Against the background of Adolph Eichmann’s war crimes trial in Israel, Yale University psychologist, Stanley Milgram recruited subjects for what he told them was an experiment in the effect of punishment on memory and learning. In reality, he was studying the conflict between obedience to authority and conscience. . . . We’d all like to think that ordinary good people would put the task of protecting children ahead of protecting a department. But with discouraging regularity, the opposite seems to have been true. “I just can’t believe that it’s bad luck or coincidence. It happens too many times,” said lawyer Ed Dunsworth, who represents some victims from Shelburne and the Truro School for Girls. “I think it’s systemic is what it boils down to,” Dunsworth said. “It seems to me that when you have a system that promotes people hiring friends and acquaintances, and the whole system is built around that, you create a closed system.” ‘When somebody screws up, everybody closes ranks. It is almost as if when you attack one person you are attacking the system and everyone in it.” In other words, patronage -- that ingrained tradition we like to dismiss as quaint or inevitable. It’s the best explanation I’ve heard, and the easiest to square with Milgram’s sobering results. . . . e) An article on April 28, 1997, The worst of all worlds’ by David Rodenhiser: The Nova Scotia government should call a full public inquiry into how hundreds of children were allowed to be beaten, molested and raped for decades in the province’s youth facilities, say abuse victims and their lawyers. . . . Those responsible for the abuse and its alleged coverup will be “dead amd in their graves” by the time the RCMP lays charges, Leahey said. “It’ll be another case of justice delayed, justice denied.” . . . “In fact, what we’re trying to show is that this is about people in authority -- very significant, very important people in the government - knowing that children were being abused in these schools and allowing it to happen for decades. Not only allowing it to happen, but taking active steps to cover it up. “The criminal process will punish the people who were actually striking these kids -- the abusers themselves. The compensation process will, or may, provide, some measure of compensation to the survivors. But there’s this huge gap: what about the people who knew about this, allowed it to continue, and did nothing to stop it? They walk away scot-free. The only way that issue will ever be addressed is through a full public inquiry.” . . . f) An article on May 6, 1997, Survivor urges ‘united front’ by David Rodenhiser: . . . “There was rape and physical abuse then, and now they’re doing it with papers. It was hands-on then, and now it’s just ink,” he said [Angus Dunford] “There’s people who did this (abuse) sitting with pensions. Their communities don’t know. Their families don’t know. And here I am just struggling to get by and it’s like they’re raping me again. It’s so frustrating.” . . . “I figured if that place was that bad, what was jail like? It certainly did straighten me out, but it was no training centre. It was just a place for the government pedophiles to work.” . . . g) An article on May 25, 1997 entitled The short life of Ricky Alberry by David Rodenhiser: . . . Twenty-five years later -- with that haunting photo as one of her most treasured possessions -- Wilson is still waiting for the truth. . . . “A lot has been said about the survivors of abuse. Well, Ricky was a non-survivor of the Shelburne School for Boys.” In its least damaging interpretation, Ricky’s death implies the conditions at the Shelburne school were sufficiently abhorrent to convince a 13-year-old boy to kill himself. Any other interpretation would suggest Ricky met with foul play, and the truth about his demise has been covered up. . . . “But how do you think she feels knowing that he was put in there, and all this abuse started happening to him? What did he think of his mother? Did he think: ‘Why would my mother put me in here for these people to hurt me?’” . . . h) An article on July 19, 1997, Political Interference allowed ‘tragedy’ at youth centres to continue, lawyer says by David Rodenhiser: Halifax lawyer Bill Leahey says he has evidence that political interference allowed beatings, molestations, and rapes to continue in Nova Scotia youth centres for decades. Now he wants the government to fund the research of its own secret archives, to provide a complete picture of why the province placed kids in the hands of pedophiles and sadists. . . . “The evidence that we’ve uncovered to date, in our judgment, substantially validates the theory of the case for the plaintiff, which is there was official condonation and protection offered to these men, who were paedophiles, over a period of decades,” Leahey told The Daily News. . . . i) An article on July 20, 1997, An open letter to Premier Russell MacLellan by Parker Barss Donham: . . . For more than 50 years, hundreds upon hundreds of boys and girls suffered unspeakable abuse while in the care and custody of the provincial government. Children as young as seven years old were beaten, raped, sodomized, and otherwise molested. That such activity continued unchecked for so long ranks as a crime spree of epic proportions. It dwarfs the abuse by the Christian Brothers at Mount Cashel orphanage in St. John’s, Nfld. It has triggered the largest investigation undertaken by the RCMP, who have already identified more than 400 suspects, and expect to lay thousands of charges. The scope of the abuse is staggering: one suspect is accused by more than 300 complainants, and “several others follow very close behind,” according to the officer in charge of the case. . . . The abuse spanned five decades and five separate provincially run residential schools from Shelburne to Sydney. In temporal and geographic scope, it transcends the individual acts of a few perverts. Nor could any conceivable criminal conspiracy concoct perverse activity of this scale and duration. The magnitude of the abuse suggests that this is a rare case where the overused word “systemic” can be aptly applied. Something about the Nova Scotia government’s system of caring for troubled, delinquent, disabled, or unwanted children most have fostered and facilitated the most atrocious mistreatment of these wards. . . . Again and again, officials faced with such knowledge chose to protect, not the helpless children who suffered this abuse, but their tormentors. It was not the grotesque indignities forced upon these children that concerned them, but the potential for scandal, for angering party functionaries, and for the political damage that might ensue. . . . j) An article on September 9, 1997, Don’t stop at the official line by Parker Barss Donham: Several readers have asked whether Premier Russell MacLellan ever replied to my July 20 open letter about the government’s continuing cover-up of official involvement in the residential schools abuse scandal. . . . Justice Department officials have been the chief obstacle to resolving this issue honorably, the chief guardians of the coverup, and the chief instruments of re-abuse of people who, as children in the province’s care, suffered unspeakable abuse. . . . The RCMP have charged only one person with filing a false claim, but they are preparing to lay charges against hundreds of current and former government officials. . . . The man had been sent to Shelburne for breaking into a potato chip van and stealing a carton of chip bags. He was caught distributing them, one to a desk, in school. His punishment was months of physical and sexual assaults in reform school. . . . k) On October 12, 1997, RG-72 the bet and the big lie by Parker Barss Donham: “If you want to find the truth about what happened,” abuse lawyer William Leahey said in a telephone interview, “forget the lie detectors, forget the impaired memories, forget the amnesia that all these officers of the Crown are afflicted with. Go to the records, because they can’t deny them, and that’s what they are most afraid of.” “If these documents come to the light of day, it’s not going to serve any of the people who were in charge well,” Leahey said. “Their interest will be directly adversely affected because every one of those people stand at risk of being charged with criminal negligence causing bodily harm. That’s a real charge and a real risk.” . . . Flynn agreed with Leahey on one thing: the contents of the boxes demonstrate that former deputy minister F.R. MacKinnon was telling the truth when he testified earlier this year that he threw out nothing. MacKinnon saved everything from Christmas cards to candy wrappers. If there are smoking guns, they’ll likely be found in the boxes. . . . But it hasn’t lifted a finger to examine the one source of objective information on what actually happened. Leahey thinks he knows why. “When ... you bring the absolute truth out, all the facts in undeniable record format, people are going to go to jail - big shots - judges, ministers, ex-ministers, deputy ministers, they are all going to get charged.” . . . He’ll never take the bet. He knows the talk of widespread fraud is a big lie whose sole purpose is to get government off the hook. l) On January 17, 1998, Suicides likely to continue, lawyer says by Cathy Nicoll: . . . “It has to be recognized for what is was: gross evil, and it has to be stamped out. Every person that came in contact with this tragedy did not emerge from it without being injured in some way and that includes superintendents, the supervisors, the people up the ladder who were responsible for administering the law,” he said. “And it’s going to continue to go on - the suicides are going to continue to happen - unless there’s a big sea change on the part of the government in its attitude towards this whole affair.” Leahey said such attitudes also led to the Westray tragedy - inspector Albert McLean didn’t want to close the mine down because he’d get in trouble with the politicians who wanted it open. Only a few people in the Shelburne story did anything to show “they were ordinary human beings,” and only a few have admitted their roles.” . . . “Mr. Aucoin was one of the few people to come forward and admit the existence of the mafia. But, in the case of this mafia, the traitors end up shooting themselves,” said Leahey. “The pain, I’m sure, is absolutely tremendous and absolutely unbearable for people who do that.” . . . m) On January 17, 1998, Compensation review one-sided by Parker Barss Donham: . . . Salmon is a good man, but he was way over his head in this investigation. The result is a harmful report that has already encouraged those who demean, dismiss, and stigmatize claimants whose childhoods were defiled by the government-sponsored abuse. . . . He criticized independent file reviewers who gave “substantial weight to factors other than documentary evidence” - as if government- employed child molesters left detailed notes of their exploits on reform school logs. . . . Not being believed was one of the (sic) of the most insidious aspects of the abuse. Boys as young as 11 years old were taken hundreds of miles from their homes to be incarcerated, under guard, at a correctional facility where employees of the Nova Scotia government subjected many of them to the most repugnant forms of abuse an adult can visit upon a child. . . . n) An article on January 20, 1999, School abuse far from over, And it’s not just the government; now the media is joining in, too by Parker Barss Donham: . . . Transport a bunch of 10- to 16- year old children hundreds of miles from home and family, lock them in a reform school subject them to anal rape, forcible oral sex, routine beatings, and sundry molestations, and - surprise- some of them grow up to be less than model citizens. o) January 24, 1999, Chronicle Herald Joins Abuse by Parker Barss Donham: Funny, but Kingsclere and Mt. Cashell were HUGE stories in the Nova Scotia press. But except for the Daily News, the story of Shelburne — by far the largest abuse scandal to date in all of Canada - and the massive cover-up of the RG-72 documents has been a non-story for the local media. . . . p) An article, November 21, 1999, Fifth Estate loose with facts by Parker Barss Donham: . . . The program said only one guard has ever been convicted of sexual abuse. In fact, three have been convicted and a fourth was acquitted only when the Crown couldn’t be bothered to track down the three of his four female accusers who had left Shelburne by the time his trial took place. The program portrayed former Shelburne guards as so distraught over false allegations of abuse that two of them have committed suicide. It failed to reveal that one of those suicides occurred after the guard in question gave investigators a sworn, video-taped confession to the abuse of three boys. . . . MacIntyre said the RCMP are “nowhere near a point where they can lay criminal charges (against abusive guards) with any confidence of making them stick.” That may be true today, but it wasn’t true two weeks ago. The Mounties were preparing to lay charges early in the new year when officials of the Justice and Community Services Departments suddenly turned over 7,000 file cartons full of documents they had previously “overlooked”. . . . The Fifth Estate supported all these misstatements and half truths with cheap television techniques that helped viewers tell the good guys from the bad. Accused guards were shown tending their gardens or strolling arm in arm with loved ones along sandy beaches. Shelburne claimants were shown in freeze-frame, emerging from police vans, shouting obscenities. . . . q) An article Operation Hope by David Rodenhiser: To date, Operation Hope has found no evidence to support the doubts of cynics who say convicted criminals have concocted many of the abuse allegations in order to seek money from the provincial government’s compensation program. Brown said his team will lay charges of mischief against anyone intentionally making false complaints, but no one has yet been charged. (Last month, the Halifax RCMP commercial crime unit charged Robert Chauhan Burt, 23, of Summerside, P.E.I., with fraud over $5,000 for filing an allegedly false compensation claim for an injury he received at the Shelburne Youth Centre. Operation Hope was not involved in that case.) There are 14 investigators among Operation Hope’s 21 full-time staff members. Most have worked as plainclothes detectives, and all have previously investigated abuse cases. But no amount of experience could completely prepare them for the tales of perversion or sadism they have heard over the past 17 months. “I don’t want to get into details with regard to the types of abuse, but I can tell you that it has impacted on all of the investigators and staff at Operation Hope, with regards to some of the stories that we have heard,” Brown said. “We have true victims of abuse, in our opinion, who have suffered over many years and are continuing to feel the mental scars of what they’ve suffered.” While Brown declined to detail the abuse, his investigators would likely be dealing with the same complaints as victims’ lawyers. The lawyers described repeated anal rapes committed against boys as young as nine years old, and vicious beatings that caused broken bones and, in one case, dislodged a surgical steel plate from a boy’s skull. Meeting these victims in person, the scars, both physical and emotional, are readily evident. Dealing with such grim subject matter day-in and day-out exacts a toll on even the most veteran detectives. Brown said he has been in touch with an RCMP staff psychologist, and feels it would be appropriate for his investigators to speak to the psychologist periodically.