Arnie Lemaire is Behind Blazing Cat Fur?

By: Omar Ha-Redeye · April 26, 2010 · Filed Under Media Law, Technology · 11 Comments 

The issue of blogger anonymity is a contentious one that is being closely watched by members of the bar.  Canada does have a more qualified understanding of the freedom of speech, and after the emergence of the responsible journalism defence in Quan v. Cusson and Grant v. Torstar Corp we’re likely to to see the courts enter this foray as well.

So what happens when a notoriously anonymous and irresponsible blogger is identified?  We may just find out with the recent revelation that the author behind Blazing Cat Fur is allegedly an individual named Arnie Lemaire.

The site is a case study of exactly what not to do with online political commentary, with plenty of potentially libelous statements and speculative conclusions. In fact the site seems to specifically seek to target individuals and comment on them personally.

The Limitations Act states,

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[emphasis added]

Anonymity in this context is frequently used to shield the blogger from potential litigation by avoiding identification of authorship.  Although there are mechanisms to identify authorship, they can be tricky and are still developing.

With the revelation of authorship behind these statements, a new limitations period may have started for statements made on the site if relying on 5.(1)(b).  They may still have to rebut the presumption in 5(2),

Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[emphasis added]

Depending on the cause of action, the appropriate limitation might be found under the Libel and Slander Act,

Limitation of action

6. An action for a libel in a newspaper or in a broadcast shall be commenced within three months after the libel has come to the knowledge of the person defamed, but, where such an action is brought within that period, the action may include a claim for any other libel against the plaintiff by the defendant in the same newspaper or the same broadcasting station within a period of one year before the commencement of the action.
[emphasis added]

Alternatively, a plaintiff could try to rely on the special circumstances indicated in Mazzuca v. Silvercreek Pharmacy Ltd.,

[32]         Thus, as a general rule, amendments to pleadings which had the effect of relieving against a limitation period, were not allowed.  This did not mean, however, that in every case such amendments were to be denied.

[33]         The exception to the general rule, which contemplated the allowing of an amendment in a proper case notwithstanding the intervention of a limitation period, was expressly recognized by the Supreme Court of Canada in Basarsky v. Quinlan, supra, in which Hall J. observed at 385:

“The adjective ‘peculiar’ in the context of Lord Esher, M.R.’s judgment and at the date thereof may be equated with ‘special’ in current usage”.

This decision, and the undertaking of a special circumstances analysis, have been followed in numerous subsequent cases.  In some instances this has occurred in the context of the operation of particular limitation periods where special considerations may apply, or legislative regimes which expressly provide for the extension of time periods established by statute.  In other cases, the analysis of special circumstances has been undertaken when a change of parties is sought, as a discretionary matter, under the rules.

So will this unveiling lead to any litigation?  We’ll have to see, but it will be interesting to find out.

Arnie Lemaire of Blazing Cat Fur

Arnie Lemaire of Blazing Cat Fur with his camera. He likes to take photos of random people and place them on his site, so here is the favour returned.