The publisher of Frank Magazine failed to have a defamation claim dismissed after a Nova Scotia judge found it had not supplied the evidence needed to invoke a statutory notice defence on its summary judgment motion.
Justice Scott C. Norton denied the motion in Randell v. Hickory Wind Productions Inc., 2026 NSSC 293, delivering oral reasons in the Supreme Court of Nova Scotia on September 17, 2026.
The ruling does not decide whether the magazine defamed Gerry Randell. It also leaves open whether the notice provisions will ultimately defeat his claim or whether he may obtain relief from them.
A notice defence with an evidentiary prerequisite
Randell sued over an article published on November 6, 2025. He began the action in January 2026 and later amended his claim to name Hickory Wind Productions Inc., which operates Frank Magazine.
The publisher argued that Randell had not given the advance written notice required by section 18 of Nova Scotia’s Defamation Act before bringing the action. The parties agreed that Frank Magazine qualified as a newspaper under the statute.
Norton identified another provision that neither party had addressed in written submissions. Under section 23, a newspaper defendant cannot claim the benefit of the relevant statutory protections unless the proprietor’s and publisher’s names and the publication address appear conspicuously in the newspaper.
The publisher bore the burden of establishing that prerequisite. Norton found no evidence on the motion record that it had been met, and therefore held that the defendant could not rely on section 18 on this motion.
That was a failure of proof in the proceeding, not a finding that the actual magazine lacked the identifying information.
The notice question remains open
The publisher relied on an earlier trial decision in Butler v. Southam Inc. that treated notice as a precondition to an action. Randell pointed out that the decision had been overturned in part on appeal, with the appeal court recognizing discretion under the limitation legislation then in force to relieve against the notice requirements.
Norton noted that a new Limitation of Actions Act had taken effect in 2015 and governed Randell’s case. Neither side had addressed that legislation in its evidence or briefs.
Whether Randell could and should receive relief under the newer statute, and how far the earlier appeal decision’s reasoning remained applicable, were questions for future determination. The judge expressly kept the notice issue alive.
Norton also directed that Randell would need to seek an amendment removing the action from the Rule 57 procedure because of the jury requirement for defamation actions under the Judicature Act.
Because neither party had addressed the provision that decided the motion, the judge ordered costs in the cause rather than an immediate costs award to one side. The defamation claim survived this dismissal attempt without a decision on its merits.
