Supreme Court of Canada clarifies test for internet defamation jurisdiction.
Wednesday, June 06, 2018 - Filed in: Court Cases
"G is a prominent Canadian businessman who also owns one of the most popular professional soccer teams in Israel. H is Israel’s oldest daily newspaper, which is published in print and online. H published an article about G, which the latter alleges to be libellous. The main subject of the article is G’s ownership and management of his Israeli soccer team, but the article also references his Canadian business and his approach to management. While the article was not distributed in print form in Canada, it was available electronically. G commenced an action for libel in Ontario, alleging damage to his reputation. H brought a motion to stay the action, arguing that Ontario courts lacked jurisdiction or, alternatively, that Israel was a clearly more appropriate forum. The motion judge dismissed H’s motion, finding that Ontario courts had jurisdiction and refusing to decline to exercise this jurisdiction in favour of Israeli courts. A majority of the Ontario Court of Appeal dismissed H’s appeal."
The S.C.C. held (6:3, with 3 judges writing separate individual concurring reasons) that the appeal is allowed and the motion to stay the action granted.
Justice Côté wrote as follows (at paras. 2-3, 43-44, 95-97):
"For the reasons set out below, I find that the current rules are able to address these challenges so long as the underlying principles of stability and fairness are kept in mind.
While the motion judge in this case properly determined that he had jurisdiction (under the jurisdiction simpliciter test), he committed multiple errors in his forum non conveniens analysis. On a robust and careful assessment of the relevant factors tainted by these errors, I conclude that Israel is a clearly more appropriate forum for this claim to be heard.
In order for a defendant to succeed in showing that “a given connection is inappropriate in the circumstances of the case”, the circumstances must demonstrate that the relationship between the forum and the subject matter of the litigation is such that it would “not be reasonable to expect that the defendant would be called to answer proceedings in that jurisdiction” (Van Breda, at paras. 81 and 97; see also para. 92). To satisfy this test, the party challenging the court’s jurisdiction should rely on factors other than those considered at the forum non conveniens stage: “. . . the factors that would justify a stay in the forum non conveniens analysis should not be worked into the jurisdiction simpliciter analysis . . .” (Van Breda, at para. 56).
Assuming that these principles are properly applied, the situs of the tort will not give rise to an irrebuttable presumption of jurisdiction in Internet defamation cases. While it is not appropriate to propose an exhaustive list of factors that can rebut the presumption of jurisdiction in these types of cases, it is not difficult to imagine circumstances in which it would not be reasonable to expect that the defendant would be called to answer a legal proceeding in a chosen forum. For example, evidence that a plaintiff has no reputation in the chosen forum may be a factor tending to rebut the presumption of jurisdiction in a defamation action. As the protection of reputation is the primary purpose of defamation law (Banro, at paras. 57-58), absence of reputation would tend to point to a weak relationship between the forum and the subject matter of the litigation. Indeed, this Court, in Banro, relied in part on the plaintiff’s reputation in the chosen forum to conclude that it would be inappropriate to find that the presumption of jurisdiction had been rebutted in the circumstances of that case (para. 38).
A robust and careful forum non conveniens analysis indicates that Haaretz would face substantial unfairness and inefficiency if a trial were held in Ontario. Goldhar’s interest in vindicating his reputation in Ontario fails to outweigh these concerns.
A summary of my conclusions on each of the above elements of the forum non conveniens analysis is as follows:
(1) Comparative Convenience and Expense for the Parties favours Israel;
(2) Comparative Convenience and Expense for the Witnesses heavily favours Israel;
(3) Loss of Legitimate Juridical Advantage, while favouring Ontario, should not weigh heavily in the analysis;
(4) Fairness favours Israel;
(5) Enforcement slightly favours Israel; and
(6) Applicable law, while favouring Ontario, should be given little weight.
Haaretz has established that holding a trial in Israel would be fairer and more efficient. Israel is clearly the more appropriate forum."
Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.