In this new article Siskinds Associate Mike Polvere takes an in depth look at the issue of cross border litigation and defamation. He discusses how the courts go about choosing the best jurisdiction to hear the matter. Is it prudent to start a libel action in Canada if the person who defamed you resides in the U.S or elsewhere? Where do you start an action when you feel you have been defamed on the Internet? The issues regarding where to commence a defamation action have become more complicated with the advent of web-postings, on-line bloggers and the multitude of forums and social media in which anyone in the world can make and post defamatory comments about you.
The Supreme Court of Canada attempted to clarify and provide guidance regarding this issue earlier this year when it released, on the same day, three companion decisions all written by Justice LeBel for the court – one of which was the decision of Black v. Breeden, 2012 SCC 19.
In that case, Conrad Black sued directors, advisors and a vice-president of Hollinger International Inc. for what he claimed were defamatory statements posted on Hollinger’s website. Mr. Black filed six actions in the Ontario Superior Court of Justice against an amalgam of 10 Defendants – with one Defendant residing in Israel, eight in the U.S. and one who lived in Ontario. Mr. Black alleged that the press releases and reports issued by the Defendants and posted on the company’s website contained defamatory statements that were downloaded, read and republished in Ontario by the Globe and Mail, the Toronto Star and the National Post. It should be noted that the Canadian newspapers were not Defendants to any of Mr. Black’s Ontario actions. Therefore, the obvious question raised by the Defendants he did sue was, “Why are we being sued in Ontario?”
As a result, the Defendants brought a motion to stay the proceedings in this province – effectively asking the court to post-pone or halt the proceedings. The Defendants argued that the Ontario Superior Court of Justice should decline to assume jurisdiction over the lawsuits because they are “essentially American in substance or, alternatively, because the Illinois court is a more appropriate forum” for them to be heard.
In Black v. Breeden, LeBel J. refreshed the tests to be applied to resolve the two legal issues which arose – i) jurisdiction simpliciter and ii) forum non conveniens. In non-legalese, that means the court had to consider i) whether the Ontario court may properly assume jurisdiction over the libel actions started by Mr. Black and ii) whether, nonetheless, the Ontario court should decline to exercise jurisdiction on the ground that a court of another jurisdiction is clearly a more appropriate forum for the hearing of the actions.
In order to determine whether the Ontario court could properly assume jurisdiction over these libel actions the court had to find that there was a “real and substantial connection” between Ontario and the libel actions. The framework for the assumption of jurisdiction was set out by the Supreme Court of Canada in one of the companion decisions, Van Breda v. Village Resorts 2012 SCC 17. In Van Breda, LeBel J. outlined four presumptive “connecting factors” which, the presence of one or more of them, would establish a “real and substantial connection” between the dispute and the territory and entitle a province’s court to assume jurisdiction of a tort-based lawsuit – 1) the defendant is domiciled or resident in the province 2) the defendant carries on business in the province 3) the tort was committed in the province and 4) a contract connected with the dispute was made in the province.
In Banro Corp. v. Éditions Écosociété Inc. 2012 SCC 18, the third companion decision, LeBel J. stated: “…the tort of defamation occurs upon the publication to a third party – that is, when the alleged defamatory material is read or downloaded by someone other than the plaintiff or publisher” and “the evidentiary standard for proving a publication remains the traditional common law standard, according to which a single instance of publication is sufficient for the tort to crystallize.”
Keeping in mind how and when the tort of defamation occurs as enunciated in Banro and the connecting factors from Van Breda, for the purpose of determining Ontario’s jurisdiction in Mr. Black’s case, LeBel J. wrote:
Based on the above analysis, not surprisingly, the court found that the alleged commission of the tort of defamation occurring in Ontario was a presumptive connecting factor to this jurisdiction and established a real and substantial connection between Ontario and Mr. Black’s actions.
However, even if it could legally assume jurisdiction, LeBel J. then moved on to consider whether the Ontario court should nonetheless refuse to exercise jurisdiction over Mr. Black’s proceedings because Illinois was clearly a more suitable forum for the cases.
With respect to this second issue, forum non conveniens, the Supreme Court of Canada reviewed a non-exhaustive list of factors to consider; both codified and in common law. LeBel J. considered the comparative convenience and expense for the parties and witnesses, the applicable law, the avoidance of a multiplicity of proceedings and conflicting decisions, the enforcement of an eventual judgment and fairness to the parties. Not all of the evidence associated with these factors panned out in favour of Mr. Black keeping his defamation actions in Toronto, however, the “analysis does not require that all factors point to a single forum or involve a simple numerical tallying up of relevant factors.” The Defendants had the burden to show that Illinois was clearly more appropriate and they did not do so in this case.
One should also take note of the comments from LeBel J. in Black v. Breeden which emphasized “the importance of permitting a plaintiff to sue for defamation in the locality where he enjoys his reputation…” In the end, the Supreme Court of Canada allowed Mr. Black to continue to pursue his libel actions in Ontario.
These decisions on jurisdiction by the Supreme Court of Canada will not automatically stand for the proposition that all Internet libels against Ontario residents will be properly actionable within this province; however, LeBel J. does provide a roadmap for pursuing the best strategy for an Ontarian to clear his or her name in the face of Internet-based defamatory comments.