The Ontario Court of Appeal in reasons released on August 13, 2010, in Black v. Breeden, 2010 ONCA 547 ONCA 594 upheld the motion judge’s finding that “there was a real and substantial connection” between Black’s claim for Internet defamation and Ontario. As a result, Black can sue members of Hollinger International, a US company where Black was once the chairman and CEO, over statements published on the company’s website.
The Issue of Jurisdiction
The Court of Appeal applied the test for assumed jurisdiction as reformulated in Van Breda v. Village Resorts Limited (2010), 98 O.R. (3d) 721 (C.A.), leave to appeal to S.C.C. granted, [2010] S.C.C.A. No. 174.[1], which modified the Muscutt test.
First, the Court of Appeal decided that the connection identified in rule 17.02(g) is made out, i.e., the action was “in respect of a tort committed in Ontario”, and therefore, a real and substantial connection with Ontario is presumed to exist. To come to this conclusion, the Court found that the Defendants were “sophisticated businessmen who targeted the Canadian media and who reasonably foresaw the possibility that their conduct in posting the statements on the Internet would cause damage to Black’s reputation in Ontario”.
After that, the Court found that there is a real and substantial connection between Black’s claim and Ontario because “Black’s claims relate to statements published in Ontario and his suits are limited to his reputation in Ontario,…it would be unfair to deprive him of a trial before the community in which his reputation has been damaged.” The Court also found it was “perfectly legitimate” for Black to take advantage of Ontario laws, because “a judgment would have significant value to Black as a vindication of his Ontario reputation”, “even if the Ontario judgment is unenforceable in the United States”.
Finally, the Court exercised judicial discretion on forum non conveniens. The Court found that Ontario is a convenient and appropriate forum because “[a]lthough nine of the eleven parties were located in the United States, they were spread across six jurisdictions. No matter where the trial was held, most parties would have to travel to attend”.
The Issue of Internet Libel
The defendants advocated a “targeting analysis” to a claim for libel originating on the Internet, which suggested that the focus of the analysis of where the tort of Internet libel is committed should be on whether the defendant targeted the statements to the forum rather than where they were downloaded and read.
The Court of Appeal found it unnecessary to resolve this issue on the facts of this case. The Court stated that in Bangoura v. Washington Post (2005), 258 D.L.R. (4th) 341 (Ont. C.A.), the interveners representing the Media Coalition proposed such an alternative approach, but the Court of Appeal did not find it necessary to determine the issue.
However, the Court found there is evidence that the defendants did target and direct their statements to this jurisdiction because “[t]he press releases posted on the Internet specifically provide contact information for Canadian media… [t]he press releases concluded with the heading “Contacts” for “US/Canada Media” followed by a name and contact information…[t]he contact information for Canadian media clearly anticipated that the statements would be read by a Canadian audience and invited Canadian media to respond”. For these reasons, the Court concluded that the alleged defamation was committed in Ontario.
The defendants also argued that in the context of the Internet, downloading was merely the “completion” of the tort, suggesting that the tort could be committed in more than one jurisdiction. They suggested that where a tort can be committed in more than one jurisdiction, the Court should create an exception to the presumption of real and substantial connection.
The Court, however, refused to create a new exception in order to address principles of fairness and order or jurisdictional restraint.
Citation: Black v. Breeden, 2010 ONCA 547 ONCA 594
Van Breda v. Village Resorts Limited (2010), 98 O.R. (3d) 721 (C.A.)
Bangoura v. Washington Post (2005), 258 D.L.R. (4th) 341 (Ont. C.A.)
[1] In Van Breda the Court of Appeal clarified the distinction between legal jurisdiction simpliciter and the discretionary test for forum non conveniens and summarized the refined test as a three-staged one:
I. Stage one: the court should determine whether the claim falls under rule 17.02 (excepting subrules (h) and (o)) to determine whether a real and substantial connection with Ontario is presumed to exist. If one of the connections identified in rule 17.02 (excepting subrules (h) and (o)) is made out, the defendant bears the burden of showing that a real and substantial connection does not exist. If one of those connections is not made out, the burden falls on the plaintiff to demonstrate that, in the particular circumstances of the case, the real and substantial connection test is met.
II. Stage two: jurisdiction simpliciter – the real and substantial connection test
(i) the core of the test: the connection between Ontario and the plaintiff’s claim and the defendant, respectively;
(ii) the fairness of assuming or refusing jurisdiction;
(iii) the involvement of other parties to the suit (only relevant in cases where that is asserted as a possible connecting factor and in relation to avoiding a multiplicity of proceedings under forum non conveniens);
(iv) the court’s willingness to recognize and enforce an extraprovincial judgment rendered on the same jurisdictional basis;
(v) whether the case is interprovincial or international in nature; and
(vi) Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere
III. Stage three: Forum non convenience test
(i) the forum non conveniens factors have no bearing on real and substantial connection and, therefore, should only be considered after it has been determined that there is a real and substantial connection and that jurisdiction simpliciter has been established; and
(ii) where there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to assume jurisdiction.
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