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1998 June 18                                                                                                                         
Kitakufe v Oloya (1998), 67 O.T.C. 315

Nature of Internet Publication:  Website posting

Other forms of expression also involved?  No.

Canadian court has jurisdiction simpliciter?  Yes

Canadian court should decline jurisdiction?   No

The Ontario Court of Justice (General Division) [since renamed the Ontario Superior Court of Justice] dismissed an application by the defendant to have the Court decline jurisdiction.

Both the plaintiff and the defendant in this case were of African descent, having been born in Uganda.  Both were living in Ontario, Canada when this defamation litigation was brought by the plaintiff over a newspaper article published in the Ugandan daily newspaper New Vision.  This was apparently similar to articles published by the Canadian media.

New Vision was republished on the Internet but was allegedly accessed only by two people in Ontario and they did not access the page where the article appeared.

The newspaper was not named as a defendant.

At his application to the Court to stay proceedings on the basis the action should have been brought in Uganda, the defendant argued unsuccessfully that the plaintiff was “forum shopping” by selecting Ontario. 

The plaintiff’s position, as described by the Court in its judgment, was “that the defendant defied a ban on publication made at the extradition hearing of the plaintiff, caused the article to be printed in Uganda and reported on the Internet and as a result, the plaintiff suffered harm.” 

Dismissing the defendant’s application to have the Ontario Court decline jurisdiction, the Court concluded that the injury to the plaintiff’s reputation occurred “in his community, which is Ontario”. 

It is not clear from the reasons for judgment, however, whether the court found that there was any publication of the news story in Ontario by the defendant, or any republication for which the defendant could be held legally responsible.  In fact, in its listing of the factors to be considered, the Court includes only the following ambiguous finding which is relevant to place of publication:  “The allegation is that the plaintiff’s reputation in Ontario has been affected and the tort was committed in Ontario.”  Perhaps this statement is intended by the Court as an indication that the defendant originally composed the written material in Ontario, before transmission to Uganda for publication; however, this is not stated clearly anywhere in the ruling.  In fact, the Court noted:

..I am also mindful of the defendant’s position that the alleged defamatory article was only published in Uganda and that access on the Internet was limited to two people in Ontario and only to parts of the newspaper other than the page where the article occurred.  The plaintiff will certainly have to prove the elements of his claim, including that there was, in fact, damage to his reputation and that his community was aware of the publication.”        

See McConchie and Potts, Canadian Libel and Slander Actions, “Forum Non Conveniens,” page 153.

This decision was referred to with apparent approval by the Supreme Court of Canada in its judgment in Society of Composers, Authors and Music Publishers of Canada v  Canadian Association of Internet Providers, 2004 SCC 45 (a copyright case)