Wiebe v Bouchard, 2005 BCSC 47

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2005 January 14

Alleged Cyber Libel: Website posting

Non-Internet Defamation Also Alleged: Yes – printed matter

Canadian court has jurisdiction? Yes

Canadian court should decline jurisdiction? No

Summary

The British Columbia Supreme Court ruled that it has jurisdiction to hear a defamation claim “based on information which was placed on a website by the Government of Canada and the Minister Responsible for the Status of Women Canada …which in turn, was a translation of a report prepared by the defendant Bouchard [a professor at Laval University, Québec] with the assistance of the defendants Boily and Proulx …”

Paper copies of the report were also available in the main library public library in Victoria, British Columbia.

The Court also concluded that it is the appropriate forum to hear the plaintiff’s action.

The Alleged Defamation

The plaintiff, a British Columbia resident, alleged the Québec academic’s report defamed him in its criticism of the “B.C. Fathers Website,” which the Court discussed as follows [at paras 5 and 6}:

In pursuance of her research goals, the defendant Bouchard became aware of an entire network of “Internet sites dealing with men’s and father’s causes”. She deposed that this discovery revealed a social phenomenon “very much unknown to both the Quebec mainstream and the province’s scientific community”.

As a result of this research, she located the B.C. Father’s Website, and the heading “Why don’t we call it femi-Nazism which purported, according to the defendant Bouchard, to list thirty alleged similarities between feminism and early Nazism. In addition, the website displayed a swastika with extra bars to each of the four branches of the swastika which might be construed as the initials “F”. …

The Court noted that Bouchard’s criticism of the” B.C. Father’s Website” and the language used in the course of that criticism is the basis upon which the plaintiff alleges he has been defamed and his reputation in the Province of British Columbia damaged.

The individual defendants Boily and Proulx were research assistants who were involved in the preparation of the Bouchard report.

Bouchard’s motion to dismiss on jurisdictional grounds

Bouchard, Boily and Proulx sought an order that the Court does not have jurisdiction to hear the action, or alternatively, an order that the Court decline jurisdiction on the basis the British Columbia Supreme Court is not the forum conveniens.

The defendants Government of Canada and The Minister Responsible for the Status of Women Canada took no position on the application except to say the action should not be divided into two parts; one involving a trial in British Columbia of the government defendants; the other involving a trial in Québec of the individual defendants.

Jurisdiction simpliciter

The Court considered that it was relevant to the existence of jurisdiction that “the topics discussed [in the report] were of national, and perhaps international importance…It was a report prepared for the Status of Women Canada and the Government of Canada” and that it had been placed on the Government of Canada website “for the benefit of all Canadians.”

As to the place of publication, the Court stated [at para 21] that in the case before it, “the alleged offending words were published nationwide.”

Note: It is unclear from the Reasons for Judgment of this Court what evidence supported this conclusion. Did the Court assume that simply placing material on the Website constituted publication? There is no express finding in the judgment, for example, that anyone in British Columbia or anyone in each of the other provinces accessed and read the report. The discussion of the pertinent jurisprudence concerning jurisdiction in matters of cyber libel is sparse. For example, nothing is said in this judgment about Dow Jones & Co. v Gutnick, [2002] H.C.A. 56 or any of the recent British or Canadian decisions which have considered and applied the proposition that publication occurs in the jurisdiction where the allegedly defamatory expression is read and comprehended. The only Canadian Internet decision cited by the Court is Braintech, inc. v Kostiuk, (1999), 171 D.L.R. (4^th) 46 (CA), which concerned enforcement of a foreign judgment.

Forum conveniens

The Court noted that British Columbia’s common law differs from the law of Quebec, which is governed by the Quebec Civil Code., referring in this regard to Prud’homme v Prud’homme (2002), 221 D.L.R. (4^th) 115 (SCC).

In part because Bouchard herself agreed that the subject matter of her report was of national and international importance, the Court concluded that British Columbia law should govern and the British Columbia Court was therefore the appropriate jurisdiction. The Court stated [at para 33]:

…The personal defendants, as well as any other witnesses they wish to call, are able to come to British Columbia on their own behalf, or at the behest of the corporate defendants, to testify as to the socio-economic conditions in the Province of Quebec, and what impact, if any, the article would have in that community in terms of fair comment. Nevertheless, in my view, the defence of fair comment must relate to the actions of the personal defendants at the location where the alleged defamatory material was published and where it created the harm. In other words, British Columbia. The court should be addressing the issue as to whether or not the content of the report, insofar as it contains alleged defamatory language, is such that the defence of fair comment would be applicable to the offending language in the Province of British Columbia.

Although the Court does not advert in its Reason for Judgment to Imagis Technologies v Red Herring et al, 2003 BCSC 366, similar reasoning was employed in Imagis where the Court rejected defence submissions that a plaintiff should be obliged to sue in a jurisdiction that has a connection to the cause of action where the law may be most favourable to the defendants.

See McConchie and Potts, Canadian Libel and Slander Actions, “Where did the wrong take place?” - page 156.

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