2012 April 18

Breeden v. Black, 2012 SCC 19, affirming 2010 ONCA 547

The Supreme Court of Canada unanimously held that the Ontario Superior Court has jurisdiction over libel claims by Conrad Black who alleges in six libel actions that certain statements issued by the defendants and posted on the website of Hollinger International, Inc. are defamatory and that the defendants had failed to prove that Illinois was a more appropriate forum than the Ontario court. “Lord Black alleges that the press releases and reports issued by the appellants [defendants] and posted on International’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 [not named as defendants]. He claims damages for injury to his reputation in Ontario.”

The Supreme Court of Canada rejected defence arguments that Black is a libel tourist and that in cases of transnational libel claims, the Court should be concerned with whether there is a real and substantial connection between the forum and the substance of the action. In this case, the appellants argued, the substance of the actions is American and both New York and Illinois are more appropriate forums for a libel trial. LeBel J., writing the judgment of the Court, stated: “The issue of assumption of jurisdiction is easily resolved in this case based on a presumptive connecting factor – the alleged commission of the tort of defamation in Ontario. It is well established in Canadian law that the tort of defamation occurs upon publication of a defamatory statement to a third party. In this case, publication occurred when the impugned statements were read, downloaded and republished in Ontario by three newspapers. It is also well established that every repetition or republication of a defamatory statement constitutes a new publication. …The original author of the statement may be held liable for republication where it was authorized by the author or where the republication is the natural and probable result of the original publication. …in my view, the republication in the three newspapers of statements contained in press releases issued by the appellants clearly falls within the scope of this rule. In the circumstances, the appellants have not displaced the presumption of jurisdiction that results from this connecting factor.”

In answer to defence arguments that Illinois was a more appropriate jurisdiction, the Court considered the relevant factors which are described in Club Resorts v Breda, 2012 SCC 17, noting that they have been codified in the a non-exhaustive list in the British Columbia Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, s. 11(2). Those factors include: “(a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum; (b) the law to be applied to issues in the proceeding; (c) the desirability of avoiding multiplicity of legal proceedings; (d) the desirability of avoiding conflicting decisions in different courts;(e) the enforcement of an eventual judgment; and (f) the fair and efficient working of the Canadian legal system as a whole.” The Court [at paragraph 25] also listed the factors most commonly considered by Quebec Courts in Club Resorts in connection with the issue of the most convenient forum.

LeBel J., noting that the BC statute does not provide for consideration of any factor corresponding to the advantage conferred upon the plaintiff by its choice of forum, stated that “juridical advantage not only is problematic as a matter of comity, but also as a practical matter, may not add very much to the jurisdictional analysis” and that “[j]uridical advantage … should not weigh too heavily” in the forum non conveniens analysis.