Cyber Libel Updates

Canadian Internet Defamation Rulings

Jurisdiction

Cases published to July 1, 2018
Basic principles

The basic principle applied by Canadian courts is that a court may exercise jurisdiction only if it has a “real and substantial connection” with the subject matter of the litigation. See McConchie and Potts, Canadian Libel and Slander Actions, “The Provincial Superior Courts and Conflicts of Laws,” pages 144-159.

Forum conveniens

Even if a Canadian court has jurisdiction, it may decline to hear the case if it concludes that the court of some other jurisdiction is more convenient and appropriate for the pursuit of the action and for securing the ends of justice. See McConchie and Potts, Canadian Libel and Slander Actions, “The Provincial Superior Courts and Conflicts of Laws,” “Forum Non Conveniens,” page 152.

British Columbia

In British Columbia, issues of jurisdiction are now governed by the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, chapter 28. This statute substantially codifies the common law but litigants and their legal counsel should give its provisions close consideration.

Click on a Case Name for full text (links off site).

2018 June 6
Haaretz.com v Goldhar, 2018 SCC 28

The Supreme Court of Canada ruled that the Ontario Superior Court correctly determined that it had jurisdiction over a multi-jurisdictional Internet defamation claim but that Israel was the more appropriate forum for this particular claim to be heard.  In this case, the plaintiff is a prominent Canadian businessman who owns a business in Ontario and also owns one of the most popular professional soccer teams in Israel.  He is also described as a celebrity in Israel, maintains a residence there and travels there every few months.  The corporate defendants publish the oldest daily newspaper in Israel, both in print and online.  The main subject of the allegedly defamatory newspaper article concerns the management by the plaintiff of the Israel soccer team, but it also referenced his Canadian business and approach to management.  The evidence showed it likely that 200 to 300 people in Canada read the article, but that approximately 70,000 people read the article in Israel.

Cote J. (Brown and Rowe JJ concurring) noted that in Internet defamation cases there are two issues relating to jurisdiction;

  1. Whether the Canadian court has jurisdiction simpliciter.
  2. If the Canadian court has jurisdiction, whether a foreign court is a more convenient jurisdiction (forum conveniens).

Referring to the Court’s prior decision in Club Resorts Ltd. v Van Breda, 2012 SCC 17, Cote noted that it had decided to prioritize order and predictability at the jurisdiction simpliciter stage.  The constitutional purpose of the jurisdiction simpliciter test is to establish a minimum threshold for the assumption of jurisdiction in order to prevent improper assumptions of jurisdiction.  Its objective is to delineate circumstances in which a court has jurisdiction, not circumstances in which it should exercise it (which is the purpose of forum conveniens).

In Van Breda, the Supreme Court of Canada stressed the importance of determining jurisdiction on the basis of objective factors establishing a relationship between the subject matter of the litigation and the chosen forum.  The presumptive connecting factors grounding a court’s assumption of jurisdiction include the following: (a) the defendant is domiciled or resident in the province; (b) the defendant carries on business in the province; (c) the tort was committed in the province; and (d) a contract connected with the dispute was made in the province.

Cote J. noted that the tort of defamation, which is a tort of strict liability, is committed where material has been communicated to, that is conveyed to, and received by, at least one person other than the plaintiff.  A single instance of publication is sufficient for the tort to crystallize.  In the case of Internet communications, the publication of defamatory statements occurs when they are read and downloaded by the recipient.  Accordingly, the situs of Internet-based defamation is the place where the defamatory statements are read, accessed or downloaded by the third party.  In this case, the Court found there was publication in Ontario.  “Raising doubts as to the value of the situs of the tort as a presumptive connecting factor would significantly undermine the above-noted objectives of predictability and order at the jurisdiction simpliciter stage.  Indeed, courts should be cautious in carving out exceptions to the conflicts rules.”

Cote held nevertheless held that the situs of the tort will not give rise to an irrebuttable presumption of jurisdiction in Internet defamation cases.  For example, evidence that a plaintiff has no reputation in the chosen forum may be a factor tending to rebut the presumption of jurisdiction in a defamation action.  However, where a plaintiff enjoys a reputation in multiple forums, publication may allow jurisdiction to be properly assumed in all of them, without regard to how fair or efficient it may be to proceed in the chosen forum.

At the forum conveniens stage, the burden is on the defendant to prove that the alternative forum is clearly more appropriate by establishing that it would be fairer and more efficient to proceed in that forum.  In this case, Cote J. held that the motion judge erred by failing to consider the plaintiffs’ significant reputation in Israel.  “While the motion judge correctly found that there ‘is no surprise or injustice to the plaintiff’s attempt to vindicate his reputation in Ontario where he lives and works’ … the plaintiff would suffer no significant unfairness by having to bring a libel claim in Israel for comments that were written and researched in Israel and that pertain primarily to his reputation and business in that jurisdiction.”

Karakatsanis J., in concurring reasons, agreed with Cote J’s reasoning concerning jurisdiction simpliciter but disagreed with aspects of the forum non conveniens analysis.  “In my view, [the plaintiff’s] Israeli reputation is not material to this factor, which is concerned with the plaintiff’s reputation in vindicating his reputation in the jurisdiction where he enjoys it.”

Abella J., in concurring reasons, noted that the basis for choice of law in Canada is lex loci delicti, that is, where the tort occurred.  “In the case of internet defamation, therefore, a single download can determine which law applies.  …[T]his gives a plaintiff in Ontario an almost automatic entitlement to having an Ontario court assume jurisdiction over, and apply Ontario law to, an Internet defamation claim, regardless of the strength of connection to Ontario.” “I agree that the standard framework for choice of law should be modified in a way that incorporates ‘most substantial harm to reputation’”.  This new approach would displace the law of the place of publication of the defamation with the law of the place with the most significant connection to the tort.  In the case of Internet defamation, that will be the place where the plaintiff suffered the greatest harm to his or her reputation.”  “In my view, while not strictly necessary to decide in this case, going forward it is worth considering whether the same approach should be applied to determining jurisdiction as the one I propose for choice of law.”

With respect to determining jurisdiction, Abella J. noted that whether the strength of the connection is sufficiently strong for a court to exercise authority over the claim “is based on whether one of the four presumptive, rebuttable connecting factors set out in Van Breda is present.”

Wagner J. in concurring reasons, agreed with Abella J. that the court should modify the choice of law rule for the tort of Internet defamation from lex loci delicti to a test based on the place where the most substantial harm to the plaintiff’s reputation occurred.  However, Wagner J would adopt the new test solely for choice of law purposes, which will make it merely one among a range of factors considered during the forum conveniens analysis. “I cannot agree with an approach whereby a Canadian court would conclude that it does not have jurisdiction over a dispute with significant connections to Canada, including potentially significant reputational harm suffered in Canada, simply because greater reputational harm occurred elsewhere.”  Wagner J. envisaged that in cases where another forum is not clearly more appropriate than the Canadian forum, the Canadian court will nonetheless apply the law of that other forum where greater reputational harm occurred. Wagner J. also stated: “It is entirely consistent with [Van Breda] for Canadian courts to find the presumption of jurisdiction rebutted where there are not connections between the plaintiff and the Canadian forum beyond a small number of acts of publication.”

In dissenting reasons, Chief Justice McLachlin and Moldaver and Gascon JJ. would have dismissed an appeal from the findings of the courts below that Ontario was a convenient forum.  “A motion judge’s discretionary decision whether or not to decline jurisdiction on the basis of forum non conveniens is entitled to considerable deference on appeal.”  “[W]e agreed with the majority in the Court of Appeal that the two errors he made were not significant to the overall conclusion on forum non conveniens.”  “Despite the views of the dissenting judge in the Court of Appeal and of our colleagues Justices Abella and Wagner, we consider it both unwise and unnecessary for this Court to adopt the place of most substantial harm rule for our reasons:  it does not point predictably to one jurisdiction, it would lead to complex preliminary motions, it received only limited support in the Canadian academic literature and jurisprudence, and its adoption in Australia is an insufficient basis for overhauling our own law in this area.” “Admittedly, it would not be unreasonable to hold a trial to settle this dispute in Israel.  But that is not the point.  Ontario courts have jurisdiction.  Following the forum non conveniens analysis, Israel has not emerged as a forum that would be more appropriate than Ontario to hear the case, much less a clearly more appropriate forum.”

 

2017 August 31
Demers v Yahoo! Inc., 2017 QCCS 4154

The Quebec Superior Court dismissed an application by the defendants Yahoo! Inc. and Yahoo! Canada Inc. to decline jurisdiction over an application by Demers to bring a class action on behalf of a proposed class of persons residing in Quebec who alleged their personal and financial information was allegedly lost by or stolen from the defendants.  The Court referred to Douez v Facebook, Inc., 2017 SCC 33, where the Supreme Court of Canada applied common law tests and found that a contract between Facebook users and Facebook, Inc. was a consumer contract and that a choice of forum clause favoring Facebook was not enforceable against Facebook users.  Although the Quebec Superior Court recognized there were distinctions between the Demers case and the Douez case, it concluded that the relationship in Demers was a consumer contract of adhesion.  Applying Quebec legislation, the Court held that the waiver of Quebec jurisdiction did not apply to deprive Demers of the right to seek certification of a class action in Quebec.  The Court found there was a jurisdictional connection to Quebec because the allegation of damages stemming from mental distress were sufficient to satisfy the requirements of the Civil Code of Quebec that damages were suffered in Quebec.

2017 June 28
Google Inc. v Equustek Solutions Inc, 2017 SCC 34

In this intellectual property case, the Supreme Court of Canada dismissed an appeal from lower court orders granting the plaintiff an interlocutory injunction requiring Google “pending a trial, to globally de-index the websites of a company which, in breach of several court orders, was using those websites to unlawfully sell the intellectual property of another company.”    The Court rejected the argument that non-parties cannot be the subject of an interlocutory injunction, citing MacMillan Bloedel Ltd. v Simpson, [1996] 2 SCR 1048, which held that non-parties are bound by injunctions and are subject to conviction and punishment for contempt of court if they violate them.  “The courts have jurisdiction to grant interim injunctions which all people, on pain of contempt, must obey.”  The Supreme Court of Canada noted that Norwich disclosure orders are analogous and may be ordered against non-parties who are not themselves guilty of wrongdoing, but who are so involved in the wrongful acts of others that they facilitate the harm. “This approach was applied in [Cartier International AG v British Sky Broadcasting Ltd., [2017], 1 All. E.R. 700 (C.A.), at para. 53] where the Court of Appeal of England and Wales held that injunctive relief could be awarded against five non-party internet service providers who had not engaged in, and were  not accused of any wrongful act.  The internet service providers were ordered to block the ability of their customers to access certain websites in order to avoid facilitating infringements of the plaintiff’s trademarks.”

The Supreme Court of Canada also rejected Google’s argument that an interlocutory injunction with extraterritorial effect is improper; i.e. that any injunction issued should be limited to Canada or google.ca.  “When a court has in personam jurisdiction, and where it is necessary to ensure the injunction’s effectiveness, it can grant an injunction restraining that person’s conduct anywhere in the world.”  “The problem in this case is occurring online and globally.  The internet has no borders – its natural habitat is global.  The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates – globally.” “If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the injunction accordingly.

2017 April 17
Procam International inc. c Matson Logistics inc., 2017 QCCS 1280

The Quebec Superior Court dismissed a defamation action by the plaintiff concerning statements posted by the defendant on an industry website which criticized the plaintiff’s performance of certain contractual obligations.  A clause in that contract gave exclusive jurisdiction to the federal or state court of California in any action brought under the contract.  The Quebec Superior Court reasoned that because the determination of the truth or falsity of the allegedly defamatory expression turned on the correct interpretation of  the contract, the courts of California had exclusive jurisdiction over the defamation claim.

2016 June 28
Goldhar v Haaretz.com, 2016 ONCA 515, leave to appeal to the Supreme Court of Canada granted: [2016] S.C.C.A. No. 388.

The Ontario Court of Appeal dismissed an appeal from 2015 ONSC 1128 and held that an internet libel action based on a newspaper article uploaded in Israel to the defendant newspaper’s Hebrew and English-language websites can and should proceed in Ontario. The appellate court noted that the motion judge in the court below found that the article came to the attention of many of the people in the plaintiff’s Toronto office and that it is likely that 200-300 people read the article online. The plaintiff specifically limited his claim to damages for reputational harm suffered in Canada and agree in advance to pay the travel and accommodation expenses for the defendant newspaper’s witnesses.

The Court of Appeal rejected defence arguments this was a case of “libel tourism,” noting that the impugned article put the plaintiff’s Canadian connection “front and centre by acknowledging that he is a long distance operator and spends most of his time in Canada and by asserting that he imported his management model for [a Tel Aviv football club] from his main business interest, his Canadian shopping centre partnership.” The appeal court held that the article made the plaintiff’s management model and its Canadian origins an “integral part” of the alleged sting of the newspaper article.

With respect to the defence argument that Israel was a more convenient forum, the Court of Appeal held that the motions judge was entitled to find that reluctant foreign witnesses “could be compelled to provide evidence in Israel through the use of letters of request (issued by the Ontario Court to the foreign court] and that videoconferencing was a potential means of obtaining the evidence of any witnesses unwilling to come to Ontario.

2016 March 29
Watts v Chun, 2016 ONSC 1586

The Ontario Superior Court of Justice granted an application to permanently stay this lawsuit on the basis it was an abuse of process because the plaintiff’s parallel Korean lawsuit over the allegedly defamatory emails and blog postings had been dismissed by the Jeju Regional Court in Korea as a result of the plaintiff’s failure to comply with a Korean court order requiring him to post security for the defendant’s costs. The Ontario court held that a “decision of the [Korean] court with jurisdiction dismissing an action is a decision on the merits” and there was no reason why the Ontario court should refuse to enforce the Korean court’s judgment.

2016 March 14
Sciquest Inc. v Hansen, 2016 ONSC 1488

The Ontario Superior Court of Justice held that Ontario had jurisdiction over a defamation lawsuit based on 18 blog posts or articles posted by the defendant on WordPress.com between August 2014 and November 2015 and “disseminated on [the defendant’s] Twitter page or by way of a link to the full blog post.” The court noted: “It appears that in 2015, [the blog] was viewed over 105,000 times by users in over 160 jurisdictions” and that “10,588 of those viewers or readers were located in Canada.” “One can readily infer that many of those are in Ontario.” The Court also found that each of the articles was sent to the “Twitter feeds” of 355 followers located in Ontario. Further, in 7 cases, somebody in Ottawa, Ontario “re-tweeted” other Twitter users. On this basis, including the fact that Sciquest had a business presence, customers and a reputation in Ontario, the test for jurisdiction of the Ontario court had been satisfied. The Court also rejected defence arguments that the plaintiff’s lawsuit in Ontario constituted “libel tourism.

2015 August 5
Gestion Yanik Guillemette Inc. v Les Ecrans Verts Inc., 2015 QCCS 3594

The Quebec Superior Court, District of Quebec, dismissed an application by the defence for a change of venue in a defamation action which related in part to an email sent by the defendant to a customer of the plaintiffs in Quebec (City) and the publication of a legal notice. The District of Quebec was the appropriate venue, because that is where the damages to the plaintiffs’ commercial reputation would have occurred.

2015 June 29
Martell v Canada (Attorney General), 2015 PESC No. 23

The Prince Edward Island Supreme Court dismissed an application by the defendants to strike out a defamation claim relating to an internal RCMP email sent in April , 2011 from the plaintiff’s former RCMP supervisor to other RCMP staff concerning her admission to the secure area of the Spruce Grove, Alberta detachment. The Court held, however, that the appropriate forum to litigate the defamation claim was in the Superior Court of Alberta or in the Federal Court of Canada.

2015 June 19
Douez v Facebook, Inc., 2015 BCCA 279

The British Columbia Court of Appeal, in the context of a privacy claim, ordered a stay of proceedings by a British Columbia resident against the defendant Facebook, Inc. on the basis of a clause in Facebook’s Terms of Use which provided: “You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Statement of Facebook exclusively in a state or federal court located in Santa Clara County.”

2015 March 6
Goldhar v Haaretz.com, 2015 ONSC 1128

The Ontario Superior Court of Justice dismissed an application by the defendant Israeli newspaper for an order setting aside service ex juris of the Ontario statement of claim, or staying the action on the basis the Ontario court lacks jurisdiction, or alternatively, an order that the court is not a convenient forum, or alternatively, that the action is an abuse of process. The plaintiff, a Toronto billionaire, complained about an article published in the online edition of the defendant newspaper in November, 2011, which was read by at least several people in Ontario and 200-300 people in Canada. The Court stated: “The plaintiff has undertaken not to seek at the trial of this action to recover damages for reputational harm in Israel or anywhere else outside of Canada. In Breeden v Black, the Supreme Court of Canada found that a similar damages undertaking given by Lord Black was a significant factor in the analysis of “most substantial harm to reputation.” In my view, the damages undertaking provided by the plaintiff is a very significant factor which, in light of the other evidence …., leads to the conclusion that the most substantial harm to the plaintiff’s reputation is in Ontario.

2013 July 18
Kim v Dongpo News, 2013 ONSC 4426

The Ontario Superior Court declined to rule whether an internet article that is published internationally on-line by a newspaper in another country can be considered to be part of a “newspaper printed and published in Ontario” within the meaning of the Ontario Libel and Slander Act on the basis no expert evidence had been put before the Court by the defendant journalist who sought to rely on sections 5 and 6 of that statute. The Court went on to hold that, in any event, the plaintiff had complied with s. 5(1) in providing a notice of libel within six weeks of discovering the libel and had also commenced the action within the three month limitation period set out in s. 6 of the Libel and Slander Act based on the principle of “discoverability.” That principle provides that the limitation period only begins to run when the person defamed knew or could have known about the libel by the exercise of reasonable diligence.

2013 January 11
Gravel v. Lifesitenews.com (Canada), 2013 QCCS 36

The Superior Court of Quebec dismissed a pre-trial application by one of the defendants, a journalist, to strike out elements of the plaintiff’s claim for damages relating to the publication of 39 allegedly defamatory articles in a monthly bulletin posted on the defendant’s Internet website. The defendant journalist alleged the claim against him was outside the one year limitation period for claims based on injury to reputation. The Court noted that a previous Court ruling had rejected the substance of that application. The Court also noted that the plaintiff sought damages for invasion of privacy, which is not subject to the one year limitation.

The Court also refused to decline jurisdiction over the action. The judge noted: (i) the individual defendants were domiciled in Ontario; and (ii) the litigation had been proceeding for some time and was substantially advanced. At this late stage, the Court should not be asked to decline jurisdiction. Further, such an Order was not justified in all the circumstances. Residence of the defendants is only one of the factors to be considered. The plaintiff was seeking recovery of damages only in respect of injury to his reputation in Quebec. [Rough translation from French]: “….[I]n a world of widespread Internet communication, accessible across borders, the most significant geographic location in such litigation is the one where the damage has been suffered.

2012 November 6
Cohen v Desert Eagle Resources Ltd. (Garrison International Ltd.), 2012 QCCS 5654

The Quebec Superior Court rejected a pre-trial application by the defence for an Order declining jurisdiction over a defamation claim arising from press releases published on the Internet. The Court concluded that a clause in a contract requiring disputes over a promissory note to be resolved by the courts of Mongolia did not apply to this claim which was made by a Quebec resident in relation to press releases issued in Ontario.

The Court noted [rough translation from French]:

The press releases on which the claim is based circulated here. As the Supreme Court of Canada noted in Spar Aerospace, damage to reputation occurs in the domicile of the person who is attacked.

The Court held that the fact that the plaintiff also alleges that his reputation was injured elsewhere in Canada as well as China and Mongolia does not mean it should decline jurisdiction. Mongolia would not be a more convenient forum: the great majority of the defendants are located in Ontario.

2012 October 17
Court v Debaie, 2012 ABQB 640

The Court of Queen’s Bench of Alberta concluded that the plaintiff had demonstrated an arguable or triable case that allegedly defamatory material posted on Facebook was published in Alberta. The Court accordingly dismissed a pre-trial application by the defendants for an Order that Ontario or Nova Scotia were more convenient jurisdictions.

In this case, the statement of claim alleged that in January, 2012, the defendants published defamatory comments on their Facebook pages which were then set to open access. “As a result, anyone with an Internet connection could view the comments. The posted comments would also appear on the “wall” of the Defendants’ Facebook “friends.” One defendant was alleged to have 286 friends; the other 51 at the time of the postings.

The Court held that:

“publication need not always be provided by direct evidence. Publication may be inferred from other evidence in appropriate cases. Justice Deschamps (in Crookes v Newton, SCC) was specific about this and held that ‘if a plaintiff proves facts from which it is reasonable to infer that the words were brought to the knowledge of some third person, that will establish a prima facie case of publication.”

2012 April 18
Editions Ecosociete Inc. v Banro Corp, 2012 SCC 18, dismissing an appeal from 2010 ONCA 416, affirming 2009 CanLII 7168

The Supreme Court of Canada held that the Ontario court had jurisdiction over defamation claims relating to a book published by a corporation based in Montreal, Quebec, where the evidence showed 93 copies were distributed to bookstores in Ontario, including 27 in the City of Toronto, a number of copies were available in Ontario public libraries, and the book was also available for purchase on the defendant’s website. One of the individual defendants had given a speech about the book at the University of Toronto. “The book has also been referenced by many websites and newspaper articles available and accessible in Ontario.”

The Supreme Court of Canada held that at this preliminary stage of proceedings, the “plaintiff need only allege publication and its allegations should be accepted as pleaded unless contradicted by evidence adduced by the defendants.

On the forum conveniens issue, the Supreme Court of Canada specifically rejected defence submissions that the plaintiff must allege and prove “substantial publication” in Ontario, rejecting the approach taken by the English courts. “The defamation law of Canada has not adopted the substantial publication standard. In Canada, the evidentiary standard for proving publication remains the traditional common law standard, according to which a single instance of publication is sufficient for the tort to crystallize.” The Court noted that the importance of place of reputation has long been recognized in Canadian defamation law and that it is important to permit plaintiffs to sue for defamation in the locality where they enjoy their reputation.

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.

2012 February 9
Nazerali v Mitchell, 2012 BCSC 205

The British Columbia Supreme Court dismissed a defence application for an order striking out the plaintiff’s notice of civil claim, or staying or dismissing the proceedings on the ground that the notice of civil claim did not allege facts that, if true, would establish that the court has jurisdiction over the applicants in respect of the claim made against them in the proceeding. After noting that the plaintiff resides in Vancouver and the defendants are resident in the U.S.A., the Court defined the issue before it in the following terms: “The essence of the defendants’ application is that the pleadings, even as supplemented by the supporting affidavits, do not establish publication in British Columbia of the material at issue, as there is neither an allegation nor evidence that anyone in the province read the words that are alleged to be defamatory.

The Court held that pleadings in defamation actions concerning material posted on the Internet require an allegation that the allegedly defamatory posting was communicated to a third person in British Columbia, referring to Crookes v Newton, 2011 SCC 47 at paragraph 1; Elfarnawani v International Olympic Committee, 2011 ONSC 6784 at paragraph 31, and Crookes v Yahoo, 2007 BCSC 1325, affirmed 2008 BCCA 165. In this context, the Court stated:

21. The plaintiff submits that using the word “publication” necessarily implies that the material posted on the website was read by someone within the province. In my view, that submission is inconsistent with the holding in Yahoo. I find that the notice of civil claim in the present case has the same deficiency as that found … in Yahoo in that it does not contain an allegation that anyone in British Columbia either downloaded or read the defamatory words from the website.”

The Court went on to hold, however, the affidavits filed by the plaintiff evidence cured the deficiency in the notice of civil claim because they established a “good arguable case” of publication of the defamatory statements in the province, despite the fact that none of the three deponents stated that they read or downloaded the specific words complained of in the notice of civil claim. The deponents deposed that they read statements on the website which conveyed certain meanings to them. “The plaintiff has met the burden to establish an arguable case that a tort has been committed in British Columbia.

2011 November 15
Elfarnawani v. International Olympic Committee, 2011 ONSC 6784

The Ontario Superior Court of Justice stayed the plaintiff’s defamation action on the basis that the plaintiff had failed to lead any evidence of “publication” in Ontario and therefore had failed to prove that the alleged tort of defamation was committed in Ontario. The Court noted that while the allegedly defamatory material was posted by the defendant on its Internet website “thereby making it available to anyone in the world with access to the internet,” that material would only be “published” in Ontario “if someone other than the plaintiff, or his legal representatives or agents, in fact accessed the allegedly defamatory material posted on the IOC website.” The Court held that merely posting material on an Internet website does not constitute publication, which only occurs when and wherever a third party downloads or views the impugned material from the website, citing Braintech Inc. v. Kostiuk, [1999] B.C.J. No. 622 (C.A.) at para. 58-63; Dow Jones Co. Inc. v. Gutnick (2002), 194 Aust.L.R. 433 (H.C.) at para. 44; Barrick Gold Corp. v. Blanchard and Co., [2003] O.J. No. 5817 (S.C.); Crookes v. Holloway 2007 BCSC 1325 (CanLII), (2007), 75 B.C.L.R. (4th) 316 (S.C.) at para. 26; affirmed: 2008 BCCA 165 (CanLII), (2008), 77 B.C.L.R. (4th) 201 (C.A.); Research in Motion Ltd. v. Visto Corp., [2008] O.J. No. 3671 (S.C.J.) at para. 87-92; Crookes v. Wikimedia Foundation Inc., [2009] B.C.J. No. 1832 (C.A.) at para. 80; affirmed: 2011 SCC 47 (CanLII), 2011 SCC 47; J.-G. Castel and J. Walker, Canadian Conflict of Laws (2005), 6th ed.), vol. 1, at § 11.12, at pp. 11-55 to 11-64, vol. 2, at § 35.8, at p. 35-18. The necessary “publication” may also occur in any particular location that appears to have been specifically “targeted” by the posting of the allegedly defamatory material. See: Black v. Breeden (2010), 102 O.R. (3d) 748 (C.A.) at para. 32-42; presently under reserve in the Supreme Court of Canada: [2010] S.C.C.A. No. 387; Bangoura v. Washington Post 2005 CanLII 32906 (ON CA), (2005), 258 D.L.R. (4th) 341 (Ont.C.A.) at para. 34; leave refused: [2005] S.C.C.A. No. 497.

The Court held that publication within Ontario could not be presumed in favour of the plaintiff. “Under the Libel and Slander Act …defamatory words in a newspaper or in a broadcast are “deemed to be published.” However, as the Supreme Court of Canada recently observed in Crookes v. Newton, at para. 14, there is “no such presumption in relation to material published on the Internet.” Any significant shift in policy in relation to this issue would have to come from the Legislature. Further, the issue is clearly not a matter that is properly the subject of judicial notice. Accordingly, the issue of “publication” is a matter of proof, by evidence, in each individual case. By failing to lead any evidence at all of “publication” in Ontario, the plaintiff has failed to prove that the alleged tort of defamation was committed in Ontario.”

2011 January 11
Éditions Écosociété inc. v. Banro Corp., [2010] S.C.C.A. No. 311

The Supreme Court of Canada granted leave to the defendants to appeal a decision of the Ontario Court of Appeal which sustained a lower court decision holding (i) that there is a real and substantial connection between Ontario and the defamation claims brought by the plaintiff Banro Corporation and (ii) that Ontario is the appropriate forum to hear the claims. The plaintiff Banro is an Ontario company based in Toronto. The defamation claims concern a book which was published in Quebec and distributed to bookstores in Quebec, Ontario and other parts of Canada. The Internet is implicated because the book can be purchased on the Internet and is referred to on websites and in newspaper articles which can be accessed by persons in Ontario. In the court of Ontario, the defendants brought unsuccessful motions to stay the action on the basis there was no real and substantial connection to Ontario and that Ontario was not the convenient forum for the trial of the action. For more information about the facts, see the brief Court of Appeal decision: 2010 ONCA 416 and the decision of the Ontario Superior Court of Justice: 23 February 2009, COURT FILE NO.: CV-08-00356266-0000. The Supreme Court of Canada is scheduled to hear this appeal on March 25, 2011.

2010 August 13
Black v Breeden, 2010 ONCA 547. Note: leave to appeal this decision to the Supreme Court of Canada was granted on December 16, 2010: 2010 CanLII 75965 (S.C.C.)

The Ontario Court of Appeal dismissed an appeal from the March 31, 2009 decision of the Ontario Superior Court which confirmed that Ontario has jurisdiction and is the appropriate and convenient forum for the plaintiff’s six defamation actions against directors, advisors and a Vice President of Hollinger International Inc. in relation to posting’s on Hollinger’s website.

Applying the test for jurisdiction in Van Breda v Village Resorts Limited (2010), 98 O.R. (3d) 721 (CA) [on appeal to the Supreme Court of Canada], the Ontario Court of Appeal rejected defence arguments that treating the place of the tort as the place in which the allegedly defamatory statements were accessed in not appropriate in the context of libel. The Court of Appeal held it did not need to decide whether the correct test (as alleged by the defence) was whether the defendant “targeted” the defamatory statements to the forum because the Court held that it was “clear on the record that there is evidence that the defendants did target and direct their statements to this jurisdiction.

The Court of Appeal concluded that although the factual context of the claims involved significant connections to the United States, there was a real and substantial connection between the plaintiff Black’s claims and Ontario arising from the publication in Ontario and damage to Black’s reputation in Ontario. The Court of Appeal noted that Black’s claims were limited to damages to his reputation in Ontario. Even if an Ontario libel judgment favouring Black might be unenforceable in the United States, it would still have significant value to Black as a vindication of his Ontario reputation.

2009 October 23
Blais c. Couture, 2009 QCCQ 10968

The Quebec Court (Civil Division – Small Claims), District of Montreal, dismissed an application by the defendant to transfer these defamation proceedings to the District of Joliette. The plaintiff’s lawsuit concerned allegations published in a magazine distributed in Montreal and on an Internet website which was not alleged to be located in Montreal The Quebec Code of Civil Procedure permitted the plaintiff to bring the action in his jurisdiction of residence if a libel in the press was involved. The fact the words complained of were also published in an electronic medium could not be used to defeat this right.

2009 March 31
Black v Breeden, [2009] O.J. No. 1292

The Ontario Superior Court of Justice dismissed a defence motion to stay six related libel actions brought by the plaintiff Conrad Black holding that there was a real and substantial connection with Ontario and that the province was a convenient and appropriate forum. The Court held, inter alia: “The case law is clear that the heart of a libel action is publication. The tort of defamation is committed where the publication takes place. Publication occurs when the words are heard, read or downloaded. The statements in question may well have been made in the U.S. by directors or advisors of the U.S. company, but they were published or republished in Ontario and they are alleged to have caused injury in Ontario. The connection between the subject matter of the actions and Ontario is thus significant.” With respect to the American defendants, the Court held that they can be “connected to Ontario if it was reasonably foreseeable to these defendants that the allegedly defamatory press releases posted on their company’s New York website would be downloaded and published in Ontario and would result in damage to the plaintiff’s reputation in Ontario.

2009 February 23
Banro Corp. v . Éditions Écosociété Inc., [2009] O.J. No. 733, appeal dismissed: 2010 ONCA 416

The Ontario Superior Court of Justice dismissed a defence motion to stay a defamation action concerning a book entitled Noir Canada. The court concluded that the corporate defendant publisher was carrying on business in Ontario by disseminating copies of the book for sale by bookstores in Ontario and by making the book available for sale in Ontario via the Internet. The court held that publication occurs where the allegedly defamatory matter is downloaded from the Internet or where a book is read. “It was and should have been reasonably foreseeable to the defendants that, in writing, researching, editing and publishing Noir Canada, dissemination and marketing of Noir Canada in Ontario and via the internet would or could cause harm to the plaintiff in Ontario. As a result, I am of the view that the above activities have rendered the defendants subject to the jurisdiction of this forum.

2008 September 19
Research in Motion Ltd. v Visto Corp., [2008] O.J. No. 3671

The Ontario Superior Court rejected arguments by the defendant, a competitor of RIM, that the Ontario court did not have jurisdiction, or alternatively, that Ontario was not a convenient forum to hear the trial of this action.  The plaintiff claimed damages in its statement of claim for allegedly false and misleading statements contrary to s. 36 and s. 52 of the Competition Act, alleged violation of s. 7(a) of the Trade-marks Act, and alleged injurious falsehood and unlawful interference with the plaintiff’s economic relations.  These claims related in part to statements allegedly reported and published in various media and on the Internet; interviews with CNBC Europe and CNN in England which were posted on the defendant’s website; and an interview with Telecom TV linked to the defendant’s website.  [Note:  On this type of application, the Court does not decide the merits of the claims].

The Court held that there was a real and substantial connection between Ontario and the facts giving rise to the lawsuit, rejecting defence submissions that Ontario was not implicated because the statements at issue were made in the United States or the United Kingdom by United States citizens regarding a United States patent infringement lawsuit.  The Court noted that the impugned statements “were disseminated in Ontario by direct contact with the media or by the internet.”  Referring to Crookes v Holloway, [2008] B.C.J. No. 834 (BCCA), the Ontario court accepted that “defamation occurs in the jurisdiction where the statements were read or heard.

2008 July 28
Guilbert v Guilleaume, 2008 QCCS 3504

The Quebec Superior Court , following and applying Vincent v Forget, 2008 QCCS 2466, ordered that a lawsuit for defamation based on words published in discussion groups hosted by Google inc. should be transferred from the judicial district of Trois-Rivières to the judicial district of Montrèal where the defendants reside.

2008 May 20
Vincent v Forget, 2008 QCCS 2466

The Quebec Superior Court held that s. 68 of the Quebec Civil Procedure Code required a lawsuit for defamation based on publication on a website to be brought in the judicial district of Joliette where the defendant resided and where his computer was located. The Court rejected submissions by the plaintiff that the website publication was, by analogy, a “libelle de presse” (newspaper libel), in which case a plaintiff would be entitled to bring the case in the judicial district where the plaintiff resides. Accordingly, the lawsuit was ordered by a justice of the District of Quebec to be transferred to the District of Joliette. [Note:  This decision turned on the wording of the Quebec Civil Procedure Code]

2008 April 1
TimberWest Forest Corp. v United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, 2008 BCSC 388

The British Columbia Supreme Court concluded that it had jurisdiction to hear defamation claims brought against the defendants, holding that “all of the allegedly defamatory statements, video, website postings, pamphlets, and other communications relate to a tort alleged to have been committed in British Columbia because the harm allegedly suffered by the plaintiff was suffered in British Columbia where it resides, where it carries on business, where it employs contractors and employees, where some of its customers are located, and where it is regulated.

2007 September 4
Crookes v Holloway, 2007 BCSC 1325, affirming 2007 BCSC 1325

Alleged Cyber Libel: Website posting
Non-Internet Defamation Also Alleged: No.
Canadian Court has jurisdiction? No
Canadian Court should decline jurisdiction: Not relevant

The British Columbia Supreme Court dismissed this libel action against Yahoo, a foreign defendant with no ties to British Columbia. “Yahoo has no offices in Canada, is not registered to do business in Canada and does not pay Canadian taxes. Yahoo does not do business and has no physical presence or bank accounts in British Columbia. The servers for Yahoo’s internet services … are not located in Canada. The fact Yahoo can be accessed on the internet from a computer in British Columbia is not evidence it is carrying on business in British Columbia.”

The Court, applying Dow Jones Co. Inc. v Gutnick (2002), 194 Aust.L.R. 433 (H.C.) and Barrick Gold Corp. v Blanchard and Co., [2003] O.J. No. 5817 (S.C.), held that the defamation is committed at the time and place when a person downloads the impugned material from the internet.

The plaintiff in this case “neither alleged nor tendered any evidence that any individual in British Columbia has downloaded and read the impugned material posted … on the website.”

2007 March 27
Bains v Sidhu Singh Hamdard Trust, [2007] O.J. No. 1129

Alleged Cyber Libel: Website posting
Non-Internet Defamation Also Alleged: Yes – printed newspaper
Canadian court has jurisdiction? Not disputed
Canadian court should decline jurisdiction? No

The Ontario Superior Court of Justice held that it had jurisdiction to hear this case (as conceded by the defendants) and rejected the defence submissions that India was a more appropriate jurisdiction for the action. As a result, the defence motion to stay the Ontario litigation on forum conveniens grounds was dismissed.

The plaintiffs, who originally came from the Punjab and have lived in Canada since 1992, brought this libel litigation over an article relating to events which took place in India. The Court noted that although the print edition of the defendant newspaper “is directed to readers in India for the most part, the [newspaper’s] website is accessed by an approximate average of 8,000 readers per day in Canada, a significant portion of whom are in Ontario.”

In arriving at the conclusion that the action should be heard in Ontario, the Court noted that the plaintiffs had commenced defamation actions against three other newspapers distributed in Ontario and read by members of the Punjabi-speaking population which had reportedly published the same article or a version of it. The desirability of avoiding a multiplicity of proceedings was a factor which the court held weighed heavily in favour of the plaintiffs on this application.

2005 September 16
Bangoura v The Washington Post, Ontario Court of Appeal Docket C41379, reversing (2004) 235 D.L.R. (4th) 564 (SCJ), leave to appeal to Supreme Court of Canada denied without reasons: 16 February 2006.

Alleged Cyber Libel: Website posting
Non-Internet Defamation Also Alleged: Yes – printed newspapers
Canadian court has jurisdiction? No
Canadian court should decline jurisdiction? Not relevant

The Ontario Court of Appeal ruled unanimously that a lower court judged erred in ruling that Ontario has jurisdiction to hear a defamation claim based on two articles originally published by the defendant in 1997 on its website (and in its hard copy newspaper) while the plaintiff was living in Kenya. The articles related to the plaintiff’s activities in a prior posting in Ivory Coast as an employee of the United Nations. The plaintiff’s wife and children had moved to Montreal in December 1996.

The Court of Appeal heard from an intervener, Media Coalition, which suggested alternative approaches to the issue of jurisdiction which the Court declined to adopt in this case, stating “[i]t may be that in some future case involving internet publication, this court will find it useful to consider and apply one or more of the proposed approaches.”

See McConchie and Potts, Canadian Libel and Slander Actions, “Jurisdiction simpliciter,” page 147, “Forum Non Conveniens,” pages 152, 153; “Where did the wrong take place,” page 157.

2005 September 16
Burke v NYP Holdings, Inc., 2005 BCSC 1287

Alleged Cyber Libel: Website posting
Non-Internet Defamation Also Alleged: Yes – printed matter in Ontario and Quebec; also re-publication by a Vancouver radio talk show [not named as defendant]
Canadian court has jurisdiction? Yes
Canadian court should decline jurisdiction? No

The British Columbia Supreme Court held that it has jurisdiction to hear a defamation claim brought by former Vancouver Canucks general manager Brian Burke against the New York Post over a February 27, 2005 column published in the New York Post, less than 250 copies of which were delivered in hard copy to subscribers or newsstands in Canada (none in British Columbia). There were approximately 3,500 “hits” on the website page containing the column. The New York Post had “no method to determine the geographic origin of the hits or the geographic location of any of the individuals directing their browsers to access the website.” A Vancouver radio sports talk show host, however, testified he personally accessed the subject column and “read a large excerpt of that column on the air.”

The BC Supreme Court held that the New York Post, by “publishing on its website a matter which was of interest to people in British Columbia …it was foreseeable that the Column would be picked up by the media in British Columbia given the [prior] publicity” surrounding an incident which took place during a Canucks game in Vancouver.

The Court also held that British Columbia is the appropriate forum for this cyber libel lawsuit.

See McConchie and Potts, Canadian Libel and Slander Actions, “Jurisdiction simpliciter,” page 147, “Forum Non Conveniens,” pages 152, 153; “Where did the wrong take place,” page 157.

2005 January 14
Wiebe v Bouchard, 2005 BCSC 47

Alleged Cyber Libel: Website posting
Non-Internet Defamation Also Alleged: Yes – printed matter
Canadian court has jurisdiction? Yes
Canadian court should decline jurisdiction? No

The British Columbia Supreme Court held that it has jurisdiction to hear a defamation claim arising from the publication of a Quebec academic’s report placed on a website by the Government of Canada and the Minister Responsible for the Status of Women Canada.

The Court noted that the defendant Québec academic had deposed that the topics in her report (which had been translated from French into English by the defendant Government of Canada) were of national and perhaps international importance and had been placed on the Government website for the benefit of all Canadians.

The Court also held that British Columbia is the appropriate forum for this cyber libel lawsuit.

See McConchie and Potts, Canadian Libel and Slander Actions, “Jurisdiction simpliciter,” page 147, “Forum Non Conveniens,” pages 152, 153; “Where did the wrong take place,” page 157.

2004 February 2
Trizec Properties Inc. v Citigroup Global Markets Inc., [2004] O.J. No. 323

Alleged Cyber Libel: Website posting
Non-Internet Defamation Also Alleged: Yes – telephone conference call, printed matter
Canadian court has jurisdiction? Yes
Canadian court should decline jurisdiction? No

The Ontario Superior Court held that it had jurisdiction over claims relating to allegedly defamatory statements made by the defendants that were allegedly published or disseminated in Ontario and other parts of Canada on the Internet and by press releases, written notices and a telephone hotline, and certain re-publication.  Ontario was also an appropriate jurisdiction to hear those claims.

This action concerns allegedly defamatory statements made by the defendants that were allegedly published or disseminated in Ontario and other parts of Canada on the Internet and by press releases, written notices and a telephone hotline, and certain re-publication.

The Ontario Court of Justice noted that some of the statements complained of were published on websites owned and maintained by the defendant company.  The websites were hosted by a company resident in Louisiana.  The servers hosting those websites were also located in Louisiana.  Both websites are maintained and designed by another company resident in Louisiana.  “At no time were the websites hosted on any servers in Ontario … or elsewhere in Canada.”

The defendants asserted that the websites were “passive” in nature in Ontario.  Although they contain information that can be viewed by the reader, the reader cannot interact with the websites, beyond requesting information.

In its analysis of the facts, the Court noted that the “websites are accessible in Ontario and…the damage to reputation only occurs when the offending material is downloaded from the website onto a computer in Ontario and then read by a person in Ontario.

The Court described the Internet jurisdiction issue as follows:

…This issue is one that has received attention in recent years and differing conclusions have been reached. The debate is centred on the reality that material on the Internet is accessible throughout the world regardless of where it is originally posted. One who posts material on the Internet is then at risk of being sued throughout the world. On the one hand, it is argued that to permit individuals who post material on the Internet to be sued anywhere in the world exposes them to extensive risk and liability and, as a consequence, there may be a chilling effect on the use of what is viewed as being a very important mode of expression and communication. On the other hand, it is argued that if individuals who post material on the Internet can only be sued in the jurisdiction where the material was posted, it might encourage people to make unfair and unwarranted allegations against others with the comfort of knowing that either no one will wish to incur the expense of having to travel a great distance to litigate the issue or that the persons posting the material may chose a safe haven in terms of that jurisdiction’s libel laws that would make it difficult, if not impossible, for the injured party to successfully litigate the claim.

The Ontario Superior Court went on to consider a number of decisions of U.S. courts including Copperfield v. Cogedipresse 26 Med. L. Rptr. 1185 (1997) (C.D.Cal.).

The Ontario Superior Court stated, however, that it preferred the reasoning in Dow Jones & Co. Inc. v Gutnick  [2002] HCA 56 for two reasons:

While exposing people who post material on the Internet to a wide expanse of liability, it establishes a rule that would have as its effect a strong incentive for people who do post such material to ensure that it is fair and accurate and responsible in its content.  “The U.S. approach, on the other hand, has the very real risk of becoming a licence for people to post whatever outrageous and malicious material they wish without any real fear of being called to account.

The Dow Jones approach does not have to be applied rigidly.  The Court would still consider the degree of connection to the jurisdiction and the intent of the person posting the material to the degree that intention can be discerned.  “For example, if the plaintiff’s reputation was only tangentially affected in his or her home jurisdiction but it was apparent that the real issue, and the significant impact, was more clearly connected to the jurisdiction where the defamatory material was posted, then the injured person’s home court might decline jurisdiction and direct the plaintiff to litigate in the other jurisdiction.  Similarly, if a court was satisfied that the person who posted the material had no intention to harm, nor could they have reasonably anticipated that a person in the foreign jurisdiction would be harmed by such material, then again the foreign court might well decline to exercise jurisdiction over the claim.

See also McConchie and Potts, Canadian Libel and Slander Actions, “Jurisdiction simpliciter,” page 147; “Where did the wrong take place,” page 157.

2003 March 12
Imagis Technologies Inc. v Red Herring Communications Inc., 2003 BCSC 366, (2003) 15 C.C.L.T. (3d) 140.

Nature of Internet Publication:  Website posting
Other forms of expression also involved?  Yes, hard copy
Canadian court has jurisdiction?  Yes
Canadian court should decline jurisdiction?  No

The British Columbia Supreme Court held that it had jurisdiction over certain defamation claims and should not decline jurisdiction in favour of an American state.

The defendant magazine was alleged to have published expression defamatory of the plaintiff in hard copy print form and on the Internet.

The defendants did not allege the Court lacked jurisdiction. Instead, they brought an application to have the British Columbia Supreme Court decline jurisdiction on the ground that British Columbia was not the appropriate forum in which to try the litigation.

The Court held that by filing an appearance to the action and thereafter an exhaustive statement of defence, the defendants had attorned to the jurisdiction of the British Columbia Supreme Court and their application must be dismissed.

However, the Court went on to consider issues of jurisdiction and forum non conveniens.

Applying the decision of the Ontario Court of Appeal in Muscutt v Courcelles (2002), 213 D.L.R. (4th 577, the British Columbia Supreme Court held in Imagis that in determining whether there is a “real and substantial” connection between the foreign defendant (not present in British Columbia) and the subject matter of the litigation, the Court should consider: i) the connection between British Columbia and the plaintiff’s claim; ii) the connection between British Columbia and the defendant; iii) unfairness to the defendant in assuming jurisdiction; unfairness to the plaintiff in not assuming jurisdiction; v) the involvement of other parties to the suit; vi) the court’s willingness to recognize and enforce an extraprovincial judgment rendered on the same jurisdictional basis; vii) whether the case is interprovincial or international in nature; and viii) comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.

The Court held that the “fact of publication in British Columbia and the claim that Imagis suffered damage here favour British Columbia as the forum conveniens.

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 is most favourable to the defendants rather than in a jurisdiction that has connection with the cause of action where the law is most favourable to the plaintiff.

The Court held there was a juridical advantage to the plaintiff in British Columbia, noting the presumptions under BC law of falsity of defamatory statements; in the alternative American jurisdictions suggested by the defence – California, Connecticut, or New York – the plaintiff would have the onus of proving fault and malice on the part of the defendants.

The Court also considered the defence argument that a United States jurisdiction might not enforce a British Columbia judgment.  The Court stated that where a “plaintiff has a reputation to protect in the province, the plaintiff is at liberty to decide whether it wishes to pursue judgment in this jurisdiction in order to have the benefit of a finding in its favour, whether or not any monetary damages may be recovered as a consequence of that judgment.  Frequently, financial compensation is but one benefit to be derived by a plaintiff from a judgment in a defamation action.

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

1999 June 29
Direct Energy Marketing Ltd. v Hillson, [1999] A.J. No. 695, (1999) 34 C.P.C. (4th) 200 (QB)

Nature of Internet Publication: Website posting
Other forms of expression also involved? Yes, hard copy
Canadian court has jurisdiction simpliciter? Admitted
Canadian court should decline jurisdiction?  No

The Alberta Court of Queen’s Bench dismissed an application by the defendant to have the Court decline jurisdiction.

The plaintiff Alberta company had filed a defamation action in the Alberta Court of Queen’s Bench against a member of the Saskatchewan Legislature over allegedly defamatory allegations.  The defendant’s statements were made in a hearing of the Saskatchewan Legislature’s Crown Corporations Committee and repeated immediately afterwards to newspaper reporters outside the hearing.

The plaintiff alleged that the defamatory words were published in Alberta because several copies of The Saskatoon Star Phoenix newspaper, which carried the remarks of the defendant Hillson, were sold in Calgary from a news outlet and because the words were also published on the Internet websites of The Regina Leader Post and The Saskatoon Star Phoenix (located in Saskatchewan.).

On a motion by the defence to dismiss the lawsuit, the plaintiff and the defendant agreed that the Internet articles on the Saskatchewan websites amounted to publication within Alberta.  This agreement was based on the fact that the plaintiff’s president accessed and viewed, using his computer in Alberta, the defamatory articles on the Saskatchewan websites maintained by the two newspapers.  [There was apparently no evidence on the motion that anyone else in Alberta had done so.]

On the question of forum conveniens, the Alberta Court of Queen’s Bench held that the defamation action should be permitted to proceed in Alberta despite a parallel action by a related party in another jurisdiction.

While the court held that the plaintiff did not have an absolute right to sue in Alberta simply because the statements were published there, the plaintiff’s principal place of business, its identity and its reputation were all located primarily in the province, as was most of the relevant evidence.

In addition, there was a juridical advantage to the plaintiff since one of the defences advanced would not apply in Alberta.  Therefore the court rejected the Saskatchewan-based defendant’s motion to dismiss.

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

1999 March 18
Braintech, Inc. v Kostiuk, (1999), 171 D.L.R. (4th) 46 (CA), [leave to appeal to the Supreme Court of Canada denied [1999] S.C.C.A. No. 236.

Nature of Internet Publication: Website posting
Other forms of expression also involved? No
Texas court had jurisdiction simpliciter? No
Texas court should have declined jurisdiction?  Yes

The British Columbia Court of Appeal refused to enforce a $300,000 (US) default judgment for libel and disparagement obtained by the plaintiff from a Texas court on the ground that there was no “real and substantial connection” between the parties and Texas at material times.

The factual cornerstone of the Court’s ruling seems to be the lack of any evidence that anyone in Texas actually viewed or downloaded the allegedly defamatory matter which had been posted on a computer located outside Texas.  Accordingly, there was no evidence of any “publication” to a third party within Texas.

The plaintiff’s application for leave to appeal to the Supreme Court of Canada was refused without reasons: [1999] S.C.C.A. No. 236.

Jurisdiction

The plaintiff Braintech unsuccessfully argued in the Court of Appeal that Texas had jurisdiction over its defamation claim because the Texas “long-arm” statute provided that a non-resident did business in Texas if the non-resident “commits a tort in whole or in part in this state.”  Braintech alleged in its statement of claim filed in British Columbia that the libel was disseminated on a “discussion group or bulletin board…established on the Internet to facilitate discussion and exchange of information regarding technology stocks…under the name Silicon Investor.”

The Court of Appeal’s ruling does not say where the computer hosting the Silicon Investor was located but it clearly was not in Texas.  The Court of Appeal did note that the defendant Kostiuk was not the operator of Silicon Investor and that the “bulletin board [was] ‘passive’ as posting information volunteered by people like [the defendant], accessible only to users who have the means of gaining access and who exercise that means.”  Goldie J.A., writing the judgment of the Court of Appeal, stated as follows:

“…the [plaintiff] must offer better proof that the defendant has entered Texas than the mere possibility [emphasis added] that someone in that jurisdiction might have reached out to cyberspace to bring the defamatory material to a screen in Texas.  There is no allegation or evidence [the defendant] had a commercial purpose that utilized the highway provided by the Internet to enter any particular jurisdiction…It would would create a crippling effect on freedom of expression if, in every jurisdiction the world over in which access to the Internet could be achieved, a person who posts fair comment on a bulletin board could be haled before the courts of each of those countries where access to this bulletin could be obtained.

Goldie J.A. continued:

In the circumstances of no purposeful activity alleged on the part of Kostiuk and the equally material absence of any person in that jurisdiction having “read” the alleged libel all that has been deemed to have been demonstrated was [the defendant’s] passive use of an out of state electronic bulletin.  The allegation of publication fails as it rests on the mere transitory, passive presence in cyberspace of the alleged defamatory material.  Such a contact does not constitute a real and substantial presence.

Braintech Inc. v Kostiuk does not answer the question whether the tort of defamation would have been committed in Texas (in the eyes of British Columbia law) if someone in Texas actually had viewed or downloaded the defendant’s allegedly defamatory posting on the Internet.

Forum conveniens

The British Columbia Court of Appeal concluded that British Columbia was “the natural forum for the resolution of the dispute between two residents” and that “Texas was not even an appropriate forum.”  Writing the judgment of the court, Goldie J.A. noted the following factors:

  • The defendant was a “non-resident of Texas who had neither done business nor maintained a place of business nor appointed an agent for service there.  His only connection is “deemed” by virtue of an allegation of having committed a tort in Texas.”
  • The plaintiff was a “Nevada corporation domiciled in British Columbia.  According to the Standard & Poor’s service excerpt exhibited to [the defendant’s] affidavit]…it was incorporated in Nevada on 4 March 1987 and has undergone a number of name changes before assuming its present name.  As of 31 December 1996 its transfer agent was located in Salt Lake City; its office in North Vancouver, British Columbia; its stock was traded on the OTC Bulletin Board (the location of which is not identified0; and its principal officers (Chairman) were located in North or West Vancouver.”
  • The plaintiff had “no presence in Texas since 31 December 1996.  Between 1 September and 31 December 1996 its technical development activities are said to have been centred in Austin, Texas.  Between January 1994 and the fall of 1995, its head office was located in Arizona.  In the fall of 1995, it was moved to Vancouver.
  • “No person in Texas is alleged to have seen the allegedly defamatory material and the witnesses required to prove its damages are acknowledged to be citizens of Canada.  The only proof of damages in the record is the McDonald affidavit of 17 April 1997, sworn in Vancouver.”
  • No juridical advantage is alleged to accrue in Texas which is not available if a defamation action was brought in British Columbia.
  • “The authorities cited in Braintech’s brief in support of default judgment relate to the use within Texas of electronic communication for actual business purposes.  None support the passive posting on an electronic bulletin board as constituting in itself the commission of a tort within Texas.”
  • “To enforce recovery of the default judgment obtained in Texas on the deemed proof of use of an electronic bulletin board would encourage a multiplicity of actions the world over wherever the Internet was available.”
  • “The mode of service in the case at bar falls below the minimum constitutional standards for an American court.”

The British Columbia Court of Appeal reversed the finding of the lower court on the issue of forum conveniens in part because the lower court judge failed to consider “whether there were any contacts between the Texas court and the parties which could, with the due process clause of the 14th Amendment to the Constitution of the United States, amount to a real and substantial presence.

See McConchie and Potts, Canadian Libel and Slander Actions, “Jurisdiction simpliciter,” page 149; “Recognition and Enforcement of Foreign Judgments,” page 158.

1998 December 9
Investors Group Inc. v Hudson, [1998] Q.J. No. 4543 (SC)

Alleged Cyber Libel: Website posting
Canadian court has jurisdiction? Yes
Canadian court should decline jurisdiction? Not in issue.

The Québec Superior Court held that although a resident of Québec had published allegedly defamatory comments on an Internet site at a server outside that province, the Court had jurisdiction to hear the matter. The Court noted that all the facts which were the subject of the lawsuit had their origins in Québec. The defendant prepared the website in Québec and resided in that province. Customers or potential customers of the plaintiff resided in Québec and elsewhere in Canada.

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)