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2003 03 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.  See McConchie and Potts, Canadian Libel and Slander Actions, “Where did the wrong take place?”- page 156.

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.

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