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;
- Whether the Canadian court has jurisdiction simpliciter.
- 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.”