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.”