2021 December 10

Giustra v. Twitter, Inc., 2021 BCCA 466

The British Columbia Court of Appeal (BCCA) unanimously dismissed an appeal from an Order of the BC Supreme Court (BCSC) made January 14, 2021 (2021 BCSC 54) that the BCSC has jurisdiction simpliciter over Twitter, Inc. regarding a claim by the plaintiff for defamation damages and permanent injunctive relief and that the BCSC should not decline to  exercise that jurisdiction in favour of the California courts.  The BCCA noted that Twitter conceded that British Columbia has presumptive jurisdiction under the Court Proceedings and Transfer Act, SBC 2003, c. 28 (CJPTA) from the fact that the plaintiff alleges that Twitter published tweets that defamed him in British Columbia, as well as elsewhere.  The issues before the BCCA were therefore: (1) whether the relationship between British Columbia and the defamation claim is nevertheless so tenuous as to rebut the presumption of jurisdiction; and if not, (2) whether the BCSC should decline to exercise its jurisdiction on the basis that California is the more appropriate forum.

The BCCA concluded that Twitter had failed to rebut the presumption, rejecting Twitter’s submission that the plaintiff was obliged to lead evidence of harm to reputation in his chosen forum if he wishes to meet the case of a defendant who is seeking to rebut the presumption.   The BCCA noted that where defamatory statements are accessed and read as widely as comments posted on Twitter’s platform, a presumptive connecting factor can potentially be established with many jurisdictions.  However, the BCSC ruling noted that in Haaretz.com v Goldhar, 2018 SCC 28, Chief Justice McLachlin and Justices Moldover and Gascon (dissenting, but not on this point), recognized that it was “entirely foreseeable that a Canadian citizen and resident would want to vindicate his Canadian reputation as the owner of his Canadian businesses in a Canadian court.”  This supported a finding of a real and substantial connection.  The BCCA noted: “The pleadings allege that [the plaintiff] had a reputation in British Columbia, and Twitter did not lead evidence to the contrary.”  The BCCA continued: “[N]o evidence is required to establish the presumed connecting factor – in this case that the tort (defamation) was committed in British Columbia.  The pleadings are sufficient to accomplish that.  It is then incumbent upon the defendant (Twitter) to rebut that presumption.  The presumption having already been established, it would be illogical to require a plaintiff then to adduce evidence to support it further merely because a defendant had tried to rebut it.  Only if the pleaded allegations are contradicted by evidence adduced by the defendant should such a requirement be considered, and even then, the plaintiff need only show a good arguable case that its allegations can be proven.”

With respect to whether California is the more appropriate forum, the BCCA noted that that the BCSC is competent to apply both domestic law in terms of damage from tweets read in Canada and US law to damage arising from action solely in the United States. “California, however, would apply only US law in accordance with the Communications Decency Act of 1996, which precludes the California court from entertaining the claim regardless of where the tweets were read.”  The BCCA therefore concluded, in this context, that the applicable law favours British Columbia, and does so without offending the underlying principle of comity, which would require Canadian courts to respect the different constitutional approach of the law of the United States.  The BCCA rejected Twitter’s submission that the Canada-United States – Mexico Agreement, 30 November 2018, Can TS 2020 No. 5 (“CUSMA”) alters the fact that “there is no bar in British Columbia to [the plaintiff’s] case being determined on its merits, whereas in California, the courts are precluded from considering the case at all.  While it could be commenced there, it would be subject to immediate summary dismissal.”  The BCCA noted that “on Twitter’s analysis, comity runs as a one-way street in this matter.  While courts in the United States are prohibited from respecting and enforcing any order made against Twitter in Canada, that is not so of Canadian courts in relation to any order pronounced in the United States.  As the Equustek Solutions Inc. v Google Inc litigation demonstrated, the courts in the United States are legislatively prohibited from respecting the different constitutional and legal approach in Canada, notwithstanding our shared values.”  “But that does not make proceeding in British Columbia a pointless exercise, for [the plaintiff] would at least have the opportunity to obtain a judgment vindicating his reputation … an opportunity denied from the outset in California.”