Haaretz.com v. Goldhar

Haaretz.com v. Goldhar
Collection
Supreme Court Judgments
Date
2018-06-06
Neutral citation
2018 SCC 28
Report
[2018] 2 SCR 3
Case number
37202
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
Ontario
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Haaretz.com v. Goldhar, 2018 SCC 28, [2018] 2 S.C.R. 3
Appeal Heard: November 29, 2017
Judgment Rendered: June 6, 2018
Docket: 37202
Between:
Haaretz.com, Haaretz Daily Newspaper Ltd., Haaretz Group,
Haaretz.co.il, Shlomi Barzel and David Marouani
Appellants
and
Mitchell Goldhar
Respondent
- and -
Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic
Intervener
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Reasons:
(paras. 1 to 98)
Côté J. (Brown and Rowe JJ. concurring)
Concurring Reasons:
(paras. 99 to 103)
Karakatsanis J.
Concurring Reasons:
(paras. 104 to 143)
Abella J.
Concurring Reasons:
(paras. 144 to 150)
Wagner J.
Joint Dissenting Reasons:
(paras. 151 to 240)
McLachlin C.J. and Moldaver and Gascon JJ.
Haaretz.com v. Goldhar, 2018 SCC 28, [2018] 2 S.C.R. 3
Haaretz.com, Haaretz Daily Newspaper Ltd.,
Haaretz Group, Haaretz.co.il, Shlomi Barzel and
David Marouani Appellants
v.
Mitchell Goldhar Respondent
and
Samuelson‑Glushko Canadian Internet Policy and
Public Interest Clinic Intervener
Indexed as: Haaretz.com v. Goldhar
2018 SCC 28
File No.: 37202.
2017: November 29; 2018: June 6.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for ontario
Private international law — Choice of forum — Court having jurisdiction — Forum non conveniens — Libel action commenced in Ontario in respect of statements published in Israeli newspaper available electronically in Canada — Defendants bringing motion to stay action on grounds that Ontario court lacks jurisdiction or, alternatively, that Ontario court should decline to exercise its jurisdiction on basis of forum non conveniens — Whether situs of tort is reliable basis on which to presume real and substantial connection between chosen forum and subject matter of litigation in Internet defamation cases — If so, whether presumption of jurisdiction can be rebutted — Whether choice of law factor in forum non conveniens analysis for Internet defamation cases should be based on place where plaintiff suffered most substantial harm to reputation.
G is a prominent Canadian businessman who also owns one of the most popular professional soccer teams in Israel. H is Israel’s oldest daily newspaper, which is published in print and online. H published an article about G, which the latter alleges to be libellous. The main subject of the article is G’s ownership and management of his Israeli soccer team, but the article also references his Canadian business and his approach to management. While the article was not distributed in print form in Canada, it was available electronically. G commenced an action for libel in Ontario, alleging damage to his reputation. H brought a motion to stay the action, arguing that Ontario courts lacked jurisdiction or, alternatively, that Israel was a clearly more appropriate forum. The motion judge dismissed H’s motion, finding that Ontario courts had jurisdiction and refusing to decline to exercise this jurisdiction in favour of Israeli courts. A majority of the Ontario Court of Appeal dismissed H’s appeal.
Held (McLachlin C.J. and Moldaver and Gascon JJ. dissenting): The appeal should be allowed and the motion to stay the action granted.
Per Côté, Brown and Rowe JJ.: While multijurisdictional defamation claims are not new, the exponential increase in multijurisdictional publications over the Internet has led to growing concerns about libel tourism and the possible assumption of jurisdiction by an unlimited number of forums. The current rules for the assumption and exercise of jurisdiction are able to address these challenges so long as the underlying principles of stability and fairness are kept in mind. In this case, while the motion judge properly determined that he had jurisdiction (under the jurisdiction simpliciter test), he committed multiple errors in his forum non conveniens analysis. On a robust and careful assessment of the relevant factors tainted by these errors, Israel is a clearly more appropriate forum.
Central to a proper understanding of the conflicts rules of Canadian private international law is an appreciation of the distinct roles played by jurisdiction simpliciter and forum non conveniens, and how these must be understood and analysed as a cohesive whole. The jurisdiction simpliciter analysis is meant to ensure that a court has jurisdiction. This will be the case where a real and substantial connection exists between a chosen forum and the subject matter of the litigation. This test prioritizes order, stability and predictability by relying on objective connecting factors for the assumption of jurisdiction. The forum non conveniens analysis, on the other hand, is meant to guide courts in determining whether they should decline to exercise that jurisdiction in favour of a clearly more appropriate forum. This doctrine emphasizes fairness and efficiency by adopting a case-by-case approach to this question.
At the jurisdiction simpliciter stage, in determining whether a real and substantial connection exists between a chosen forum and the subject matter of the litigation, a court must first consider whether the existence of a recognized presumptive connecting factor has been established. The situs of the tort, which is one such recognized factor, is a reliable basis on which to presume a real and substantial connection, even in Internet defamation cases. Raising doubt as to the value of the situs of the tort as a presumptive connecting factor in such cases, because of the ease with which publication can be established, would significantly undermine the objectives of predictability and order at the jurisdiction simpliciter stage. Concerns relating to the insufficiency of a presumptive connecting factor should be addressed either at the rebuttal stage of the jurisdiction simpliciter analysis or during the forum non conveniens analysis.
In this case, the tort of defamation was committed in Ontario, and therefore a presumptive connecting factor has been established. As a result, the Court must consider whether H has successfully rebutted the presumption. The ability to rebut the presumption of jurisdiction where there is only a weak relationship between the subject matter of the litigation and the forum serves as an important check on jurisdiction. A careful examination of this question is therefore of particular importance in Internet defamation cases, where a presumptive connecting factor can easily be established. Presumptive connecting factors must not give rise to an irrebuttable presumption of jurisdiction. In order for a defendant to succeed in challenging jurisdiction, the circumstances must demonstrate that the relationship between the forum and the subject matter of the litigation is such that it would not be reasonable to expect that the defendant would be called to answer proceedings in that jurisdiction. Assuming that these principles are properly applied, the situs of the tort will not give rise to an irrebuttable presumption of jurisdiction in Internet defamation cases. In the case at bar, H could have reasonably expected to be called to answer a legal proceeding in Ontario. As such, the presumption of jurisdiction is not rebutted.
At the forum non conveniens stage, the burden is on the defendant to satisfy the motion judge that the alternative forum is clearly more appropriate. While the normal state of affairs favours exercising jurisdiction in the forum where it is properly assumed, this should never come at the cost of one party facing unfair or clearly inefficient proceedings. Given the ease with which jurisdiction may be established in a defamation case, in a motion for a stay, a judge must conduct a robust and carefully scrutinized review of the issue of forum non conveniens. The establishment of a presumptive connecting factor is virtually automatic in Internet defamation cases. As the rebuttal stage of the jurisdiction simpliciter analysis fails to address all the consequences of this fact, it is appropriate for motion judges to be particularly attuned to concerns about fairness and efficiency during the forum non conveniens analysis in these types of cases. This should not be understood as imposing a different standard or burden for defamation cases.
As the forum non conveniens analysis is inherently factual in nature, courts of appeal should not normally interfere with a motion judge’s factual findings. However, there are limits to deference. Where the motion judge has erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision, courts of appeal may intervene. In the case at bar, the motion judge committed several errors, which tainted his forum non conveniens analysis on each of the factors they affected as well as his overall weighing of these factors. As a result, no deference should be afforded to these aspects of the motion judge’s analysis and the Court may intervene.
Ultimately, H has established that holding a trial in Israel would be fairer and more efficient. Israel is clearly the more appropriate forum. A robust and careful forum non conveniens analysis of the relevant factors indicates that H would face substantial unfairness and inefficiency if a trial were held in Ontario. Comparative convenience and expense for the parties and comparative convenience and expense for the witnesses favour Israel. Loss of legitimate juridical advantage favours a trial in Ontario, but this factor should not weigh too heavily in the analysis. Fairness favours Israel, namely in view of G’s significant business interest and reputation in that country and the significant unfairness that a trial in Ontario would impose on H. Enforcement slightly favours Israel as H has no presence or assets in Ontario. Finally, while applicable law, as determined by the lex loci delicti principle — the place where the tort occurs —, favours Ontario in this case, this factor should be accorded little weight in the forum non conveniens analysis in cases where jurisdiction is established on the basis of the situs of the tort. In those circumstances, lex loci delicti will inevitably also point to the chosen forum on the question of applicable law.
This would not be an appropriate case to adopt the place of most substantial harm to reputation test for choice of law instead of lex loci delicti. Although in Internet defamation actions, where a tort may have occurred in multiple jurisdictions, the lex loci delicti rule may allow courts in multiple forums to assume jurisdiction and apply their own law, the Court should be reluctant to make such changes to the existing private international law framework, as this may create legal uncertainty in a manner contrary to the objectives of conflicts rules.
Per Karakatsanis J.: There is agreement with Côté J.’s conclusion and much of her reasoning. However, there is disagreement with two aspects of her analysis relating to forum non conveniens. When considering the applicable law factor, assessing what law would apply in the alternative jurisdiction is not helpful, as the ultimate question that motivates this factor is whether the plaintiff’s chosen jurisdiction would be applying foreign law. Further, G’s Israeli reputation is not material to the fairness factor, which is concerned with the plaintiff’s interest in vindicating his reputation in the jurisdiction where he enjoys it. Ultimately, the overall conclusion reached by Côté J. on forum non conveniens does not turn on any of these elements, and therefore, the appeal should be allowed.
Per Abella J.: There is agreement with Côté J. that the appeal should be allowed. However, there is disagreement with her that the lex loci delicti rule should continue to serve as the basis for choice of law under the forum non conveniens analysis in cases of multijurisdictional Internet defamation. This standard approach to choice of law does not adequately respond to the unique issues and challenges raised by Internet defamation, where a single download can determine which law applies under a strict application of the lex loci delicti rule.
The framework for choice of law should therefore be modified by replacing lex loci delicti with a test based on the place where the most substantial harm to the plaintiff’s reputation occurred. This new approach would narrow the range of potentially applicable law in a rational way and 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. It would also ensure that the choice of law rule reflects protection of reputation, which is at the core of the tort of defamation, and that the reasonable expectations of the publisher of the statement alleged to be defamatory as to where it could expect to be sued are properly considered, while at the same time striking a better balance between freedom of expression and harm to reputation.
Since there are symmetrical concerns between how the choice of law analysis proceeds and how jurisdiction is determined in Internet defamation cases, the same approach should be applied to determining jurisdiction. The current approach seems to make the assumption of jurisdiction automatic based on a single download. Since the essence of the harm in defamation is damage to reputation, the framework for determining jurisdiction should focus on where the plaintiff suffered the most substantial harm to his or her reputation. Such an approach allows the presumption of jurisdiction to be rebutted if the defendant can show that the most harm to the plaintiff’s reputation occurred elsewhere.
Adopting the most substantial harm test for determining the choice of law under the forum non conveniens analysis, the place of most substantial harm to G’s reputation is clearly Israel, and as a result, Israeli law should apply. The article in question is essentially about G and his conduct in Israel: it was about G’s soccer team, one of Israel’s most popular soccer teams, G’s involvement in his team’s management, and G’s relationship with his players, coaches and trainers in Israel. It was researched, written and edited in Israel, addressed to an Israeli audience, and focused on someone who is a public figure there. Although G spends most of his time in Canada, he maintains an apartment in Israel and his connection to Israel is significant. Accordingly, the article would have a far greater impact on his reputation in Israel than in Canada.
As for the rest of the forum non conveniens analysis, on the basis that Israeli law applies, there is agreement with Côté J. that Israel is the clearly more appropriate forum. All of the remaining factors — the comparative convenience/expense to the parties and witnesses, juridical advantage, fairness and enforcement — favour Israel.
Per Wagner J.: There is agreement with Côté J. that the appeal should be allowed. However, as set out in the reasons of Abella J., the choice of law rule during the forum non conveniens analysis should be modified 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. Although it may be that in certain cases it would be challenging to identify the place of most substantial reputational harm, the range of possibly applicable law for a given dispute would be much narrower than with lex loci delicti and would be determined on a more principled basis. Adopting this new test for choice of law would have several positive effects and would not result in a heavy evidentiary burden for the parties.
With respect to the jurisdiction simpliciter analysis, a Canadian court should not 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. As a result, concerns raised by the unique nature of Internet defamation are best addressed by changes to the choice of law rule, rather than by changes to the jurisdiction simpliciter stage of the analysis. The inquiry at that stage is simply whether there is a real and substantial connection between the dispute and the Canadian forum, not whether this connection is greater than that between the dispute and any other forum. There is no reason why this should be different in the context of Internet defamation.
In this case, when the most substantial harm test is applied to the facts, Israel is the clearly more appropriate forum.
Per McLachlin C.J. and Moldaver and Gascon JJ. (dissenting): The appeal should be dismissed. When a Canadian citizen is allegedly defamed for his Canadian business practices — in an article published online in his home province by a foreign newspaper — he is entitled to vindicate his reputation in the courts of the province where he lives and maintains his business, and where the sting of the article’s comments is felt.
The current rules that govern the application of the test for jurisdiction simpliciter readily accommodate multijurisdictional defamation cases, even in the Internet age. The commission of a tort in the jurisdiction remains a sound presumptive connecting factor on which to establish prima facie jurisdiction even in the context of Internet defamation cases, because the sting of the defamation is felt in the place where it is read. In this case, it is not contested that the allegedly libellous article was consulted by 200 to 300 people in Canada; therefore, a tort of defamation was committed in Ontario. There is no valid reason to reconsider or set aside this clearly established presumptive connecting factor.
While a presumptive connecting factor may be established virtually automatically in Internet defamation cases, a court does not necessarily assume jurisdiction. If there is no real and substantial connection between the action and the forum, the presumptive connecting factor would be rebutted. Reasonable foreseeability is central to the rebuttal step of the analysis: the strength of the relationship between the subject of the litigation and the forum is informed by the reasonable foreseeability of the claim proceeding in that jurisdiction. Without this important check of reasonable foreseeability of being sued in the jurisdiction, the presumptive connecting factor of the commission of a tort in the jurisdiction could raise concerns of forum shopping. Reasonable foreseeability is therefore an important limit on the ease with which jurisdiction can be presumptively assumed in defamation cases, especially over the Internet. In the present case, it was more than reasonably foreseeable that H would be sued in Ontario. The article was highly critical of G’s management style, allegedly imported from his Canadian business. Furthermore, H made the article readily available to readers worldwide through online publication. It is 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. Therefore, the presumption of jurisdiction was not rebutted and Ontario courts have jurisdiction. The facts undeniably reveal a real and substantial connection between this case and Ontario.
If the analysis at the rebuttal stage is done properly, with an adequate consideration of reasonable foreseeability, there is no need to apply a robust and carefully scrutinized forum non conveniens analysis, as suggested by Côté J. This new standard would frustrate the predictability and stability that is at the core of the applicable framework. The basis of the forum non conveniens analysis is the clearly more appropriate forum test, which sets a high threshold for displacing the forum chosen by the plaintiff. This purposefully stringent and consistently upheld threshold should not be lowered, whether through lenient application or through a robust and carefully scrutinized review. Furthermore, a motion judge’s discretionary decision whether or not to decline jurisdiction on the basis of forum non conveniens is entitled to considerable deference, and having appellate courts apply the proposed robust and carefully scrutinized approach would disregard the discretionary nature of forum non conveniens decisions. A motion judge’s exercise of his discretionary power or assessment of the evidence should not be interfered with where it is not tainted by any error, or when only tainted by errors that have no impact on the result.
In this case, an assessment of the factors in the forum non conveniens analysis indicates that they do not meet the test of showing that Israel is a clearly more appropriate forum than Ontario. Only the factor of comparative convenience and expense for the parties and witnesses favours Israel, and this only slightly so with respect to the witnesses. The enforcement of judgment factor does not weigh heavily in the analysis. The factor of loss of legitimate juridical advantage weighs in favour of Ontario, and, most importantly, the key factors of applicable law and fairness to the parties weigh heavily in favour of Ontario.
With respect to the applicable law factor, the most substantial harm test to determine the applicable law in multijurisdictional Internet defamation cases should not be adopted in place of lex loci delicti. Such a rule is highly subjective, and will not reliably point to one jurisdiction. It does not provide a clear answer where a person lives and maintains an important reputation in one jurisdiction, but acts — and is the subject of defamatory statements — in another jurisdiction. It would also lead to complex preliminary motions requiring substantial evidence which would increase delay and expense. In terms of the proper approach to balancing this factor in the forum non conveniens analysis, it is entirely appropriate for courts to only look at the chosen forum in determining the applicable law. Requiring courts to assess the choice of law rules of a foreign jurisdiction may require extensive evidence, needlessly complicating the pre-trial motion stage of the proceedings. Where jurisdiction is based on the situs of the tort, the applicable law under lex loci delicti will indeed point to the forum. This does not mean that the applicable law factor should be granted little weight in the forum non conveniens analysis; rather, giving due weight to this factor reflects the notion that a case should proceed in a forum that properly has jurisdiction over the matter unless another forum is clearly more appropriate. Holding that the applicable law should be given little weight ignores the importance of the territorial jurisdiction of the chosen forum, and distorts the forum non conveniens analysis in favour of the foreign jurisdiction.
The lex loci delicti rule directs courts to apply their domestic law after having found that the tort of defamation occurred within their jurisdiction. Defamation law is directed to the protection of reputation. For choice of law purposes, it is therefore logical that a court of a jurisdiction where publication occurred is entitled to apply its own law. This remains true even if a tort took place simultaneously in another jurisdiction. In this case, as the applicable law is that of Ontario, this factor strongly favours Ontario over Israel.
With respect to fairness, this factor, along with the efficient resolution of disputes, is the cornerstone of forum non conveniens. The Court has repeatedly emphasized the importance of plaintiffs being allowed to sue for defamation in the locality where they enjoy their reputation. In the instant case, G has a real and long-standing reputational interest in Ontario. His reputation in Israel is not material to the analysis. It is therefore not unfair that Ontario be the forum deciding the dispute.
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.
Cases Cited
By Côté J.
Applied: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572; Tolofson v. Jensen, [1994] 3 S.C.R. 1022; considered: Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, [2012] 1 S.C.R. 636; Moore v. Bertuzzi, 2014 ONSC 1318, 53 C.P.C. (7th) 237; referred to: Breeden v. Black, 2012 SCC 19, [2012] 1 S.C.R. 666; Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535; Muscutt v. Courcelles (2002), 60 O.R. (3d) 20; Charron Estate v. Village Resorts Ltd., 2010 ONCA 84, 98 O.R. (3d) 721; Hunt v. T&N plc, [1993] 4 S.C.R. 289; Crookes v. Newton, 2011 SCC 47, [2011] 3 S.C.R. 269; Crookes v. Holloway, 2007 BCSC 1325, 75 B.C.L.R. (4th) 316, aff’d 2008 BCCA 165, 77 B.C.L.R. (4th) 201; Barrick Gold Corp. v. Blanchard & Co. (2003), 9 B.L.R. (4th) 316.
By Karakatsanis J.
Referred to: Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, [2012] 1 S.C.R. 636; Breeden v. Black, 2012 SCC 19, [2012] 1 S.C.R. 666.
By Abella J.
Considered: Tolofson v. Jensen, [1994] 3 S.C.R. 1022; Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572; referred to: Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, [2012] 1 S.C.R. 636; eDate Advertising GmbH v. X, C‑509/09, C‑161/10, [2011] E.C.R. I‑10302; Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416; Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393; Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077; Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, [2016] 1 S.C.R. 851.
By Wagner J.
Considered: Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, [2012] 1 S.C.R. 636; referred to: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572.
By McLachlin C.J. and Moldaver and Gascon JJ. (dissenting)
Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572; Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535; Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077; Breeden v. Black, 2012 SCC 19, [2012] 1 S.C.R. 666; Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, [2012] 1 S.C.R. 636; Paulsson v. Cooper, 2011 ONCA 150, 105 O.R. (3d) 28; Barrick Gold Corp. v. Blanchard & Co. (2003), 9 B.L.R. (4th) 316; Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, [2016] 1 S.C.R. 851; Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897; Egbert v. Short, [1907] 2 Ch. 205; St. Pierre v. South American Stores (Gath and Chaves), Limited, [1936] 1 K.B. 382; Rockware Glass Ltd. v. MacShannon, [1978] 2 W.L.R. 362; Spiliada Maritime Corporation v. Cansulex Ltd., [1987] 1 A.C. 460; Spar Aerospace Ltd. v. American Mobile Satellite Corp., 2002 SCC 78, [2002] 4 S.C.R. 205; Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, [2003] 2 S.C.R. 63; Tolofson v. Jensen, [1994] 3 S.C.R. 1022; Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214; Jenner v. Sun Oil Co., [1952] 2 D.L.R. 526.
Statutes and Regulations Cited
Defamation Act 2005 (N.S.W.), s. 11(3).
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 1.08, 47.01, Tariff A.
Authors Cited
Australia. Law Reform Commission. Unfair Publication: Defamation and Privacy. Canberra, 1979.
Blom, Joost, and Elizabeth Edinger. “The Chimera of the Real and Substantial Connection Test” (2005), 38 U.B.C. L. Rev. 373.
Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed. by Raymond E. Brown. Toronto: Carswell, 1994 (loose‑leaf updated 2017, release 5).
Canadian Encyclopedic Digest, vol. 10, Ontario 4th ed. Toronto: Carswell, 2009 (loose-leaf updated 2018, release 2).
Castel, J.-G. “Multistate Defamation: Should the Place of Publication Rule be Abandoned for Jurisdiction and Choice of Law Purposes?” (1990), 28 Osgoode Hall L.J. 153.
Castel, Jean-Gabriel. “The Uncertainty Factor in Canadian Private International Law” (2007), 52 McGill L.J. 555.
Castel, Matthew. “Jurisdiction and Choice of Law Issues in Multistate Defamation on the Internet” (2013), 51 Alta. L. Rev. 153.
Cruz Villalón, Pedro. Opinion of Advocate General Cruz Villalón, C-509/09, C-161/10, [2011] E.C.R. I-10272.
Dicey, Morris and Collins on the Conflict of Laws, 15th ed. by Lord Collins of Mapesbury. London: Sweet & Maxwell/Thomson Reuters, 2012.
Downard, Peter A. The Law of Libel in Canada, 4th ed. Toronto: LexisNexis Canada, 2018.
Kain, Brandon, Elder C. Marques and Byron Shaw. “Developments in Private International Law: The 2011‑2012 Term — The Unfinished Project of the Van Breda Trilogy” (2012), 59 S.C.L.R. (2d) 277.
Law Commission of Ontario. Defamation Law in the Internet Age: Consultation Paper, Toronto, 2017 (online: http://www.lco-cdo.org/wp-content/uploads/2017/12/Defamation-Consultation-Paper-Eng.pdf; archived version: http://www.scc-csc.ca/cso-dce/2018SCC-CSC28_1_eng.pdf).
Martin, Craig. “Tolofson and Flames in Cyberspace: The Changing Landscape of Multistate Defamation” (1997), 31 U.B.C. L. Rev. 127.
Pitel, Stephen G. A., and Nicholas S. Rafferty. Conflict of Laws, 2nd ed. Toronto: Irwin Law, 2016.
Schmitz, Sandra. “From Where are They Casting Stones? — Determining Jurisdiction in Online Defamation Claims” (2012), 6 Masaryk U. J.L. & Tech. 159.
APPEAL from a judgment of the Ontario Court of Appeal (Simmons, Cronk and Pepall JJ.A.), 2016 ONCA 515, 132 O.R. (3d) 331, 349 O.A.C. 132, 401 D.L.R. (4th) 634, [2016] O.J. No. 3471 (QL), 2016 CarswellOnt 10242 (WL Can.), affirming a decision of Faieta J., 2015 ONSC 1128, 125 O.R. (3d) 619, [2015] O.J. No. 1084 (QL), 2015 CarswellOnt 3080 (WL Can.). Appeal allowed, McLachlin C.J. and Moldaver and Gascon JJ. dissenting.
Paul B. Schabas, Kaley Pulfer and Brittiny Rabinovitch, for the appellants.
William C. McDowell, Julian Porter, Q.C., and Brian Kolenda, for the respondent.
Jeremy de Beer, Marina Pavlović and David Fewer, for the intervener.
The reasons of Côté, Brown and Rowe JJ. were delivered by
Côté J. —
I. Introduction
[1] This appeal has to do with the rules for the assumption and exercise of jurisdiction in the context of multijurisdictional defamation claims. While these types of claims are not new, the exponential increase in multijurisdictional publications over the Internet has led to growing concerns about libel tourism and the possible assumption of jurisdiction by an unlimited number of forums.
[2] For the reasons set out below, I find that the current rules are able to address these challenges so long as the underlying principles of stability and fairness are kept in mind.
[3] While the motion judge in this case properly determined that he had jurisdiction (under the jurisdiction simpliciter test), he committed multiple errors in his forum non conveniens analysis. On a robust and careful assessment of the relevant factors tainted by these errors, I conclude that Israel is a clearly more appropriate forum for this claim to be heard.
[4] The appeal should be allowed.
II. Background and Facts
[5] The respondent, Mitchell Goldhar, is a prominent Canadian businessman who owns and operates SmartCentres Inc. in Ontario. He also owns the Maccabi Tel Aviv Football Club (“Maccabi Tel Aviv”), one of the most popular professional soccer teams in Israel. Goldhar, who has been described as a celebrity in Israel, maintains a residence there and travels there every few months.
[6] The corporate appellants publish Israel’s oldest daily newspaper in both English and Hebrew, in print and online. It has a distribution of about 70,000 print copies in Israel. The individual appellants are, respectively, the newspaper’s former sports editor and the author of the article alleged to be libellous. Collectively, the appellants are referred to as “Haaretz”.
[7] On November 29, 2011, Haaretz published an article about Goldhar, which the latter alleges to be libellous. The main subject of the article is Goldhar’s ownership and management of Maccabi Tel Aviv. That being said, it also references his Canadian business and his approach to management, as follows:
Though he spends most of his time in Canada, Maccabi Tel Aviv owner Mitch Goldhar runs his club down to every detail. But could his penny pinching and lack of long term planning doom the team.
. . .
Crises are par for the course at Maccabi Tel Aviv, even when the club appears to be on an even keel. Most of the crises don’t make it onto the public’s radar, but they have one thing in common: their connection to [sic] way that Canadian owner Mitch Goldhar runs the club.
. . .
Goldhar’s management model was imported directly from his main business interest — a partnership with Wal-Mart to operate shopping centers in Canada.
. . .
Within the club, however, there are those who believe that Goldhar’s managerial culture is based on overconcentration bordering on megalomania, penny-pinching and a lack of long-term planning.
. . .
Goldhar boasts to his business contacts in Toronto that he is not only the owner of Maccabi Tel Aviv but also its soccer director.
(Reproduced in 2016 ONCA 515, 132 O.R. (3d) 331, Appendix “A”.)
The article was researched, written and edited in Israel, primarily in reliance on Israeli sources.
[8] The article was published in print and electronically in Hebrew and English. While it was not distributed in print form in Canada, it was available electronically. The motion judge found it likely that 200 to 300 people in Canada read the article; by comparison, the evidence showed that approximately 70,000 people read the article in Israel. Two affiants, both employed by SmartCentres Inc., have stated that they read the article and that it came to the attention of most of their approximately 200 co-workers. There is no evidence that those who read the article thought less of Goldhar as a result.
[9] On December 29, 2011, Goldhar commenced an action for libel, alleging “damage to his reputation in his business and personal life”. His amended statement of claim states that “[t]he plaintiff conducts business in Israel, Canada and the United States, and will continue to suffer damages in these countries and elsewhere” (reproduced in A.R., vol. II, pp. 1-8, at para. 12).
[10] Haaretz brought a motion to stay the action, arguing that Ontario courts lacked jurisdiction or, alternatively, that Israel was a clearly more appropriate forum.
[11] The motion judge dismissed the motion, finding that Ontario courts had jurisdiction and refusing to decline to exercise this jurisdiction in favour of Israeli courts. In doing so, he relied on two undertakings by Goldhar’s counsel. First, Goldhar would not seek damages at the trial of the action for reputational harm suffered in Israel or anywhere else outside of Canada. Second, Goldhar would pay for the travel and accommodation expenses of Haaretz’s witnesses at the rates provided in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[12] The majority of the Ontario Court of Appeal dismissed the appeal.
III. Judicial History
A. Ontario Superior Court of Justice — 2015 ONSC 1128, 125 O.R. (3d) 619, per Faieta J. (March 6, 2015)
[13] The motion judge dismissed the motion to stay the action and added that, in the event that the action proceeded in Ontario, Goldhar’s claim would be limited to damages for reputational harm suffered within Canada and he would pay for the travel and accommodation expenses of Haaretz’s witnesses at the rates provided in the Rules. He also expressed the view that the lawsuit was far from being an abuse of process by Goldhar.
[14] The motion judge found that he had jurisdiction. The parties agreed that, as the evidence established that the article had been read in Ontario, a presumptive connecting factor existed. The motion judge found that Haaretz had failed to rebut the presumption. In particular, he did not view the absence of substantial publication of the libellous material in Ontario as rebutting the presumption, and he considered proof of harm to reputation irrelevant for the purposes of determining whether a minor element of the tort had occurred in Ontario.
[15] Further, the motion judge refused to decline to exercise jurisdiction, finding that Israel was not a clearly more appropriate forum after weighing the following factors:
• Comparative convenience and expense for the parties favoured a trial in Israel. The Haaretz defendants were all based in Israel. Goldhar visited Israel regularly and there was no evidence that a trial in Israel would cause him inconvenience or expense.
• Comparative convenience and expense for the witnesses slightly favoured a trial in Israel. Goldhar had not filed any evidence regarding the witnesses that he would call at trial. Haaretz proposed to call 22 witnesses, 18 of whom lived in Israel. However, the relevance of the testimony of some of Haaretz’s witnesses was questionable. Compelling the attendance of these witnesses in Ontario could be accomplished through the use of letters rogatory, also called letters of request. Moreover, foreign witnesses could testify via videoconference. Finally, Goldhar’s undertaking to pay for the travel and accommodation expenses of Haaretz’s witnesses at the rates provided by the Rules addressed any additional expense.
• Applicable law favoured a trial in Ontario. Regardless of which choice of law rule applied, the lex loci delicti (the place where the tort is committed) rule or the “most substantial harm to reputation” rule, Ontario law was applicable to this case. Ontario was the locus delicti of the tort of libel. Further, there was no comparative evidence of reputational harm to Goldhar in Israel and Ontario as a result of the publication, and there was limited evidence regarding Goldhar’s reputation. In light of this evidence, Goldhar’s undertaking not to seek damages for reputational harm outside of Canada was a very significant factor which led to the conclusion that the most substantial harm to his reputation was in Ontario.
• Loss of juridical advantage favoured a trial in Ontario. The availability of a jury trial in Ontario was a juridical advantage of which Goldhar would be deprived if the case were tried in Israel. Any juridical advantage Goldhar might enjoy under Israeli defamation law was irrelevant, since the proper question was whether the plaintiff should be denied the benefits of his decision to select a forum that was appropriate under the conflicts rules.
• Fairness to the parties favoured a trial in Ontario. Given the importance of place of reputation in Canadian defamation law, there was no surprise or injustice to Goldhar’s attempt to vindicate his reputation in Ontario, where he lives and works.
B. Ontario Court of Appeal — 2016 ONCA 515, 132 O.R. (3d) 331, per Simmons and Cronk JJ.A. (Pepall J.A. Dissenting) (June 28, 2016)
[16] The majority of the Court of Appeal dismissed Haaretz’s appeal. The majority was of the view that the motion judge had not erred in failing to find that Haaretz had successfully rebutted the presumption of jurisdiction. As the article “draws a link between Goldhar’s management model and his Canadian business” (para. 41), there was a significant connection between the subject matter of the action and Ontario, and it should not have come as a surprise to Haaretz that Goldhar would seek to vindicate his reputation in Ontario. The question at