Supreme Court Considers Jurisdiction and the Appropriate Forum in International Internet Defamation Claim ( v. Goldhar)

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Civil Litigation, Cross-Border Litigation, Defamation, Forum Challenges, Internet | Technology, Jurisdictional Challenges, Online Defamation0 Comments

In v. Goldhar, 2018 SCC 28 (CanLII), the Supreme Court considered whether a defamation claim brought by the plaintiff in Ontario should be dismissed for lack of jurisdiction or, alternatively, for a more convenient forum.  

The the plaintiff is a prominent Canadian businessman who owns a large real-estate investment company in Ontario. He also owns a popular professional soccer teams in Israel.  He is well known in Israel, maintains a residence there, and travels there every few months.  The corporate defendants publish a daily newspaper in Israel in both English and Hebrew, which is distributed in print and online.  The newspaper has a distribution of about 70,000 print copies in Israel. The individual defendants are the newspaper’s former sports editor and the author of the allegedly libellous article. The defendants published an article about the plaintiff’s ownership and management of the soccer teams in Israel.  The article also referenced the plaintiff’s Canadian business and his approach to management. The plaintiff alleged that the article was libellous.  The article was available electronically in Canada. The motion judge found that likely 200 to 300 people read the article in Canada and that approximately 70,000 people read the article in Israel. The plaintiff commenced a claim in Ontario for damages.  

The defendants brought a motion to dismiss the claim for lack of jurisdiction or, alternatively, on the basis that Israel was the more appropriate forum for the claim.  The motion judge dismissed the defendants’ motion, which dismissal was upheld by the Ontario Court of Appeal.  However, the majority of the Supreme Court granted the appeal.  While the majority found that Ontario had jurisdiction, it found that Israel was the more appropriate forum for the claim.  

In respect of jurisdiction, the majority of the Court stated that the claim was presumptively connected to Ontario because the tort was committed in Ontario – i.e. the article was “published” in Ontario when it was read or downloaded in Ontario.  The majority confirmed that even a single instance of publication in Ontario was sufficient to ground the commission of defamation in Ontario. The majority held that the presumption was not rebutted by the defendants because they could not establish that it did not reasonably expect legal proceeding in Ontario: the defendants knew that Goldhar lived and did business in Ontario and that article directly referred to the plaintiff’s Canadian residency and Canadian business practices.

In respect of the most convenient forum (forum non conveniens), the Court analyzed six factors to conclude that Israel was clearly more appropriate, being:

(1)   Comparative Convenience and Expense for the Parties: it was clear that a trial in Israel would cause significant inconvenience to the defendants, which favoured Israel.

(2)   Comparative Convenience and Expense for the Witnesses:  the majority found that the motion judge and Court of Appeal erred in their analysis of this issue.  The defendants led evidence on the motion that many witnesses could not be compelled directly to testify.  Among other things, the majority stated that it was up to the plaintiff to respond to the defendants’ evidence regarding witness unavailability to testify in Ontario with evidence that these witnesses could, in fact, be compelled as witnesses in Ontario, which the plaintiff did not.  Overall, the majority held that this factor significantly favoured Israel as the clearly more appropriate forum.

(3)   Loss of Legitimate Juridical Advantage: the majority of the Court stated that the motion judge was correct to find that the plaintiff would lose a juridical advantage of a jury trial (as none was available in Israel).  However, the majority stated that this factor, while favouring Ontario, should not weigh heavily in the analysis.

(4)   Fairness: the majority found that the motion judge and the Court of Appeal had erred in their analysis of this “important factor” accepting that there was “no surprise or injustice to the plaintiff’s attempt to vindicate his reputation in Ontario, where he lives and works.”  The majority stated that the motion judge and Court of Appeal ignored that the plaintiff had “significant business interest and reputation in Israel”. The majority stated that the plaintiff would suffer not suffer significant unfairness by having to bring a libel claim in Israel, which was where the comments were written and researched in Israel and which comments primarily related to his reputation and business in Israel.

(5)   Enforcement: the majority stated that the motion judge and Court of Appeal erred in failing to consider that the defendants did not have any presence in Ontario, meaning that any enforcement of an Ontario Judgment would require a seperate enforcement proceedings in Israel.  The majority found that the likelihood of a multiplicity of proceedings slightly favoured Israel.

(6)   Applicable law: the majority stated that the applicable law, as determined by the lex loci delicti principle (the place where the tort occurs), 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.

Overall, the majority concluded that Israel was clearly the more appropriate forum and granted the defendants’ motion to stay the plaintiff’s action.

Given the split Court (5-4) and the multiple concurring reasons, this case is likely not the Supreme Court’s final word on jurisdiction and forum in the context of international internet defamation claims.  

The lawyers at Gilbertson Davis LLP have experience in international litigation, jurisdiction and forum challenges, and internet defamation.  Please contact us for an initial consultation.

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Andrew Ottaway, B.A. (Hons.), LL.B.

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