CITATION: Black v. Breeden, 2010 ONCA 547 |
DATE: 20100813 |
DOCKET: C50380 |
COURT OF APPEAL FOR ONTARIO |
Doherty, Juriansz and Karakatsanis JJ.A. |
BETWEEN |
Conrad Black |
Plaintiff (Respondent) |
and |
Richard C. Breeden, Richard C. Breeden & Co., Gordon A. Paris, James R. Thompson, Richard D. Burt, Graham L. Savage and Raymond G.H. Seitz |
Defendants (Appellants) |
AND BETWEEN |
Conrad Black |
Plaintiff (Respondent) |
and |
Richard C. Breeden, Richard C. Breeden & Co., Gordon A. Paris, James R. Thompson, Richard D. Burt, Graham W. Savage and Raymond G.H. Seitz |
Defendants (Appellants) |
AND BETWEEN |
Conrad Black |
Plaintiff (Respondent) |
and |
Richard C. Breeden, Richard C. Breeden & Co., Gordon A. Paris, James R. Thompson, Richard D. Burt, Graham W. Savage and Raymond G.H. Seitz |
Defendants (Appellants) |
AND BETWEEN |
Conrad Black |
Plaintiff (Respondent) |
and |
Richard C. Breeden, Richard C. Breeden & Co., Gordon A. Paris, James R. Thompson, Richard D. Burt, Graham W. Savage and Raymond G.H. Seitz |
Defendants (Appellants) |
AND BETWEEN |
Conrad Black |
Plaintiff (Respondent) |
and |
Richard C. Breeden, Richard C. Breeden & Co., Gordon A. Paris, Graham L. Savage, Raymond G.H. Seitz and Paul B. Healy |
Defendants (Appellants) |
AND BETWEEN |
Conrad Black |
Plaintiff (Respondent) |
and |
Richard C. Breeden, Richard C. Breeden & Co., Gordon A. Paris, James R. Thompson, Richard D. Burt, Graham W. Savage, Raymond G.H. Seitz, Shmuel Meitar and Henry A. Kissinger |
Defendants (Appellants) |
Paul B. Schabas and Erin Hoult, for the appellants Richard C. Breeden and Richard C. Breeden & Co. Julia E. Schatz, for the remaining appellants |
Earl A. Cherniak, Q.C., and Lisa C. Munro, for the respondent Conrad Black |
Heard: May 3, 2010 |
On appeal from the order of Justice Edward P. Belobaba of the Superior Court of Justice dated March 31, 2009, with reasons reported at (2009), 309 D.L.R. (4th) 708. Karakatsanis J.A.: |
[1] This appeal involves the application of the test for assumed jurisdiction as reformulated in Van Breda v. Village Resorts Limited (2010), 98 O.R. (3d) 721 (C.A.), leave to appeal to S.C.C. granted, [2010] S.C.C.A. No. 174, in the context of Internet-based libel actions.
[2] The defendants appeal from the order of Belobaba J. dated March 31, 2009, confirming that Ontario has jurisdiction and is the appropriate and convenient forum for the respondent’s actions.
[3] The respondent, Conrad Black, filed six libel actions in the Ontario Superior Court, in respect of statements posted on the Hollinger International, Inc. (Hollinger International) website. The defendants in the actions are directors, advisors and a Vice President of Hollinger International. Black alleges that press releases and reports issued by the defendants contained defamatory statements that were downloaded, read and republished in Ontario by The Globe and Mail, the Toronto Star, and the National Post, and damaged his reputation in Ontario.
[4] The defendants brought a motion to stay the actions on the ground that the Ontario court did not have jurisdiction, or alternatively that Ontario was not the convenient forum. The defendants argued that there was no real and substantial connection between Ontario and the actions, and that the more appropriate forum was either New York or Illinois. The motion judge disagreed and dismissed the defendants’ motion.
[5] The motion judge applied the test for assumed jurisdiction as set out in Muscutt v. Courcelles (2002), 60 O.R. (3d) 20 (C.A.). Subsequent to his decision, this court modified the Muscutt test in Van Breda. The hearing of this appeal was deferred pending the release of the reasons for decision in Van Breda.
[6] There are two issues in this appeal:
1. Was the motion judge correct in concluding that Ontario could assume jurisdiction in light of the test as set out in Van Breda?
2. Did the motion judge err in principle in determining that there was no clearly more convenient forum?
[7] For the reasons that follow, I would dismiss the appeal.
[8] Conrad Black is a well-known business figure who established a reputation first in Canada and then internationally as a newspaper owner and publisher. The defendants are the directors, advisors and a Vice President of Hollinger International. One defendant lives in Ontario, another in Israel and the remaining eight defendants live, or are headquartered, in five different U.S. jurisdictions.
[9] Until January 2004, Black was Chairman of Hollinger International, a publicly traded Delaware company headquartered at different times in New York or Chicago. Black and his associates effectively controlled Hollinger International through two Ontario companies, Hollinger Inc. and The Ravelston Corporation Limited (Ravelston Corp).
[10] In the spring of 2003, a minority shareholder of Hollinger International complained about the legitimacy of “non-compete” and “management service” payments that had been made to Black, his associates and to entities he owned or controlled. The Hollinger International Board of Directors established a Special Committee to investigate the allegations made in the complaints.
[11] The Special Committee concluded that certain payments Black, other individuals and entities received from Hollinger International were not properly authorized. In August 2004, the Special Committee completed a report, which, pursuant to a U.S. Consent Order, was provided to the U.S. District Court and the U.S. Securities and Exchange Commission (SEC). The Consent Order was in relation to an injunctive complaint filed by the U.S. SEC against Hollinger International in Illinois.
[12] Black brought these libel actions between February 2004 and March 2005. Two of the actions include a claim for conspiracy to injure. Although the actions initially claimed damages to Black’s reputation world-wide, the actions are now restricted to publication in Ontario and to damages to his reputation in Ontario. Black has undertaken not to bring any libel action for publication of the statements in these actions in any other jurisdiction.
[13] The libel suits relate to items posted on the Hollinger International website, including press releases about the Special Committee investigation and the legal disputes that followed; the report of the Special Committee; and a summary of the findings of the Special Committee and related risks in the company’s annual securities law form. Hollinger International’s website was accessible in Canada. The press releases provided media, explicitly including Canadian media, with contact information.
[14] The statements allege that Black, his associates, Hollinger Inc. and Ravelston Corp. improperly took hundreds of millions of dollars from Hollinger International. The report states that “[t]he Special Committee knows of few parallels to [Black’s] brand of self-righteous, and aggressive looting of Hollinger to the exclusion of all other concerns or interests”; that “Black as both CEO and controlling shareholder... created an entity in which ethical corruption was a defining characteristic of the leadership team”; that “the evidence... establishes an overwhelming record of abuse, overreaching and violations of fiduciary duties by Black”; and that he made it his business to “line [his] pockets at the expense of Hollinger almost every day, in almost every way”. The releases or reports suggest that Black had committed tax evasion and breached U.S. securities law.
[15] Black’s actions have been the subject of civil and criminal actions and regulatory proceedings in the United States and Canada. Numerous claims and counterclaims between Hollinger International, Black and other related parties were brought in Delaware and Illinois. In the outstanding Illinois action brought by Hollinger International, allegations concerning millions in unauthorized management fee and non-compete payments were being actively litigated when the action was stayed pending the completion of the criminal proceedings.
[16] Shareholder class actions were also commenced in Illinois and several Canadian provinces, including Ontario. These class actions have settled.
[17] In the Ontario Superior Court, Hollinger International brought an action against Hollinger Inc. and Ravelston Corp., seeking to recover Hollinger International’s documents and property held in Ontario at the corporations’ premises. Ravelston Corp. brought a motion for an anti-suit injunction restraining Hollinger International from bringing or continuing any claims arising from the management of the Hollinger group of companies in any jurisdiction outside Ontario. The motion included a request for an injunction restraining Hollinger International from continuing against Ravelston Corp. the Illinois action. The motion judge dismissed the motion for anti-suit injunction noting that the Illinois forum was favoured, and granted Hollinger International’s cross-motion requesting a temporary stay of the counterclaims. In October 2006, Hollinger International (by this time known as Sun-Times Media Group Inc.) also brought an action in Ontario for a mareva injunction relying upon claims made in the Illinois action.
[18] In July 2007, Black was acquitted of some and convicted of other criminal charges. The appellate process is ongoing.
I: DOES ONTARIO HAVE JURISDICTION TO HEAR THE ACTIONS?
[19] Whether Ontario has jurisdiction to hear this action is a question of law and the standard of review is correctness.
The test for assumed jurisdiction: Van Breda
[20] In Van Breda, this court reviewed the Muscutt test and modified and refined the test to provide for clarity and ease of application (paras. 70, 83 and 109). Sharpe J.A. noted the importance of maintaining the distinction between legal jurisdiction simpliciter, an inquiry that does not turn upon a comparison with the strength of the connection with another potentially available jurisdiction, and the discretionary test for forum non conveniens (paras. 82 and 109).
[21] Sharpe J.A. identified the core of the real and substantial connection test as the connection that the plaintiff’s claim has to the forum and the connection of the defendant to the forum. The remaining considerations or principles should not be treated as independent factors but as analytical tools to assist the court in assessing the significance of the connections between the forum, the claim and the defendant (paras. 84 and 109).
[22] Sharpe J.A. determined that as a first stage, a real and substantial connection is presumed to exist for the purposes of assuming jurisdiction against a foreign defendant, if the case falls within one of the connections set out in the rule for service outside Ontario, r. 17.02 of the Rules of Civil Procedure, excepting subrules (h) (damages sustained in Ontario) and (o) (a necessary or proper party) (paras. 72 and 109).
[23] If a real and substantial connection is presumed to exist, the defendant bears the burden of showing that a real and substantial connection does not exist in the specific circumstances of the case. Where no presumption is established, the burden falls on the plaintiff to show that the real and substantial connection test is met. At this second stage, the core of the analysis rests upon the connection between Ontario and the plaintiff’s claim and the defendant, respectively (para. 109).
[24] The consideration of the fairness of assuming or refusing jurisdiction, is not a free-standing factor capable of trumping weak connections, but rather is an analytic tool to assess the relevance, quality and strength of the connections between the forum, the plaintiff’s claim and the defendant (paras. 96-98 and 109).
[25] The involvement of other parties to the suit is relevant only in cases where it is asserted as a possible (not a presumptive) connecting factor that may justify jurisdiction (paras. 102 and 109). The court’s willingness to recognize and enforce an extra-provincial judgment against an Ontario defendant rendered on the same jurisdictional basis is not a separate factor but remains as a general and overarching principle that disciplines the assumption of jurisdiction over extra-provincial defendants (paras. 103 and 109). The interprovincial or international nature of the case, comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere, are general principles of private international law that bear upon the interpretation and application of the real and substantial connection test (paras. 106-109).
The motion judge’s decision
[26] The motion judge found that almost all of the Muscutt factors favoured Black. Specifically, he found that the alleged tort occurred in Ontario. He further concluded that the defendants would have been aware, or ought to have been aware, of some of Black’s many ties to Ontario or that he had established a significant reputation in this jurisdiction. He concluded that the defendants knew, or ought to have known, that the statements would be of considerable interest to people and media in Ontario, and would be published and republished by newspapers in Ontario.
[27] The motion judge did not consider that it would be unfair to proceed in Ontario, given his finding that the downloading and injury to Black’s reputation in Ontario was reasonably foreseeable. He also noted that it would be unfair to deny Black the opportunity to vindicate his reputation in a jurisdiction that is very important to him. Despite the international nature of the action and the unenforceability of any judgment in the United States, the motion judge found that there was value to Black in proceeding in Ontario. He concluded that the Muscutt factors favoured the assumption of jurisdiction.
The positions of the parties
[28] The defendants submit that there is no real and substantial connection between Black’s claims and Ontario or between the defendants and Ontario. They further submit that the motion judge erred by failing to have regard to the principles of order, fairness and jurisdictional restraint that underlie the real and substantial connection test and by engaging in a mechanical tallying of the factors.
[29] The defendants submit that the motion judge erred in finding the alleged tort was committed in Ontario. The view that Internet-based defamation occurs anywhere and everywhere the material is accessed, they argue, must be rejected. In the alternative, they submit that the place where the statement is downloaded or republished by third parties and where reputation is damaged is not a reliable indicator of a real and substantial connection to that jurisdiction.
[30] It is the defendants’ position that the motion judge erred in focusing on the connections between Black and Ontario, rather than on the connections between the claims and Ontario. The claims in this proceeding arise out of statements involving the governance of an American corporation, made by its directors, officers and advisors and posted on its website in the U.S. Further, other than one defendant, the defendants have no connection to Ontario and their actions did not occur in Ontario. The defendants argue that it would be unfair to assume jurisdiction against the defendants in this case merely because they “ought to reasonably have contemplated being called upon in the jurisdiction.”
[31] Black’s position is that the analysis of the motion judge remains sound. Although the court has altered the weight of certain factors, the motion judge considered the correct factors and his decision should be affirmed. The motion judge found that the factors that now constitute the “core” factors favoured Black. Black submits that the “fairness” factor and the general overarching principles in the Van Breda test also favour the assumption of jurisdiction.
1. Is there a presumption of a real and substantial connection on the ground that the case falls within a connection specified in r. 17.02?
[32] Black submits that a real and substantial connection is presumed to exist because the claim falls under r. 17.02(g). The motion judge, although not performing the analysis described in Van Breda, found that the alleged tort was committed in Ontario. I see no basis to interfere with this conclusion.
[33] The motion judge rejected the defendants’ characterization of the claims as being about the governance of a U.S. company in accordance with U.S. law. He stated that, properly characterized, the claims were for defamation committed and damages sustained in Ontario. On the law of defamation, the motion judge explained at para. 35:
The case law is clear that the heart of a libel action is publication. The tort of defamation is committed where the publication takes place. Publication occurs when the words are heard, read or downloaded. The statements in question may well have been made in the U.S. by the directors or advisors of a U.S. company, but they were published or republished in Ontario and they are alleged to have caused injury in Ontario. The connection between the subject matter of the actions and Ontario is thus significant. [Footnotes omitted.]
[34] The defendants submit that the statements in question were all made in the United States, primarily in New York; although Black pleads republication in Ontario, the republication was not made by the defendants. They take the position that the alleged tort was not committed in Ontario and American libel law would apply.
[35] The defendants submit that treating the lex loci delicti as the place in which allegedly defamatory statements were accessed is inappropriate in the context of Internet libel. An approach that looks to where the statements were accessed, they argue, is contrary to the principles of order and fairness, leads to libel tourism and the prospect of unlimited liability and has a chilling effect on freedom of speech.
[36] The defendants advocate a different approach to a claim for libel originating on the Internet. They suggest that the focus of the analysis of where the tort of Internet libel is committed should be on whether the defendant targeted the statements to the forum rather than where they were downloaded and read.
[37] In support of the “targeting analysis” advocated, the defendants cite M. Geist, “Is There a There There? Toward Greater Certainty for Internet Jurisdiction” (2001), 16 Berkeley Tec. L.J. 1345, at 1380 and the case of Young v. New Haven Advocate, 315 F.3d 256, at 262-63 (4th Cir. 2002). In Young, the United States Court of Appeals for the 4th Circuit concluded that two Connecticut newspapers did not subject themselves to the jurisdiction of Virginia courts by posting on the Internet news articles that allegedly defamed the warden of a Virginia prison. The court explained at p. 263: “Something more than posting and accessibility is needed to ‘indicate that the [newspapers] purposefully (albeit electronically) directed [their] activity in a substantial way to the forum state’, Virginia. The newspapers must, through the Internet postings, manifest intent to target and focus on Virginia readers” (citations omitted).
[38] The defendants do not point to any Canadian authority for such a targeting approach. In Bangoura v. Washington Post (2005), 258 D.L.R. (4th) 341 (Ont. C.A.), at para. 48, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 497, the interveners representing the Media Coalition proposed such an alternative approach to the issue of publication on the Internet and jurisdiction; however, the court did not find it necessary to determine the issue. Similarly, this issue need not be resolved on the facts of this case.
[39] I am satisfied on this record that there is evidence that the defendants did target and direct their statements to this jurisdiction. The press releases posted on the Internet specifically provide contact information for Canadian media, as well as U.S. and U.K. media. The press releases concluded with the heading “Contacts” for “US/Canada Media” followed by a name and contact information, as well as for “UK Media” with a different name and contact information. The contact information for Canadian media clearly anticipated that the statements would be read by a Canadian audience and invited Canadian media to respond.
[40] For these reasons, I conclude that the motion judge did not err in finding the alleged defamation was committed in Ontario.
[41] Alternatively, the defendants submit that in the context of the Internet, downloading was merely the ‘completion’ of the tort, suggesting that the tort could be committed in more than one jurisdiction. They suggest that where a tort can be committed in more than one jurisdiction, this could create an exception to the presumption of real and substantial connection. However, in my view, it is unnecessary to create a new exception in order to address principles of fairness and order or jurisdictional restraint.
[42] As a claim “in respect of a tort committed in Ontario”, a connection described in r. 17.02(g), there is a presumption of a connection to Ontario for the purpose of establishing jurisdiction. This presumption is not conclusive; it remains open to the defendants rebut the presumption and to show that in these particular circumstances there is no real and substantial connection with Ontario.
2. Have the defendants rebutted the presumption of a real and substantial connection?
(i) The connection between the plaintiff’s claim and the forum
[43] The motion judge held that Black had significant connections to Ontario: he lived primarily in Ontario until he was 45 years old; he has a home in Ontario; his family resides in Ontario; and he flew to Ontario more frequently than any other jurisdiction. Furthermore, the motion judge was satisfied that Black’s reputation had been first established in Ontario and that he had not received the same level of attention in any other jurisdiction.
[44] The defendants submit that Black is not a resident of Ontario, and thus one of the reasons for seeking to facilitate his right to sue in Ontario is not present. Furthermore, as a non-Canadian convicted felon, they submit that Black does not have the right to enter Canada. They submit that there is simply no connection between Black’s claims and Ontario.
[45] The assumed jurisdiction test has developed in part to protect the legal rights of the forum’s residents. In Muscutt, at para. 79, the court noted that if the plaintiff lacks a significant connection with the forum, the case for assuming jurisdiction on the basis of damage sustained within the jurisdiction is weaker. However, it is not necessary that the plaintiff be a resident of Ontario. In Van Breda, the Van Breda plaintiffs were no longer residents of Ontario.
[46] As noted by the defendants, it is clear from Van Breda that the inquiry is focussed on whether there is a connection with the plaintiff’s claim and Ontario. As such, the focus on the plaintiff’s ties to the forum should focus only on ties that are relevant to the plaintiff’s claim or the subject matter of the suit.
[47] The defendants submit that even if the alleged defamation was committed in Ontario, republication in Ontario and damage to reputation in Ontario are not significant connections in the context of Internet libel and in the context of the subject matter of this case. They point out that the statements are about Black’s conduct in the United States relating to his actions as Chair and CEO of a corporation formed under American law; that the impugned statements were press releases and a report through which disclosures required under U.S. securities law or under court order were made; and that the subject matter of the statements is being investigated and litigated in the United States. They say that the focus of the litigation is going to be about the truth of the statements, not damages. The truth of the statements will clearly involve issues relating to conduct in the U.S., and American corporate and securities law will be relevant. Thus, the claims, the defendants submit, properly characterized, do not involve a substantial and real connection to Ontario. It is their position that the motion judge erred in dismissing this characterization of the claims and looking at the wrong factors.
[48] It is true that the underlying factual context of the claims involves significant connections to the United States. The subject-matter of the claim and the facts underlying the action are important considerations in determining whether there is a real and substantial connection between the plaintiff’s claim and the jurisdiction. Of course, it may be that there is another jurisdiction with an even more substantial connection than Ontario. However, this court cautioned in Van Breda that the test for assuming jurisdiction does not turn upon a comparison with the strength of the connection with another potentially available jurisdiction.
[49] In this case, the damages also clearly arise in Ontario. In Van Breda, Sharpe J.A. noted that it is clear from the Muscutt quintet that there are many situations where damages sustained in Ontario will not serve as a reliable indicator of a real and substantial connection. As such, subrule 17.02(h) (damages sustained in Ontario) does not have a presumptive effect. However, also in Van Breda, the fact that damages were suffered within the jurisdiction was accepted as a significant connection and relevant factor: see also Muscutt at para. 81 and Leufkens v. Alba Tours International Inc. (2002), 60 O.R. (3d) 84 (C.A.), at para. 24. Thus, while it may not be sufficient to give rise to a presumption, I am nonetheless satisfied that “damages sustained in Ontario” is an added connection between Black’s claim and Ontario.
[50] In my opinion, the facts relevant to Black’s claim relating to publication in Ontario and the damage to Black’s Ontario reputation form a significant connection between Black’s claims and Ontario.
[51] Accordingly, in all these circumstances, I would not interfere with the motion judge’s finding that there was a real and substantial connection between Black’s claim and Ontario.
(ii) The connection between the defendants and the forum
[52] Except for one secondary defendant, the defendants have no physical connection to Ontario. Further, the defendants’ conduct in making and posting the statements was confined to the United States.
[53] The motion judge found that the defendants would have been aware of some of Black’s many ties to Ontario or that he had established a significant reputation in this jurisdiction. He concluded that they knew, or ought to have known, that the statements would be of considerable interest to people and media in Ontario and would be published and republished by newspapers in Ontario. Thus, although the defendants’ conduct occurred outside the territory, they were connected to Ontario because it was reasonably foreseeable to the defendants that the press releases posted to their company’s New York website would be downloaded and published in Ontario and would result in damage to Black’s reputation in Ontario.
[54] The defendants submit that reasonable forseeability itself is not a reliable indication of connection to the jurisdiction. They argue that Van Breda makes clear that jurisdiction should not be assumed based merely upon the conclusion that the defendant “ought to reasonably have contemplated being called upon to account in the forum” (para. 90). Further, they submit that statements placed on the Internet are not analogous to defective goods placed in the “normal channels of trade”.
[55] In Van Breda at para. 89, Sharpe J.A. noted that physical presence or activity by the defendants within the jurisdiction is not always required as set out in Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393. Sharpe J.A. cautioned that in the situation where the wrongful act and injury both occur outside the jurisdiction and the plaintiff returns home, the fact that it was foreseeable that the plaintiff would return home and continue to suffer consequential damages, is not alone sufficient to make the defendant subject to the plaintiff’s home jurisdiction under the Moran principle (para. 91).
[56] In my view, the motion judge’s analogy to the approach in product liability cases, as found in Moran was appropriate in the circumstances of this case. In Moran, Dickson J. noted at p. 409:
By tendering his products in the market place directly or through normal distributive channels, a manufacturer ought to assume the burden of defending those products wherever they cause harm as long as the forum into which the manufacturer is taken is one that he reasonably ought to have had in his contemplation when he so tendered his goods.
[57] As noted by the motion judge, this approach has been mirrored in Internet defamation cases. In Barrick Gold Corp. v. Blanchard and Co. (2003), 9 B.L.R. (4th) 316 (Ont. S.C.), Nordheimer J. stated at para. 44:
If a person issues a statement and places that statement in a normal distribution channel designed for media attention and publication, a person ought to assume the burden of defending those statements, wherever they may damage the reputation of the target of those statements and thereby cause the target harm, as long as that harm occurred in a place that the originator of the statements ought reasonably to have had in … contemplation when the statements were issued.
[58] While the defendants suggest it is unfair to make foreign defendants defend themselves in a jurisdiction to which the statements were not directed, in fact, as indicated above, there is clear evidence in this case that the press releases were directed to Canadian media.
[59] In all these circumstances, I agree with the motion judge’s conclusion that there was a connection between the defendants and the forum.
(iii) Fairness in assuming or refusing jurisdiction
[60] As already noted, in Van Breda, it was held that considerations of fairness should serve as an analytical tool to assess the relevance, quality and strength of the connections that are the core of the test and whether they amount to a real and substantial connection.
[61] The motion judge noted that it is indisputable that the law of libel in Ontario is more favourable to plaintiffs than that in the U.S. If Black were required to sue for libel in New York or Illinois, he would be deprived of the presumptions of falsity, damages and malice. However, he also pointed out that loss of juridical advantage does not necessarily result in unfairness. The motion judge concluded that it would be unfair to prevent Black from bringing the suits in Ontario because Ontario is where his reputation was established, where the defamatory statements were published and republished, and where the alleged damage occurred. To deny Black the opportunity to vindicate his reputation in a jurisdiction that is obviously very important to him, the motion judge explained, would be unfair.
[62] In para. 101 of Van Breda, this court cautioned that the analysis for jurisdiction simpliciter “must not anticipate, incorporate or replicate consideration of the matters that pertain to the forum non conveniens test”. The issue of juridical advantage ought not therefore to be considered in this analysis.
[63] However, because Black’s claims relate to statements published in Ontario and his suits are limited to damages to his reputation in Ontario, I agree that it would be unfair to deprive him of a trial before the community in which his reputation has been damaged. Members of the community in which the reputation is harmed are in the best position to assess damages for defamation: see Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at pp. 1196 -1197.
[64] Further, the motion judge concluded that it would not be unfair to the defendants to assume jurisdiction. He did not consider that an order of a U.S. court requiring the defendants to prepare a report of the Special Committee provided immunity from libel actions. While acknowledging that the defendants would likely be deprived of the significant juridical advantage they would enjoy if the actions proceeded in Illinois or New York, he noted that it was reasonably foreseeable that the defendants’ actions in New York could injure Black’s reputation in Ontario, which is where both the tort and the damage allegedly occurred.
[65] In my opinion, there is no unfairness to hold the defendants accountable for the accuracy of statements that were widely disseminated over the Internet and specifically directed to Canadian media. Some activities by their very nature involve a sufficient risk of harm to parties outside the forum in which they originate that any unfairness in assuming jurisdiction is mitigated or eliminated: see Muscutt at para 86. In Barrick Gold Corp. v. Lopehandia, (2004), 71 O.R. (3d) 416 (C.A.), at para. 1, Blair J.A. quoted Matthew Collins, The Law of Defamation and the Internet (Oxford University Press, 2001), at para 24.02, that concomitant with the powerful possibilities of Internet, “the Internet is also potentially a medium of virtually limitless international defamation.”
[66] I agree with the motion judge that there is no unfairness in requiring the defendants – sophisticated businessmen who targeted the Canadian media and who reasonably foresaw the possibility that their conduct in posting the statements on the Internet would cause damage to Black’s reputation in Ontario – to defend defamation actions brought in Ontario, where both the tort and the damages occurred.
[67] In all these circumstances, I agree with the motion judge’s conclusion that fairness supports the assumption of jurisdiction. I conclude there is a real and substantial connection between the forum and Black’s claims and the forum and the defendants.
(iv) General principles
[68] Whether the case is interprovincial or international in nature, comity, and the standards of jurisdiction, recognition and enforcement prevailing elsewhere, should be regarded not as independent factors, but as general principles of private international law that bear upon the interpretation and application of the real and substantial connection test.
[69] In Van Breda, Sharpe J.A. stated that an important discipline on the assumption of jurisdiction, and a check on overreaching, is whether Ontario would be willing to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis as that being asserted. He also noted that it may be helpful to know how foreign courts treat like cases when determining whether to extend the reach of Ontario law against a foreign litigant. These considerations promote respect for the principle of order.
[70] The motion judge found that the court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis, favoured Black. The motion judge concluded that the circumstances of this case were analogous to the Moran manufacturer.
[71] Given the inter-relationship between the tests for assuming jurisdiction and the recognition of foreign judgments, it follows that Ontario would be willing to recognize and enforce an extra-provincial judgment against an Ontario defendant on the same basis.
[72] This case involves international defendants and activities, suggesting caution and restraint. However, I agree with the motion judge that even if the Ontario judgment is unenforceable in the United States, a judgment would have significant value to Black as a vindication of his Ontario reputation. It would also be enforceable against the resident defendant. The unwillingness of American courts to enforce a foreign libel judgment that is contrary to the actual malice rule, is based upon their constitutional guarantees and as such does not raise comity as an issue: see Bangoura at para. 39.
[73] The defendants submit that the motion judge erred in failing to refer to jurisdictional restraint. Just as unfairness does not amount to an independent factor capable of trumping the want of a real and substantial connection, I am not persuaded that jurisdictional restraint is a free standing principle that could defeat jurisdiction where there is a real and substantial connection. The “core” real and substantial connection test, informed by the principle of fairness and the other considerations in Van Breda, results in jurisdictional restraint. As explained by the court in Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022, at p. 1049, the real and substantial connection test “has the effect of preventing a court from unduly entering into matters in which the jurisdiction in which it is located has little interest”: see also Van Breda at para. 45.
[74] In the circumstances of this case, the general principles support a real and substantial connection of Black’s claims and the defendants to the forum and respect the principles of fairness and order, as well as, the general principles listed in Van Breda.
[75] Finally, I do not agree that the motion judge engage in a mechanical tallying of the factors. In para. 80 of his reasons, he was simply summarizing his findings. It is clear throughout that he was alive to the need to be flexible and focussed upon the connections to the forum and respect for the principles of fairness and order.
[76] Accordingly, I would reject this ground of appeal.
II: FORUM NON CONVENIENS
[77] Decisions on forum non conveniens are exercises of judicial discretion. As Laskin J.A. explained in Young v. Tyco International of Canada Ltd. (2008), 92 O.R. (3d) 161 (C.A.), at para. 27:
On appeal, the usual principle of deference to discretionary decision applies: an appeal court should intervene only if the motion judge errs in principle, misapprehends or fails to take account of material evidence, or reaches an unreasonable decision.
[78] I would not interfere with the motion judge’s rejection of the submission that the action should be stayed on grounds of forum non conveniens.
[79] The defendants submit that the motion judge’s decision was unreasonable and that, given where the dispute arose, the applicable law, and the location of the parties, the witnesses and the evidence, Illinois and New York were clearly more appropriate forums. They also submit that the motion judge misapprehended the relevance of the Delaware and Illinois litigation.
[80] The motion judge correctly set out the relevant factors. He concluded that Ontario is a convenient and appropriate forum, and that neither New York, Illinois, nor any other American jurisdiction, is clearly more appropriate.
[81] He considered that given the various locations of the parties, no single jurisdiction was home to the majority of the parties. Although nine of the eleven parties were located in the United States, they were spread across six jurisdictions. No matter where the trial was held, most parties would have to travel to attend. I am not persuaded that he erred in principle in finding this factor to be neutral.
[82] The motion judge considered that it would be easier to compel interstate evidence under Rule 45 of the U.S. Federal Rules of Civil Procedure, and that the location of the key witnesses and the bulk of documentary evidence favoured an American jurisdiction. He noted, however, that he had no clear evidence of the extent of the additional convenience created by Rule 45, and that the importance of the physical location of documentary evidence was of less significance with modern technology. He was entitled to determine the significance he would give to each factor.
[83] The motion judge acknowledged that the main focus at trial would most likely be the truth of the statements. He considered that the defendants’ emphasis on the relevance of American securities law and corporate law was overstated. He considered that although the factual questions related to the truth or falsity of the statements, the applicable libel law would be Ontario law. Thus, he was persuaded that this factor favoured Black’s choice of forum.
[84] The motion judge recognized that there was a risk of inconsistent findings relating to some portion of the factual issues. He noted, however, that none of the litigation dealt with the issue of damage to Black’s reputation in Ontario. He found that there was no risk of inconsistent verdicts given that there were no parallel proceedings in the U.S. and because Black had undertaken not to bring any libel actions in any other jurisdiction. Even if the motion judge ought to have taken a broader view of the potential for inconsistent court decisions, including the risk of inconsistent findings relating to the truth of the statements, it is clear that there already were a multiplicity of proceedings, in a multiplicity of jurisdictions.
[85] Finally, the motion judge considered that the loss of juridical advantage, if jurisdiction was declined and Black was required to bring his libel actions in the U.S., strongly favoured Black. The parties agreed that in the U.S., the Canadian common law presumptions of falsity, injury and malice would not be available and, as a public figure, he would be required to prove actual malice. This was conceded to be a significant juridical disadvantage. The motion judge concluded that, having established a real and substantial connection with Ontario, it was perfectly legitimate for Black to sue in this jurisdiction and take advantage of its laws.
[86] I agree with the motion judge that it is not appropriate to label it forum shopping or libel tourism if the party has a real and substantial connection with the forum: see Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897, at p. 920. Further, even if the judgment is not enforceable in the United States, it is enforceable in Ontario, and there is also value in the vindication of a defamation judgment regardless of the ability to collect damages.
[87] Given the significance of the loss of juridical advantage to Black, I am not persuaded that the motion judge erred in the exercise of his discretion.
[88] I am not persuaded that it was unreasonable to conclude that neither New York nor Chicago were clearly a more appropriate forum for these actions than Ontario. While this certainly was not a clear cut case, it was a discretionary decision and I see no error in principle that would justify interference.
[89] Accordingly, I would dismiss the appeal.
[90] The parties have submitted that costs of $35,000 are appropriate quantum for the successful party in this case. I agree. I would grant costs of $35,000, inclusive of all applicable taxes to the respondent.
RELEASED: August 13, 2010 “DD”
“Karakatsanis J.A.”
“I agree Doherty J.A.”
“I agree R.G. Juriansz J.A.”