Wednesday, May 2, 2012

Supreme Court of Canada - Conrad Black can sue for defamation in Ontario

Breeden v. Black, 2012 SCC 19

Conrad Black ("B") is a well‑known business figure who established a reputation as a newspaper owner and publisher in Canada and internationally. While B served as the chairman of a publicly traded U.S. company, the legitimacy of certain payments that had been made to B were questioned. A special committee formed to conduct an investigation concluded that the company had made unauthorized payments to B. The committee’s report was posted on the company’s website, which was accessible worldwide, along with press releases containing contact information directed at Canadian media. Statements were also published in the company’s annual report summarizing the committee’s findings.
B commenced six libel actions in the Ontario Superior Court against the ten appellants, who are directors, advisors and a vice‑president of the company. B alleges that the press releases and reports issued by the appellants and posted on the company’s website contained defamatory statements that were downloaded, read and republished in Ontario by three newspapers. He claims damages for injury to his reputation in Ontario.

The appellants brought a motion to have the actions stayed on the grounds that there was no real and substantial connection between the actions and Ontario, or, alternatively, that a New York or Illinois court was the more appropriate forum. The motion judge dismissed the motion, finding that a real and substantial connection to Ontario had been established and that Ontario was a convenient forum to hear the actions. The Court of Appeal unanimously dismissed the appeal. It found that a real and substantial connection was presumed to exist on the basis that a tort was committed in Ontario, and that the appellants had failed to rebut this presumption. It also found that there was no basis on which to interfere with the motion judge’s exercise of discretion with regard to forum non conveniens.

Applying the Van Breeda analysis, the SCC dismissed the appeal. The issue of assumption of jurisdiction was determined based on a presumptive connecting factor ― the alleged commission of the tort of defamation in Ontario. It is well established in Canadian law that the tort of defamation occurs upon publication of a defamatory statement to a third party, which, in this case, occurred when the impugned statements were read, downloaded and republished in Ontario by three newspapers. It is also well established that every repetition or republication of a defamatory statement constitutes a new publication, and that the original author of the statement may be held liable for the republication where it was authorized by the author or where the republication is the natural and probable result of the original publication. The republication in the three newspapers of statements contained in press releases issued by the appellants clearly falls within the scope of this rule. In the circumstances, the appellants have not displaced the presumption of jurisdiction that results from this connecting factor.

Having found that a real and substantial connection exists between the action and Ontario, the court considered whether the Ontario court should decline to exercise its jurisdiction on the ground that the court of another jurisdiction was clearly a more appropriate forum for the hearing of the actions. Under the forum non conveniens analysis, the burden is on the party raising the issue to demonstrate that the court of the alternative jurisdiction is a clearly more appropriate forum. The factors to be considered by a court in determining whether an alternative forum is clearly more appropriate are numerous and will vary depending on the context of each case. The forum non conveniens analysis does not require that all the factors point to a single forum, but it does require that one forum ultimately emerge as clearly more appropriate. The decision not to exercise jurisdiction and to stay an action based on forum non conveniens is a discretionary one, and the discretion exercised by a motion judge will be entitled to deference from higher courts, absent an error of legal principle or an apparent and serious error on the determination of relevant facts.

The Court found that both the courts of Illinois and Ontario are appropriate forums for the trial of the libel actions. The factors of comparative convenience and expense for the parties and witnesses, location of the parties, avoidance of a multiplicity of proceedings and conflicting decisions and enforcement of judgment favour the Illinois court as a more appropriate forum, whereas the factors of applicable law and fairness to the parties favour the Ontario court. In the end, however, considering the combined effect of the relevant facts, and in particular the weight of the alleged harm to B’s reputation in Ontario, and giving due deference to the motion judge’s decision, the Illinois court did not emerge as a clearly more appropriate forum than an Ontario court for the trial of the libel actions.

Here is a link to the decision http://scc.lexum.org/en/2012/2012scc19/2012scc19.html

Regards,

Blair