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JURISIDICTION - Determination of - Forum conveniens - Procedure for determining

Wednesday, June 06, 2018 @ 3:25 PM  


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Appeal by Haaretz.com from a judgment of the Ontario Court of Appeal affirming a decision of the Ontario Superior Court of Justice finding it had jurisdiction to hear Goldhar’s defamation action. In Israel, Haaretz.com published electronically and in print an article about Goldhar, a Canadian businessman. The article was written in English and Hebrew and was available in Israel as well as in Canada, in its electronic form. The motion judge found it likely that 200 to 300 people read the article in Canada; by comparison, approximately 70,000 people read the article in Israel. Goldhar alleged the article was libellous and commenced an action in Ontario, where he was domiciled. Haaretz.com 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 the motion and found he had jurisdiction because Goldhar’s claim would be limited to damages for reputational harm suffered within Canada and he would pay for the expenses of Haaretz.com’s witnesses. The motion judge also concluded Haaretz.com had not rebutted the presumption of jurisdiction, considering that people had read the article in Ontario. The Court of Appeal affirmed the decision.

HELD: Appeal allowed. The objective of the jurisdiction simpliciter test was to delineate circumstances in which a court had jurisdiction, not circumstances in which it should exercise it (which was the purpose of forum non conveniens). Once it had been established that a court had jurisdiction, the forum non conveniens doctrine required the court to determine whether it should exercise such jurisdiction. In determining whether a real and substantial connection existed between a chosen forum and the subject matter of the litigation, courts were to consider whether the existence of a recognized presumptive connecting factor had been established. The opposing party could then rebut the presumption. Because the situs of Internet-based defamation was the place where the defamatory statements were read, accessed or downloaded by a third party, this presumptive connecting factor favoured a trial in Ontario. Evidence failed to establish that Haaretz.com could not have reasonably expected to be called to answer a legal proceeding in Ontario. Thus, the presumption was not rebutted. At the forum non conveniens stage, the burden was on Haaretz.com to satisfy the motion judge that Israel was a clearly more appropriated forum. It had to establish that it would be fairer and more efficient to proceed in that forum. Courts below had erred in their analysis of the issue, and the Court could therefore intervene and consider factors such as the convenience for witnesses and parties, the juridical advantage and equity. The prospect that Haaretz.com would not be able to compel its witnesses to testify if the trial were to proceed in Ontario outweighed Goldhar’s interest in vindicating his reputation in Ontario rather than Israel. The applicable law was of little value in determining whether an alternative forum was clearly more appropriate in cases where jurisdiction was established on the basis of the situs of the tort. Haaretz.com had established that holding a trial in Israel would be fairer and more efficient. Haaretz.com’s motion to stay the action was granted.

Haaretz.com v. Goldhar, [2018] S.C.J. No. 28, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., June 6, 2018. Digest No. TLD-June42018012SCC