The Court of Appeal for Ontario considered whether Ontario is the appropriate jurisdiction to hear a multijurisdictional defamation case. It identified two factors that should not be considered at the jurisdictional stage.
The defendants published an allegedly defamatory book review about the plaintiff’s book. The author of the book review is a resident of Australia while the Association responsible for its publication is a resident of the United States. The plaintiff book author is an Ontario resident. The plaintiff alleges to have suffered damage in reduced sales and difficulty securing an academic position. Of the 3528 reviews sold, only 81 were sold in Ontario. The respondents brought a motion for an order to set aside service ex juris or, in the alternative, to stay the action on the basis that there is no real and substantial connection between the subject matter of the proceeding and Ontario, or that Ontario is not a convenient forum for hearing the proceeding. The motion judge granted the motion for a stay of the action in Ontario holding that Ontario cannot assume jurisdiction or alternatively, that Ontario is not a convenient forum.
The plaintiff appealed. The Court of Appeal applied the new test from Van Breda. In a libel claim, the tort is committed where publication takes place. This is the place of communication to the third person, where the defamatory words are read, heard, or downloaded. Under the Van Breda analysis, the commission of a tort in Ontario is a recognized presumptive connecting factor that prima facie entitles the plaintiff to bring an action in Ontario.
The court identified two factors that should not be considered at the jurisdictional stage of an action for defamation. First, there is no requirement to show that the distribution in Ontario is more than minimal. Second, the court should not require evidence of the damage to the plaintiff’s reputation; it should only consider the reasonable foreseeability of harm to the plaintiff’s reputation. Both of these factors should be considered when assessing the merits of the defamation claim.
The court set aside the stay order and substituted an order that Ontario has jurisdiction over the plaintiff’s action.
February 28, 2011
Link to Decision
Julia Wilkes
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