April 18, 2012
Breeden v. Black
Conrad Black had commenced six libel actions in the Ontario Superior Court against ten appellants, who are directors, advisors and a vice-president of the company where Lord Black served as Chairman. Lord Black 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.
The decision, written by Justice LeBel begins by stating that the Ontario court is entitled to assume jurisdiction:
 I find in this case that the Ontario court is entitled to assume jurisdiction as there exists a real and substantial connection between Ontario and the libel actions. Giving due deference to the motion judge’s exercise of discretion, I further find that the appellants have not shown that the Illinois court is a clearly more appropriate forum for the trial of these claims.
Justice LeBel goes on to discuss the relationship between the law of jurisdiction, the doctrine of forum non conveniens and the tort of defamation. LeBel J. states:
 The issue of the assumption of jurisdiction is easily resolved in this case 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. It is also well established that every repetition or republication of a defamatory statement constitutes a new publication. 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 (R. E. Brown, The Law of Defamation in Canada (1987), vol. 1, at pp. 253-54). In my view, 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.
On the issue of forum non conveniens, LeBel J. states in para 23 that “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 “are numerous and variable”, and can be found both in the common law and codified in several jurisdictions. LeBel J. cites the factors as found in section 11 of the Uniform Court Jurisdiction and Proceedings Transfer Act (“CJPTA”).
11(1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding. (2) A court, in deciding the question of whether it or a court outside [enacting province or territory] is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including: (a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum; (b) the law to be applied to issues in the proceeding; (c) the desirability of avoiding multiplicity of legal proceedings; (d) the desirability of avoiding conflicting decisions in different courts; (e) the enforcement of an eventual judgment; and (f) the fair and efficient working of the Canadian legal system as a whole.
LeBel J. writes that when the forum non conveniens analysis is applied to the circumstances of this appeal, the courts of both Illinois and Ontario are appropriate forums for the trial of the libel actions. Justice LeBel concludes that:
…In the end, however, giving due deference to the motion judge’s exercise of discretion, I am not convinced that the appellants have established that the Illinois court emerges as a clearly more appropriate forum and that the motion judge made a reviewable error.
LeBel J. concludes by stating:
Considering the combined effect of the relevant facts, and in particular the weight of the alleged harm to Lord Black’s reputation in Ontario, and giving due deference to the motion judge’s decision, as I must, I conclude that an Illinois court does not emerge as a clearly more appropriate forum than an Ontario court for the trial of the libel actions brought against the appellants by Lord Black.