April 18, 2012
Éditions Écosociété Inc. v. Banro Corp
Banro, an Ontario based corporation engaged in the exploration and development of gold properties in the Democratic Republic of Congo, brought an action in Ontario against the publisher, author, researchers and editors of a book entitled Noir Canada: Pillage, corruption et criminalité en Afrique. Banro alleges that the book’s content is libelous and that the book accuses it of committing human rights violations and fraud to further its financial interests in Africa. The publisher is a corporation based in Quebec, where the author, researchers and editors work and reside. Two French editions of the book have been printed and a number of copies are available in Ontario public libraries, and the book is available for purchase on the publisher’s website.
The appellants brought a motion to stay the action, submitting that there was no real and substantial connection between the subject matter of the action and Ontario, and that the Ontario court was not the convenient forum for the action.
The motion judge dismissed the motion, ruling that the Ontario court did have jurisdiction, owing to a real and substantial connection between the forum and the action. She also dismissed the motion on the grounds of forum non conveniens, as in her view the appellants had not met the onus of showing that a Quebec court was the more convenient forum. The Court of Appeal endorsed the motion judge’s order and reasons.
The decision, written by Justice LeBel begins by stating, at para 2, that the Court relies on the series of factors that would meet the real and substantial connection test as set out in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, in order to determine “whether there is a real and substantial connection between the plaintiff’s claim in defamation and the chosen forum, namely, an Ontario court.”
LeBel J. goes on to state, at para 3, that “the tort of defamation presents an interesting challenge for the principles underlying the assumption of jurisdiction.” LeBel J. asks whether it is sufficient that “the defamatory book be available in a jurisdiction for a court to assume jurisdiction over a defamation claim involving that book?” LeBel J. then asks:
If a court may assume jurisdiction on that basis, in what circumstances should it apply the doctrine of forum non conveniens and decline to exercise its jurisdiction in favour of another, more convenient forum? This case also raises the issue of “libel tourism”: if more than one forum can assume jurisdiction over a single instance of tortious conduct, should we prevent plaintiffs from choosing the forum of greatest juridical advantage?
On the issue of assumption of jurisdiction, LeBel J. writes, at para 37, that “when the analytical framework identified in Club Resorts is applied, it is clear that there is a real and substantial connection between Banro’s claim and Ontario”. And, goes on to state:
 As discussed in Club Resorts, the commission of a tort in Ontario is a recognized presumptive connecting factor that prima facie entitles the Ontario court to assume jurisdiction over this dispute. …the defendants have not shown that only a minor element of the tort of defamation occurred in Ontario. As a result, they have not displaced the presumption of jurisdiction that arises in this case.
On the issue of forum non conveniens, LeBel J. states, at para 41, that the application of the doctrine is “an exercise of discretion reviewable in accordance with the principle of deference to discretionary decisions…” and finds that the motion judge correctly exercised her discretion.
And, at para 62, LeBel J. concludes that on the question of whether the lex loci delicti rule or “location of the most substantial harm to reputation” should be applied to this case, either approach favours Ontario in the forum non conveniens analysis.
Finally, on the issue of juridical advantage, LeBel J. states:
 The parties have also raised issues of juridical advantage. On the one hand, the appellants submit that they would be deprived of the procedural advantages of the new anti-SLAPP provisions in the Quebec Code of Civil Procedure, R.S.Q., c. C-25 (art. 54.1 to 54.6). On the other hand, in the event that the action is stayed in Ontario and transferred to Quebec, Banro might face an argument that its claim is barred on the basis of the short one-year limitation period for defamation claims under art. 2929 of the Civil Code of Québec. Arguments about which law would govern the civil liability of Écosociété could also be raised under s. 3126 of the Civil Code of Québec and would have to be resolved by the courts of Quebec. In the end, when these factors are weighed, the balance of fairness would appear to favour Banro and I find no error, in this respect, in the judgments rendered by the courts below.