June 28, 2016
Goldhar v Haaretz.com 2016 ONCA 515

The plaintiff lives and works in Ontario but owns a popular soccer team and has a residence in Israel, which he visits several times a year. The libel action related to a newspaper column about the plaintiff’s ownership of the team. The paper is widely read in Israel. The only evidence of people reading the article in Ontario was that some people with Google alerts for the plaintiff read it on the internet, and that there were only about 200 unique views of it over several months.

The Court held that Ontario had jurisdiction simpliciter based on the presumption of a real and substantial connection to Ontario as the alleged tort of defamation was completed when the article was downloaded via the internet in Ontario, a presumption the Court said was not rebutted. However, the Court split on the forum non conveniens analysis.

Simmons J.A. (Cronk J.A. concurring) applied a technical analysis to uphold the motion judge’s decision that Haaretz had failed to show that Israel was clearly the more appropriate forum for the trial. While the motion judge was aware of the “disparity in readership” between Israel and Ontario, the subject matter of the article and Haaretz’s connections to Israel, he found it more important that the plaintiff lived and worked in Ontario, and that the article implicated “his Canadian business practices and integrity as a Canadian businessman.” As a result, it was reasonable for the judge to conclude that it was not surprising or unfair that the plaintiff would want to vindicate his reputation in Ontario.

Pepall J.A, dissenting, held that the ease with which jurisdiction simpliciter can be established in internet defamation cases mandates a more “robust and carefully scrutinized review” of this issue. Applying this more robust analysis, and noting that the judge’s analysis was “infected by errors” (even the majority agreed that the motion judge had erred in finding that Haaretz could require the attendance of unwilling Israeli witnesses in Ontario through letters rogatory, and that the availability of a jury trial favoured Ontario), Justice Pepall held that the motion judge’s conclusion on forum non conveniens was unreasonable and that Israel was clearly the more appropriate forum. In particular, Justice Pepall found that the motion judge failed to consider a number of factors that favoured a trial in Israel over Ontario, including that the evidence of expense and convenience to the parties and the witnesses “overwhelmingly” favoured Israel, and that the more appropriate “most substantial harm to reputation” choice of law rule favoured Israel.

The Court of Appeal’s decision raises issues as to the propriety of the test to establish jurisdiction, as developed by the SCC in Van Breda, when dealing with internet issues, including internet libel, and how the current, almost “automatic” threshold should inform a Court’s application of the forum non conveniens analysis. This case also raises the issue of when, if ever, substantial publication or substantial harm (or “insubstantial” publication or harm) can be considered in conducting a jurisdiction analysis.