June 6, 2018
Haaretz.com v Goldhar 2018 SCC 28

Mitchell Goldhar, a businessman in Ontario, who also owns a Tel Aviv soccer club, sued Haaretz in Ontario for defamation, over a sports article that appeared on-line in Ontario, and depicted him in an unflattering manner.

Haaretz argued that Israel was a more appropriate forum for the defamation suit because the witnesses it would call live in Israel, most of its readers live there, and the story mostly concerned the Tel Aviv soccer team.

Ultimately, H has established that holding a trial in Israel would be fairer and more efficient. Israel is clearly the more appropriate forum. A robust and careful forum non conveniens analysis of the relevant factors indicates that H would face substantial unfairness and inefficiency if a trial were held in Ontario. Comparative convenience and expense for the parties and comparative convenience and expense for the witnesses favour Israel. Loss of legitimate juridical advantage favours a trial in Ontario, but this factor should not weigh too heavily in the analysis. Fairness favours Israel, namely in view of G’s significant business interest and reputation in that country and the significant unfairness that a trial in Ontario would impose on H.

Enforcement slightly favours Israel as H has no presence or assets in Ontario. Finally, while applicable law, as determined by the lex loci delicti principle — the place where the tort occurs —, favours Ontario in this case, this factor should be accorded little weight in the forum non conveniens analysis in cases where jurisdiction is established on the basis of the situs of the tort. In those circumstances, lex loci delicti will inevitably also point to the chosen forum on the question of applicable law.

This would not be an appropriate case to adopt the place of most substantial harm to reputation test for choice of law instead of lex loci delicti. Although in Internet defamation actions, where a tort may have occurred in multiple jurisdictions, the lex loci delicti rule may allow courts in multiple forums to assume jurisdiction and apply their own law, the Court should be reluctant to make such changes to the existing private international law framework, as this may create legal uncertainty in a manner contrary to the objectives of conflicts rules.