SUPREME COURT OF
CANADA
|
Citation: Breeden v.
Black, 2012 SCC 19
|
Date:
20120418
Docket:
33900
|
Between:
Richard C.
Breeden, Richard C. Breeden & Co., Gordon A. Paris, James R. Thompson,
Richard D. Burt, Graham W. Savage and Raymond G.H. Seitz
Appellants
and
Conrad
Black
Respondent
And
Between:
Richard C.
Breeden, Richard C. Breeden & Co., Gordon A. Paris, James R. Thompson,
Richard D. Burt, Graham W. Savage and Raymond G.H. Seitz
Appellants
and
Conrad
Black
Respondent
And
Between:
Richard C.
Breeden, Richard C. Breeden & Co., Gordon A. Paris, James R. Thompson,
Richard D. Burt, Graham W. Savage and Raymond G.H. Seitz
Appellants
and
Conrad
Black
Respondent
And
Between:
Richard C.
Breeden, Richard C. Breeden & Co., Gordon A. Paris, James R. Thompson,
Richard D. Burt, Graham W. Savage and Raymond G.H. Seitz
Appellants
and
Conrad
Black
Respondent
And
Between:
Richard C.
Breeden, Richard C. Breeden & Co., Gordon A. Paris, Graham W. Savage,
Raymond G.H. Seitz and Paul B. Healy
Appellants
and
Conrad
Black
Respondent
And
Between:
Richard C.
Breeden, Richard C. Breeden & Co., Gordon A. Paris, James R. Thompson,
Richard D. Burt, Graham W. Savage, Raymond G.H. Seitz, Shmuel Meitar and Henry
A. Kissinger
Appellants
and
Conrad
Black
Respondent
- and -
British Columbia
Civil Liberties Association
Intervener
Coram:
McLachlin C.J. and Binnie,* LeBel, Deschamps, Fish, Abella, Charron,* Rothstein
and Cromwell JJ.
(* Binnie and Charron JJ. took no part in the judgment.)
|
Reasons for
Judgment:
(paras. 1 to 38)
|
LeBel J. (McLachlin C.J. and Deschamps, Fish, Abella,
Rothstein and Cromwell JJ. concurring)
|
Note:
This document is subject to editorial revision before its reproduction in final
form in the Canada Supreme Court Reports.
 |
breeden v. black
Richard C. Breeden, Richard C. Breeden & Co.,
Gordon A. Paris, James R. Thompson, Richard D. Burt,
Graham W. Savage and
Raymond G.H. Seitz Appellants
v.
Conrad Black
Respondent
‑ and ‑
Richard C. Breeden, Richard C. Breeden & Co.,
Gordon A. Paris, James R. Thompson, Richard D. Burt,
Graham W. Savage and
Raymond G.H. Seitz Appellants
v.
Conrad Black
Respondent
‑ and ‑
Richard C. Breeden, Richard C. Breeden & Co.,
Gordon A. Paris, James R. Thompson, Richard D. Burt,
Graham W. Savage and
Raymond G.H. Seitz Appellants
v.
Conrad Black
Respondent
‑ and ‑
Richard C. Breeden, Richard C. Breeden & Co.,
Gordon A. Paris, James R. Thompson, Richard D. Burt,
Graham W. Savage and
Raymond G.H. Seitz Appellants
v.
Conrad Black
Respondent
‑ and ‑
Richard C. Breeden, Richard C. Breeden & Co.,
Gordon A. Paris, Graham W. Savage, Raymond
G.H. Seitz and Paul B. Healy
Appellants
v.
Conrad Black
Respondent
‑ and ‑
Richard C. Breeden, Richard C. Breeden & Co.,
Gordon A.
Paris, James R. Thompson, Richard D. Burt, Graham W.
Savage,
Raymond G.H. Seitz, Shmuel
Meitar and Henry A. Kissinger Appellants
v.
Conrad Black
Respondent
and
British Columbia Civil
Liberties Association Intervener
Indexed
as: Breeden v. Black
2012
SCC 19
File No.:
33900.
2011: March 22; 2012: April 18.
Present:
McLachlin C.J. and Binnie,* LeBel, Deschamps, Fish,
Abella, Charron,* Rothstein and Cromwell JJ.
on appeal
from the court of appeal for ontario
Private international law — Choice of forum — Court having jurisdiction —
Forum non conveniens — Libel actions commenced in Ontario in respect of
statements posted on U.S. company’s website and in its annual report and
republished by three Canadian newspapers — Defendants bringing motion to stay
the actions on the grounds that the Ontario court lacks jurisdiction or,
alternatively, should decline to exercise its jurisdiction on the basis of forum
non conveniens — Whether the Ontario court can assume jurisdiction over
the actions — If so, whether the Ontario court should decline to exercise its
jurisdiction on the ground that the court of another jurisdiction is clearly a
more appropriate forum for the hearing of the actions.
B is a well‑known business figure who established a reputation as a newspaper
owner and publisher in Canada and internationally. While B served as the
chairman of a publicly traded U.S. company, the legitimacy of certain payments
that had been made to B were questioned. A special committee formed to conduct
an investigation concluded that the company had made unauthorized payments to
B. The committee’s report was posted on the company’s website, which was
accessible worldwide, along with press releases containing contact information
directed at Canadian media. Statements were also published in the company’s
annual report summarizing the committee’s findings.
B commenced six libel actions in the Ontario Superior Court against the ten
appellants, who are directors, advisors and a vice‑president of the company. B
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.
Held: The appeal should be dismissed.
In the case at bar, it is necessary to engage in the real and substantial
connection analysis to determine whether the Ontario court may properly assume
jurisdiction over the actions. The framework for the assumption of jurisdiction
was recently set out by this Court in Club Resorts Ltd. v. Van Breda,
2012 SCC 17. The issue of 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, which, in this case, occurred when the impugned statements were read,
downloaded and republished in Ontario by three newspapers. It is also well
established that every repetition or republication of a defamatory statement
constitutes a new publication, and that 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. 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.
Having found that a real and substantial connection exists between the action
and Ontario, it must be determined whether the Ontario court should decline to
exercise its jurisdiction on the ground that the court of another jurisdiction
is clearly a more appropriate forum for the hearing of the actions. Under the
forum non conveniens analysis, 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 to be considered by a court in determining
whether an alternative forum is clearly more appropriate are numerous and will
vary depending on the context of each case. The forum non conveniens
analysis does not require that all the factors point to a single forum, but it
does require that one forum ultimately emerge as clearly more
appropriate. The decision not to exercise jurisdiction and to stay an action
based on forum non conveniens is a discretionary one, and the discretion
exercised by a motion judge will be entitled to deference from higher courts,
absent an error of legal principle or an apparent and serious error on the
determination of relevant facts.
When the forum non conveniens analysis is applied to the circumstances of
the instant appeal, it becomes apparent that both the courts of Illinois and
Ontario are appropriate forums for the trial of the libel actions. The factors
of comparative convenience and expense for the parties and witnesses, location
of the parties, avoidance of a multiplicity of proceedings and conflicting
decisions and enforcement of judgment favour the Illinois court as a more
appropriate forum, whereas the factors of applicable law and fairness to the
parties favour the Ontario court. In the end, however, considering the combined
effect of the relevant facts, and in particular the weight of the alleged harm
to B’s reputation in Ontario, and giving due deference to the motion judge’s
decision, the Illinois court does not emerge as a clearly more appropriate forum
than an Ontario court for the trial of the libel actions.
Cases Cited
Applied: Club Resorts Ltd. v. Van Breda, 2012 SCC 17; referred
to: Charron Estate v. Village Resorts Ltd., 2010 ONCA 84, 98 O.R.
(3d) 721; Muscutt v. Courcelles (2002), 60 O.R. (3d) 20; Teck Cominco
Metals Ltd. v. Lloyd’s Underwriters, 2009 SCC 11, [2009] 1 S.C.R. 321;
Oppenheim forfait GMBH v. Lexus maritime inc., 1998 CanLII 13001;
Amchem Products Inc. v. British Columbia (Workers’ Compensation Board),
[1993] 1 S.C.R. 897; Éditions Écosociété Inc. v. Banro Corp., 2012 SCC
18; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.
Statutes and Regulations Cited
Civil Code of Québec, S.Q. 1991, c. 64,
art. 3135.
Court Jurisdiction and Proceedings Transfer
Act, S.B.C. 2003, c. 28, s. 11(2).
Federal Rules of Civil Procedure, 28
U.S.C.A., r. 45.
Rules of Civil Procedure, R.R.O. 1990, Reg.
194, r. 17.02(g).
Authors Cited
Brown, Raymond E. The Law of Defamation in
Canada, vol. 1. Toronto: Carswell, 1987.
Uniform Law Conference of Canada. Uniform Court
Jurisdiction and Proceedings Transfer Act (online:
http://www.ulcc.ca/en/us/Uniform_Court_Jurisdiction_+_
Proceedings_Transfer_Act_En.pdf).
APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Juriansz and
Karakatsanis JJ.A.), 2010 ONCA 547, 102 O.R. (3d) 748, 321 D.L.R. (4th) 659, 265
O.A.C. 177, 76 C.C.L.T. (3d) 52, 91 C.P.C. (6th) 94, [2010] O.J. No. 3423 (QL),
2010 CarswellOnt 5877, affirming a decision of Belobaba J., 309 D.L.R. (4th)
708, 73 C.P.C. (6th) 83, [2009] O.J. No. 1292 (QL), 2009 CarswellOnt 1730.
Appeal dismissed.
Paul B. Schabas, Ryder L. Gilliland and Erin Hoult, for the
appellants Richard C. Breeden and Richard C. Breeden & Co.
Robert W. Staley and Julia Schatz, for the appellants Gordon A.
Paris, James R. Thompson, Richard D. Burt, Graham W. Savage, Raymond G.H. Seitz,
Paul B. Healy, Shmuel Meitar and Henry A. Kissinger.
Earl A. Cherniak, Q.C., Kirk F. Stevens and Lisa C. Munro, for the
respondent.
Robert D. Holmes, Q.C., for the intervener.
The judgment of the Court was delivered by
LeBel J.
—
I.
Introduction
A. Overview
[1] This
appeal concerns the manner in which the law of jurisdiction and the doctrine of
forum non conveniens, which this Court recently reviewed in Club
Resorts Ltd. v. Van Breda, 2012 SCC 17 (“Club Resorts”), are to be
applied to a multistate defamation claim. The respondent, Conrad Black, filed
six libel actions in the Ontario Superior Court against the ten appellants, who
are directors, advisors and a vice-president of Hollinger International, Inc.
(“International”). Lord Black alleges that certain statements issued by the
appellants and posted on International’s website are defamatory and were
published in Ontario when they were downloaded, read and republished in the
province by three newspapers. The appellants counter that the Ontario court
should not assume jurisdiction over the actions because they are essentially
American in substance or, alternatively, because the Illinois court is a more
appropriate forum than the Ontario court.
[2] 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. Accordingly, I would
dismiss the appeal. Reaching this result requires some discussion of the
relationship between the law of jurisdiction, the doctrine of forum non
conveniens and the tort of defamation.
B. Background Facts
[3] Lord
Black is a well-known business figure who established a reputation as a
newspaper owner and publisher first in Canada, and then internationally. He was
a Canadian citizen until 2001, when he abandoned his citizenship in order to
accept an appointment to the British House of Lords. Until January 2004, Lord
Black served as the chairman of International, a publicly traded company
incorporated in Delaware and headquartered at different times in New York and
Chicago. Lord Black and his Canadian associates exercised effective control
over International through The Ravelston Corporation (“Ravelston”) and Hollinger
Inc., two privately held Ontario companies.
[4] In May
2003, a minority shareholder of International questioned the legitimacy of
certain “non-compete” and “management service” payments that had been made to
Lord Black or to companies under his ownership or control. International’s
Board of Directors formed a Special Committee to conduct an investigation (the
“Committee”) and retained the appellant Richard Breeden and his consulting firm
as outside legal counsel to advise the Committee. In October 2003, the
Committee concluded that International had made US$32.15 million in unauthorized
“non-compete” payments to Lord Black, Hollinger Inc., and certain senior
managers, and that Lord Black himself had received US$7.2 million. The
Committee completed a report in August 2004. Pursuant to a U.S. Consent Order
relating to an injunctive complaint filed by the U.S. Securities and Exchange
Commission (“SEC”) against International in Illinois, the SEC and the U.S.
District Court for the Northern District of Illinois were provided with the
report; it was also posted on International’s website.
[5] Lord
Black filed six actions in the Ontario Superior Court between February 2004 and
March 2005. The first four actions relate to press releases that were posted on
International’s website in January 2004 (the first three actions) and May 2004
(the fourth action). The fifth action relates to the Committee’s report, and
the sixth relates to statements published in International’s annual report
summarizing the Committee’s findings. The press releases contained contact
information directed at Canadian media. International’s website was accessible
worldwide.
[6] Lord
Black alleges that the press releases and reports issued by the appellants and
posted on International’s website contained defamatory statements that were
downloaded, read and republished in Ontario by the Globe and Mail, the
Toronto Star and the National Post. He claims damages for injury
to his reputation in Ontario. The allegations contained in the press releases
posted on International’s website were summarized as follows by the motion judge
(para. 16):
•
Black took money from [International] in the form of unauthorized
non-compete payments, improperly enriching himself;
•
Black misappropriated more than US $200 million from [International] by
engaging in repeated and systemic schemes to wrongfully divert corporate assets
to himself and his associates;
•
Black presided over a corporate kleptocracy that was engaged in a
systemic, wilful and deliberate looting of [International];
•
Black created an entity in which ethical corruption was a defining
characteristic of the leadership team;
•
Black misled the board, breached his fiduciary duties, engaged in
self-dealing, lined his pockets at the expense of [International] almost every
day, engaged in tax evasion, and used company money to make millions of dollars
worth of charitable donations in his own name;
•
Black took US $500 million from [International] for himself and his
associates;
•
Black would continue to use his position as the controlling shareholder
to act to the detriment of [International] and its public shareholders and in
breach of US securities law.
[7] The
appellants brought a motion to have the six libel 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. At the hearing before this Court, counsel for the appellants
argued that an Illinois court was the most appropriate forum.
[8] Five of
the appellants are defendants in all six of the actions; namely, Richard C.
Breeden, Richard C. Breeden & Co., Gordon A. Paris, Graham W. Savage and
Raymond G.H. Seitz. James R. Thompson and Richard D. Burt are defendants in the
first four actions. Paul B. Healy is a defendant in the fifth action and James
R. Thompson, Richard D. Burt, Shmuel Meitar and Henry A. Kissinger are
defendants in the sixth action. Mr. Savage lives in Ontario and Mr. Meitar in
Israel; the remainder of the appellants live in the U.S., including three in
Connecticut (Mr. Breeden, Richard C. Breeden & Co. and Mr. Kissinger), two
in New York (Mr. Paris and Mr. Healy) and one each in Illinois (Mr. Thompson),
the District of Columbia (Mr. Burt) and New Hampshire (Mr. Seitz). The parties
did not differentiate between the six actions for the purposes of the motion;
nor did the courts below.
[9] It
should be noted that in addition to this litigation, several other civil and
criminal proceedings were commenced in both the U.S. and Canada following the
release of the Committee’s report. In 2007, Lord Black was convicted of three
counts of mail fraud and one count of obstruction of justice and sentenced to
six and a half years in prison. Two of the convictions for mail fraud were
later vacated on appeal. The argument that these convictions are relevant to
the litigation since they affect Lord Black’s admissibility into Canada was made
in the courts below. In June 2011, subsequent to the hearing before this Court,
Lord Black was resentenced to 42 months in prison. He is now incarcerated in the
United States.
[10] Two civil
actions commenced against Lord Black by International in Delaware and Illinois
are also relevant to this litigation. The Delaware action included claims
against Lord Black and Hollinger Inc. for breach of their contractual and
fiduciary duties under Delaware law. The Illinois action alleges that Lord
Black and his associates received more than US$90 million in unauthorized or
improperly authorized non-compete payments, and claims that management service
fees paid to Ravelston and Hollinger Inc. were improperly negotiated and grossly
excessive. The Illinois action was stayed pending resolution of the criminal
proceedings against Lord Black. The existence of the actions in Delaware and
Illinois was taken into account by the courts below.
C. Judicial History
(1) Ontario Superior Court, 309 D.L.R. (4th)
708 (Belobaba J.)
[11] Writing
prior to the Ontario Court of Appeal’s decision in Charron Estate v. Village
Resorts Ltd., 2010 ONCA 84, 98 O.R. (3d) 721 (“Van Breda-Charron”)
Belobaba J. considered himself to be bound to apply Muscutt v. Courcelles
(2002), 60 O.R. (3d) 20 (C.A.). Applying the eight Muscutt factors for
assumption of jurisdiction, Belobaba J. found that a real and substantial
connection to Ontario had been established. First, the actions could be
connected to Ontario on the basis that Lord Black was claiming damages for a
tort committed in Ontario and had long-standing ties to Ontario. Second, the
appellants could be connected to Ontario on the basis that it would have been
reasonably foreseeable to them that the statements posted on International’s
website could result in injury to Lord Black’s reputation in Ontario. Of the
six remaining Muscutt factors, Belobaba J. considered that only one — the
international nature of the case — clearly favoured the appellants.
Jurisdiction simpliciter was thus established.
[12] Belobaba J.
also found that Ontario was a convenient forum to hear the actions and that
neither New York nor Illinois was clearly more appropriate. In his view, only
one of the six traditional forum non conveniens factors — the location of
key witnesses and evidence — favoured the appellants, and Belobaba J. was unable
to measure the extent to which this factor weighed in their favour.
Accordingly, Belobaba J. exercised his discretion to dismiss the motion to stay
the actions.
(2) Ontario Court of Appeal, 2010 ONCA 547, 102 O.R. (3d) 748 (Doherty,
Juriansz and Karakatsanis JJ.A.)
[13] In a
judgment rendered subsequent to the release of its decision in Van
Breda-Charron, the Ontario Court of Appeal unanimously dismissed the appeal
brought by the appellants. Applying the approach set out in Van
Breda-Charron, the Court of Appeal found that a real and substantial
connection was presumed to exist on the basis that a tort was committed in
Ontario, pursuant to rule 17.02(g) of the Ontario Rules of
Civil Procedure, R.R.O. 1990, Reg. 194. The appellants had failed to rebut
this presumption. The Court of Appeal found that the existence of a real and
substantial connection was also supported by the principles of fairness and
order and the “general principles” identified in Van Breda-Charron.
While the Court of Appeal did not consider it to be necessary to determine
whether a “targeting” approach should be adopted in Canadian law, it nonetheless
found that there was evidence on the record that the appellants did target and
direct their statements at Ontario.
[14] With regard
to forum non conveniens, the Court of Appeal found that there was no
basis on which to interfere with the motion judge’s exercise of discretion. In
the Court of Appeal’s view, Belobaba J. had correctly set out the relevant
factors and was entitled to determine the significance he would give to each
one. Accordingly, the appeal was dismissed.
II. Analysis
A. Position of the Parties
[15] The
appellants allege that Lord Black is a libel tourist. In their view, the “place
of reading” approach to libel should be eschewed in cases involving
transnational libel claims in favour of an approach that considers whether a
real and substantial connection exists between the forum and the
substance of the action. In the case of a libel claim, that is the
subject matter and conduct giving rise to the words complained of and the
context in which they were made. The appellants contend that the substance of
Lord Black’s actions is American and that both New York and Illinois are clearly
more appropriate forums for the trial of the actions than Ontario.
[16] The
appellants also reject the focus of the courts below on damage sustained in the
jurisdiction as misplaced and contend that the analogy to product liability
cases is inappropriate. In addition, they submit that whether or not the
“targeting” approach is adopted in Canadian law, there was an insufficient basis
to make such a finding on these facts. With regard to choice of law, the
appellants reject the use by the courts below of the lex loci delicti
test. In their view, lex loci delicti is ill-suited to
transnational defamation claims if it is determined solely on the basis of where
damage occurs, as damage may occur in multiple jurisdictions. The appellants
submit that American law should be applied to the actions, reflecting their
substance.
[17] Lord Black
rejects the allegation that he is a libel tourist. He submits that when
properly applied to transnational defamation claims, the real and substantial
connection test is satisfied where (a) there is substantial publication in the
jurisdiction, (b) the plaintiff has a substantial reputation to protect in the
jurisdiction, and (c) the defendant is in a position to reasonably foresee
substantial publication in the jurisdiction and to know of the plaintiff’s
substantial reputation there. In Lord Black’s view, the courts below correctly
applied this test to find that all three conditions were satisfied on the facts
of this case.
[18] Lord Black
also contends that the approach advocated by the appellants would improperly
shift the focus of Canada’s defamation law from the reputation of the plaintiff
to the conduct of the defendant. With regard to choice of law, Lord Black
submits that this Court has established that lex loci delicti is the
choice of law rule for tort claims. In libel cases, that is the place of
publication, which in this case is Ontario.
B. Jurisdiction Simpliciter
[19] Presence
and consent are the two traditional bases of court jurisdiction in private
international law. As discussed above, however, in this case, only one of the
ten defendants is resident in Ontario and none of the other nine has consented
to submit to the jurisdiction of the Ontario court. It is therefore necessary
to engage in the real and substantial connection analysis to determine whether
the Ontario court may properly assume jurisdiction over the six libel actions
brought by Lord Black. The framework for the assumption of jurisdiction was
recently set out by this Court in Club Resorts.
[20] 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. In this
case, publication occurred when the impugned statements were read, downloaded
and republished in Ontario by three newspapers. 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.
[21] Having
established that there is a real and substantial connection between Ontario and
the libel actions, I must now turn to the question of whether the Ontario court
should exercise jurisdiction over the actions — the issue of forum non
conveniens.
C. Forum Non Conveniens
[22] Having
found that a real and substantial connection exists between the actions and
Ontario, I must now determine whether the Ontario court should nonetheless
decline to exercise its jurisdiction on the ground that a court of another
jurisdiction is clearly a more appropriate forum for the hearing of the
actions. The appellants contend that Illinois is a clearly more appropriate
forum than Ontario. For the reasons that follow, I disagree.
[23] Under the
forum non conveniens analysis, the burden is on the party raising the
issue to demonstrate that the court of the alternative jurisdiction is a clearly
more appropriate forum (Club Resorts, at para. 103). The factors to be
considered by a court in determining whether an alternative forum is clearly
more appropriate are numerous and variable. While they are a matter of common
law, they have also been codified, for example, in a non-exhaustive list in s.
11(2) of the British Columbia Court Jurisdiction and Proceedings Transfer
Act, S.B.C. 2003, c. 28. That Act and others are themselves based on a
uniform Act proposed by the Uniform Law Conference of Canada (Teck Cominco
Metals Ltd. v. Lloyd’s Underwriters, 2009 SCC 11, [2009] 1 S.C.R. 321, at
para. 22; Club Resorts, at paras. 105-106), the Uniform Court
Jurisdiction and Proceedings Transfer Act (“CJPTA”). Section 11 of the
CJPTA states:
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.
[24] As the
drafters of the CJPTA confirm in their comments on s. 11, the factors
enumerated in s. 11(2) reflect “factors that have been expressly or implicitly
considered by courts in the past”. Section 11 of the CJPTA is also
similar to the forum non conveniens provision of the Civil Code of
Québec, S.Q. 1991, c. 64, and the factors considered by Quebec courts in
exercising their discretion under that provision. Article 3135 of the Civil
Code states:
Even though a Québec authority has jurisdiction to hear a
dispute, it may exceptionally and on an application by a party, decline
jurisdiction if it considers that the authorities of another country are in a
better position to decide.
[25] As stated
in Club Resorts, the use of the term “exceptionally” in art. 3135, like
“clearly more appropriate … forum”, reflects “an acknowledgment that the normal
state of affairs is that jurisdiction should be exercised once it is properly
assumed” (para. 109). The factors most commonly considered by Quebec
courts in exercising this discretion were reviewed in Oppenheim forfait GMBH
v. Lexus maritime inc., 1998 CanLII 13001, where the Quebec Court of Appeal
established that the relevant considerations include, among others, the
following factors which are not individually determinative but must be
considered globally (para. 18):
(1) the place of residence of the
parties and witnesses;
(2) the location of the
evidence;
(3) the place of formation and
execution of the contract;
(4) the existence of proceedings
pending between parties in another jurisdiction and the stage of any such
proceeding;
(5) the location of the defendant’s
assets;
(6) the applicable law;
(7) the advantage conferred on the
plaintiff by its choice of forum;
(8) the interests of justice;
(9) the interests of the two
parties;
(10) the need to have the judgment
recognized in another jurisdiction.
[26] With the
exception of juridical advantage, the Oppenheim factors appear to largely
correspond to the factors enumerated in s. 11(2) of the CJPTA. The
CJPTA does not provide for consideration of any factor corresponding to
the advantage conferred on the plaintiff by its choice of forum, although it
also does not specifically exclude consideration of this factor where it is
relevant. This approach is consistent with this Court’s observation in Club
Resorts that an emphasis on juridical advantage may be inconsistent with the
principles of comity. In particular, a focus on juridical advantage may put too
strong an emphasis on issues that may reflect only differences in legal
tradition which are deserving of respect, or courts may be drawn too
instinctively to view disadvantage as a sign of inferiority and favour their
home jurisdiction (para. 112).
[27] Juridical
advantage not only is problematic as a matter of comity, but also as a practical
matter, may not add very much to the jurisdictional analysis. As this Court
emphasized in Amchem Products Inc. v. British Columbia (Workers’ Compensation
Board), [1993] 1 S.C.R. 897, “[a]ny loss of advantage to the foreign
plaintiff must be weighed as against the loss of advantage, if any, to the
defendant in the foreign jurisdiction if the action is tried there rather than
in the domestic forum” (p. 933). Juridical advantage therefore should not weigh
too heavily in the forum non conveniens analysis.
[28] In addition
to the list of factors that a court may consider in determining whether to
decline to exercise its jurisdiction, the CJPTA also sets out the role
that considerations of fairness to both parties play in the forum non
conveniens analysis: s. 11(1) states that “[a]fter 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” (emphasis added). While the factors relevant to the
forum non conveniens analysis will vary depending on the context of each
case, s. 11 of the CJPTA serves as a helpful reference.
[29] When the
forum non conveniens analysis is applied to the circumstances of the
instant appeal, it becomes apparent that both the courts of Illinois and Ontario
are appropriate forums for the trial of the libel actions. Indeed, many of the
relevant factors favour proceeding in Illinois. Others favour a trial in
Ontario. 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. I will consider each of the
relevant factors in turn.
(1) Comparative Convenience and Expense for
Parties and Witnesses
[30] In my view,
the comparative convenience and expense for the parties and their witnesses
favours a trial in Illinois. First, as the motion judge found, most of the
witnesses and the bulk of the evidence are located in the U.S. It is
significant in this regard that International was headquartered, at least for a
time, in Illinois. In addition and as the motion judge noted, rule 45 of the
Federal Rules of Civil Procedure, 28 U.S.C.A., facilitates the movement
of witnesses and evidence between states. The location of the witnesses and
evidence thus makes a trial in Illinois more convenient than a trial in
Ontario.
[31] The same
can be said of the location of the parties. While no single jurisdiction is
home to a majority of the parties, it is significant that nine of the eleven
parties, including Lord Black, reside in the U.S. Indeed, Lord Black is
currently incarcerated in Florida. Moreover, owing to his criminal convictions
and the fact that he abandoned his Canadian citizenship, Lord Black will not be
able to enter Canada without the special permission of the Minister of
Citizenship and Immigration even once he has finished serving his sentence. It
may be, however, that a writ of habeas corpus ad testificandum could
allow Lord Black to participate in person in a trial held in the U.S.;
otherwise, Lord Black would have to participate through video conferencing. As
for the eight appellants who reside in the U.S., they are spread between
different states, but it does not appear that financial considerations would
impede the ability of any of them to participate in a trial in Illinois.
(2) Applicable Law
[32] In the
companion case of Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, I
discuss the implications of choice of law in the context of multistate
defamation claims. Without resolving the issue, I note that there is some
question as to whether the lex loci delicti rule, according to which the
applicable law is that of the place where the tort occurred, ought to be
abandoned in favour of an approach based on the location of the most harm to
reputation. I need not address this issue here as, even under the alternative
approach examined in Éditions Écosociété, the applicable law is that of
Ontario.
[33] Indeed,
this case is somewhat unique in that Lord Black has undertaken not to bring any
libel action in any other jurisdiction, and has limited his claim to damages to
his reputation in Ontario. As a result, only harm resulting from publication in
Ontario need be considered. The evidence establishing Lord Black’s reputation
in Ontario is significant. As the motion judge found, while Lord Black is no
longer ordinarily resident in Ontario, he spent most of his adult life in
Ontario, first established his reputation as a businessman in Ontario, is a
member of the Order of Canada, the Canadian Business Hall of Fame and the
Canadian Press Hall of Fame, and is the subject of five books written by
Toronto-area authors. Lord Black’s close family also lives in Ontario. Lord
Black’s undertaking and the evidence of his reputation in Ontario therefore
suggest that, under the “most substantial harm to reputation” approach discussed
in Éditions Écosociété, Ontario law should be applied to the libel
actions. Alternatively, as the alleged tort of defamation was committed in
Ontario, under lex loci delicti, Ontario law would also apply. In the
circumstances, the applicable law factor supports proceedings in Ontario.
(3) Avoidance of a Multiplicity of
Proceedings and Conflicting Decisions
[34] The
Illinois and Delaware civil actions raise concerns about a multiplicity of legal
proceedings. The motion judge accepted that neither of those actions involves a
libel claim. He also accepted, however, that the focus of the trial of the
libel actions will be the truth of what was said in the allegedly defamatory
statements, which would also appear to be the very substance of the Delaware and
Illinois civil actions. Many of the same transactions that will need to be
proven through intensive litigation in the course of the Delaware and Illinois
civil actions will likely also need to be proven in the libel actions. The
differing form of these actions should not be emphasized at the expense of their
substance. This suggests that there may be a risk of conflicting judgments, a
consideration that favours the Illinois court as a more appropriate forum.
(4) Enforcement of
Judgment
[35] Lord Black
appears to concede that an Ontario judgment would be unenforceable in the U.S.
He contends, however, that this factor should have no bearing on the forum
non conveniens analysis because the lack of an actual malice requirement in
Canadian defamation law affords him a legitimate juridical advantage. As
discussed above, juridical advantage should not weigh too heavily in the
forum non conveniens analysis. This caution is especially significant in
a case such as this, where the American actual malice requirement reflects a
deeply rooted and distinctive legal tradition that this Court has declined to
adopt (Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at
para. 137), but which comity requires we respect in foreign jurisdictions.
Moreover, even if this advantage to Lord Black were taken into account, it would
have to be balanced against the corresponding and very significant juridical
disadvantage that the appellants would face if the trial were to proceed in
Ontario. As a result, the fact remains that an Ontario judgment would be
enforceable against only one of the ten appellants. On balance, this is an
indication that an Illinois court may be a more appropriate forum for the
actions to be heard in than an Ontario court.
(5) Fairness to the Parties
[36] This Court
observed in Club Resorts that in addition to seeking to assure the
efficacy of the litigation process, the doctrine of forum non conveniens
also seeks to assure fairness to both parties. The courts below agreed that the
balance of fairness favours litigation in Ontario because it would be unfair to
prevent Lord Black from suing in the community in which his reputation was
established, whereas there would be no unfairness to the appellants if the
actions were to proceed in Ontario because it would have been reasonably
foreseeable to them that posting the impugned statements on the internet and
targeting the Canadian media would cause damage to Lord Black’s reputation in
Ontario. I would agree, although I would also emphasize that the question of
whether a targeting approach should be adopted in Canadian law does not arise on
this appeal. As discussed above, the importance of permitting a plaintiff to
sue for defamation in the locality where he enjoys his reputation has long been
recognized in Canadian defamation law. Given the importance of his reputation
in Ontario, this factor weighs heavily in favour of Lord Black.
III. Conclusion
[37] In the end,
some of the factors relevant to the forum non conveniens analysis favour
the Illinois court, while others favour the Ontario court. The forum non
conveniens analysis does not require that all the factors point to a single
forum or involve a simple numerical tallying up of the relevant factors.
However, it does require that one forum ultimately emerge as clearly more
appropriate. The party raising forum non conveniens has the burden of
showing that his or her forum is clearly more appropriate. Also, the
decision not to exercise jurisdiction and to stay an action based on forum
non conveniens is a discretionary one. As stated in Club Resorts,
the discretion exercised by a motion judge in the forum non conveniens
analysis “will be entitled to deference from higher courts, absent an error of
law or a clear and serious error in the determination of relevant facts” (para.
112). In the absence of such an error, it is not the role of this Court to
interfere with the motion judge’s exercise of his discretion.
[38]
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. Accordingly, I would dismiss the appeal with
costs.
Appeal dismissed with costs.
Solicitors for the appellants Richard C. Breeden and Richard C. Breeden &
Co.: Blake, Cassels & Graydon, Toronto.
Solicitors
for the appellants Gordon A. Paris, James R. Thompson, Richard D. Burt,
Graham W. Savage, Raymond G.H. Seitz, Paul B. Healy, Shmuel Meitar and Henry A.
Kissinger: Bennett Jones, Toronto.
Solicitors
for the respondent: Lerners, Toronto.
Solicitors for the intervener: Holmes
& King, Vancouver.