On March 9, 2017, the Supreme Court of Canada (SCC) granted leave in Goldhar v. Haaretz.com1. This case is important because the SCC will address three key issues relating to the assumption of jurisdiction by Canadian courts, in particular, in the context of online activity.
At issue were jurisdiction and applicable law questions concerning allegedly defamatory material posted by the appellant, Haaretz.com ("Haaretz"), an Israeli newspaper, on its website, which was available in Canada. Both the motion judge and the Court of Appeal (in a two to one decision) held that the Ontario courts had jurisdiction; that Ontario was the most convenient forum; and that Canadian law applied.
In seeking leave to appeal to the SCC, Haaretz identified three issues of national and international importance: (i) whether the publication of defamatory statements on the internet can give rise to a presumption of jurisdiction in the context of a multi-jurisdiction case (and how such jurisdiction can be rebutted); (ii) what is the appropriate level of scrutiny for the forum non conveniens part of the test for assuming jurisdiction; and (iii) whether, in internet defamation cases, the law of the place of "most substantial harm" rather than lex loci delicti (the law of the place where the tort was committed) should apply to the case. More broadly, Haaretz raised concerns about the "unlimited, automatic and irrebutable" jurisdiction of the Canadian courts as a result of the Court of Appeal's decision in this case2.
This case is likely to have broad application going forward in cases involving torts committed through online activity. The SCC will likely communicate the extent to which it thinks that Canadian courts should assume jurisdiction in cases involving online activities that are posted outside of Canada but are viewed within Canada. The SCC's decision to grant leave suggests an interest by that court in addressing jurisdictional issues concerning the international scope of Canadian courts' authority3.
Haaretz is an Israel newspaper. It does not have any subscribers or business presence in Canada. It published an article that criticized the management style and business practices of Mitchell Goldhar, the plaintiff and respondent. Mr. Goldhar is a Canadian businessman who owned the Maccabi Tel Aviv Football Club, a Tel Aviv soccer team. He divides his time between residences in Canada and Israel. The article was available in print and on the paper's Hebrew and English websites. The evidence indicated that 200-300 Canadians read the article.
Mr. Goldhar commenced an action in Ontario, alleging defamation. Haaretz moved to stay the action on the grounds that the Ontario courts lacked jurisdiction simpliciter; and, in the alternative, that Israel is a more appropriate forum. Haaretz also made submissions concerning the law that governs the defamation action. The Ontario Superior Court of Justice dismissed the motion and the Court of Appeal dismissed the appeal (with Justice Pepall dissenting).
I. Jurisdiction simpliciter
Importantly, Haaretz did not dispute that Ontario readership of the article established that a tort had been committed in Ontario, one of the "presumptive connecting factors" for establishing jurisdiction under the test set out by the SCC in Club Reports Ltd. v. Van Breda4. Rather, Haaretz submitted that under the second step of the Van Breda test, the presumption had been rebutted because only a minor element of the tort was committed in Ontario, as far more people read the article in Israel. On appeal, Haaretz argued that the motion judge erred by failing to recognize the weak link between the action and Ontario and "by effectively treating the presumptive connecting factor of a tort committee in the province as irrebutable."5
The majority of the Court of Appeal rejected this argument. It held that the subject matter of the action and the article had a significant connection to Ontario. According to the majority, "the article puts Goldhar's Canadian connection front and center by acknowledging that he is a long distance operator and spends most of his time in Canada and by asserting that he imported his management model for Maccabi Tel Aviv from his main business interest, his Canadian shopping center partnership."6 The majority was not satisfied that Haaretz had rebutted jurisdiction.
In dissent, Justice Pepall agreed that the Ontario courts had jurisdiction, but raised concerns regarding "the ease with which jurisdiction simpliciter may be established in a defamation case."7
In their application for leave to appeal, Haaretz raised the following issue for consideration by the SCC: (i) should the tort of defamation be considered to have been committed in the jurisdiction where a small number of people downloaded material; and (ii) how, if ever, can the presumption of jurisdiction be rebutted in cases of internet defamation8. In particular, Haaretz has argued that "because the place of publication of internet defamation can, effectively, be everywhere, it does not provide a basis for presuming a 'real and substantial' relationship between the subject matter of the litigation and a particular forum."9 It has also argued that any presumption of jurisdiction based solely on online publication should be rebutted where the online publication on its own does not point to a strong relationship with the jurisdiction, and where there is an absence of evidence of reputational harm in the jurisdiction10.
II. Forum non conveniens
(i) Convenience and expense to witnesses
At the Court of Appeal, Haaretz argued that the motion judge's decision not to exercise his discretion to stay the proceedings on the basis of forum non conveniens was unreasonable, and that almost every factor identified in Van Breda favoured a trial in Israel.
The majority of the Court of Appeal began by reiterating that the party seeking to displace Ontario's jurisdiction bears the burden, in the forum non conveniens analysis, to demonstrate that the court of the alternative jurisdiction is a "clearly more appropriate forum."11
The majority held that while the motion judge erred in law by suggesting that letters rogatory could be used to compel the attendance of Haaretz's witnesses in Ontario, this error did not make the overall assessment unreasonable12. The majority held that there were available methods for dealing with witnesses outside of the jurisdiction (including videoconferencing) and that Haaretz had not demonstrated that these methods were not available in this case. The majority emphasized that the use of technology and interpreters could not be viewed as undermining the fairness of a civil trial. It was therefore not unreasonable to find Israel was not the clearly more appropriate forum13.
In her dissenting reasons, Justice Pepall called for a "robust and carefully scrutinized review of the issue of forum non conveniens"14 given the ease with which jurisdiction simpliciter can be established, as set out above. Her Honour concluded that the applicable factors supported a trial in Israel.
Haaretz has now asked the SCC to address "how and with what level of rigour, must a forum non conveniens analysis (if necessary) be applied, in order to 'temper' the consequences of... rigid jurisdiction rules to ensure a fair and efficient outcome for the parties."15
Finally, the SCC will consider the law applicable in internet defamation cases – namely whether the principle of lex loci delicti (the law of the place where the tort was committed) should give way to that of the law of the place of most substantial harm – an issue that was left "for another day" in Éditions Écosociété Inc. v. Banro16.
The motion judge held that whether the lex loci delicti choice of law rule or a "most substantial harm to reputation" choice of law rule is applied, Ontario law applies to this case, with which the majority found no error. In its leave to appeal factum, Haaretz, echoing Justice Pepall's dissent, argued that the "most substantial harm" rule should determine what law governs and that, properly applied, it would result in the application of Israeli law to the case17.
The SCC will now weigh in on these concerns about the application of traditional grounds for assuming jurisdiction where internet content is involved and when and how jurisdiction can be rebutted in that context. In an age when torts are increasingly occurring through online content, the SCC's decision in this case is likely to provide important guidance to Canadian courts in dealing with future cases involving online activity.