SUPREME
COURT OF CANADA
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)
|
Breeden v. Black, 2012 SCC 19, [2012] 1
S.C.R. 666
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 actions on grounds
that Ontario court lacks jurisdiction or, alternatively, should decline to
exercise its jurisdiction on basis of forum non conveniens — Whether
Ontario court can assume jurisdiction over actions — If so, whether Ontario
court should decline to exercise its jurisdiction on ground that court of
another jurisdiction is clearly a more appropriate forum for hearing of
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 of Justice against
the 10 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 Ontario 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, [2012] 1 S.C.R. 572. 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, [2012] 1 S.C.R. 572; 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, [2012] 1 S.C.R. 636; 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. app., 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. (2009), 309 D.L.R. (4th) 708, 73 C.P.C.
(6th) 83, 2009 CanLII 14041, [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, [2012] 1 S.C.R. 572 (“Club Resorts”), are to be applied to a multistate
defamation claim. The respondent, Conrad Black, filed six libel actions in the
Ontario Superior Court of Justice against the 10 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 (“Committee”) and retained the appellant
Richard C. 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 of Justice 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 ((2009), 309 D.L.R. (4th) 708,
at 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 systematic schemes to wrongfully divert corporate assets to
himself and his associates;
● Black
presided over a corporate kleptocracy that was engaged in a systematic, willful
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 of Justice (2009),
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 10 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. 105-6), 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. [Text in
brackets in original.]
[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. app., 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, [2012] 1 S.C.R. 636, 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 Delaware and Illinois 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 10 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.