Do Geographical Boundaries Limit where you can bring a Claim for Defamation?
- did the motion judge err in failing to find that Haaretz had rebutted the presumption of jurisdiction, according to the Van Breda test;
- alternatively, if Ontario is the appropriate jurisdiction, did the motion judge err in finding that Israel is a clearly more appropriate forum; and
- in the further alternative, did the motion judge err in failing to stay the action as an abuse of process.
Ontario Court of Appeal Decision
Although Haaretz did not dispute that the Ontario readership established the availability of a tortuous claim in Ontario under the “real and substantial connection” test for jurisdiction simpliciter, it is not the totality of the test. The second stage of the Van Breda test allows a defendant to rebut the presumption of jurisdiction established in the first stage by “establish[ing] facts which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them” (para. 24, citing Van Breda, at para. 95). The Court noted that the article was not confined to Mr. Goldhar’s business dealings in Israel or the operation of his Israeli football team. The Haaretz article described Mr. Goldhar’s Canadian connections; focus on landing a partnership with Walmart in Canada and his management from Canada. As such, the Court held that the motion judge did not err in observing that it should not have been a surprise to Harretz that Mr. Goldhar would seek to restore his reputation in Canada, given the strong links featured in the article in question.
The Court noted that when a party, such as Haaretz, seeks to displace Ontario’s jurisdiction, they bear the burden of establishing that another jurisdiction is “clearly more appropriate” (para 47, citing Van Breda para 109). The Court also stated that a motion judge’s decision not to stay proceedings under this consideration is a discretionary one. As such, the Court allows a high degree of deference to a motion judge on appeal. The Court would “intervene only ‘if the motion judge erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision’”(para 50, citing Banro, at para. 41). Therefore, the Court did not find that the motion judge erred which he determined that Israel was only slightly favourable as a jurisdiction for trial and that this conclusion was not unreasonable.
The Court held that the motion judge did not err in his finding that the action should not be stayed as an abuse of process. The Court noted that the doctrine of abuse of process, which gives a court the inherent jurisdiction to prevent manifestly unfair proceedings to a party which would otherwise bring the administration of justice into disrepute if continued, should only be exercised in the clearest of cases. It was held that in the context of defamation, it is not an abuse of the court’s process to allow Mr. Goldhar to attempt to repair and vindicate his reputation in the jurisdiction of where he lives and works.