The Ontario Court of Appeal decision in Goldhar v. Haaretz.com, 2016 ONSC 515
Mr. Mitchell Goldhar (“Mr. Goldhar”), a prominent Canadian business man and the owner of the Maccabi Tel Aviv Football Club, which plays in the Israeli Premier League was the feature of an article written in November 2011 by an Israeli newspaper, Haaretz. The article described Mr. Goldhar’s football club management model as being primarily influenced by Mr. Goldhar’s business interest in attaining a partnership with Walmart to operate in Canada. The article further described Mr. Goldhar as “bordering on megalomania” and questioned whether Mr. Goldhar’s frugality with the team finances and lack of long term planning would negatively impact the football team. The article was both printed in Israel and online, including publications across Canada and internationally.
Mr. Goldhar in December of 2011 brought an action against Haaretz for libel in Ontario. Haaretz brought a motion to stay the action on the grounds that Ontario courts lack jurisdiction simpliciter. Haaretz also argued in the alternative that Israel was the more appropriate forum for the action. The motion judge dismissed Haaretz’s motion; however he instructed that Mr. Goldhar’s claim for damages could only extend Mr. Goldhar’s reputational harm suffered in Canada. Further, the motion judge held that Mr. Goldhar was responsible to pay for the travel and accommodation expenses of Haaretz’s witnesses.
Haaretz appealed the motion judge’s findings on the following issues:
- 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
The appeal was dismissed for the following reasons.
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.
The Internet is often not bound geographically and thus can present jurisdictional issues, including claims for libel and defamation. It is advisable to consider the proper jurisdiction when both brining and defending a claim of defamation in relation to online publications. Proper understanding of jurisdictional principles, which have attempted to evolve with the technological advancements and globalization, can save both time and money.