This blog post is further to our blog on the Supreme Court of Canada (“SCC”) decision in Haaretz.com v. Goldhar, 2018 SCC 28 (CanLII) (“Haaretz”) wherein the SCC opined that Israel was a more convenient forum for an online defamation claim brought by the plaintiff in Ontario (even though the SCC recognized that Ontario had jurisdiction over the matter). The SCC considered a number of factors in its decision (all outlined in our blog).
In the recent Supreme Court of British Columbia (“BCSC”) decision, Giustra v Twitter, Inc., 2021 BCSC 54 (CanLII) (“Giustra”), the BCSC confirmed that even where jurisdiction is found, a court can decline to exercise its jurisdiction under the principle that its court is not the most convenient forum for the hearing of the dispute (largely following the tenets laid out in Haaretz).
The court in Giustra cited Haaretz in pointing out that the applicable law in defamation cases involves the application of what is called the lex loci delicti rule (i.e. a consideration of the law of the place where the tort was committed). The application of this rule in internet defamation cases may result in multiple courts assuming jurisdiction simultaneously.
The court specifies that when it comes to internet defamation cases (see our blog on cyber libel), the tort occurs where the words are read (this causes an issue since the words may be read in multiple jurisdictions concurrently).
The court in Giustra was largely concerned with the defendant’s argument that it would be a breach of comity to apply Canadian law to the defendant’s conduct in the U.S (comity is the principle that a foreign court will enforce a Canadian judgment unless it offends the foreign jurisdiction’s laws).
Giustra cites Breeden v. Black, 2012 SCC 19 (CanLII), [2012] 1 SCR 666 in its concluding remarks, stating that the convenient forum analysis requires that one forum ultimately emerge as clearly more appropriate.
After consideration, the court in Giustra concluded, inter alia, that since the plaintiff has close connections to British Columbia, has assets there, and since the allegedly defamatory content was also published there, the BCSC has jurisdiction to hear the matter. The court also opined that there would be no breach of comity between the United States and Canada if the BCSC assumes jurisdiction over the matter, as due to the application of the lex loci delicti rule, British Columbia law would apply to defamatory words that are read there, and so the court assumed jurisdiction.
As of this writing we do not know if an appeal may be brought of the decision.
At Gilbertson Davis LLP, our lawyers can assist in matters involving the removal of defamatory material from the internet. Our lawyers can represent you, your business, company, partnership or corporation in your defamation dispute, whether you are the person being defamed or the alleged defamer. Such representation may include claims or the defence of claims for particular losses or damages additional to damages for defamation itself. Gilbertson Davis LLP lawyers have experience in proceedings involving a Challenge of Jurisdiction or Forum, as well as Defamation, Civil Litigation, Business Torts, Business Litigation, Arbitration and Mediation matters and can assist you in resolving your legal issues in a timely and cost-effective manner. Our mission is to provide creative, sensible, cost-effective, long-term resolutions to clients on defamation disputes. Please contact Gilbertson Davis LLP to schedule a consultation.
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