Global Freedom of Expression

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Breeden v. Black

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Electronic / Internet-based Communication, Press / Newspapers
  • Date of Decision
    April 18, 2012
  • Outcome
    Law or Action Upheld
  • Case Number
    2012 SCC 19
  • Region & Country
    Canada, North America
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Civil Law
  • Themes
    Defamation / Reputation
  • Tags
    Publisher

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Case Analysis

Case Summary and Outcome

Plaintiff brought a defamation action in a Canadian court against employees of an American corporation that published allegedly defamatory statements on its website concerning plaintiff. The defendants filed a motion to dismiss on the grounds that the Canadian court did not have jurisdiction to hear the claim. The Supreme Court of Canada agreed.


Facts

The plaintiff, Conrad Black, brought a series of libel actions in the Ontario Superior Court against various employees of a company where Mr. Black served as Chairman. Mr. Black alleged that documents 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, citing the standard set out in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, moved to remove the action from the Ontario court on the grounds that there was no “real and substantial connection” between the action and Ontario. Alternatively, appellants claimed a United States court (being the country in which the corporation was headquartered) would be a more appropriate forum.

The lower courts denied the appellants claims and found that the Ontario court had jurisdiction. The defendants appealed to the Supreme Court of Canada.


Decision Overview

The Supreme Court of Canada applied the “real and substantial connection” test set out in Club Resorts to determine whether the Ontario Superior Court had jurisdiction to hear the case. That standard requires that the tort of defamation exceed “minor” damages in the venue forum – in this case, Ontario.

The Court found that, because republication constitutes a new publication attributable to the original defamatory tortfeasor, when the Ontario newspapers republished the defamatory statements the appellants published on their websites, their original tortuous behavior extended in to Ontario. Thus, a “real and substantial connection” existed between the tortuous behavior and the venue forum, and accordingly, the Ontario court had jurisdiction to hear the case.

Turing to the forum non conveniens issue, the Court observed that “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 Court considered “numerous and variable” factors, 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.” [1]

After considering the above factors, the Court concluded that the United States did hold more convenient forums than Ontario. Nevertheless, the Court found that the appellants had not demonstrated that the United States courts were the “only appropriate forum,” and accordingly, because tortuous behavior had extended to Ontario, the Court held that Ontario was an appropriate forum.

For the reasons above, the Court found that the Ontario Superior Court had jurisdiction to hear the claims.

 

[1] Paragraph 23 of the decision, http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/8006/index.do.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

This case expands the geographical regions in which publishers can expose themselves to libel claims. The Court’s reasoning in this case would allow libel claims against virtually any Internet publisher whose content is republished domestically. This protects a broader range of individuals from defamatory publications, but it could also produce a chilling effect on publishers’ willingness to publish potentially controversial material.

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

National standards, law or jurisprudence

  • Can., Club Resorts Ltd. v. Van Breda, [2012] SCC 17
  • Can., Ont., Charron Estate v. Village Resorts Ltd., [2010] ONCA 84
  • Can., Muscutt v. Courcelles, [2002] 60 O.R. (3d) 20
  • Can., Teck Cominco Metals Ltd. v. Lloyd’s Underwriters, [2009] 1 S.C.R. 321
  • Can., Éditions Écosociété Inc. v. Banro Corp., [2012] SCC 18
  • Can., Hill v. Church of Scientology, [1995] 2 S.C.R. 1130

Other national standards, law or jurisprudence

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Canada is a common law country. Canada’s lower courts will be bound to follow the Supreme Court’s decision in this case.

The decision was cited in:


Additional Citations:


Official Case Documents

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