Law Times

Law Times • augusT 20, 2018 Page 11 www.lawtimesnews.com Unusual due to lack of consensus SCC defamation ruling sends mixed messages BY SHANNON KARI For Law Times T he Supreme Court of Canada decision this June in a multi- jurisdictional defama- tion case was relatively clear-cut in the result, with six judges finding that Israel was the ap- propriate forum for an action brought by a Canadian busi- nessman against the newspaper Haaretz. For lower courts that will have to apply the part of the test that deals with the forum non conveniens analysis, however, a decidedly mixed message was sent. The ruling in Haaretz.com v. Goldhar included the main decision of three judges, three sets of concurring reasons and a dissent by the remaining three judges, including former chief justice Beverley McLachlin in one of the last cases she heard before her retirement. The number of judgments issued by the court means that the "takeaway" on at least some of the issues is not as straight- forward as usual when dealing with an online defamation case that could be heard in more than one jurisdiction. Paul Schabas, lead counsel for Haaretz, says there is still some clarity in the main judg- ment, written by Justice Su- zanne Cote. "Whenever jurisdiction is es- tablished on a relatively weak or technical basis, the court is say- ing there should be a robust ap- plication of the forum non con- veniens analysis. As a practical matter, the court has indicated that in these circumstances the burden [to rebut the presump- tion of jurisdiction] will be less- ened," says Schabas, a partner at Blake Cassels & Graydon LLP in Toronto. Mitchell Goldhar, who owns SmartCentres in Ontario and has business interests in Israel, including one of its best-known professional soccer teams, initi- ated a legal action over an article that was published by Haaretz in November 2011. Goldhar lives part of each year in Israel and is very well known in that country. The story was about his ownership of the soccer team, and the court heard that about 200 to 300 people in Canada downloaded it online. Haaretz is the oldest daily newspaper in Israel and had print circulation of 70,000 as well as its online presence when the article was published. All of the Supreme Court judges agreed that there was a "presumptive connecting fac- tor" so that an Ontario court could assume jurisdiction. The differences focused on whether Haaretz was able to rebut this presumption of juris- diction. Justices Russell Brown and Malcolm Rowe concurred on the Cote judgment. She con- cluded that the evidence fa- voured Israel as the appropriate forum to hear the case and that the existing law was sufficient to resolve this issue. She also agreed with the analysis of Justice Sarah Pepall, who dissented at the Court of Appeal and ruled in favour of Haaretz. "As the rebuttal stage fails to address all the consequences of the 'virtually automatic' pre- sumption of jurisdiction in defamation actions, it is appro- priate for motion judges to be particularly attuned to concerns about fairness and efficiency at the forum non conveniens stage in these types of cases," wrote Cote. Cynthia Spry, a litigator at Babin Bessner Spry LLP in To- ronto, says the Cote judgment is signalling what needs to be shown to be successful on the forum issue before a motion judge. "Both sides will be trying to show there is unfairness" if the case is heard in a jurisdic- tion other than the one they are seeking, she says. "If you can thread the prin- ciple of unfairness through all of the factors, that is the way to win," Spry suggests. What is unusual about the case, she notes, is the lack of consensus, which was one of the hallmarks of the Supreme Court during McLachlin's tenure as chief justice. "Goldhar cer- tainly appears to be a departure from her approach," Spry says. Justice Andromache Kara- katsanis disagreed with Cote's suggestion that a court could consider the law that would ap- ply in another jurisdiction as part of its analysis. FOCUS Paul Schabas says there is some clarity in the main judgment of Haaretz.com v. Goldhar. See Law, page 12 Powered by • Writing for Digital Channels • Harnessing the Digital Medium • Integrated Marketing • The Age of Analytics • Using Social Media to Gain a Competitive Advantage REGISTER NOW AND SAVE 15% OCTOBER 15 | TORONTO www.legalmarketingmasterclass.com Climb higher with digital marketing Your clients are online and they're increasingly social. To grow your firm you need to build and harness your own personal brand and maximize traffic to your digital assets. Untitled-2 1 2018-08-14 1:46 PM This new approach would displace the law of the place of publication of the defamation with the law of the place with the most significant connection to the tort. Justice Rosalie Abella

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