Plaintiff’s reputation in Ontario vital to conducting business

Supreme court | Conflict Of Laws


Plaintiff’s reputation in Ontario vital to conducting business

Plaintiff, Ontario-based corporation, engaged in exploration and development of gold properties in Democratic Republic of the Congo, commenced action in Ontario against publisher, author, researchers and editors of book, alleging that book’s content libelous and that it accused plaintiff of committing human rights violations and fraud in order to further its financial interests in Africa. Publisher was corporation based in Quebec and author, researchers and editors all worked and resided in Quebec. Book distributed in Ontario bookstores, available in Ontario public libraries and available for purchase on publisher’s website. Defendants brought unsuccessful motion to stay action on basis there was no real and substantial connection between subject-matter of action and Ontario and that Ontario court not convenient forum. Court of Appeal upheld motion judge’s decision. Appeal to Supreme Court of Canada dismissed. Applying analytical framework for assuming jurisdiction under common law real and substantial connection test and proper approach to application of doctrine of forum non conveniens set out in Charron Estate v. Bel Air Travel Group Ltd; Van Breda v. Village Resorts Ltd. (2012), 212 A.C.W.S. (3d) 712 (S.C.C.), there was real and substantial connection between claim and Ontario. Alleged tort of defamation occurred in Ontario and book distributed in Ontario. No requirement at this stage to show evidence of harm or that book was read. Publication may be inferred when libellous material contained in book circulated in library. Also evidence establishing that plaintiff’s reputation in Ontario was vital to conducting business of attracting investors and maintaining good relations with regulators. Commission of tort in Ontario recognized presumptive connecting factor and motion judge correctly assumed jurisdiction. Motion judge correctly exercised discretion in maintaining Ontario’s jurisdiction. Harm typically presumed in defamation cases and plaintiff adduced sufficiently compelling evidence of reputation in Ontario. Financial recovery may not be central issue as declaratory judgment may be as valuable. Whether lex loci delicti rule applied or location of most substantial harm to reputation considered, applicable law that of Ontario. Balance of fairness on issues of juridical advantage also favoured Ontario.

Banro Corp. v. Editions Ecosociete Inc. (Apr. 18, 2012, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33819) Decision at 188 A.C.W.S. (3d) 1016 was affirmed. 212 A.C.W.S. (3d) 711 (38 pp.).

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