The Court of Appeals for Ontario recently ruled that Ontario courts do not have jurisdiction to hear a $10 million damages claim by a Guinean national who recently moved to Ontario in respect of articles published by The Washington Post in 1997 but still available online.
The respondent, Cheickh Bangoura, had sued the Washington Post and three of its reporters in respect of two newspaper articles, which he alleges are defamatory. Mr. Bangoura had been employed by the United Nations in Nairobi, Kenya in January 1997 when the articles were published. Those articles related Mr. Bangouraâ€™s conduct in a prior posting with the United Nations in the Ivory Coast.
Six years after the publication of the articles, Mr. Bangoura commenced an action in Ontario. Counsel for the Washington Post and its reporters brought a motion to stay the action on the ground that there is no real and substantial connection between the action and Ontario or between the Washington Post and Ontario. They also submitted that Ontario is not the most convenient forum and that the service of the statement of claim ex juris should be set aside. Pitt J. of the Superior Court of Justice disagreed and dismissed the motion [(2004), 235 D.L.R. (4th) 565 (January 27, 2004)]. The Washington Post and its reporters appealed.
A month before the publication of the articles, Mr. Bongouraâ€™s wife and two children had moved to Montreal. Mr. Bongoura joined them the month after publication. They continued living in Montreal for just over three years and then moved to Ontario. Three years later, he commenced the action.
Apparently, only 7 copies of the print edition of the Washington Post were delivered to Ontario. However, the two articles in issue were available in their entirety from the Washington Post website for two weeks following publication. Thereafter, the articles could be accessed through a paid archive only, although summaries continued to be freely available (and still are). Only one person, counsel for Mr. Bangoura, accessed the articles through the paid archive.
The Court of Appeal did not disagree with the test to be applied in analyzing this type of jurisdictional issue (the Muscutt v. Courcelles application of the real and substantial connection test developed by the Supreme Court of Canada in Morguard Investments Ltd. v. De Savoye) but rather with the application of the test and concluded that there was no real and substantial connection between the action and Ontario. The Court of Appeal found that Bangouraâ€™s connection with Ontario was minimal. It went on to state that even where a connection is significant, â€œâ€¦ the case of assuming jurisdiction is proportional to the degree of damage sustained within the jurisdiction. It is difficult to justify assuming jurisdiction against an out-of-province defendant unless the plaintiff has suffered significant damage within the jurisdiction.â€
The Court of Appeal found that it was not reasonably foreseeable in January 1997 that Mr. Bangoura would end up as a resident of Ontario three years later. â€œTo hold otherwise would mean that a defendant could be sued almost anywhere in the world based upon where the plaintiff may decide to establish his or her residence long after the publication of the defamation.â€
The Court was clearly influenced by Leufkens where Sharpe J.A. cautioned that if an Ontario court assumes jurisdiction against a foreign defendant, it would require Ontario courts to enforce foreign judgments pronounced on the same jurisdictional basis against Ontario defendants. If Ontario courts were to assume jurisdiction in cases against foreign defendants too easily then it could lead to Ontario publishers and broadcasters being sued anywhere in the world with the prospect that Ontario courts would be obliged to enforce foreign judgment obtained against them. It is therefore not surprising that a media coalition of 52 organizations intervened in support of the Washington Post. According to Ian MacKinnon, Legal Counsel for the CBC, â€œif someone like Bangoura, who had no presence whatsoever in the jurisdiction at the time of publication and did not move there until three years later, can sue in that jurisdiction, it means that media outlets will lose their ability to predict the law to be applied to their publications or where they might face lawsuits or prosecutions.â€
According to Paul Schabas, a senior litigator at Blakes who represented the Washington Post in Bangoura, newspaper and media outlets around the world sighed in relief following the release of the Court of Appeal decision. According to Schabas, many had been concerned due to the broad expansion of the real and substantial connection test by the trial level.
Shortly after the Court of Appeal for Ontario released its decision setting aside the order of the motion judge, the B.C. Supreme Court ruled that allegedly defamatory comments made by a columnist for the New York Post against a former Canucks hockey executive were actionable in B.C. In Burke v. NYP Holdings, Inc. (2005 BCSC 1287), the plaintiff was a resident of B.C. at the time of publication. While there wasnâ€™t any evidence that the Post had delivered copies of its print edition into BC and there as no mechanism to determine the geographic origin of visitors who may have read the articles from its website, the allegations contained in the article in issue were read on a radio talk show broadcast in British Columbia.
Although the BCSC relied upon the trial level judgment in Bangoura, the application of the real and substantial connection test would have like lead to the same results based on Burkeâ€™s connection with BC at the time of publication. The results in the two cases should therefore not been viewed as contradictory but rather as indication that Canadian courts will not shy away from assuming jurisdiction against foreign defendants in appropriate cases. American publishers, in particular, should take notice that the New York Times v. Sullivan â€œactual maliceâ€ protections afforded to media in the US when reporting on public officials are not applicable in Canada and that articles they publish regarding foreign public figures may need to be put through a more vigorous vetting process.
The above article appeared in the October 17, 2005 issue of Law Times.