Banro Corp. v. Éditions Écosociété Inc. et al., (2012) 291 O.A.C. 277 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 18, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 291 O.A.C. 277 (SCC);2012 SCC 18;[2012] EXP 1451;JE 2012-787;212 ACWS (3d) 711;291 OAC 277;91 CCLT (3d) 105;343 DLR (4th) 647;EYB 2012-205199;[2012] 1 SCR 636;429 NR 293;[2012] SCJ No 18 (QL)

Banro Corp. v. Editions Ecosociété Inc. (2012), 291 O.A.C. 277 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] O.A.C. TBEd. AP.032

Les Éditions Écosociété Inc., Alain Deneault, Delphine Abadie and William Sacher (appellants) v. Banro Corporation (respondent) and Canadian Civil Liberties Association and British Columbia Civil Liberties Association (intervenors)

(33819; 2012 SCC 18; 2012 CSC 18)

Indexed As: Banro Corp. v. Éditions Écosociété Inc. et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

April 18, 2012.

Summary:

An Ontario based mining corporation (Banro) was engaged in the exploration and mining for gold in the Democratic Republic of Congo. The defendants were the Quebec publisher, author, research assistant and editor of a book that criticized the international mining activities of some Canadian mining corporations, including Banro. Banro commenced a libel action in Ontario against the defendants. The defendants moved to stay the proceedings, arguing that the Ontario court lacked jurisdiction simpliciter, where there was no real and substantial connection between Ontario and the alleged defamation. Alternatively, if the Ontario court could assume jurisdiction, the defendants argued that jurisdiction should be declined on the basis of forum non conveniens, as Quebec was the more appropriate forum.

The Ontario Superior Court, in a judgment reported [2009] O.T.C. Uned. 432, dismissed the motion. There was a real and substantial connection between the alleged tort and Ontario and the defendants failed to show that Quebec was a more appropriate forum. The defendants appealed.

The Ontario Court of Appeal, in a judgment reported [2010] O.A.C. Uned. 278, dismissed the appeal. The defendants appealed.

The Supreme Court of Canada dismissed the appeal.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter - An Ontario based mining corporation (Banro) mined gold in the Democratic Republic of Congo - The defendants were the Quebec publisher, author, research assistant and editor of a book (Noir Canada: Pillage, corruption et criminalité en Afrique) that criticized the international mining activities of some Canadian mining corporations, including Banro - Banro brought a libel action in Ontario against the defendants - The defendants moved to stay the proceedings, arguing that the Ontario court lacked jurisdiction absent a real and substantial connection between Ontario and the alleged defamation - The Supreme Court of Canada agreed that the Ontario court had jurisdiction, as there was a real and substantial connection between the defamation claim and Ontario - The alleged tort occurred in Ontario, where the book was distributed - The commission of a tort in Ontario was a presumptive connecting factor that prima facie entitled the Ontario court to assume jurisdiction - The defendants failed to prove that only a minor element of the tort of defamation occurred in Ontario and thus failed to displace the presumption of jurisdiction - See paragraphs 37 to 39.

Conflict of Laws - Topic 7601

Torts - Jurisdiction - Forum conveniens - An Ontario based mining corporation (Banro) mined gold in the Democratic Republic of Congo - The defendants were the Quebec publisher, author, research assistant and editor of a book (Noir Canada: Pillage, corruption et criminalité en Afrique) that criticized the international mining activities of some Canadian mining corporations, including Banro - Banro brought a libel action in Ontario against the defendants - The alleged tort occurred in Ontario, where the book was distributed - The Supreme Court of Canada held that the Ontario court did not err in declining to refuse to accept jurisdiction on the basis of forum non conveniens - The court rejected the defendants' proportionality argument (i.e., that the cost of litigating the claim in Ontario far outweighed the potential recovery in damages) - The proportionality argument was based on the lack of evidence of harm, which was not relevant at this stage of the proceeding - Further, financial recovery might not be the central issue, as a declaratory judgment was as valuable to Banro's reputation as a pecuniary award - The fact that another mining corporation was suing the defendants in Quebec for defamation did not constitute a multiplicity of proceedings to be avoided - The subject matter of both proceedings was the same, but the parties were different - The court rejected the allegation of "forum shopping", as "whether we apply the lex loci delecti rule or consider the location of the most substantial harm to reputation, the applicable law is that of Ontario and not Quebec" - The court found it unnecessary to decide, whether "the question of whether lex loci delecti ought to be abandoned as the choice of law rule in multijurisdictional defamation cases" - The loss of a juridical advantage if the Ontario action were stayed (Quebec action may be barred by shorter limitation period) favoured Banro - The court concluded that "although this claim was connections to more than one forum, given the strength of the connections between the plaintiff and Ontario, it is not at all clear that the plaintiff is engaged in libel tourism and that Quebec would be a clearly more appropriate forum" - See paragraphs 41 to 64.

Conflict of Laws - Topic 7604

Torts - Jurisdiction - Defamation - [See Conflict of Laws - Topic 7601 ].

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - [See Conflict of Laws - Topic 603 ].

Cases Noticed:

Van Breda et al. v. Village Resorts Ltd. et al. (2012), 429 N.R. 217; 291 O.A.C. 201; 2012 SCC 17, appld. [para. 2].

Crookes et al. v. Newton, [2011] 3 S.C.R. 269; 421 N.R. 205; 310 B.C.A.C. 76; 526 W.A.C. 76; 2011 SCC 47, refd to. [para. 3].

Van Breda et al. v. Village Resorts Ltd. et al. (2010), 264 O.A.C. 1; 98 O.R.(3d) 721; 2010 ONCA 84, refd to. [para. 9].

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 60 O.R.(3d) 20 (C.A.), refd to. [para. 9].

Barrick Gold Corp. v. Blanchard and Co. (2003), 9 B.L.R.(4th) 316 (Ont. Sup. Ct.), refd to. [para. 13].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 15].

Paulsson v. Cooper et al. (2011), 277 O.A.C. 346; 105 O.R.(3d) 28; 2011 ONCA 150, refd to. [para. 28].

Bangoura v. Washington Post et al. (2005), 202 O.A.C. 76; 258 D.L.R.(4th) 341 (C.A.), additional reasons (2005), 206 O.A.C. 325 (C.A.), refd to. [para. 28].

Young v. Tyco International of Canada Ltd. et al., [2008] O.A.C. Uned 670; 92 O.R.(3d) 161; 2008 ONCA 709, refd to. [para. 31].

Hiltz and Seamone Co. v. Nova Scotia (Attorney General) et al. (1999), 173 N.S.R.(2d) 341; 527 A.P.R. 341 (C.A.), refd to. [para. 34].

Visram et al. v. Chandarana et al., [2007] O.T.C. Uned. F72; 2007 CanLII 28334 (Sup. Ct.), refd to. [para. 47].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241, refd to. [para. 50].

Olde v. Capital Publishing Ltd. Partnership (1996), 13 O.T.C. 211; 5 C.P.C. (4th) 95 (Gen. Div.), affd. (1998), 108 O.A.C. 304 (C.A.), dist. [para. 52].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 57].

Jenner v. Sun Oil Co., [1952] 2 D.L.R. 526 (Ont. H.C.), refd to. [para. 58].

Authors and Works Noticed:

Australia, Law Reform Commission, Report No. 11, Unfair Publication: Defamation and Privacy (1979), pp. 190, 191 [para. 60].

Brown, Raymond E., The Law of Defamation in Canada (2nd Ed. 1994) (2011 looseleaf Update, release 1), p. 22-58 [para. 34].

Castel, Jean-Gabriel, Mulistate Defamation: Should the Place of Publication Rule be Abandoned for Jurisdiction and Choice of Law Purposes? (1990), 28 Osgoode Hall L.J. 153, p. 177 [para. 60].

Deneault, Alain, Abadie, Delphine, and Sacher, William, Noir Canada: Pillage, corruption et criminalité en Afrique (2008), generally [para. 5].

Martin, Craig, Tolofson and Flames in Cyberspace: The Changing Landscape of Multistate Defamation (1997), 31 U.B.C. L. Rev. 127, pp. 149, 158 [para. 60].

Price, David, Duodo, Korieh, and Cain, Nicola, Defamation: Law, Procedure & Practice (4th Ed. 2009), p. 448 [para. 54].

Counsel:

William C. McDowell, Yashoda Ranganathan and William Amos, for the appellants;

Lorne Honickman and Rory Barnable, for the respondent;

Karim Renno, Karine Chênevert and Fady Hammal, for the intervenor, Canadian Civil Liberties Association;

Jason B. Gratl and Robert D. Holmes, Q.C., for the intervenor, British Columbia Civil Liberties Association.

Solicitors of Record:

Lenczner Slaght Royce Smith Griffin, Toronto, Ontario, for the appellants;

McCague Peacock Borlack McInnis & Lloyd, Toronto, Ontario, for the respondent;

Osler, Hoskin & Harcourt, Montreal, Quebec, for the intervenor, Canadian Civil Liberties Association;

Holmes & King, Vancouver, B.C., for the intervenor, British Columbia Civil Liberties Association.

This appeal was heard on March 25, 2011, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada.

On April 18, 2012, LeBel, J., delivered the following judgment in both official languages for the Court.

Editor's Note: Binnie and Charron, JJ., did not participate in the judgment.