Black v. Breeden et al., [2012] N.R. TBEd. AP.018

JudgeMcLachlin, C.J.C., Binnie,* LeBel, Deschamps, Fish, Abella, Charron,* Rothstein and Cromwell, JJ.
CourtSupreme Court (Canada)
Case DateApril 18, 2012
JurisdictionCanada (Federal)
Citations[2012] N.R. TBEd. AP.018;2012 SCC 19;[2012] EXP 1450;[2012] SCJ No 19 (QL);429 NR 192;343 DLR (4th) 629;JE 2012-786;[2012] 1 SCR 666;291 OAC 311;[2012] CarswellOnt 4272;212 ACWS (3d) 713;91 CCLT (3d) 153;EYB 2012-205200

Black v. Breeden (SCC) - Conflict of laws - Libel action - Choice of forum

MLB being edited

Currently being edited for N.R. - judgment temporarily in rough form.

[French language version follows English language version]

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

Temp. Cite: [2012] N.R. TBEd. AP.018

Richard C. Breeden, Richard C. Breeden & Co., Gordon A. Paris, James R. Thompson, Richard D. Burt, Graham W. Savage and Raymond G.H. Seitz (appellants) v. Conrad Black (respondent)

Richard C. Breeden, Richard C. Breeden & Co., Gordon A. Paris, James R. Thompson, Richard D. Burt, Graham W. Savage and Raymond G.H. Seitz (appellants) v. Conrad Black (respondent)

Richard C. Breeden, Richard C. Breeden & Co., Gordon A. Paris, James R. Thompson, Richard D. Burt, Graham W. Savage and Raymond G.H. Seitz (appellants) v. Conrad Black (respondent)

Richard C. Breeden, Richard C. Breeden & Co., Gordon A. Paris, James R. Thompson, Richard D. Burt, Graham W. Savage and Raymond G.H. Seitz (appellants) v. Conrad Black (respondent)

Richard C. Breeden, Richard C. Breeden & Co., Gordon A. Paris, Graham W. Savage, Raymond G.H. Seitz and Paul B. Healy (appellants) v. Conrad Black (respondent)

Richard C. Breeden, Richard C. Breeden & Co., Gordon A. Paris, James R. Thompson, Richard D. Burt, Graham W. Savage, Raymond G.H. Seitz, Shmuel Meitar and Henry A. Kissinger (appellants) v. Conrad Black (respondent) and British Columbia Civil Liberties Association (intervenor)

(33900; 2012 SCC 19; 2012 CSC 19)

Indexed As: Black v. Breeden et al.

Supreme Court of Canada

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

April 18, 2012.

Summary:

The plaintiff, Conrad Black, a former Chairman of Hollinger International, a U.S. company, filed six libel actions in Ontario, respecting statements posted on the Hollinger website concerning a Special Committee investigation into questionable payments to Black, suggestions of tax evasion, breaches of securities law, etc. The defendants in the actions were directors, advisors and a Vice President of Hollinger, most of whom resided outside Canada. The plaintiff alleged that press releases and reports issued by the defendants contained defamatory statements that were downloaded, read and republished in Ontario by The Globe and Mail, the Toronto Star, and the National Post, and damaged his reputation in Ontario. The defendants moved for a stay on jurisdictional grounds or, alternatively, on the ground of forum non conveniens.

The Ontario Superior Court (motions judge), in a judgment reported [2009] O.T.C. Uned. 733, dismissed the defendants' motion. The defendants appealed. The motions judge had arrived at his decision by applying the eight factor test for assumed jurisdiction as set out in Muscutt v. Courcelles (Ont. C.A. 2002), holding that most of the factors favoured the plaintiff. Subsequent to his decision, the Court of Appeal modified the Muscutt test in Van Breda v. Village Resorts Ltd. (Ont. C.A. 2010). The hearing of this appeal was deferred pending the release of the reasons for decision in Van Breda. The issues on this appeal were whether the motions judge was correct in concluding that Ontario could assume jurisdiction in light of the test as set out in Van Breda and whether the judge erred in principle in determining that there was no clearly more convenient forum.

The Ontario Court of Appeal, in a judgment reported (2010), 265 O.A.C. 177, dismissed the appeal. The court, applying the modified Muscutt test as set out in Van Breda, held that the motions judge was correct in concluding that Ontario could assume jurisdiction. As to the forum non conveniens argument, the court found that there was no error in principle on the part of the motions judge that would justify appellate interference. The defendants appealed.

The Supreme Court of Canada dismissed the appeal. The Ontario court was entitled to assume jurisdiction as there existed a real and substantial connection between Ontario and the libel actions. Further, there was no error in the court refusing to exercise its discretion to decline jurisdiction on the basis of forum non conveniens, as the defendants failed to establish that the Illinois court was a clearly more appropriate forum.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter - The plaintiff, Conrad Black, a former Chairman of Hollinger International, a U.S. company, filed six libel actions in Ontario, respecting statements posted on the Hollinger website concerning a Special Committee investigation into questionable payments to Black, suggestions of tax evasion, breaches of securities law, etc. - The defendants in the actions were directors, advisors and a Vice President of Hollinger, only one of whom resided in Ontario - The plaintiff alleged that press releases and reports issued by the defendants contained defamatory statements that were downloaded, read and republished in Ontario by newspapers and damaged his reputation in Ontario - The defendants moved to stay the libel action on the ground that the Ontario court lacked jurisdiction simpliciter - Alternatively, if the court was entitled to assume jurisdiction, jurisdiction should be declined in favour of the Illinois courts on the basis of forum non conveniens - A motions judge dismissed the motion - The Ontario Court of Appeal affirmed the decision - The Supreme Court of Canada dismissed the defendants' appeal - The Ontario court had jurisdiction over the libel actions based on a real and substantial connection between Ontario and the libel actions, given the presence of a presumptive connecting factor (alleged commission of tort in Ontario) that was not rebutted by the defendants - Defamation occurred upon publication of a defamatory statement by a third party - Publication occurred when the impugned statements were read, downloaded and republished in Ontario by three newspapers - The Ontario court did not err in refusing to exercise its discretion to decline jurisdiction on the basis of forum non conveniens - Some factors favoured the Illinois court - Some favoured the Ontario court - The defendants failed to show that the Illinois court was a "clearly" more appropriate forum - See paragraphs 15 to 37.

Conflict of Laws - Topic 1661

Actions - General - Forum conveniens - General - The Supreme Court of Canada stated that "an emphasis of juridical advantage may be inconsistent with the principles of comity. In particular, a focus on juridical advantage may put too strong an emphasis on issues that may reflect only differences in legal tradition which are deserving of respect, or courts may be drawn too instinctively to view disadvantage as a sign of inferiority and favour their home jurisdiction ... Juridical advantage not only is problematic as a matter of comity, but also as a practical matter, may not add very much to the jurisdictional analysis. ... Juridical advantage therefore should not weigh too heavily in the forum conveniens analysis." - See paragraphs 26 to 27.

Conflict of Laws - Topic 7601

Torts - Jurisdiction - Forum conveniens - [See Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 7601

Torts - Jurisdiction - Forum conveniens - The Supreme Court of Canada applied the following factors in a forum non conveniens analysis respecting libel actions: juridical advantage (given little weight); the comparative convenience and expense for parties and witnesses (including location of parties); the applicable law to resolve the dispute; the avoidance of a multiplicity of proceedings and conflicting decisions; whether a judgment would be enforceable in the other jurisdiction; and fairness to the parties - See paragraphs 22 to 36.

Conflict of Laws - Topic 7604

Torts - Jurisdiction - Defamation - [See Conflict of Laws - Topic 603 ].

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., [2012] N.R. TBEd. Ap.016; 2012 SCC 17, appld. [para. 1].

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. 11].

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 60 O.R.(3d) 20 (C.A.), refd to. [para. 11].

Lombard General Insurance Co. of Canada v. Cominco Ltd. et al., [2009] 1 S.C.R. 321; 384 N.R. 351; 266 B.C.A.C. 32; 449 W.A.C. 32; 2009 SCC 11, refd to. [para. 23].

Teck Cominco Metals v. Lloyd's Underwriters - see Lombard General Insurance Co. of Canada v. Cominco Ltd. et al.

Lexus Maritime inc. v. Oppenheim Forfait GMBH, 1998 CanLII 13001 (Que. C.A.), refd to. [para. 25].

Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, refd to. [para. 27].

Banro Corp. v. Editions Ecosociété Inc., [2012] N.R. TBEd. AP.017; 2012 SCC 18, refd to. [para. 32].

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. 35].

Authors and Works Noticed:

Brown, Raymond E., The Law of Defamation in Canada (1987), vol. 1, pp. 253 to 254 [para. 20].

Counsel:

Paul B. Schabas, Ryder L. Gilliland and Erin Hoult, for the appellants, Richard C. Breeden and Richard C. Breeden & Co;

Robert W. Staley and Julia Schatz, for the appellants, Gordon A. Paris, James R. Thompson, Richard D. Burt, Graham W. Savage, Raymond G.H. Seitz, Paul B. Healy, Shmuel Meitar and Henry A. Kissinger;

Earl A. Cherniak, Q.C., Kirk F. Stevens and Lisa C. Munro, for the respondent;

Robert D. Holmes, Q.C., for the intervenor.

Solicitors of Record:

Blake, Cassels & Graydon, Toronto, Ontario, for the appellants, Richard C. Breeden and Richard C. Breeden & Co.;

Bennett Jones, Toronto, Ontario, for the appellants, Gordon A. Paris, James R. Thompson, Richard D. Burt, Graham W. Savage, Raymond G.H. Seitz, Paul B. Healy, Shmuel Meitar and Henry A. Kissinger;

Lerners, Toronto, Ontario, for the respondent;

Holmes & King, Vancouver, B.C., for the intervenor.

This appeal was heard on March 22, 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.

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  • Bent v. Platnick, 2020 SCC 23
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    ...2 S.C.R. 235; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Crookes v. Newton, 2011 SCC 47, [2011] 3 S.C.R. 269; Breeden v. Black, 2012 SCC 19, [2012] 1 S.C.R. 666; Platnick v. Bent (No. 2), 2016 ONSC 7474; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Sipos, 2014 SCC 47, [2014] 2 S......
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