Jurisdiction

AuthorDavid A. Potts
ProfessionBarrister, Bar of Ontario
Pages95-134
95
 : Jurisdiction
A. INTRODUCTION AND CAVEAT
Jurisdictional motions are relatively common in cy berlibel actions because
many cyberlibels cover several jurisd ictions. While some of the principles
and authorities relating to libel have been d iscussed elsewhere, they are in-
cluded in this chapter as well to reduce “chapter-hopping.” A chart listing the
Canadian cases disposing of jurisdictional motions involving libel actions
has also been prepared.
However, an important caveat must be made about this chapter. e law
in Canada on jurisdictional motions in general, including jurisdictional mo-
tions involving libel proceedings, is rather unsettled at this time of writing
this text. On  February , e Ontario Court of Appeal in Van Breda et
al. v. Village Resorts Limited,  ONCA  (CanLII) (Van Breda), modied
the principles for the analysis on jurisd ictional motions as set forth i n a pre-
vious decision of t he Ontario Cour t of Appeal, known as “Muscutt qui ntet”
in Muscatt v. Courcelles (),  O.R. ( d)  (see: Leuens v. Alba Tours
International Inc.,  CanLII  (ON C.A.), (),  D.L.R. (th) 
(Ont. C.A.); Lemmex v. Bernard,  CanLII   (ON C.A.), (), 
D.L.R. (th)  (Ont. C.A.); Sinclair v. Cracker Barrel Old Country Store Inc.,
 CanLI I  (ON C.A.), (),  D.L.R. (th)  (Ont. C.A.); and
Gajraj v. DeBernardo,  CanLII  (ON C.A.), (),  D.L.R. (th)
 (Ont. C.A.)). On  July  the Supreme Court of Canada gr anted leave
to appeal t he decision of t he Ontario C ourt of Appea l in Van Breda et al. v.
Village Resorts Limited.
Faced with two rat her unpalatable options — saying nothing about juris-
diction until the law is settled by the Supreme Court of Canada likely in ,
96 Cyberlibel: Information Warfare in the st Century?
or proceeding as if nothing had happened the following approach has been
adopted.
. I have retained t he factors as stated in Mu scutt for both jurisd iction and
forum convenience for lawyers practising outside of Ontario.
. e Van Breda rules and references have been inserted where required.
. Authorities under the Muscu tt rules have been inser ted.
. I have provided extracts of reasons to fu lly understand the precise rea-
soning of the judges in the actions in which motions for stay have been
dismissed, and i n actions in the situations where motions for stay has
been granted.
. Decisions from Aust ralia and UK have been included, while recognizing
the dierences in approach to jurisdictional motions. For further informa-
tion see Gra ham Smith, Internet Law and Regulations, th edition, (Lon-
don: omson Sweet and Maxwell, ) at –; Patrick Mi lmo QC,
W.V.H. Rogers, Richard Parkes QC, Professor Clive Walker, and Godwin
Busuttil, eds., Gatley on Libel and Slande r, th edition, (London: Sweet &
Maxwell ) at –; and Matthew Coll ins, e L aw of Defamation
and the Internet (Oxford: Oxford University Press, ), cc. –.
. As much as possible, the jur isprudence that is cited involves defamation
cases designed to be of use a nd guidance to law yers faced w ith jurisdic-
tional motions prior to the release of t he decision of the Supreme Court
of Canada in Van Breda.
It is impossible to know now whether these di erent principles wil l sur-
vive, and if so, in what form, or what weight will be placed upon them.
B. THE ONTARIO COURT OF APPEAL DECISION IN VA N
BREDA REFINES T HE PRINCIPLES TO BE APPLIED IN
JURISDICTIONAL MOTIONS
e Court of Appeal in Van Breda v. Village Resorts Limited,  ONCA 
held as follows at paras. –:
In Muscutt, it was against this background that, at paras –, we concluded
as follows:
It is apparent from Morguard , Hunt and subsequent case law that it
is not possible to reduce the rea l and substantial connection te st to a
xed formula. A considerable measure of judgment is required in as-
Chapter : Jurisdiction 97
sessing whether the real and substantial connection test has been met
on the facts of a given case. F lexibility is therefore important.
But clarity a nd certainty are a lso important. As such, it is useful
to identify the factors emerging from the case law that are relevant in
assessing whether a cour t should assume jurisdiction aga inst an out-
of-province defendant on the basis of damage sustained in Ontario as a
result of a tor t committed else where. No factor is deter minative. Rat h-
er, all relevant factors should be considered and weighed toget her.
We then l aid down the now familia r eight factors to be u sed to
determine whet her there was a real and substa ntial connection su f-
cient to support the assumption of jurisd iction in such cases:
) e c onnection between the forum and plainti ’s claim;
) e connection between t he forum and defendant;
) Unfairnes s to the defendant in assuming jurisdic tion;
) Unfairness to the plainti  in not assuming jurisdict ion;
) e involvement of other partie s to the suit;
) e court’s willingness to recognize and enforce an extra-provin-
cial judgment rendered on the same jur isdictional basis;
) Whether the case is interprovincial or international i n nature;
and
) Comity and t he standa rds of jurisdiction, recognition and en-
forcement prevailing elsewhere.
e i mportance of disting uishing the real a nd substantial connection test
from the convenience doctrine was stressed at para . :
We pointed out, at paras. –, the impor tance of dist inguishing t he real
and substantial c onnection test from the forum non conveniens doctrine:
While the real and substantial connection test is a legal rule, the forum
non conveniens test is discretionary. e real and substantial connec-
tion test i nvolves a fact-specic inqui ry, but the test u ltimately rests
upon legal principles of genera l application. e question is whether
the forum ca n assume jurisdict ion over the clai ms of plaintis in
general a gainst defendants in general given the sort of relat ionship
between the case, the par ties and the forum. By contrast, the forum
non conveniens test is a discretionary test that focuses upon the par-
ticular facts of the par ties and the ca se. e question is whet her the
forum should assert jurisdic tion at the suit of this particu lar plainti
against thi s particular defendant.

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