AuthorDavid A. Potts
ProfessionBarrister, Bar of Ontario
 : Jurisdiction
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
. 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.
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;
) 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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