Paulsson v. Cooper et al., (2011) 277 O.A.C. 346 (CA)

• Judge: Rosenberg, Goudge and Feldman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 09, 2010
• Jurisdiction: Ontario
• Citations: (2011), 277 O.A.C. 346 (CA);2011 ONCA 150

Paulsson v. Cooper (2011), 277 O.A.C. 346 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. FE.060

Gunnar S. Paulsson (plaintiff/appellant) v. Leo Cooper, The Board of Trustees of and for the University of Illinois, The American Association for the Advancement of Slavic Studies, and Slavic Review (defendants/respondents)

(C50917; 2011 ONCA 150)

Indexed As: Paulsson v. Cooper et al.

Ontario Court of Appeal

Rosenberg, Goudge and Feldman, JJ.A.

February 28, 2011.

Summary:

Paulsson, an Ontario resident, alleged that he was defamed by a book review that was written by Cooper, who lived in Australia, and was published in the Slavic Review, an international academic journal published in the U.S. Cooper was noted in default. The remaining defendants were the association that published the journal and the Board of Trustees of the university where the journal's editor in chief was tenured. They moved to stay the action on the basis that there was no real and substantial connection with Ontario and that Ontario was not the convenient forum.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. I04, granted the motion. Paulsson appealed.

The Ontario Court of Appeal allowed the appeal.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - [See Conflict of Laws - Topic 7601 ].

Conflict of Laws - Topic 7601

Torts - Jurisdiction - Forum conveniens - Paulsson, an Ontario resident, alleged that he was defamed by a book review that was written by Cooper, who lived in Australia, and was published in the Slavic Review, an international academic journal published in the U.S. - Cooper was noted in default - The remaining defendants were the association that published the journal and the Board of Trustees of the university where the journal's editor in chief was tenured - Their motion to stay the action on the basis, inter alia, that Ontario was not the convenient forum was granted - The Ontario Court of Appeal allowed Paulsson's appeal - Having found that there was a real and substantial connection between the action and Ontario, the court found that there was no other forum that was more convenient or appropriate - The defendants were from Australia, New York, Massachusetts and Illinois - On the basis of witness availability and convenience alone, there was no other forum that was more convenient - Further, as the alleged defamation was committed in Ontario and the alleged damages sustained there, Ontario defamation law applied - See paragraphs 49 to 55.

Conflict of Laws - Topic 7604

Torts - Jurisdiction - Defamation - Paulsson, an Ontario resident, alleged that he was defamed by a book review that was written by Cooper, who lived in Australia, and was published in the Slavic Review, an international academic journal published in the U.S. - Cooper was noted in default - The remaining defendants were the association that published the journal and the Board of Trustees of the university where the journal's editor in chief was tenured - Their motion to stay the action on the basis, inter alia, that there was no real and substantial connection with Ontario was granted - The Ontario Court of Appeal allowed Paulsson's appeal - Eighty one copies of the relevant issue of the journal were distributed in Ontario - Accordingly, the alleged tort, if proved, was committed in Ontario - This raised the presumption of jurisdiction - The defendants failed to rebut the presumption by showing that the real and substantial connection test was not met - Relevant connection criteria included (1) if damage to Paulsson's reputation was proved, that damage occurred in Ontario, where he resided; (2) while neither of the defendants had a physical connection to Ontario, they had issued their product in Ontario and it was reasonable to expect them to have known that Paulsson would suffer the most harm where he resided; (3) while only a limited number of copies was distributed in Ontario, those went to university and public libraries where they were broadly available to the targeted academic audience - There was ample evidence of a real and substantial connection - See paragraphs 23 to 48.

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - [See Conflict of Laws - Topic 7604 ].

Cases Noticed:

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 60 O.R.(3d) 20 (C.A.), refd to. [para. 15].

Van Breda et al. v. Village Resorts Ltd. et al. (2010), 264 O.A.C. 1; 2010 ONCA 84, leave to appeal granted (2010), 409 N.R. 398; 275 O.A.C. 397; 2010 CanLII 37845 (S.C.C.), appld. [para. 15].

Banro Corp. v. Éditions Écosociété Inc. et al., [2009] O.T.C. Uned. 432; 2009 CanLII 7168 (Sup. Ct.), affd. [2010] O.A.C. Uned. 278; 2010 ONCA 416, leave to appeal granted (2011), 416 N.R. 397; 2011 CanLII 1063 (S.C.C.), refd to. [para. 15].

Black v. Breeden et al. (2010), 265 O.A.C. 177; 2010 ONCA 547, leave to appeal granted (2010), 416 N.R. 390; 2010 CanLII 75965 (S.C.C.), refd to. [para. 15].

Dilkas v. Red Seal Tours Inc. et al. (2010), 267 O.A.C. 363; 2010 ONCA 634, refd to. [para. 25, footnote 4].

Unity Life of Canada v. Worthington Émond Beaudin Services Financiers Inc. et al., [2010] O.A.C. Uned. 197; 2010 ONCA 283, refd to. [para. 25, footnote 4].

Malhab v. Diffusion Métromédia CMR inc. et al. (2011), 412 N.R. 1; 2011 SCC 9, refd to. [para. 29].

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. 29, footnote 5].

Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393; 1 N.R. 122, refd to. [para. 33].

Barrick Gold Corp. v. Blanchard & Co., 2003 CanLII 64238 (Ont. Sup. Ct.), refd to. [para. 34].

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.), affing. (1997), 164 N.S.R.(2d) 161; 491 A.P.R. 161 (S.C.), refd to. [para. 37, footnote 6].

Bangoura v. Washington Post et al. (2005), 202 O.A.C. 76 (C.A.), additional reasons (2005), 206 O.A.C. 325 (C.A.), leave to appeal refused (2006), 352 N.R. 197; 221 O.A.C. 398; 2006 CanLII 4742 (S.C.C.), dist. [para. 39].

Leufkens v. Alba Tours International Inc. et al. (2002), 160 O.A.C. 43 (C.A.), refd to. [para. 46].

Antares Shipping Corp. v. Ship Capricorn et al., [1977] 2 S.C.R. 422; 7 N.R. 518, refd to. [para. 49].

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. 49].

Black v. Breeden et al., [2009] O.T.C. Uned. 733; 2009 CanLII 14041 (Sup. Ct.), affd. (2010), 265 O.A.C. 177; 2010 ONCA 547, refd to. [para. 53].

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. 53].

Authors and Works Noticed:

Brown, Raymond E., The Law of Defamation in Canada (2nd Ed. 1999) (Looseleaf), vols. 1, p. 7-80 [para. 27]; 3, pp. 17-155 to 17-158 [para. 53]; 22-58 [para. 37].

Counsel:

Gunnar S. Paulsson, in person;

John J. Adair, for the respondents.

This appeal was heard on August 9, 2010, by Rosenberg, Goudge and Feldman, JJ.A., of the Ontario Court of Appeal. On February 28, 2011, Feldman, J.A., delivered the following judgment for the court.