Bangoura v. Washington Post: Ontario Superior Court of Justice
COURT FILE NO.: 03-CV-247461CM1
DATE: 20040127
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CHEICKH BANGOURA
Plaintiff
- and -
THE WASHINGTON POST, WILLIAM BRANIGIN, JAMES RUPERT, STEVEN BUCKLEY, UNITED NATIONS and FRED ECKHARD
Defendants
)
)
))
Kikélola Roach for the Plaintiff
Paul B. Schabas and Ryder L.Gilliland for the Defendants, The Washington Post, William Branigin, James Rupert and Steven Buckley
)
)
HEARD: December 11, 2003
PittJ.
REASONS FOR JUDGMENT
[1] This motion is brought by the defendants, The Washington Post (the "Post"), William Branigin ("Branigin"), James Rupert ("Rupert") and Steven Buckley ("Buckley"), (referred to collectively as the "Washington Post defendants") for the following relief:
(a) An order staying the action; and
(b) An order setting aside the service ex juris of the claim on the Washington Post defendants.
[2] The grounds in support of the motion are as follows:
(a) The Ontario court does not have jurisdiction over the Washington Post defendants because there is no real and substantial connection between this action and Ontario, or the Washington Post defendants and Ontario.
(b) Ontario is not the most convenient forum for this action.
(c) Most of the witnesses are located outside of Ontario.
(d) The Washington Post defendants were served with the statement of claim in the District of Columbia.
(e) Section 106 of the Courts of Justice Act and Rule 17.06 and 21.01 (3)(a) of the Rules of Civil Procedure.
[3] The relief claimed in the statement of claim is as follows:
(a) An order directing the Post to cease and desist in the publication of certain false and injurious communications concerning the plaintiff that have appeared on its web page continuously since January 1997.
(b) An order directing the Post to prominently publish a retraction of the false statements made about the plaintiff commencing in the articles of January 5, January 9 and January 10, 1997 and continuing to the present time on its website.
(c) Damages against the Washington Post defendants in the amount of $500,000.00 for intentional interference with prospective economic advantage and inducing a breach of employment contract.
(d) Damages against the Washington Post defendants in the amount of $1,000,000.00 for intentional infliction of mental anguish.
(e) Damages against the Washington Post defendants in the amount of $1,000,000.00 for negligence.
(f) Damages against the Post in the amount of $1,000,000.00 for refusing to post retractions, and for unreasonable delay in removing defamatory messages posted on its web page.
(g) Punitive and exemplary damages in the amount of $2,000,000.00.
PRELIMINARY OBSERVATIONS
[4] Plaintiff's counsel on the motion, who was not the drafter of the pleadings, conceded that the claim against the United Nations was ill advised, and as I understand it, will be discontinued or at any rate, not pursued.
[5] Notwithstanding many submissions (or perhaps I should classify them as comments) made by the moving counsel about limitation periods, it is clear that this motion is not brought under rule 21.01 (1) (b) to strike out the pleadings on the ground that it discloses no reasonable cause of action. I will, therefore, restrict my discussion of this issue to the area in which it is raised in the moving party's factum.
OVERVIEW
[6] While not much is novel anymore in modern litigation, this action clearly has some significantly unusual features. The plaintiff, at the relevant time, can properly be described as an International Public Servant employed by the United Nations in a variety of countries, namely, Austria from 1987 to 1993, Ivory Coast from 1993 to 1994, and Kenya from December 1994 to January 1997. Of his five children, one was born in Vienna, Austria and another in Metz, France, one in New Guinea, and two in Canada.
[7] The plaintiff, a lawyer by profession with a Doctorate in International Law, has been ordinarily resident with his family in Canada since December 1996, became a landed immigrant in Canada in 1997, and a citizen of Canada in 2001. He claims citizenship in no other country. He has never been a resident or lived anywhere in the United States, nor has he ever been engaged in gainful employment in the United States of America. He has been residing in Ontario for the last two years, where he has found work.
[8] The plaintiff's claim is based on three articles published by the Washington Post on its website and in its newspaper dated on or about January 5, January 7 and January 10, 1997, while the plaintiff was working in Kenya. They relate to the plaintiff's work for the United Nations.
[9] What can be described as a summary of the subject articles appears below:
U.N. REMOVES AFRICAN FROM DRUG AGENCY CONTROVERSIAL ENVOY'S MISCONDUCT CITED
Articles 1 of 2 found
William Branigin Washington Post Staff Writer
January 10, 1997; Page A13
Section: A SECTION
Word Count: 680
The United Nations has removed a controversial African official from his post at the U.N. Drug Control Program and will not renew his contract because of "misconduct and mismanagement," a U.N. spokesman said yesterday.
The move came after a story in The Washington Post on Sunday detailed a series of allegations against the official, Cheickh Mohamed Tidyane Bangoura, who was the subject of several U.N. investigations. Government officials in Africa, creditors and U.N. sources
CLOUD OF SCANDAL FOLLOWS U.N. DRUG CONTROL OFFICIAL
BOUTROS-GHALI TIES ALLEGEDLY GAVE PROTECTION
Article 2 of 2 found
William Branigin
James Rupert Washington Post Staff Writers
Janaury 5, 1997; Page A1
Section: A SECTION
Word Count: 2342
For much of his four-year career with the U.N. Drug Control Program, Cheickh Mohamed Tidyane Bangoura has been dogged by scandal.
Colleagues have accused him of sexual harassment, financial improprieties and nepotism. The government of Ivory Coast, where he formerly was stationed, said it received so many complaints about his alleged misdeeds that it demanded his removal.
U.N. officials investigated various allegations against Bangoura and issued reports that faulted his financial.
These articles can be accessed on the Internet as I write.
[10] The Post is operated by the Washington Post Company, a diversified media company incorporated in the State of Delaware, with its head office in the City of Washington, District of Columbia, U.S.A.
[11] According to material filed by the defendants, the presence of the Post in Ontario, which consists of leased office space in Toronto, is for newsgathering purposes only. At the time of the publication of the articles, there was no wholesale distribution of the Post in Ontario or anywhere else in Canada. The only recipients of the Post in Ontario at the time of the publication were seven paid subscribers. The distribution figures, as odd as they appear to me, are the only evidence before the court, and have not been challenged.
[12] The personal defendants were, at the material times, reporters and agents of the Post. Although the reporters and agents were all residents of the U.S.A. they were located respectively at the time as follows:
(a) Branigin in Washington;
(b) Rupert in Abidjan, Ivory Coast;
(c) Buckley in Nairobi, Kenya,
Branigin now lives in Virginia, Rupert is located in New York, and Buckley in Florida.
ANALYSIS
Jurisdiction Simpliciter
[13] The rules of service (rule 17 of the Rules of Civil Procedure) do not determine whether the court can assume jurisdiction over the defendants, but merely provide a guide. See Muscutt v. Courcelles (2002), 60 O.R. (3d) 20 (C.A.) at 37.
[14] In any event, I am of the view that service outside Ontario can be supported under rule 17.02 (h) "in respect of damage sustained in Ontario arising from a tort". See e.g. Jenner v. Sun Oil Co. Ltd., [1952] 2 D.L.R. 526 (Ont. H.C.); Pindling v. National Broadcasting Corp. (1984), 14 D.L.R. (4th) 391 (Ont. H.C.).
[15] Castel and Walker, however, point out that the rule that publication takes place where the statement is heard is flexible since courts may set aside service ex juris if the publication within the jurisdiction is only slight compared with publications elsewhere (Kroch v. Rossell et Cie. (1937), 156 L.T. 379 (C.A.)), or if the forum is not convenient (Jenner, supra). This means, "that the mere fact that communication to a third party occurs in a particular jurisdiction does not as such make that jurisdiction the place of tort." See J.-G. Castel & Janet Walker, Canadian Conflict of Laws, 5th ed. (Toronto: Butterworths, 2003) at 11-18. There must be a substantial connection between the tort and the jurisdiction as well.
[16] The interplay of the Internet adds a unique dimension to jurisdiction. Castel and Walker state that,
[t]he dissemination of defamatory statements over the Internet could give jurisdiction to the court where damage is sustained by the plaintiff no matter where publication has taken place, especially if the defamatory material was targeted at the forum province. This constitutes a real and substantial connection with the forum and is an application of the effects principle [Calder v. Jones, 465 U.S. 783 (1984); Edias Software International v. Basis International, 947 F. Supp. 413 (1996)]."
See Castel, supra at 11-32.
[17] When jurisdiction based on service without leave is challenged on the basis that it is not authorized by the rule, the plaintiff need only show an arguable case (not necessarily on a balance of probabilities) based on the alleged facts and/or affidavit material. See Oakley v. Barry (1998), 158 D.L.R. (4th) 679 (N.S.C.A.).
[18] While a real and substantial connection between the forum and action represents an absolute constitutional limit on provincial superior courts' jurisdiction, that connection has not been explicitly defined. The assumption of jurisdiction must be based, not on a mechanical counting of contacts or connections, but rather be guided by principles of order and fairness made in a case specific determination. See Hunt v. T & N plc (1993), 109 D.L.R. (4th) 16 S.C.C.; Morguard Investments Ltd. v. De Savoye (1990) 76 D.L.R. (4th) 256 S.C.C.; Castel, supra at 2-5 - 2-6; Tolofson v. Jensen, [1994] 3 S.C.R. 1022.
Should the Ontario Court Assume Jurisdiction to Entertain this Action?
[19] While the rules of service provide guidance, they do not determine the issue of jurisdiction. Before a court can assume jurisdiction over a foreign defendant, it must be satisfied that a real and substantial connection exists. Therefore, even though jurisdiction is assumed in this case under rules 17.02(g) and (h), there must be a real and substantial connection as set out in Morguard, supra.
[20] Muscutt v. Courcelles, supra is the recent culmination of a number of decisions that identified the following eight factors as relevant to the determination of the jurisdictional issue. These factors can best assist the court in resolving the question of whether there is a real and substantial connection between the facts giving rise to the action, and Ontario.
[21] The following are the eight factors:
(1) The connection between the forum and the plaintiff's claim.
(2) The connection between the forum and the defendant.
(3) Any unfairness to the defendant in assuming jurisdiction.
(4) Any unfairness to the plaintiff in not assuming jurisdiction.
(5) The involvement of other parties in the suit.
(6) The court's willingness to recognize and enforce a foreign judgment rendered on the same jurisdictional basis.
(7) Whether the case is interprovincial or international in nature.
(8) Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.
[19] I shall briefly consider these factors.
(1) The connection between the forum and the plaintiff's claim.
Admittedly, the plaintiff has resided in Ontario for only two years, and when the material was first published, he was not in Ontario. He was, however, an international public servant, who has found a home and work in Ontario where the damages to his reputation would have the greatest impact.
(2) The connection between the forum and the defendant.
Admittedly, the defendants have no connection to Ontario, but the Washington Post is a major newspaper in the capital of the most powerful country in a world now made figuratively smaller by, inter alia, the Internet. Few well-informed North Americans (including Canadians) do not encounter, at least indirectly, views expressed in the Post. The Post is often spoken of in the same breath as the New York Times and the London Telegraph.
Frankly, the defendants should have reasonably foreseen that the story would follow the plaintiff wherever he resided.
(3) Any unfairness to the defendant in assuming jurisdiction.
While the personal defendants have no connection to Ontario, the Post is a newspaper with an international profile, and its writers influence viewpoints throughout the English speaking world. I would be surprised if it were not insured for damages for libel or defamation anywhere in the world, and if it is not, then it should be.
(4) Any unfairness to the plaintiff in not assuming jurisdiction.
The plaintiff has no connection with any of the jurisdictions in which the defendants reside. Since Washington is the residence of only one of the defendants, the plaintiff could be faced with the same objections from the personal defendants if the action were commenced in Washington, where the defendant has no reputation to defend. What is more, there is a clear juridical advantage to the plaintiff in Ontario implicitly acknowledged by the Post. The delay argument advanced by the Post in terms of a potential statutory impediment is neutral on this issue.
(5) The involvement of other parties in the suit.
In this case, the involvement of other defendants residing respectively in New York and Florida is a factor, in my view, in favour of the plaintiff's choice of forum.
(6) The court's willingness to recognize and enforce a foreign judgment rendered on the same jurisdictional basis.
I can see no reason why Ontario would be unwilling to enforce a judgment of a foreign court against on Ontario newspaper with a world-wide reputation, even if the damages were limited to the foreign jurisdiction, especially where, as here, the plaintiff is an international public servant. Such a newspaper should reasonably contemplate the likelihood of such damage occurring.
(7) Whether the case is interprovincial or international in nature.
Clearly, the case is not interprovincial and it would, therefore, be more difficult to justify the assumption of jurisdiction.
(8) Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.
The key argument advanced by the Post is based on a case known as New York Times Co. v. Sullivan, 376 U.S. 254 (1964), where the court refused to enforce British libel judgments on the ground that British libel law is repugnant to the policies of the U.S.A. Our courts do not share the American view that British libel law, which is similar to our own, is any less civilized than the American law. See Hill v. Church of Scientology, [1995] 2. S.C.R. 1130 at 1187 - 88, Cory J. The Supreme Court of Victoria (Australia) does not share the American view either. The following passages from the responding party's factum properly summarizes the Victorian view point and puts the whole issue in a proper perspective:
(a) The High Court of Australia has very recently rendered judgment in a very similar factual situation. In Dow Jones & Company Inc. v. Gutnick, [2002] H.C.A. 56 (10 December 2002), a corporation registered in the United States, published material on the Internet that was allegedly defamatory of Mr. Gutnick, who sued in the Supreme Court of Victoria to recover damages to vindicate his reputation. In a unanimous decision, the High Court of Australia held that the Australian courts had jurisdiction over the matter, and that Australian courts were the most convenient forum ...
(b) The publication of allegedly defamatory articles via the Internet that were accessed in Victoria was the factor that persuaded the Court that it had jurisdiction. In cases of multi-state defamation, it is the publication, not the composition of the libel, that is the actionable wrong. Defamation is to be located at the place where the damage to reputation occurs. Ibid., per Gleeson CJ., McHugh, Gummow and Hayne J.J. p. 8.
(c) The court noted that those who make information accessible by a particular method, do so knowing of the reach that their information may have: "In particular, those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction." Ibid., per Gleeson CJ., McHugh, Gummov and Hayne J.J. p. 7.
(d) Similarly, in a concurring judgment Justice Callinan stated:
A publisher, particularly one carrying on the business of publishing, does not act to put matter on the Internet for it to reach a small target. It is its ubiquity which is one of the main attractions to users of it ... Publishers are not obliged to publish on the Internet. If the potential reach is uncontrollable then the greater the need to exercise care in publication.
Ibid., per Gleeson CJ., McHugh, Gummov and Hayne J.J. p. 26 - 27.
(e) This does not mean that publishers will be faced with uncertainty and the possibility of being sued in any jurisdiction in the world for each publication. The Honourable Chief Justice Gleeson noted that:
Those who would seek to order their affairs in a way that will minimize the chance of being sued for defamation must be able to be confident in predicting what law will govern their conduct. But certainty does not necessarily mean singularity. What is important is that publishers can act with confidence, not that they be able to act according to a single legal system, even if that system might, in some sense, be described as their "home" legal system.
Ibid., Gleeson CJ, McHugh, Gummov and Hayne J.J. p.5.
(f) ...[i]n considering the real and substantial connection test, in the context of allegedly false and injurious communications over the Internet, the location of the plaintiff is a key factor that receives greater weight than other factors. This is the case because damage to the reputation and actual pecuniary loss is the key element in such an action, and a plaintiff will experience damages most keenly in the jurisdiction in which they reside. Moreover, those who publish via the Internet are aware of the global reach of their publications, and must consider the legal consequences in the jurisdiction of the subjects of their articles.
[20] Frankly, I see the unwillingness of an American court to enforce a Canadian libel judgment as an unfortunate expression of lack of comity. This should not be allowed to have an impact on Canadian values. The Washington Post defendants' home jurisdiction's unwillingness to enforce such an order is not determinative of whether the court should assume jurisdiction. See Wilson v. Servier Canada Inc. (2000), 50 O.R. (3d) 219 (Sup. Ct.) where Cumming J. said at p. 229 - 230 at paras. 29 - 31:
The defendants further argue that the Ontario action should be stayed because, should the plaintiff be successful in Ontario, the plaintiff would have to relitigate in France. In my view, that is not a factor with which this court should concern itself. It is for the plaintiffs to weigh the advantages and disadvantages of commencing an action in Ontario knowing that it may not be enforced in France. Moreover, as it seems as though not all of Biofarma's assets are located in France, should the plaintiff be successful, it may be possible to recover upon a judgment outside of France.
In my view, a "blocking statute" like Article 15 of the French Code Civil has no place in the contemporary, interconnected world of globalization and global trade, which depends upon mutual recognition and respect for settled international norms, including the principle of comity.
American courts will not adhere blindly to the directive of such a blocking statute: see for example, Société Nationale Industrielle Aérospatiale v. United States District Court for Southern District of Iowa, 482 U.S. 522 at p. 544 (1987).
In addition, there are other claims, for example, intentional interference with prospective economic advantage, breach of employment contract, intentional infliction of mental anguish, being advanced.
[21] What is more in a libel suit generally, and specifically in this libel suit, character vindication, not money is the real objective.
Is Ontario the Convenient Forum?
[22] Before deciding whether the case ought to be heard in Ontario, it is still necessary to address the issue of whether Ontario is the most convenient forum.
[23] Where the plaintiff chooses to bring a foreigner into the jurisdiction, typically in the case of service ex juris, the burden is on the plaintiff to establish that Ontario is the appropriate forum if the choice of forum is challenged by the defendant. See Frymer v. Brettschneider (1994), 115 D.L.R. (4th) 744 (Ont. C.A.) at 747, Arbour J.; Danks v. Ioli Management Consulting, [2003] O.J. 4051 at para. 20 (Sup. Ct.) (QL), Master Dash.
[24] Among the factors the court considers in determining the appropriate forum for the trial of the action are:
(a) The location of the majority of the parties;
(b) The location of key witnesses and evidence;
(c) Avoidance of a multiplicity of proceedings;
(d) The jurisdiction in which the factual matters arose;
(e) The applicable law and its weight compared with the factual issues to be decided; and
(f) Loss of juridical advantage.
See Muscutt v. Courcelles, supra at 34-35.
[25] The test is whether there is an alternative forum that is clearly more convenient for the pursuit of the action and for securing the ends of justice than the forum chosen by the plaintiff.
[26] While the plaintiff bears the burden of justifying the choice of forum if the defendant challenges it (see Fryer, supra), Castel and Walker note that the burden will rarely affect the outcome of the court's determination. See Castel, supra at 13 - 13; Amchem Products Inc. v. British Columbia (Workers Compensation Board), [1993] 1 S.C.R. 897. The assessment of the relevant factors is the most important consideration.
[27] After assessing the limited evidence available, I find that there will be problems whether this action is tried in Ontario or the District of Columbia. Not all of the parties are located in either jurisdiction. The publication took place in Washington, but the plaintiff's reputation was affected in Ontario. The applicable law is that of the lex loci delicti in tort cases; but, because this case involves defamation, it is difficult to determine where the tort occurred. If based on publication, then the District of Columbia is the choice of law; if based on damages and where reputation was affected, then Ontario is the choice of law. It is safe to say that Ontario and the District of Columbia are both appropriate fora. As a result, I think Upper Lakes Shipping Ltd. v. Foster Yeoman Ltd. (1992), 12 C.P.C. (3d) 31 (Ont. Gen. Div.), aff'd (1993), 14 O.R. (3d) 548 (C.A.) resolves this issue by finding that the plaintiff's choice of forum should not be disturbed when no forum is clearly more appropriate.
DISPOSITION
[28] This motion is dismissed. It is appropriate for the Ontario court to assume jurisdiction.
COSTS
[29] Brief written submissions on costs are to be made within 20 days of the release of these reasons.
___________________________
Pitt J.
Released: January 27, 2004
COURT FILE NO.: 03-CV-247461CM1
DATE: 20040127
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CHEICKH BANGOURA
Plaintiff
- and -
THE WASHINGTON POST, WILLIAM BRANIGIN, JAMES RUPERT, STEVEN BUCKLEY, UNITED NATIONS and FRED ECKHARD
Defendants
REASONS FOR JUDGMENT
Pitt J.
Released: January 27, 2004
Source: CanLII
DATE: 20040127
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CHEICKH BANGOURA
Plaintiff
- and -
THE WASHINGTON POST, WILLIAM BRANIGIN, JAMES RUPERT, STEVEN BUCKLEY, UNITED NATIONS and FRED ECKHARD
Defendants
)
)
))
Kikélola Roach for the Plaintiff
Paul B. Schabas and Ryder L.Gilliland for the Defendants, The Washington Post, William Branigin, James Rupert and Steven Buckley
)
)
HEARD: December 11, 2003
PittJ.
REASONS FOR JUDGMENT
[1] This motion is brought by the defendants, The Washington Post (the "Post"), William Branigin ("Branigin"), James Rupert ("Rupert") and Steven Buckley ("Buckley"), (referred to collectively as the "Washington Post defendants") for the following relief:
(a) An order staying the action; and
(b) An order setting aside the service ex juris of the claim on the Washington Post defendants.
[2] The grounds in support of the motion are as follows:
(a) The Ontario court does not have jurisdiction over the Washington Post defendants because there is no real and substantial connection between this action and Ontario, or the Washington Post defendants and Ontario.
(b) Ontario is not the most convenient forum for this action.
(c) Most of the witnesses are located outside of Ontario.
(d) The Washington Post defendants were served with the statement of claim in the District of Columbia.
(e) Section 106 of the Courts of Justice Act and Rule 17.06 and 21.01 (3)(a) of the Rules of Civil Procedure.
[3] The relief claimed in the statement of claim is as follows:
(a) An order directing the Post to cease and desist in the publication of certain false and injurious communications concerning the plaintiff that have appeared on its web page continuously since January 1997.
(b) An order directing the Post to prominently publish a retraction of the false statements made about the plaintiff commencing in the articles of January 5, January 9 and January 10, 1997 and continuing to the present time on its website.
(c) Damages against the Washington Post defendants in the amount of $500,000.00 for intentional interference with prospective economic advantage and inducing a breach of employment contract.
(d) Damages against the Washington Post defendants in the amount of $1,000,000.00 for intentional infliction of mental anguish.
(e) Damages against the Washington Post defendants in the amount of $1,000,000.00 for negligence.
(f) Damages against the Post in the amount of $1,000,000.00 for refusing to post retractions, and for unreasonable delay in removing defamatory messages posted on its web page.
(g) Punitive and exemplary damages in the amount of $2,000,000.00.
PRELIMINARY OBSERVATIONS
[4] Plaintiff's counsel on the motion, who was not the drafter of the pleadings, conceded that the claim against the United Nations was ill advised, and as I understand it, will be discontinued or at any rate, not pursued.
[5] Notwithstanding many submissions (or perhaps I should classify them as comments) made by the moving counsel about limitation periods, it is clear that this motion is not brought under rule 21.01 (1) (b) to strike out the pleadings on the ground that it discloses no reasonable cause of action. I will, therefore, restrict my discussion of this issue to the area in which it is raised in the moving party's factum.
OVERVIEW
[6] While not much is novel anymore in modern litigation, this action clearly has some significantly unusual features. The plaintiff, at the relevant time, can properly be described as an International Public Servant employed by the United Nations in a variety of countries, namely, Austria from 1987 to 1993, Ivory Coast from 1993 to 1994, and Kenya from December 1994 to January 1997. Of his five children, one was born in Vienna, Austria and another in Metz, France, one in New Guinea, and two in Canada.
[7] The plaintiff, a lawyer by profession with a Doctorate in International Law, has been ordinarily resident with his family in Canada since December 1996, became a landed immigrant in Canada in 1997, and a citizen of Canada in 2001. He claims citizenship in no other country. He has never been a resident or lived anywhere in the United States, nor has he ever been engaged in gainful employment in the United States of America. He has been residing in Ontario for the last two years, where he has found work.
[8] The plaintiff's claim is based on three articles published by the Washington Post on its website and in its newspaper dated on or about January 5, January 7 and January 10, 1997, while the plaintiff was working in Kenya. They relate to the plaintiff's work for the United Nations.
[9] What can be described as a summary of the subject articles appears below:
U.N. REMOVES AFRICAN FROM DRUG AGENCY CONTROVERSIAL ENVOY'S MISCONDUCT CITED
Articles 1 of 2 found
William Branigin Washington Post Staff Writer
January 10, 1997; Page A13
Section: A SECTION
Word Count: 680
The United Nations has removed a controversial African official from his post at the U.N. Drug Control Program and will not renew his contract because of "misconduct and mismanagement," a U.N. spokesman said yesterday.
The move came after a story in The Washington Post on Sunday detailed a series of allegations against the official, Cheickh Mohamed Tidyane Bangoura, who was the subject of several U.N. investigations. Government officials in Africa, creditors and U.N. sources
CLOUD OF SCANDAL FOLLOWS U.N. DRUG CONTROL OFFICIAL
BOUTROS-GHALI TIES ALLEGEDLY GAVE PROTECTION
Article 2 of 2 found
William Branigin
James Rupert Washington Post Staff Writers
Janaury 5, 1997; Page A1
Section: A SECTION
Word Count: 2342
For much of his four-year career with the U.N. Drug Control Program, Cheickh Mohamed Tidyane Bangoura has been dogged by scandal.
Colleagues have accused him of sexual harassment, financial improprieties and nepotism. The government of Ivory Coast, where he formerly was stationed, said it received so many complaints about his alleged misdeeds that it demanded his removal.
U.N. officials investigated various allegations against Bangoura and issued reports that faulted his financial.
These articles can be accessed on the Internet as I write.
[10] The Post is operated by the Washington Post Company, a diversified media company incorporated in the State of Delaware, with its head office in the City of Washington, District of Columbia, U.S.A.
[11] According to material filed by the defendants, the presence of the Post in Ontario, which consists of leased office space in Toronto, is for newsgathering purposes only. At the time of the publication of the articles, there was no wholesale distribution of the Post in Ontario or anywhere else in Canada. The only recipients of the Post in Ontario at the time of the publication were seven paid subscribers. The distribution figures, as odd as they appear to me, are the only evidence before the court, and have not been challenged.
[12] The personal defendants were, at the material times, reporters and agents of the Post. Although the reporters and agents were all residents of the U.S.A. they were located respectively at the time as follows:
(a) Branigin in Washington;
(b) Rupert in Abidjan, Ivory Coast;
(c) Buckley in Nairobi, Kenya,
Branigin now lives in Virginia, Rupert is located in New York, and Buckley in Florida.
ANALYSIS
Jurisdiction Simpliciter
[13] The rules of service (rule 17 of the Rules of Civil Procedure) do not determine whether the court can assume jurisdiction over the defendants, but merely provide a guide. See Muscutt v. Courcelles (2002), 60 O.R. (3d) 20 (C.A.) at 37.
[14] In any event, I am of the view that service outside Ontario can be supported under rule 17.02 (h) "in respect of damage sustained in Ontario arising from a tort". See e.g. Jenner v. Sun Oil Co. Ltd., [1952] 2 D.L.R. 526 (Ont. H.C.); Pindling v. National Broadcasting Corp. (1984), 14 D.L.R. (4th) 391 (Ont. H.C.).
[15] Castel and Walker, however, point out that the rule that publication takes place where the statement is heard is flexible since courts may set aside service ex juris if the publication within the jurisdiction is only slight compared with publications elsewhere (Kroch v. Rossell et Cie. (1937), 156 L.T. 379 (C.A.)), or if the forum is not convenient (Jenner, supra). This means, "that the mere fact that communication to a third party occurs in a particular jurisdiction does not as such make that jurisdiction the place of tort." See J.-G. Castel & Janet Walker, Canadian Conflict of Laws, 5th ed. (Toronto: Butterworths, 2003) at 11-18. There must be a substantial connection between the tort and the jurisdiction as well.
[16] The interplay of the Internet adds a unique dimension to jurisdiction. Castel and Walker state that,
[t]he dissemination of defamatory statements over the Internet could give jurisdiction to the court where damage is sustained by the plaintiff no matter where publication has taken place, especially if the defamatory material was targeted at the forum province. This constitutes a real and substantial connection with the forum and is an application of the effects principle [Calder v. Jones, 465 U.S. 783 (1984); Edias Software International v. Basis International, 947 F. Supp. 413 (1996)]."
See Castel, supra at 11-32.
[17] When jurisdiction based on service without leave is challenged on the basis that it is not authorized by the rule, the plaintiff need only show an arguable case (not necessarily on a balance of probabilities) based on the alleged facts and/or affidavit material. See Oakley v. Barry (1998), 158 D.L.R. (4th) 679 (N.S.C.A.).
[18] While a real and substantial connection between the forum and action represents an absolute constitutional limit on provincial superior courts' jurisdiction, that connection has not been explicitly defined. The assumption of jurisdiction must be based, not on a mechanical counting of contacts or connections, but rather be guided by principles of order and fairness made in a case specific determination. See Hunt v. T & N plc (1993), 109 D.L.R. (4th) 16 S.C.C.; Morguard Investments Ltd. v. De Savoye (1990) 76 D.L.R. (4th) 256 S.C.C.; Castel, supra at 2-5 - 2-6; Tolofson v. Jensen, [1994] 3 S.C.R. 1022.
Should the Ontario Court Assume Jurisdiction to Entertain this Action?
[19] While the rules of service provide guidance, they do not determine the issue of jurisdiction. Before a court can assume jurisdiction over a foreign defendant, it must be satisfied that a real and substantial connection exists. Therefore, even though jurisdiction is assumed in this case under rules 17.02(g) and (h), there must be a real and substantial connection as set out in Morguard, supra.
[20] Muscutt v. Courcelles, supra is the recent culmination of a number of decisions that identified the following eight factors as relevant to the determination of the jurisdictional issue. These factors can best assist the court in resolving the question of whether there is a real and substantial connection between the facts giving rise to the action, and Ontario.
[21] The following are the eight factors:
(1) The connection between the forum and the plaintiff's claim.
(2) The connection between the forum and the defendant.
(3) Any unfairness to the defendant in assuming jurisdiction.
(4) Any unfairness to the plaintiff in not assuming jurisdiction.
(5) The involvement of other parties in the suit.
(6) The court's willingness to recognize and enforce a foreign judgment rendered on the same jurisdictional basis.
(7) Whether the case is interprovincial or international in nature.
(8) Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.
[19] I shall briefly consider these factors.
(1) The connection between the forum and the plaintiff's claim.
Admittedly, the plaintiff has resided in Ontario for only two years, and when the material was first published, he was not in Ontario. He was, however, an international public servant, who has found a home and work in Ontario where the damages to his reputation would have the greatest impact.
(2) The connection between the forum and the defendant.
Admittedly, the defendants have no connection to Ontario, but the Washington Post is a major newspaper in the capital of the most powerful country in a world now made figuratively smaller by, inter alia, the Internet. Few well-informed North Americans (including Canadians) do not encounter, at least indirectly, views expressed in the Post. The Post is often spoken of in the same breath as the New York Times and the London Telegraph.
Frankly, the defendants should have reasonably foreseen that the story would follow the plaintiff wherever he resided.
(3) Any unfairness to the defendant in assuming jurisdiction.
While the personal defendants have no connection to Ontario, the Post is a newspaper with an international profile, and its writers influence viewpoints throughout the English speaking world. I would be surprised if it were not insured for damages for libel or defamation anywhere in the world, and if it is not, then it should be.
(4) Any unfairness to the plaintiff in not assuming jurisdiction.
The plaintiff has no connection with any of the jurisdictions in which the defendants reside. Since Washington is the residence of only one of the defendants, the plaintiff could be faced with the same objections from the personal defendants if the action were commenced in Washington, where the defendant has no reputation to defend. What is more, there is a clear juridical advantage to the plaintiff in Ontario implicitly acknowledged by the Post. The delay argument advanced by the Post in terms of a potential statutory impediment is neutral on this issue.
(5) The involvement of other parties in the suit.
In this case, the involvement of other defendants residing respectively in New York and Florida is a factor, in my view, in favour of the plaintiff's choice of forum.
(6) The court's willingness to recognize and enforce a foreign judgment rendered on the same jurisdictional basis.
I can see no reason why Ontario would be unwilling to enforce a judgment of a foreign court against on Ontario newspaper with a world-wide reputation, even if the damages were limited to the foreign jurisdiction, especially where, as here, the plaintiff is an international public servant. Such a newspaper should reasonably contemplate the likelihood of such damage occurring.
(7) Whether the case is interprovincial or international in nature.
Clearly, the case is not interprovincial and it would, therefore, be more difficult to justify the assumption of jurisdiction.
(8) Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.
The key argument advanced by the Post is based on a case known as New York Times Co. v. Sullivan, 376 U.S. 254 (1964), where the court refused to enforce British libel judgments on the ground that British libel law is repugnant to the policies of the U.S.A. Our courts do not share the American view that British libel law, which is similar to our own, is any less civilized than the American law. See Hill v. Church of Scientology, [1995] 2. S.C.R. 1130 at 1187 - 88, Cory J. The Supreme Court of Victoria (Australia) does not share the American view either. The following passages from the responding party's factum properly summarizes the Victorian view point and puts the whole issue in a proper perspective:
(a) The High Court of Australia has very recently rendered judgment in a very similar factual situation. In Dow Jones & Company Inc. v. Gutnick, [2002] H.C.A. 56 (10 December 2002), a corporation registered in the United States, published material on the Internet that was allegedly defamatory of Mr. Gutnick, who sued in the Supreme Court of Victoria to recover damages to vindicate his reputation. In a unanimous decision, the High Court of Australia held that the Australian courts had jurisdiction over the matter, and that Australian courts were the most convenient forum ...
(b) The publication of allegedly defamatory articles via the Internet that were accessed in Victoria was the factor that persuaded the Court that it had jurisdiction. In cases of multi-state defamation, it is the publication, not the composition of the libel, that is the actionable wrong. Defamation is to be located at the place where the damage to reputation occurs. Ibid., per Gleeson CJ., McHugh, Gummow and Hayne J.J. p. 8.
(c) The court noted that those who make information accessible by a particular method, do so knowing of the reach that their information may have: "In particular, those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction." Ibid., per Gleeson CJ., McHugh, Gummov and Hayne J.J. p. 7.
(d) Similarly, in a concurring judgment Justice Callinan stated:
A publisher, particularly one carrying on the business of publishing, does not act to put matter on the Internet for it to reach a small target. It is its ubiquity which is one of the main attractions to users of it ... Publishers are not obliged to publish on the Internet. If the potential reach is uncontrollable then the greater the need to exercise care in publication.
Ibid., per Gleeson CJ., McHugh, Gummov and Hayne J.J. p. 26 - 27.
(e) This does not mean that publishers will be faced with uncertainty and the possibility of being sued in any jurisdiction in the world for each publication. The Honourable Chief Justice Gleeson noted that:
Those who would seek to order their affairs in a way that will minimize the chance of being sued for defamation must be able to be confident in predicting what law will govern their conduct. But certainty does not necessarily mean singularity. What is important is that publishers can act with confidence, not that they be able to act according to a single legal system, even if that system might, in some sense, be described as their "home" legal system.
Ibid., Gleeson CJ, McHugh, Gummov and Hayne J.J. p.5.
(f) ...[i]n considering the real and substantial connection test, in the context of allegedly false and injurious communications over the Internet, the location of the plaintiff is a key factor that receives greater weight than other factors. This is the case because damage to the reputation and actual pecuniary loss is the key element in such an action, and a plaintiff will experience damages most keenly in the jurisdiction in which they reside. Moreover, those who publish via the Internet are aware of the global reach of their publications, and must consider the legal consequences in the jurisdiction of the subjects of their articles.
[20] Frankly, I see the unwillingness of an American court to enforce a Canadian libel judgment as an unfortunate expression of lack of comity. This should not be allowed to have an impact on Canadian values. The Washington Post defendants' home jurisdiction's unwillingness to enforce such an order is not determinative of whether the court should assume jurisdiction. See Wilson v. Servier Canada Inc. (2000), 50 O.R. (3d) 219 (Sup. Ct.) where Cumming J. said at p. 229 - 230 at paras. 29 - 31:
The defendants further argue that the Ontario action should be stayed because, should the plaintiff be successful in Ontario, the plaintiff would have to relitigate in France. In my view, that is not a factor with which this court should concern itself. It is for the plaintiffs to weigh the advantages and disadvantages of commencing an action in Ontario knowing that it may not be enforced in France. Moreover, as it seems as though not all of Biofarma's assets are located in France, should the plaintiff be successful, it may be possible to recover upon a judgment outside of France.
In my view, a "blocking statute" like Article 15 of the French Code Civil has no place in the contemporary, interconnected world of globalization and global trade, which depends upon mutual recognition and respect for settled international norms, including the principle of comity.
American courts will not adhere blindly to the directive of such a blocking statute: see for example, Société Nationale Industrielle Aérospatiale v. United States District Court for Southern District of Iowa, 482 U.S. 522 at p. 544 (1987).
In addition, there are other claims, for example, intentional interference with prospective economic advantage, breach of employment contract, intentional infliction of mental anguish, being advanced.
[21] What is more in a libel suit generally, and specifically in this libel suit, character vindication, not money is the real objective.
Is Ontario the Convenient Forum?
[22] Before deciding whether the case ought to be heard in Ontario, it is still necessary to address the issue of whether Ontario is the most convenient forum.
[23] Where the plaintiff chooses to bring a foreigner into the jurisdiction, typically in the case of service ex juris, the burden is on the plaintiff to establish that Ontario is the appropriate forum if the choice of forum is challenged by the defendant. See Frymer v. Brettschneider (1994), 115 D.L.R. (4th) 744 (Ont. C.A.) at 747, Arbour J.; Danks v. Ioli Management Consulting, [2003] O.J. 4051 at para. 20 (Sup. Ct.) (QL), Master Dash.
[24] Among the factors the court considers in determining the appropriate forum for the trial of the action are:
(a) The location of the majority of the parties;
(b) The location of key witnesses and evidence;
(c) Avoidance of a multiplicity of proceedings;
(d) The jurisdiction in which the factual matters arose;
(e) The applicable law and its weight compared with the factual issues to be decided; and
(f) Loss of juridical advantage.
See Muscutt v. Courcelles, supra at 34-35.
[25] The test is whether there is an alternative forum that is clearly more convenient for the pursuit of the action and for securing the ends of justice than the forum chosen by the plaintiff.
[26] While the plaintiff bears the burden of justifying the choice of forum if the defendant challenges it (see Fryer, supra), Castel and Walker note that the burden will rarely affect the outcome of the court's determination. See Castel, supra at 13 - 13; Amchem Products Inc. v. British Columbia (Workers Compensation Board), [1993] 1 S.C.R. 897. The assessment of the relevant factors is the most important consideration.
[27] After assessing the limited evidence available, I find that there will be problems whether this action is tried in Ontario or the District of Columbia. Not all of the parties are located in either jurisdiction. The publication took place in Washington, but the plaintiff's reputation was affected in Ontario. The applicable law is that of the lex loci delicti in tort cases; but, because this case involves defamation, it is difficult to determine where the tort occurred. If based on publication, then the District of Columbia is the choice of law; if based on damages and where reputation was affected, then Ontario is the choice of law. It is safe to say that Ontario and the District of Columbia are both appropriate fora. As a result, I think Upper Lakes Shipping Ltd. v. Foster Yeoman Ltd. (1992), 12 C.P.C. (3d) 31 (Ont. Gen. Div.), aff'd (1993), 14 O.R. (3d) 548 (C.A.) resolves this issue by finding that the plaintiff's choice of forum should not be disturbed when no forum is clearly more appropriate.
DISPOSITION
[28] This motion is dismissed. It is appropriate for the Ontario court to assume jurisdiction.
COSTS
[29] Brief written submissions on costs are to be made within 20 days of the release of these reasons.
___________________________
Pitt J.
Released: January 27, 2004
COURT FILE NO.: 03-CV-247461CM1
DATE: 20040127
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CHEICKH BANGOURA
Plaintiff
- and -
THE WASHINGTON POST, WILLIAM BRANIGIN, JAMES RUPERT, STEVEN BUCKLEY, UNITED NATIONS and FRED ECKHARD
Defendants
REASONS FOR JUDGMENT
Pitt J.
Released: January 27, 2004
Source: CanLII
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