Tuesday, September 27, 2005
The Ontario Court of Appeal has refused to assert jurisdiction in the case of Bangoura v. Washington Post. Cheickh Bangoura had claimed that certain articles published in the Washington Post had defamed him and he had filed suit in the Ontario courts, although he did not live in Ontario and the Post only had seven subscribers in Ontario. The Washington Post filed for dismissal, arguing that Ontario had no substantial connection with either party, and no connection with the action. The motions court judge (lower court judge) dismissed the Post's action and found jurisdiction. However, the Court of Appeal, applying the relevant law, analyzed the case as follows:
"Even if the connection is significant, however, the case for assuming jurisdiction is proportional to the degree of damage sustained within the jurisdiction. It is difficult to justify assuming jurisdiction against an out-of-province defendant unless the plaintiff has suffered significant damage within the jurisdiction.
 In an affidavit filed by Mr. Bangoura, he deposed:
As a result of the continued action of the Washington Post, I have sustained damages in Ontario and elsewhere in that my opportunities for economic advancement in my profession have been adversely affected.
No details are provided. The distribution of the articles was minimal. Only Mr. Bangoura’s lawyer accessed the two articles on the Washington Post Internet database. Whatever damages were suffered by Mr. Bangoura’s losing his job with the UN, more than three years before he took up residence in Ontario, are not damages suffered in Ontario. In my view, there is no evidence that Mr. Bangoura has suffered significant damages within Ontario....
 The motion judge concluded that the defendants had no connection to Ontario, but observed at para. 22(2) that the Washington Post is a major newspaper which is “often spoken of in the same breath as the New York Times and the London Telegraph.” He concluded that “the defendants should have reasonably foreseen that the story would follow the plaintiff wherever he resided.”
 I agree with the submissions of counsel for the appellants that there is no significant connection between the Washington Post defendants and Ontario. I cannot agree with the motion judge when he concluded that the appellants “should have reasonably foreseen that the story would follow the plaintiff wherever he resided.” It was not reasonably foreseeable in January 1997 that Mr. Bangoura would end up as a resident of Ontario three years later. To hold otherwise would mean that a defendant could be sued almost anywhere in the world based upon where a plaintiff may decide to establish his or her residence long after the publication of the defamation...."
The appellate court also discussed the demands of comity and public policy, especially with regard to foreign jurisdictions. "36] In considering this factor, the motion judge referred to New York Times Co. v. Sullivan, 376 U.S. 254 (1964), a judgment of the United States Supreme Court, and Hill v. Church of Scientology,  2 S.C.R. 1130, a judgment of the Supreme Court of Canada. In New York Times v. Sullivan, the United States Supreme Court held that public officials could only succeed in a defamation claim where they could establish that the defamatory statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” See New York Times v. Sullivan at p. 280.
 In Hill v. Scientology, the Supreme Court of Canada refused to adopt the so-called actual malice rule in New York Times v. Sullivan. Counsel for the Washington Post had filed on the return of the motion a legal opinion from Lee Levine, a defamation lawyer in Washington, D.C., who stated:
In the circumstances you posit – i.e., a foreign libel judgment that could not be rendered in the first instance by a court bound by New York Times Co. v. Sullivan and its progeny – it is my opinion that a District of Columbia court would deem such a judgment to be repugnant to the public policy of the District and of the United States and would therefore decline to recognize or enforce it.
Courts in the District of Columbia and in other American jurisdictions have uniformly held that libel judgments rendered in foreign courts where the law does not comport with the principle set forth in New York Times Co. v. Sullivan and its progeny are repugnant to the public policy of those jurisdictions and must therefore be denied recognition.
 The motion judge concluded at para. 23:
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 (Ont. Sup. Ct.)…
 The motion judge’s conclusion does not take into account that the rule in New York Times v. Sullivan is rooted in the guarantees of freedom of speech and of the press under the First Amendment of the U.S. Constitution. In any event, the reality is that American courts will not enforce foreign libel judgments that are based on the application of legal principles that are contrary to the actual malice rule. Although the Supreme Court of Canada has rejected the rule for perfectly valid reasons, it is, in my view, not correct to say that the American courts’ unwillingness to enforce a Canadian libel judgment is “an unfortunate expression of lack of comity”. Canada and the U.S. have simply taken different approaches to a complex area of the law, based upon different policy considerations related to freedom of speech and the protection of individual reputations.
 The Supreme Court of Canada has recognized that Canadian courts may refuse to enforce a judgment of a foreign court which is deemed to be contrary to the Canadian concept of justice. In Beals v. Saldanha, supra, Major J., writing for the majority, said at para. 71:
The third and final defence is that of public policy. This defence prevents the enforcement of a foreign judgment which is contrary to the Canadian concept of justice. The public policy defence turns on whether the foreign law is contrary to our view of basic morality. As stated in Castel and Walker, supra, at p. 14-28:
…the traditional public policy defence appears to be directed at the concept of repugnant laws and not repugnant facts.
Given the centrality of freedom of speech to the United States Constitution, it could be argued that an American court’s refusal to recognize a Canadian judgment based on principles divergent from New York Times v. Sullivan would fall into the category of repugnant law rather than repugnant fact.
 The motion judge supported his decision by relying upon the judgment of the High Court of Australia in Dow Jones & Co. Inc. v. Gutnick (2002), 210 C.L.R. 575 (H.C.A.).
 Dow Jones v. Gutnick involved an article published in both Barron’s magazine and Barron’s Online. Mr. Gutnick was an Australian businessman who resided in the State of Victoria. He commenced his action in Victoria. Dow Jones was served with the originating process outside Australia. The issue in the case was forum non conveniens. The court held that Victoria was the appropriate forum.
 In respect of Dow Jones v. Gutnick, the motion judge quoted at para. 22(8) of his reasons from a number of paragraphs of the factum filed by counsel for Mr. Bangoura that he said put “the whole issue in a proper perspective”. The motion judge was presumably of the view that counsel’s analysis of the Dow Jones v. Gutnick case supported his view that Ontario should assume jurisdiction.
 Gutnick was a well-known businessman who resided in Victoria at the time of the impugned publication. There was evidence that Barron’s had some 1,700 Internet subscribers in Australia. Gutnick undertook that he would sue only in Victoria and only in respect of damages to his reputation in that state.
 I do not find the Australian case to be helpful in determining the issue before this court."