Paulsson v. Cooper et al.

[Indexed as: Paulsson v. Cooper]

105 O.R. (3d) 28

2011 ONCA 150

Court of Appeal for Ontario,

Rosenberg, Goudge and Feldman JJ.A.

February 28, 2011

Conflict of laws -- Jurisdiction -- Ontario-resident plaintiff bringing libel action in Ontario against non-resident publishers of academic journal which published negative review of plaintiff's book -- Paper copies of journal were distributed in Ontario -- Ontario having presumptive jurisdiction as alleged libel was "tort committed in Ontario" for purposes of rule 17.02(g) of Rules of Civil Procedure -- Defendants not rebutting presumption that real and substantial connection existed between plaintiff's case and Ontario -- That defendants' conduct would result in harm to plaintiff in Ontario was reasonably foreseeable to defendants -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 17.02(g). [page29 ]

The plaintiff, an Ontario resident, brought a libel action in Ontario against the publishers of an academic journal that published a negative review of the plaintiff's book and the author of the review. The publishers resided in the United States and the author, who did not defend the action, resided in Australia. The publishers brought a motion for an order setting aside service ex juris or, alternatively, staying the action on the basis that there was no real and substantial connection between the subject matter of the proceeding and Ontario or that Ontario was not a convenient forum. The motion judge granted the motion and ordered that the action be stayed, holding that the Ontario court should not assume jurisdiction and, alternatively, that Ontario was not forum conveniens. The plaintiff appealed.

Held, the appeal should be allowed.

Service ex juris was properly made in accordance with rule 17.02(g) of the Rules of Civil Procedure as the alleged libel was "a tort committed in Ontario". Accordingly, a real and substantial connection was presumed to exist, and the defendants had the burden of rebutting that presumption. The motion judge erred in finding that the connections between the plaintiff's claim and Ontario were weak. The plaintiff was a Canadian citizen and long-time resident of Ontario. To the extent damage to reputation was ultimately proved, that damage was suffered in Ontario. Generally speaking, the plaintiff in a defamation action will typically suffer the most injury to his or her reputation in the jurisdiction where he or she resides. The fact that the alleged damage to the plaintiff's reputation could be expected to hurt his job prospects in applying for positions at universities worldwide did not change the fact that his reputation attached to him in the province where he resided. This was not a case where publication in Ontario of the impugned review was alleged to have occurred exclusively over the Internet. Eighty-one paper copies of the journal were distributed to university and public libraries throughout Ontario. The defendants clearly intended that those volumes were to be read and form part of the academic discourse in the field of Slavic studies. It would be reasonably foreseeable to the defendants that their conduct would result in harm to the plaintiff in Ontario. There was a real and substantial connection between the plaintiff's claim and Ontario. The motion judge erred in finding that the Ontario court may not assume jurisdiction over the plaintiff's action.

It was clear that there was no other forum where it would be more just or convenient to try the action.

APPEAL from the order of J.P. Moore J., [2009] O.J. No. 3121, 2009 38795 (S.C.J.) staying an action.

Cases referred to Barrick Gold Corp. v. Blanchard & Co., [2003] O.J. No. 5817, 9 B.L.R. (4th) 316, 2003 64238 (S.C.J.); Moran v. Pyle National (Canada) Ltd., 1973 192 (SCC), [1975] 1 S.C.R. 393, [1973] S.C.J. No. 149, 43 D.L.R. (3d) 239, 1 N.R. 122, [1974] 2 W.W.R. 586; Van Breda v. Village Resorts Ltd (2010), 98 O.R. (3d) 721, [2010] O.J. No. 402, 2010 ONCA 84, 264 O.A.C. 1, 316 D.L.R. (4th) 201, 81 C.P.C. (6th) 219, 185 A.C.W.S. (3d) 68, 71 C.C.L.T. (3d) 161, 77 R.F.L. (6th) 1 [Leave to appeal S.C.C. granted [2010] S.C.C.A. No. 174, 2010 37845], apld Bangoura v. Washington Post, 2005 32906 (ON CA), [2005] O.J. No. 3849, 258 D.L.R. (4th) 341, 202 O.A.C. 76, 17 C.P.C. (6th) 30, 142 A.C.W.S. (3d) 247 (C.A.), supp. reasons 2005 46932 (ON CA), [2005] O.J. No. 5428, 206 O.A.C. 325, 20 C.P.C. (6th) 178, 144 A.C.W.S. (3d) 615 (C.A.) [Leave to appeal to S.C.C. dismissed [2005] S.C.C.A. No. 497, 2006 4742], distd Muscutt v. Courcelles (2002), 2002 44957 (ON CA), 60 O.R. (3d) 20, [2002] O.J. No. 2128, 213 D.L.R. (4th) 577, 160 O.A.C. 1, 13 C.C.L.T. (3d) 161, 26 C.P.C. (5th) 206 (C.A.), consd Other cases referred to Amchen Products Inc. v. British Columbia (Workers' Compensation Board), 1993 124 (SCC), [1993] 1 S.C.R. 897, [1993] S.C.J. No. 34, 102 D.L.R. (4th) 96, 150 N.R. 321, [1993] 3 W.W.R. 441, J.E. 93-674, 23 B.C.A.C. 1, 77 B.C.L.R. (2d) 62, 14 C.P.C. (3d) 1, 39 A.C.W.S. (3d) 600; [page30 ]Antarres Shippping Corp. v. The Ship "Capricorn", 1976 5 (SCC), [1977] 2 S.C.R. 422, [1976] S.C.J. No. 79, 65 D.L.R. (3d) 105, 7 N.R. 518; Banro Corp. v. Les Éditions Écosociété Inc., [2010] O.J. No. 2389, 2010 ONCA 416, affg [2009] O.J. No. 733, 2009 7168 (S.C.J) [Leave to appeal S.C.C. granted [2011] S.C.C.A. No. 311, 2011 1063]; Black v. Breeden (2010), 102 O.R. (3d) 748, [2010] O.J. No. 3423, 2010 ONCA 547, 265 O.A.C. 177, 321 D.L.R. (4th) 659, 91 C.P.C. (6th) 94, 76 C.C.L.T. (3d) 52, affg [2009] O.J. No. 1292, 309 D.L.R. (4th) 708, 73 C.P.C. (6th) 83, 2009 14041 (S.C.J.) [Leave to appeal to S.C.C. granted [2010] S.C.C.A. No. 387, 2010 75965]; Bou Malhab v. Diffusion Métromédia CMR Inc., [2011] S.C.J. No. 9, 2011 SCC 9, EYB 2011-186410, 2011EXP-672, J.E. 2011-355; Dilkas v. May, [2010] O.J. No. 4170, 2010 ONCA 634, 325 D.L.R. (4th) 301, 267 O.A.C. 363, 94 C.P.C. (6th) 76; Hill v. Church of Scientology of Toronto (1995), 1995 59 (SCC), 24 O.R. (3d) 865, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, 126 D.L.R. (4th) 129, 184 N.R. 1, J.E. 95-1495, 84 O.A.C. 1, 25 C.C.L.T. (2d) 89, 30 C.R.R. (2d) 189; Hiltz & Seamone Co. v. Nova Scotia (Attorney General), 1999 NSCA 22, [1999] N.S.J. No. 47, 172 D.L.R. (4th) 488, 173 N.S.R. (2d) 341, 44 C.L.R. (2d) 15, 87 A.C.W.S. (3d) 397 (C.A.), affg 1997 542 (NS SC), [1997] N.S.J. No. 530, 164 N.S.R. (2d) 161, 77 A.C.W.S. (3d) 455 (S.C.); Leufkens v. Alba Tours International Inc. (2002), 2002 44958 (ON CA), 60 O.R. (3d) 84, [2002] O.J. No. 2129, 213 D.L.R. (4th) 614, 160 O.A.C. 43, 13 C.C.L.T. (3d) 217, 26 C.P.C. (5th) 247, 114 A.C.W.S. (3d) 637 (C.A.); Tolofson v. Jensen, 1994 44 (SCC), [1994] 3 S.C.R. 1022, [1994] S.C.J. No. 110, 120 D.L.R. (4th) 289, 175 N.R. 161, [1995] 1 W.W.R. 609, J.E. 95-61, 51 B.C.A.C. 241, 100 B.C.L.R. (2d) 1, 77 O.A.C. 81, 26 C.C.L.I. (2d) 1, 22 C.C.L.T. (2d) 173, 32 C.P.C. (3d) 141, 7 M.V.R. (3d) 202, 52 A.C.W.S. (3d) 40; Unity Life of Canada v. Worthington Émond Beaudin Services Financiers Inc., [2010] O.J. No. 1549, 2010 ONCA 283 Statutes referred to State Immunity Act, 110 ILCS 305 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 17.02, (g), (h), (o) Authorities referred to Brown, Raymond E., The Law of Defamation in Canada, looseleaf, 2nd ed., vols. 1 and 3 (Scarborough, Ont.: Carswell, 1999)

Gunnar S. Paulsson, in person. John J. Adair, counsel for respondents.

The judgment of the court was delivered by

[1] FELDMAN J.A.: -- The respondents, The American Association for the Advancement of Slavic Studies ("Association") and the board of trustees of and for the University of Illinois ("Board"), published a book review of the appellant's book in an academic journal published in the United States, the Slavic Review. The edition of the Slavic Review containing the book [page31 ]review in question was distributed outside the United States, including in Ontario.

[2] The appellant, an Ontario resident, commenced a libel action in Ontario against the respondents and the author of the book review, Dr. Leo Cooper, claiming that the book review defames him as a scholar, has damaged his academic reputation and has prevented him from advancing in his academic career.

[3] None of the defendants to the action resides in Ontario. The respondents reside in the United States, while the defendant author, Dr. Cooper, resides in Australia. Cooper has not defended this action and has been noted in default.

[4] The respondents brought a motion for an order to set aside service ex juris or, in the alternative, to stay the action on the basis that there is no real and substantial connection between the subject matter of the proceeding and Ontario, or that Ontario is not a convenient forum for hearing the proceeding. The Board also asserted that it is immune from a libel action under immunity provisions in the Illinois State Immunity Act, 110 ILCS 305.

[5] The motion judge granted the motion and ordered that the plaintiff's action be stayed against the respondents. He concluded that the Ontario court could not assume jurisdiction in the action and, alternatively, that Ontario is not the convenient forum to try the action. For the reasons that follow, I would allow the appeal.

Facts

[6] The appellant is a Canadian citizen who has lived in Ontario since 1958, except for the period between 1992 and 2002, when he studied and worked abroad in pursuit of an academic career with a focus on the Holocaust in Poland. He attended Oxford University on a Commonwealth Scholarship and obtained his doctoral degree in 1998. His dissertation won the International Fraenkel Prize in Contemporary History in 1998. A revised version of the dissertation was published in 2002 as a book titled Secret City: The Hidden Jews of Warsaw, 1940-1945 (New Haven: Yale University Press, 2002), which is the subject of the allegedly libellous book review. The book won the biennial Polish Studies Association Prize in 2004.

[7] From 1994 to 1998, while earning his degree at Oxford, the appellant was also a full-time lecturer in Jewish history and Holocaust studies as well as the assistant director and subsequently director of the Stanley Burton Centre for Holocaust Studies at the University of Leicester in the United Kingdom. In 2001, he was awarded the Koerner Fellowship in Jewish studies at Oxford University. In 2002, he was awarded the Pearl [page32 ]Resnick Fellowship (for post-doctoral research) at the United States Holocaust Memorial Museum. He was invited to sit on the advisory board of the future Museum of the History of the Polish Jews in Warsaw. In 2004, two of his scholarly articles on the Holocaust were published in an anthology on the subject.

[8] The appellant wrote his book, Secret City, while in the United Kingdom. The book was based in part on research the appellant conducted while at the University of Toronto, and was initially published in 2002, when he was once again a resident of Ontario. It was released in Britain in January 2003 and in North America in March 2003.

[9] The impugned book review appeared in the Slavic Review in June 2004. As noted, it was authored by Dr. Leo Cooper, an Australian resident and a senior fellow at the University of Melbourne in Australia.

[10] The Slavic Review is published by the respondent Association, which is a non-profit corporation incorporated in New York, with a national office in Massachusetts. The respondent Board provides certain financial and editorial support to the Slavic Review because its current editor-in- chief, Professor Mark Steinberg, is a tenured professor at the University of Illinois. The Board is not the publisher of the Slavic Review.

[11] In his statement of claim, the appellant contends that the defendant Cooper fabricated quotations, took other quotations out of context and ignored information contained in the book that would have directly contradicted Cooper's criticisms of the Secret City. The appellant claims that the defamatory review of his book has damaged his reputation in his academic field and has contributed to both the decline in sales of the book and his failure to obtain an academic position in his field despite his excellent credentials. He claims to have applied for positions both locally and abroad but has been unsuccessful in securing any academic position. [See Note 1 below]

[12] According to the evidence of the respondents, 81 copies of the June 2004 edition of the Slavic Review were distributed in Ontario. The total circulation of the Slavic Review in 2004 was 3,528 copies. The June 2004 edition was not available on newsstands and the book review was not posted on either the Association's website or the Slavic Review's website.

[13] As noted by the motion judge, at para. 15, the appellant had "no knowledge of where in Ontario the Slavic Review was [page33 ]available in 2004 but he did an investigation in 2008 and counted some 24 libraries that carry it". The appellant deposed that the June 2004 edition was available in paper and electronic form at most large university libraries in the province, as well as the Toronto Public Library and the National Library of Canada in Ottawa. The June 2004 edition became available online in 2005 on the JSTOR website, which archives academic articles.

[14] To provide a perspective on the nature of public access to and the availability of the Slavic Review, the appellant deposed that, after learning of the book review from a colleague in Australia, he went to the Robarts Library at the University of Toronto, where he found the Slavic Review and then later read it online on JSTOR, also accessed through the University of Toronto.

The Decision of the Motion Judge

[15] The motion judge first considered whether the Ontario court should assume jurisdiction on the basis that there is a real and substantial connection between Ontario and the action. In assessing this issue, he applied the eight criteria from this court's decision in Muscutt v. Courcelles (2002), 2002 44957 (ON CA), 60 O.R. (3d) 20, [2002] O.J. No. 2128 (C.A.). The motion was heard and decided before this court's decision in Van Breda v. Village Resorts Ltd. (2010), 98 O.R. (3d) 721, [2010] O.J. No. 402, 2010 ONCA 84, application for leave to appeal granted [2010] S.C.C.A. No. 174, 2010 37845, which revisited and revised the Muscutt approach. The motion judge also did not have the benefit of two subsequent decisions of this court involving interprovincial and international libel: Banro Corp. v. Les Éditions Écosociété Inc., [2010] O.J. No. 2389, 2010 ONCA 416, affg [2009] O.J. No. 733, 2009 7168 (S.C.J.), application for leave to appeal granted [2011] S.C.C.A. No. 311, 2011 1063 and Black v. Breeden (2010), 102 O.R. (3d) 748, [2010] O.J. No. 3423, 2010 ONCA 547, application for leave to appeal granted [2010] S.C.C.A. No. 387, 2010 75965. [See Note 2 below]

[16] In reviewing the first two Muscutt criteria -- the connection between Ontario and the plaintiff's case and the connection between Ontario and the defendants -- the motion judge minimized both. The respondents had accepted, and the motion judge agreed with, the following submission by the appellant (at para. 30): [page34 ]

[I]n a claim in libel, the tort of defamation is committed where the publication takes place and that is where the offending words were heard, read or downloaded and if the alleged defamatory statements were published or republished in Ontario and are alleged to have caused injury in Ontario, then the connection between the subject matter of the actions and Ontario is significant.

[17] However, the motion judge found, at para. 33, that the distribution of the Slavic Review in Ontario was "minimal" and there was no evidence that the appellant had suffered significant damages here. He observed that no prospective employer suggested that the book review negatively influenced any hiring decision affecting the appellant. In addition, at least one other Ontario academic had criticized the appellant's book in the same way that the defendant Cooper had. In the words of the motion judge, at para. 34: "Reputational damage, if any, may have come from the Ontario academic rather than from Cooper's words."

[18] In assessing the connection between Ontario and the respondents, the motion judge noted, at para. 35, that they had no connection to Ontario aside from allowing 81 copies of the Slavic Review to be distributed to 24 Ontario libraries. The motion judge further observed that the University of Illinois did not publish the Slavic Review and did not control its editorial content. He pointed out that the book review was not on the respondents' websites and would only have been available on the JSTOR website one year after original publication. He also observed that there was no evidence that anyone in Ontario had read the review, or that the appellant had suffered damages in Ontario because of anyone reading the review, or that the respondents should have assumed that the appellant would suffer damages in Ontario by allowing 81 copies to be distributed here.

[19] Turning to the third and fourth Muscutt criteria of possible unfairness to the parties in assuming or refusing jurisdiction in Ontario, the motion judge treated these two factors as neutral.

[20] The motion judge was of the view that the next three Muscutt criteria -- the involvement of other parties to the suit, the court's willingness to recognize and enforce a similar extra-provincial judgment rendered on the same jurisdictional basis and whether the case is international or interprovincial in nature -- favoured the respondents. Regarding the involvement of other parties, the motion judge found it significant that none of the defendants is from a Canadian jurisdiction. On the issue of Ontario's willingness to enforce an extra-provincial judgment in similar circumstances, the motion judge concluded that, because damage to the appellant in Ontario was not reasonably foreseeable, this factor favoured the respondents. As for the nature of the case, the motion judge observed that the need for [page35 ]caution in assuming jurisdiction is more compelling in an action involving only foreign defendants.

[21] Finally, the motion judge treated the eighth Muscutt factor -- comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere -- as neutral, because there was no expert evidence led on matters of foreign law.

[22] The motion judge concluded that there was no real and substantial connection to Ontario that would allow jurisdiction to be assumed. He also decided that, in any event, Ontario was not the most convenient forum to try the action. However, he did not determine what other jurisdiction would constitute the appropriate forum having regard to the seven relevant factors referred to in Muscutt, at para. 41. [See Note 3 below]

Issues

[23] The first issue on this appeal is whether the motion judge erred in his analysis of whether Ontario should assume jurisdiction over the out-of-province respondents. If he did so err, then a second issue is whether the Ontario court should decline to exercise its jurisdiction on the ground that there is a more appropriate forum to try the action.

[24] I conclude that the application of the test for assumed jurisdiction in Van Breda indicates that the Ontario court may properly assume jurisdiction over the out-of-province respondents. Moreover, there is no other more appropriate forum for hearing the appellant's claim and thus the Ontario court should not decline to exercise its assumed jurisdiction. [page36 ]

Analysis

Issue 1: Did the motion judge err in his analysis of whether Ontario should assume jurisdiction over the respondents?

[25] As discussed in a number of appeals that have recently come before this court, [See Note 4 below] the Van Breda decision has modified the approach to be taken to the analysis of when Ontario courts should assume jurisdiction over a claim involving out-of-province defendants. It has done so by changing the emphasis and significance to be accorded to the eight Muscutt criteria. And, importantly, it has introduced the concept of presumptive jurisdiction in situations where the claim satisfies one of the conditions for serving originating process outside of Ontario without a court order, as set out in rule 17.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (with the exception of subrules 17.02(h) and (o)).

[26] In light of Van Breda, the first stage of the analysis in this case involves determining whether service ex juris was properly made in accordance with rule 17.02(g) "in respect of a tort committed in Ontario", as alleged by the appellant. If the claim falls within this subrule, then a real and substantial connection is presumed to exist and the respondents will bear the burden of rebutting that presumption.

[27] In assessing whether the alleged tort of defamation was committed in Ontario, it should be noted that this is not a case where publication in Ontario of the impugned book review is alleged to have occurred exclusively over the Internet, in contrast with Black v. Breeden. Rather, 81 paper copies of the June 2004 edition of the Slavic Review were distributed in, and therefore published in, Ontario. As stated in Raymond E. Brown, The Law of Defamation in Canada, looseleaf, 2nd ed., vol. 1 (Scarborough, Ont.: Carswell, 1999), at p. 7-80:

Publication occurs in the place where it is actually communicated to a third person, that is where someone actually sees or hears it. This may not necessarily be the place from which the communication originated; nor is it necessarily the place where the defendant utters and writes the defamatory words. Thus, publication occurs at . . . the place wherever a letter, newspaper or magazine is read. (Citations omitted) [page37 ]

Accordingly, the alleged libel, if proved, is a tort committed in Ontario, which raises the presumption of jurisdiction.

[28] As explained in Van Breda, at paras. 72 and 109, that presumption can be displaced by evidence from the respondents that the real and substantial connection test is not met, despite the presumption. Van Breda has also refined Muscutt by focusing the court's analysis on the connections between both the plaintiff's claim and Ontario and the defendant and Ontario. These connections are the most significant factors at the second stage of the assumed jurisdiction analysis.

[29] I respectfully disagree with the motion judge's conclusion that these connections are weak. Dealing first with the connection between the appellant's claim and Ontario, the appellant is a Canadian citizen and long-time resident of Ontario. Although he studied and worked in locations outside Ontario for ten years from 1992 to 2002, during which time he obtained his important academic credentials and wrote his book, his place of residency since 2002 is Ontario. Reputational damage follows the person whose reputation is impugned. The following observation of the majority of the Supreme Court of Canada in Bou Malhab v. Diffusion Métromédia CMR Inc., [2011] S.C.J. No. 9, 2011 SCC 9, at para. 46, while made in the context of the civil law of defamation in Quebec, remains relevant: "The right to the protection of reputation, which is the basis for an action in defamation, is an individual right that is intrinsically attached to the person, whether the person is legal or natural." To the extent damage to reputation is ultimately proved (and in the case of libel, damage flows from a finding of liability), [See Note 5 below] that damage is suffered in Ontario.

[30] Generally speaking, the plaintiff in a defamation action will typically suffer the most injury to his or her reputation in the jurisdiction where he or she resides. As was noted by Roberts J. in Banro, at para. 27 (S.C.J.), the plaintiff in a libel action may be just as content to obtain a court order vindicating the person's reputation in his or her home province even if the plaintiff is ultimately unable to recover any monetary damages awarded.

[31] Finally, I do not accept the respondents' argument that, because the appellant applied for only one job in Ontario after the publication of the book review, this somehow undermines the connection between the alleged reputational damage and [page38 ]Ontario. The fact that the alleged damage to the appellant's reputation could be expected to hurt his job prospects in applying for positions at universities worldwide does not change the fact that his reputation attaches to him in the province where he resides and where he has been a long-time resident.

[32] With respect to the connection between Ontario and the respondents, I acknowledge that neither of them has a physical connection to Ontario. However, in their respective roles in preparing, producing and distributing the Slavic Review, each is involved in seeing that the journal is available, particularly in the international academic community of which the journal forms part of the scholarly discourse in the area of Slavic studies. As was explained in the affidavit of the executive director of the Association, Mr. Gorenburg, the Slavic Review is "an international interdisciplinary academic journal focused on the study of Eastern Europe, Russia, the Caucasus, and Central Asia. The Slavic Review contains articles of original and significant research and interpretation, reviews of scholarly books and films, and topical review essays and discussion forums."

[33] When 81 copies of the June 2004 issue of the journal were distributed to university and public libraries throughout Ontario, the respondents clearly intended that these volumes were to be read and form part of the academic discourse in the field of Slavic studies. In my view, this is the type of activity in the forum identified by the Supreme Court of Canada in Moran v. Pyle National (Canada) Ltd., 1973 192 (SCC), [1975] 1 S.C.R. 393, [1973] S.C.J. No. 149 and referred to by Sharpe J.A. in Van Breda, at para. 89, as follows:

Where a defendant could reasonably foresee that its conduct would cause harm within the forum by putting a product into the normal channels of trade and knows, or ought to know, that the product would be used in the forum and that if defective could harm a consumer in the forum, jurisdiction may be assumed.

[34] I agree with the observation of Nordheimer J. in Barrick Gold Corp. v. Blanchard & Co., [2003] O.J. No. 5817, 2003 64238 (S.C.J.), at para. 44, that, in the libel context, the product liability example from Moran applies to statements:

If a person issues a statement and places that statement in a normal distribution channel designed for media attention and publication, a person ought to assume the burden of defending those statements, wherever they may damage the reputation of the target of those statements and thereby cause the target harm, as long as that harm occurred in a place that the originator of the statements ought reasonably to have had in his, her or its contemplation when the statements were issued.

[35] I disagree with the motion judge's conclusion that the respondents could not reasonably have foreseen that their conduct [page39 ]would result in harm to the appellant in Ontario. In the motion judge's words, at paras. 37-38:

[The appellant's] book was published in the UK at a time when he lived and worked there. The evidence does not support a conclusion that the [respondents] should have foreseen that he had returned to live in Ontario or that their conduct would result in harm to him in Ontario.

This factor certainly favours the [respondents'] position.

[36] I first note that, contrary to the motion judge's remark, the appellant's book was published in the U.K. in 2003, after the appellant had returned to Ontario to live. In any event, in my view, the fact that the respondents may not have known that the appellant was living in Ontario when the impugned book review was published is not determinative. It is reasonable to expect the respondents to have known that the appellant would suffer most harm to his reputation in his place of residence at the time the book review was originally placed "in a normal distribution channel" for the attention of its intended academic audience.

[37] I also would not give effect to the respondents' submission that the limited number of copies of the Slavic Review distributed in Ontario, which is said to represent only 2.4 per cent of the total distribution of the June 2004 issue, is determinative of its impact or its intended penetration in Ontario. The copies of the June 2004 Slavic Review were distributed to university and public libraries. In those locations, the volume is broadly available and certainly very accessible by the target academic community. I reject the motion judge's observation that there is no evidence that anyone in Ontario actually read the Cooper book review. It certainly does not lie in the mouth of the respondents to suggest that no one would read their journal. Moreover, as noted in The Law of Defamation, vol. 3, at p. 22-58:

It is not necessary to every case to prove directly that the words were brought to the attention of some third person. Publication may be shown by circumstantial evidence. Thus, if books are circulated in a lending library, that is evidence of publication to library subscribers. [See Note 6 below] (Citations omitted) [page40 ]

[38] The motion judge in assessing the connection criteria suggested that it is incumbent on the appellant to prove on this motion that the impugned article actually caused him damage to his reputation in Ontario: see paras. 33 and 36 of the reasons. On several occasions, he pointed to the appellant's failure to adduce evidence establishing his allegation of reputational damage as favouring the respondents' position on the motion. In my view, this approach conflates the issue of where the damages allegedly occurred, which is a proper consideration on a jurisdiction motion, with the issue of proving actual damages, which is an issue that will be decided at trial (or, potentially, on a motion for summary judgment).

[39] The respondents submit that the decision of this court in Bangoura v. Washington Post, 2005 32906 (ON CA), [2005] O.J. No. 3849, 202 O.A.C. 76 (C.A.), additional reasons at 2005 46932 (ON CA), [2005] O.J. No. 5428, 206 O.A.C. 325 (C.A.), application for leave to appeal dismissed [2005] S.C.C.A. No. 497, 2006 4742, applies to the analysis of the connection criteria in this case and supports the motion judge's conclusion that there is no real and substantial connection to Ontario. I do not accept this submission. In Bangoura, the plaintiff took up residence in Ontario three years after the publication of two allegedly defamatory newspaper articles in the Washington Post. He then commenced an action in Ontario for defamation against the newspaper and three of its reporters.

[40] Armstrong J.A., for the court, overturned the motion judge's finding of a connection between the forum and the plaintiff's claim, noting, at para. 23, that the plaintiff's alleged damages would have been suffered three years before he moved to Ontario. Also, in overturning the finding of a connection between the defendants and Ontario, Armstrong J.A. stated, at para. 25, that "[t]o 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" (emphasis added). In contrast, in the present case, the appellant has resided in Ontario for much of his life and he had returned to live in Ontario for over a year before the publication of the impugned book review. The concerns expressed in Bangoura about a plaintiff attempting to sue in a forum in which he or she did not begin to reside until long after the original publication do not apply.

[41] My conclusion on the connection criteria is that there is ample evidence of a substantial connection between the appellant's claim and the forum and a relevant connection in the libel context between the respondents and the forum. [page41 ]

[42] Van Breda instructs that the remaining criteria from Muscutt are to be treated not as separate tests or factors, but rather as general legal principles that bear upon the analysis of whether there is a real and substantial connection with Ontario. In light of my conclusion on the strength of the connection of the parties to the forum, I will address these principles only briefly.

[43] The motion judge treated the fairness considerations as neutral, and I would not interfere with that finding.

[44] In considering the criterion of the involvement of other parties to the suit, the motion judge was of the view that because there are no domestic defendants as parties, this factor favours the respondents. Van Breda makes it clear, at paras. 102 and 109, that the involvement of other parties to the suit is only relevant in cases where that is asserted as a possible connecting factor, or in relation to avoiding a multiplicity of proceedings under forum non conveniens. In light of Van Breda, this is not a relevant consideration.

[45] The motion judge treated the next two Muscutt factors -- the enforceability of a similar judgment obtained outside Ontario and the international nature of the case -- as also favouring the respondents' position. Because the motion judge viewed the appellant's claim as weak on the basis that the respondents could not have reasonably foreseen their actions would cause him damages in Ontario, he thought it less likely that Ontario would enforce a similar judgment obtained outside Ontario. As discussed above, I believe that the motion judge erred in his view of the strength of the connection of the parties to the jurisdiction. I believe the connection is real and substantial and therefore Ontario would enforce a similarly obtained judgment from outside of Ontario. Nor do I see the international nature of this case as displacing the presumption.

[46] The respondents again rely on Bangoura in support of the motion judge's determination that Ontario would not enforce a similar extra-provincial judgment. In Bangoura, this court held that where a newspaper article does not reach significantly into Ontario (there were only seven Ontario subscribers to the Washington Post and the online version of the articles was only accessed in this province by the plaintiff's lawyer), this court should heed the cautionary warning expressed by Sharpe J.A. in Leufkens v. Alba Tours International Inc. (2002), 2002 44958 (ON CA), 60 O.R. (3d) 84, [2002] O.J. No. 2129, 160 O.A.C. 43 (C.A.) that assuming jurisdiction in Ontario against a foreign defendant would require Ontario courts to enforce judgments pronounced on the same jurisdictional basis against Ontario defendants. In the words of Armstrong J.A., at para. 34: "If the cautionary warning of [page42 ]Sharpe J.A. is not taken into account, it could lead to Ontario publishers and broadcasters being sued anywhere in the world with the prospect that the Ontario courts would be obliged to enforce foreign judgments obtained against them."

[47] The respondents argue that because neither of them has any presence in Ontario, and they did not publish the Slavic Review online, Ontario courts could not enforce a foreign judgment rendered on the jurisdictional basis presented in this case. Again, I do not accept this submission. Unlike the extremely limited potential Ontario audience in Bangoura, the subscribers to the Slavic Review are Ontario libraries with significant exposure to the entire academy of scholars in Slavic studies. Moreover, the journal is a permanent issue, not a newspaper that is normally thrown away in the ordinary course. These facts speak against the respondents' suggestion that no one in Ontario would have read the impugned book review, as they may not have read the seven copies of the Washington Post newspaper that were subscribed to in Ontario.

Conclusion on jurisdiction

[48] In my view, applying the new framework set out by this court in Van Breda, there is a real and substantial connection between the appellant's claim and Ontario. Accordingly, I would give effect to the ground of appeal that the trial judge erred in finding that the Ontario court may not assume jurisdiction over the appellant's action.

Issue 2: Should the Ontario court decline to exercise its jurisdiction on the ground of forum non conveniens?

[49] The second issue is whether the action must be stayed in any event because there is "some other forum more convenient and appropriate for the pursuit of this action and for securing the ends of justice". See Antarres Shipping Corp. v. The Ship "Capricorn", 1976 5 (SCC), [1977] 2 S.C.R. 422, [1976] S.C.J. No. 79, at p. 448 S.C.R., quoted in Amchem Products Inc. v. British Columbia (Workers' Compensation Board), 1993 124 (SCC), [1993] 1 S.C.R. 897, [1993] S.C.J. No. 34, at p. 919 S.C.R.

[50] In Van Breda, at para. 82, the court emphasized that the two issues, jurisdiction and forum, must be separately assessed and that the factors that are relevant to the forum non conveniens question, such as where the witnesses are located, play no role in assessing real and substantial connection.

[51] Unlike the question of jurisdiction, which is reviewable by this court on a correctness basis, the decision whether there is a more convenient forum is discretionary and is thus subject to [page43 ]deference on appeal. The motion judge addressed the issue of forum non conveniens in the event that this court found him to be in error on the jurisdiction question. Although his alternative decision is a discretionary one, it is also obiter dictum in this case. In any event, although the motion judge addressed the relevant criteria in his analysis, he ultimately did not address the necessary question of whether there is another more suitable forum.

[52] The record is clear that the defendants are from different jurisdictions: Australia, New York, Massachusetts and Illinois. As noted, the author of the book review has allowed default judgment to go, thereby admitting the truth of the allegations made in the amended statement of claim. However, if he is called as a witness, he will have to travel from Australia to testify, wherever the action is heard in North America. The plaintiff would have to travel out of Ontario along with his other liability and damages witnesses. Each of the respondents would have to travel to another state, no matter where in the United States the action were to be tried. Therefore, on the basis of witness availability and convenience alone, there is no other forum that is more convenient.

[53] In terms of the applicable law, because the alleged defamation was committed in Ontario, and the alleged damages sustained there, the defamation law of Ontario will apply. See Black v. Breeden, [2009] O.J. No. 1292, 2009 14041 (S.C.J.), at paras. 93-94, affd (2010), 102 O.R. (3d) 748, [2010] O.J. No. 3423, 2010 ONCA 547; Tolofson v. Jensen, 1994 44 (SCC), [1994] 3 S.C.R. 1022, [1994] S.C.J. No. 110; and The Law of Defamation in Canada, vol. 3, pp. 17-155 to 17-158.

[54] The other issue raised by the respondents was whether the Ontario court could assume jurisdiction over the University of Illinois in light of the State Immunity Act of Illinois. The motion judge concluded that the record was insufficient to determine the matter. I would not upset that finding.

Conclusion on forum non conveniens

[55] I conclude that on the record, it is clear that there is no other forum where it would be more just or convenient to try this action.

Fresh Evidence

[56] The appellant sought to supplement the record with fresh evidence on the appeal. In light of my analysis of the issues on the record that was before the motion judge, there is no need to consider the fresh evidence. [page44 ]

Disposition

[57] In the result, I would allow the appeal and set aside the order of the motion judge imposing a stay of the action and granting costs to the respondent in the amount of $12,000. I would substitute an order that the Ontario Superior Court of Justice has jurisdiction over the appellant's action.

[58] Costs of the appeal to the appellant fixed at $6,000, inclusive of disbursements and HST, a reduced amount because the appellant is self-represented. If the parties cannot agree, they may make written submissions with regard to the costs of the original motion.

Appeal allowed.

Notes

Note 1: For the purpose of a jurisdiction and forum motion, the plaintiff is not required to prove the defamation or damages.

Note 2: The three appeals in Van Breda, Banro and Black are scheduled to be argued in the Supreme Court of Canada in March 2011.

Note 3: The factors listed in Muscutt, at para. 41, that apply to a determination of the most appropriate forum for an action are as follows:

(a) the location of the majority of the parties;

(b) the location of key witnesses and evidence;

(c) contractual provisions that specify applicable law or accord jurisdiction;

(d) the avoidance of a multiplicity of proceedings;

(e) the applicable law and its weight in comparison to the factual questions to be decided;

(f) geographical factors suggesting the natural forum; and

(g) whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court.

Note 4: These appeals include Black v. Breeden; Banro v. Les Éditions Écosociété; Dilkas v. May, 2010 ONCA 634, [2010] O.J. No. 4170, 02010 ONCA 634 9 (C.A.); and Unity Life of Canada v. Worthington Émond Beaudin Services Financiers Inc., [2010] O.J. No. 1549, 2010 ONCA 283.

Note 5: See Hill v. Church of Scientology of Toronto (1995), 1995 59 (SCC), 24 O.R. (3d) 865, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, at para. 164: "It has long been held that general damages in defamation cases are presumed from the very publication of the false statement and are awarded at large."

Note 6: See Hiltz & Seamone Co. v. Nova Scotia (Attorney General), 1999 NSCA 22, [1999] N.S.J. No. 47, 173 N.S.R. (2d) 341 (C.A.), aff 1997 542 (NS SC), [1997] N.S.J. No. 530, 164 N.S.R. (2d) 161 (S.C.), where the Nova Scotia Court of Appeal concluded that publication was established based on evidence that the allegedly defamatory report was publicly available in a Department of Energy library that was open to the public, even though there was no evidence that any person actually read a copy of the report.