CITATION: Sciquest Inc. v. Hansen et al., 2016 ONSC 1488
COURT FILE NO.: CV-15-00535613
DATE: 20160314
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sciquest Inc. Plaintiff
– and –
Jon W. Hansen and Hansen Consulting and Seminars Inc. Defendant Defendants
Timothy Pinos and Christopher Selby, for the Plaintiff
Alden Christian, for the Defendant, Jon W. Hansen
HEARD: February 29, 2016
LEDERMAN J.
NATURE OF MOTION
[1] This is a motion by the defendant, Jon W. Hansen (“Hansen”) for an order staying this action on the basis that the Ontario Superior Court of Justice does not have jurisdiction over this action or alternatively, that another forum is more convenient for the trial of this action.
[2] The plaintiff Sciquest Inc. (“Sciquest”) has pleaded that 18 blog posts or articles written by Hansen and published in Ontario, other parts of Canada and elsewhere contained defamatory statements which have caused damage to Sciquest’s reputation in Ontario, Canada and elsewhere. The plaintiff has chosen to bring its defamation action in Ontario.
BACKGROUND
[3] Sciquest is incorporated in the State of Delaware and its head office is located in North Carolina. It has offices in various places in the world including Edmonton, Alberta. Sciquest is a provider of “cloud-based” business automation software which is used by customers to manage spending, suppliers, contracts, sourcing, shopping, inventory and accounts payable more efficiently to improve their financial results.
[4] Hansen is a journalist and speaker, focused primarily on the procurement industry. He resides and has continuously resided since May, 2008 in the Province of Quebec.
[5] Since May, 2007, Hansen has been writing an internet blog entitled “Procurement Insights” reporting on the activities and business interests associated with the procurement industry. His blog, which is accessible on the internet, is found on WordPress.com website located in San Francisco, California and Ireland, and also accessible through Twitter feeds.
ISSUE
[6] The test for establishing the court’s jurisdiction is to determine whether the subject matter of the action has a “real and substantial connection” with the forum. Hansen submits that, in this case, Sciquest has not identified any presumptive connecting factor as outlined by the Supreme Court of Canada in Van Breda v. Village Resorts Ltd., 2012 SCC 17, [2012] 1 S.C.R. 572 that links the subject matter of the litigation to Ontario.
[7] In Van Breda, the Supreme Court enumerated presumptive connecting factors in cases concerning a tort, the presence of which, prima facie, entitled a court to assume jurisdiction over a dispute. The only connecting factor that may apply in this case is whether the plaintiff has shown that a tort has been committed in the Province of Ontario.
ANALYSIS
[8] Sciquest conducts a virtual business and provides services globally. There are no geographic restrictions on who may be Sciquest’s customer. Sciquest’s reputation therefore is to be found wherever it has existing or potential customers.
[9] While the majority of Sciquest’s customers are headquartered in the United States, Sciquest has 30 customers representing $5,160,400 in annual revenue in Canada including 9 in Ontario with annual revenue of $3,783,474.
[10] Between August 2014 and November 2015, Hansen wrote various articles on the Procurement Insights blog and thereafter they were disseminated on Hansen’s Twitter page or by way of a link to the full blog post.
[11] It appears that in 2015, Procurement Insights blog was viewed over 105,000 times by users in over 160 jurisdictions. It appears that 10,588 of those viewers or readers were located in Canada. One can readily infer that many of those are in Ontario.
[12] At least 355 of the followers of Hansen’s Twitter page are located in Ontario, meaning that each of the articles was sent to the “Twitter feeds” of those 355 followers located in Ontario.
[13] Further, in 7 cases, Hansen’s tweets of articles have been “re-tweeted” by another entity located in Ottawa, Ontario. The effect of a re-tweet is to alert other Twitter users who follow the “retweeter” to the original tweet and to make the original tweet available on the Twitter page of the person re-tweeting. It is in a sense a republication of the original tweet. Many of the followers of the re-tweeter are located in Ontario.
[14] In the circumstances, each article was published directly to a large number of readers in Canada (and by inference, Ontario) and re-published by Hansen using his Twitter page to at least 355 followers in Ontario (of the total number of 11,892 followers of the Twitter page with a geographic location identified). Further, as indicated, the 7 re-tweets of articles are specific instances of re-publication within Ontario.
[15] The tort of defamation is crystallized upon publication of the libellous material and it occurs when such material is read or downloaded by a third party. A single instance of publication is sufficient for the tort to crystallize. Since “publication” takes place where the articles were accessed by a reader, it is clear that the instances of publication, re-publication through Hansen’s tweets, and viewing of the articles have taken place in Ontario. Given Sciquest’s business presence, customers and reputation in Ontario, the test for jurisdiction has been satisfied in that the alleged tort has been committed in Ontario. Thus, there is a real and substantial connection between the action and Ontario.
[16] The defendant bears the burden of demonstrating that the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff because another proposed alternative forum is “clearly more appropriate”.
[17] Counsel for the defendant, in argument, suggested that Quebec (where Hansen writes and posts his blog) or North Carolina (where Sciquest does most of its business) are more appropriate forums. However, the alleged libel published is not where it is written but where it is read. There is no evidence of any publication in Quebec although the blog is written there. Although Sciquest’s head office is in North Carolina, its business is global.
[18] Counsel for the defendant also submitted that Sciquest has improperly engaged in “forum shopping” in order to unfairly benefit from Ontario’s (as opposed to Quebec) plaintiff-friendly defamation laws. Atlhough there may be some judicial advantage for Sciquest in choosing Ontario as the forum, the strength of the connections between Sciquest and Ontario are such that it cannot be said that it is engaged in “libel tourism”.
[19] In the end, Hansen has failed to demonstrate that any proposed alternative forum is clearly more preferred or appropriate. No other forum exists that is in a better position to dispose fairly and efficiently of the litigation.
[20] For these reasons, the motion is dismissed.
[21] The plaintiff, Sciquest, will have its costs fixed at the agreed amount of $22,000, all inclusive payable by Hansen within 30 days.
Lederman J.
Released: March 14, 2016
CITATION: Sciquest Inc. v. Hansen et al., 2016 ONSC 1488
COURT FILE NO.: CV-15-00535613
DATE: 20160314
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sciquest Inc. Plaintiff
– and –
Jon W. Hansen and Hansen Consulting and Seminars Inc. Defendant Defendants
REASONS FOR JUDGMENT
Lederman J.
Released: March 14, 2016