Recently, the Ontario Court of Appeal ruled that Conrad Black could proceed with six internet based libel actions in Ontario (Black v. Breeden, 2010 ONCA 547). The claims are based upon an investigation into Lord Black’s conduct as chairman of Hollinger that was published on the Hollinger website. The Defendants are directors, advisors and a vice president of Hollinger.
The Ontario Court of Appeal proceeded with a modified common law approach to the issue of whether it had jurisdiction and, if so, whether it should decline jurisdiction. An excellent analysis of the Ontario approach to these jurisdiction issues was posted by Antonin Pribetic on The Trial Warrior Blog.
Canadians continue to be fascinated by the Conrad Black story. Reading the Black decision, it occurred to me that it would be interesting to do a comparative analysis of whether the result would have been the same in British Columbia.
In 2006, British Columbia adopted the recommendation of the Uniform Law Conference of Canada and codified its jurisdictional rules in the Court Jurisdiction and Proceedings Transfer Act (“CJPTA”). This uniform legislation has also been adopted in Saskatchewan and Nova Scotia. Over the past few years, the courts of British Columbia have grappled with the CJPTA and have attempted to come to terms with whether it is simply a codification of then existing common law rules or whether there were substantive changes to the questions of jurisdiction and forum conveniens. The issues arising from the CJPTA have already generated one decision from the Supreme Court of Canada (see Teck v. Lloyds, 2009 SCC 11).
Under the CJPTA, the issue of jurisdiction becomes “territorial competence”. Territorial competence is found where there is a “real and substantial connection” between British Columbia and the facts upon which the proceeding is based. Under Section 10 of the CJPTA, there is a list of circumstances where a real and substantial connection will be presumed. Most pertinent to the Black case would be Subsection 10(g) which presumes jurisdiction where a tort has been committed in British Columbia. On the facts of the Black case, it is likely that had the publication taken place in British Columbia and was directed to the press based in British Columbia, that a British Columbia court would find it had territorial competence.
Similarly, forum conveniens is codified in Section 11 of the CJPTA which provides a British Columbia court with the discretion to decline jurisdiction in favour of a “more” appropriate forum. In Black, the Defendants argued that Black was forum shopping and that an Ontario award would not be enforceable in the United States as reasons for an Ontario court to decline jurisdiction. Similar arguments were raised in Teck in British Columbia under the CJPTA. These arguments were rejected in Black and the court refused to decline jurisdiction. The analysis and factors reviewed by the Ontario Court of Appeal are similar in approach to the approach of the British Columbia courts in Teck.
In the end, the common law approach to jurisdiction used by the Ontario courts in Black is broadly consistent with the approach used in British Columbia under the CJPTA. While academics have mused over the distinctions between the two regimes, it will be interesting to see whether these distinctions fade as the Supreme Court of Canada works to unify jurisdictional rules across Canada.
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