Prof. Stephen G.A. Pitel Western University, Ontario
Saturday, 14 September – 9:00 am Room W 201, Faculty of Law – Professor-Huber-Platz 2, 80539 Munich
In Haaretz.com v Goldhar, 2018 SCC 28 the Supreme Court of Canada reversed two lower courts and held that the plaintiff’s libel proceedings in Ontario should be stayed because Israel was the clearly more appropriate forum. The case concerned defamation over the internet. The plaintiff, a resident of Ontario, alleged that an Israeli newspaper defamed him. Most readers of the story were in Israel but there were over 200 readers in Ontario. The decision offers several interesting observations about the discretionary staying of proceedings.
One issue is the degree of deference to be given to the exercise of the discretion by motions judges. The core disagreement between Justice Cote (for the majority) and the dissent (by Chief Justice McLachlin and Justices Moldaver and Gascon) was that Justice Cote concluded that the motions judge made six errors of law in applying the test for forum non conveniens so that no deference was required. In contrast, the dissent held that four of these errors were “merely points where our colleague would have weighed the evidence differently had she been the motions judge” and that the other two errors were minor and had no impact on the overall result. The dissent held strongly to the orthodox idea that decisions on motions to stay are entitled to “considerable deference”. Has the standard of review changed?
Another issue is the extent to which a plaintiff’s claim can be tailored to resist a motion for a stay. In argument the plaintiff made it clear that he was only seeking a remedy in respect of damage to his reputation in Ontario and that he was not going to sue elsewhere. The dissent accepted that this undertaking to the court limited the scope of the claim and ultimately pointed to Ontario as the most appropriate forum. In contrast, Justice Cote held that the plaintiff’s undertaking “should not be allowed to narrow the scope of his pleadings”. Justice Cote may well be wrong in law on this point, as the better view may be that the plaintiff can indeed alter the scope of the claim to respond to objections from the defendant.
The court also comments on the role of an undertaking from the plaintiff to pay the travel and accommodation costs of the defendant’s witnesses. Four judges expressed concern about such an undertaking. For example, Justice Abella stated “it would be tantamount to permitting parties with greater resources to tip the scales in their favour by ‘buying’ a forum”. These comments have the potential to change the orthodox view about undertakings of this nature.
Beyond these issues, the court debates the role of both future enforcement proceedings and the substantive law to be applied to the claim in the forum non conveniens analysis. Overall, there is much to be unpacked from this recent and contentious application of the doctrine. It offers important insights for all jurisdictions that allow a discretion to stay proceedings in favour of a more appropriate forum.