





CITATION:
Paulsson
v. Cooper, 2011 ONCA 150

DATE: 20110228




DOCKET: C50917



COURT OF APPEAL FOR ONTARIO



Rosenberg, Goudge and Feldman JJ.A.



BETWEEN



Gunnar S. Paulsson




Plaintiff (Appellant)



and



Leo Cooper,
The Board of Trustees of and for the
          University of Illinois
,
The American Association for the Advancement
          of Slavic Studies,
and Slavic Review



Defendants (
Respondents
)



Gunnar S. Paulsson, in person



John J. Adair, counsel for the
Respondents



Heard:  August 9, 2010



On appeal from the order of Justice J. Patrick Moore of the
          Superior Court of Justice dated July 21, 2009, with reasons reported at
          (2009) CanLII 38795 (ON S.C.).



Feldman J.A.:

[1]

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
    appellants book in an academic journal published in the United States, the Slavic
    Review.  The edition of the Slavic Review
    containing the book 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 plaintiffs 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 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 Coopers 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.
[1]


[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 Associations website or the Slavic Reviews website.

[13]

As noted by the motion judge, at para. 15, the
    appellant had no knowledge of where in Ontario the Slavic Review was 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 courts decision in
Muscutt

v. Courcelles
(2002), 60 O.R. (3d) 20. The motion was heard and
    decided before this courts decision in
Van
    Breda v. Village Resorts Ltd.
, 2010 ONCA 84, application for leave to
    appeal granted, 2010 CanLII 37845 (S.C.C.), 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
É
ditions
É
cosociété
    Inc.,
2010 ONCA 416, affirming 2009 CanLII 7168 (ON S.C.), application for
    leave to appeal granted, 2011 CanLII 1063 (S.C.C.) and
Black v. Breeden
, 2010 ONCA 547, application for leave to appeal
    granted, 2010 CanLII 75965 (S.C.C.).
[2]


[16]

In reviewing the first two
Muscutt
criteria  the connection between Ontario and the
    plaintiffs 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):

[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 appellants 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 Coopers 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 courts 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 Ontarios
    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 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.
[3]

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
    appellants claim and thus the Ontario court should not decline to exercise its
    assumed jurisdiction.

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,
[4]
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, 2
nd
ed. (Scarborough: Carswell,
    1999), vol 1. 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.]

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
    courts analysis on the connections between both the plaintiffs 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 judges conclusion that these connections are weak.
    Dealing first with the connection between the appellants 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 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)
[5]
,
    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, the plaintiff in a libel action may be just as content to obtain a
    court order vindicating the persons 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 Ontario. The fact that the alleged damage
    to the appellants reputation could be expected to hurt his job prospects in
    applying for positions at universities world-wide 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.
,
    [1975] 1 S.C.R. 393 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 CanLII 64238 (ON S.C.), 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 judges conclusion that the
    respondents could not reasonably have foreseen that their conduct would result
    in harm to the appellant in Ontario.  In
    the motion judges words, at paras. 37-38:

[The appellants] 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 judges
    remark, the appellants 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% 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 judges 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.
    [Citations omitted.]
[6]

[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 appellants 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), 202 O.A.C. 76, additional reasons at 206 O.A.C. 325, application for
    leave to appeal dismissed, 2006 CanLII 4742 (S.C.C.), applies to the analysis
    of the connection criteria in this case and supports the motion judges
    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
    judges finding of a connection between the forum and the plaintiffs claim, noting
    at para. 23 that the plaintiffs 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 appellants claim and
    the forum and a relevant connection in the libel context between the
    respondents and the forum.

[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
    appellants 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
    judges 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 plaintiffs
    lawyer), this court should heed the cautionary warning expressed by Sharpe J.A.
    in
Leufkens v. Alba Tours International
    Inc.
(2002), 160 O.A.C. 43, 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 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
    appellants 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 appellants 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
,
    [1977] 2 S.C.R. 422 at p. 448, quoted in
Amchem
    Products Inc. v. British Columbia (Workers Compensation Board)
, [1993] 1
    S.C.R. 897 at p. 919
.

[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 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 CanLII 14041 (ON S.C.), at paras. 93-94, affirmed 2010
    ONCA 547;
Tolofson v. Jensen
, [1994]
    3 S.C.R. 1022; 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.




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 appellants action.

[58]

Costs of the appeal to the appellant fixed at $6,000 inclusive
    of disbursements and H.S.T., 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.


Signed:          K. Feldman
    J.A.

I agree M.
    Rosenberg J.A.

I agree S.
    T. Goudge J.A.



RELEASED: MR February 28, 2011





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



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



[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.



[4]

These appeals include:
Black v. Breeden
;
Banro v. Les
É
ditions
É
cosociété
;
Dilas v. Red Seal Tours Inc. (Sunwing
    Vacations)
, 2010 ONCA 634; and
Unity
    Life of Canada v.
Worthington
Émond
Beaudin
    Services Financiers Inc.
, 2010
    ONCA 283.



[5]
See
Hill v. Church of Scientology
, [1995] 2 S.C.R.
    1130, 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.



[6]

See
Hiltz
&
Seamone
Co.
    Ltd. v. Nova Scotia (Attorney General)
(1999), 173 N.S.R. (2d) 341
    (N.S.C.A.), affirming (1997), 164 N.S.R. (2d) 161 (N.S.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.


