Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Defamed in B.C.

Posted by Seva on April 16, 2008

A very quick note today about TimberWest Forest Corp. v. United Steel Workers, decided this week by Mr. Justice Bracket of the B.C. Supreme Court. The plaintiff sued a number of defendants, including a union and four individuals, for defamation based on news conferences held by the defendants in the U.S. and Canada where they alleged that the plaintiff illegally dumped debris into a lake in B.C. Two of the defendants who were not B.C. residents brought an application to dismiss for lack of jurisdiction simpliciter in B.C. courts or because B.C. is a forum non conveniens.

There was nothing particularly new about either of the arguments, but is it useful to note that the court once again confirmed that “defamation is to be located where the damage to reputation occurs”, which in this case was British Columbia. For the jurisdictional question, it does not matter where the defamatory materials were designed or printed:

[28] In Burke v. NYP Holdings Inc., 2005 BCSC 1287 at para. 22, Burnyeat J. quoted and adopted comments from Bangoura v. Washington Post (2004), 235 D.L.R. (4th) 564 (Ont. S.C.J.), where Pitt J. referred to the state of the law articulated by the Supreme Court of Victoria (Australia) [Dow Jones & Co v. Gutnick]:

In cases of multi-state defamation, it is the publication, not the composition of the libel, that is the actionable wrong.  Defamation is to be located at the place where the damage to reputation occurs …

[i]n considering the real and substantial connection test, in the context of allegedly false and injurious communications over the Internet, the location of the plaintiff is a key factor that receives greater weight than other factors.  This is the case because damage to the reputation and actual pecuniary loss is the key element in such an action, and a plaintiff will experience damages most keenly in the jurisdiction in which they reside.  Moreover, those who publish via the Internet are aware of the global reach of their publications, and must consider the legal consequences in the jurisdiction of the subjects of their articles.

[29] In my view, all of the allegedly defamatory statements, video, website postings, pamphlets, and other communications relate to a tort alleged to have been committed in British Columbia because the harm allegedly suffered by the plaintiff was suffered in British Columbia where it resides, where it carries on its business, where it employs contractors and employees, where some of its customers are located, and where it is regulated.  In reaching this conclusion, I have not ignored the defendants’ evidence about the degree to which the plaintiff’s business relates to sales outside of British Columbia.

[30] Even if the defendants establish that the pamphlets were authored in the United States of America and only distributed there, I would still find that they relate to a tort committed in British Columbia.  I reach this conclusion not only for the reasons stated immediately above about the location where the plaintiff allegedly suffered harm, but also because on the facts of this case, the pamphlets were clearly part and parcel of an communications campaign alleged to have been conceived, filmed, and authored in British Columbia, and communicated by two British Columbia union representatives who travelled to Salt Lake City in order to communicate primarily British Columbia-sourced material.  If part of this alleged communications campaign involved some further material authored in the United States, that would not, in my view, prevent the plaintiff from including those additional communications in its claim for defamation in British Columbia.

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