LEXPERT MAGAZINE
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SEPTEMBER 2016 15
F.C., in 2010, doesn't see things that way.
"ere's always a burden on the plaintiff to
demonstrate that there is a reason for him
to vindicate his reputation in his forum of
choice," McDowell says. "It's not like we
have a completely open season."
Still, according to Schabas, it doesn't
make practical sense to try the case in Israel.
"e evidence is that there are 19 witnesses
from Israel to be called by the defendant,
and suddenly we have to bring everyone
to Toronto," he explains. "Interpreters are
going to be necessary and an enormous ex-
pense, and the court will be hearing about
matters of public interest in Israel that no
one here knows anything about."
Not surprisingly, Schabas prefers the dis-
sent articulated by Justice Sarah Pepall to
the majority ruling written by Justice Janet
Simmons and concurred in by Justice Elea-
nore Cronk. "Pepall's dissent demonstrates
that there's a real
danger in taking ju-
risdiction when we
shouldn't. If Cana-
dian courts were to
refuse jurisdiction,
our press would be
less exposed to oth-
er countries taking
jurisdiction in cases
involving them."
Haaretz has a print circulation of 70,000
in Israel. But because the evidence estab-
lished that up to 300 Canadians read the
impugned article online and that many of
Libel Crosses Borders
Ontario's appeal court has ruled that an Israeli newspaper can be sued in Ontario BY JULIUS MELNITZER
Goldhar's 200 employees in Toronto had
heard about it, Schabas did not dispute that
the alleged tort was committed in Ontario as
well as in Israel. Instead, he argued that his
client had rebutted
the presumption of
jurisdiction because
there was no real
relationship or only
a weak relationship
between the subject
matter of the litiga-
tion and Ontario.
But the major-
ity concluded that
the action did in-
deed have a "significant connection" to
Ontario: "What is important is that the
alleged sting of the article is very much re-
lated to how Goldhar conducts business in
Canada because the article draws a link be-
tween Goldhar's management model and
his Canadian business," Simmons wrote.
"Although the main subject of the article
may be the management of an Israeli soccer
team, the article makes Goldhar's manage-
ment model — and its Canadian origins —
an integral part of that subject."
Pepall, however, reasoned that jurisdic-
tion should attach where Goldhar's reputa-
tion had suffered most. She also concluded
that the analysis of the motions judge,
Superior Court Justice Mario Faieta, was
faulty. Particularly objectionable was his re-
liance on Goldhar's undertaking to pay for
the travel and accommodation of Haaretz's
witnesses from Israel. Plaintiffs, she wrote,
should not "be permitted to buy passage to
a forum" due to "his or her financial he."
Schabas tells Lexpert that his client
intends to seek leave from the Supreme
Court of Canada, and that he expects in-
terest from intervenors. "is case high-
lights issues that the high court in its previ-
ous decisions le open for another day."
CANADIAN PUBLISHERS, broadcast-
ers and authors are at risk of being dragged
to the far corners of the globe to defend
libel suits, say critics of a recent Ontario
Court of Appeal decision.
e majority in Goldhar v. Haaretz
ruled in late June that an Israeli newspaper
that allegedly defamed a Toronto real estate
developer by criticizing his management of
an Israeli soccer team could be sued in On-
tario. "Goldhar suggests that anyone can be
sued anywhere, so long as there is at least
one reader of the alleged libel in the foreign
jurisdiction," says Paul Schabas of Blake,
Cassels & Graydon LLP in Toronto, who
represented Haaretz.
Schabas postulates the case of an Israeli
resident who has bought the Toronto Ma-
ple Leafs and flies to Canada a few times
a year to watch the team play. "e owner
would be a celebrity here even if no one
ever heard of her in Israel, but on the ba-
sis of this judgment, she could sue in Israel,
and the Canadian publishers of the alleged
libel would have no choice but to defend
themselves because any Israeli judgment
would likely be enforceable in Ontario," he
says. "From the point of view of the com-
munications industry, that's tantamount to
interfering with the media, and also repre-
sents a large financial burden, especially on
smaller companies."
But William McDowell of Lenczner
Slaght Royce Smith Griffin LLP, counsel
for plaintiff Michael Goldhar, who bought
the Israeli soccier club Maccabi Tel Aviv
PAUL SCHABAS
>
BLAKE, CASSELS
& GRAYDON LLP
WILLIAM
MCDOWELL
>
LENCZNER SLAGHT
ROYCE SMITH GRIFFIN LLP
ON THE CASE
"THE ARTICLE DRAWS A LINK BETWEEN GOLDHAR'S
MANAGEMENT MODEL AND HIS CANADIAN BUSINESS.
... THE MAIN SUBJECT ... MAY BE THE MANAGEMENT OF AN
ISRAELI SOCCER TEAM, [BUT] THE ARTICLE MAKES GOLDHAR'S
MANAGEMENT ... AN INTEGRAL PART OF THAT SUBJECT."
>
JUSTICE JANET SIMMONS, ONTARIO COURT OF APPEAL
