10 | LEXPERT • December 2017 | www.lexpert.ca/usguide-litigation/
bring everyone to Toronto," he explains. "Interpreters are going
to be necessary and an enormous expense, 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 dissent articulated by
Justice Sarah Pepall to the majority opinion written by Justice
Janet Simmons and concurred in by Justice Eleanore Cronk.
"Pepall's dissent demonstrates that there's a real danger in taking
jurisdiction when we shouldn't," the lawyer says. "If Canadian
courts were to refuse jurisdiction, our press would be less exposed
to other countries taking jurisdiction in cases involving them."
Haaretz has a print circulation of 70,000 in Israel. But because
the evidence established that up to 300 Canadians read the
impugned article online and that many of Goldhar's 200 employ-
ees 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 litigation
and Ontario.
But the majority concluded that the action did indeed have
a "significant connection" to Ontario. "What is important is
that the alleged sting of the article is very much related to how
Goldhar conducts business in Canada because the article draws
CROSS-BORDER SIGNIFICANCE
Paul Schabas
Blake, Cassels & Graydon LLP
"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. … [But
the dissent shows]
there's a real danger
in taking jurisdiction
when we shouldn't."
1.
Goldhar v. Haaretz.com
e Ontario Court of Appeal's split decision in Goldhar v.
Haaretz.com, 2016 ONCA 515, may have made it easier for
foreign plaintiffs, including those in the US, to sue Canadian
publishers, broadcasters and authors outside of Canada. A
majority of the three-judge panel in the case ruled 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 Ontario.
"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, a partner in Blake, Cassels &
Graydon LLP in Toronto, who represented Haaretz.
Schabas postulates the case of an Israeli resident who owns the
Toronto Maple Leafs National Hockey League franchise 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 basis 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
communications industry, that's tantamount to interfering with
the media, and also represents a large financial burden, especially
on smaller companies."
But William McDowell, a partner at Toronto litigation
boutique Lenczner Slaght Royce Smith Griffin LLP and counsel
for plaintiff Mitchell Goldhar, who owns one of Israel's most
popular soccer clubs, Maccabi Tel Aviv F.C., doesn't see things
that way. "ere's always a burden on the plaintiff to demon-
strate 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 Canada. "e evidence is that there are 19 witnesses
from Israel to be called by the defendant, and suddenly we have to
