Archive for the ‘Banro Corporation v. Les Éditions Écosociété Inc.’ Category

The Supreme Court of Canada Conflict of Laws Trilogy: Part II

April 23, 2012

This is the second of a two-part series of posts on the recent Canadian conflict of laws trilogy in Club Resorts Ltd. v. Van Breda, 2012 SCC  17 (“Van Breda”); Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18 (“Banro”) and Breeden v. Black, 2012 SCC 19. (“Black”).

In Part II,  I discuss the implications of the Banro and Black decisions from the perspective of internet defamation, choice of law and forum shopping/libel tourism. (more…)

Supreme Court of Canada Further Modifies Jurisdictional Test in Tort Actions

April 18, 2012

As I recently noted, the Supreme Court of Canada has released its judgments in an important conflict of laws trilogy. Here are the links to today’s SCC judgments:

1.  Club Resorts Ltd. v. Van Breda, 2012 SCC  17

2. Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18

3. Breeden v. Black, 2012 SCC 19

 The bottom-line is that the Van Breda test has been further modified as follows:

[90]                          To recap, in a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:

(a)      the defendant is domiciled or resident in the province;

(b)      the defendant carries on business in the province;

(c)      the tort was committed in the province; and

(d)      a contract connected with the dispute was made in the province.

(b)  Identifying New Presumptive Connecting Factors

[91]                          As I mentioned above, the list of presumptive connecting factors is not closed.  Over time, courts may identify new factors which also presumptively entitle a court to assume jurisdiction.  In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the listed factors.  Relevant considerations include:

(a)      Similarity of the connecting factor with the recognized presumptive connecting factors;

(b)      Treatment of the connecting factor in the case law;

(c)      Treatment of the connecting factor in statute law; and

(d)      Treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity.

 [100]                     To recap, to meet the common law real and substantial connection test, the party arguing that the court should assume jurisdiction has the burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum.  In these reasons, I have listed some presumptive connecting factors for tort claims.  This list is not exhaustive, however, and courts may, over time, identify additional presumptive factors.  The presumption of jurisdiction that arises where a recognized presumptive connecting factor — whether listed or new — exists is not irrebuttable.  The burden of rebutting it rests on the party challenging the assumption of jurisdiction.  If the court concludes that it lacks jurisdiction because none of the presumptive connecting factors exist or because the presumption of jurisdiction that flows from one of those factors has been rebutted, it must dismiss or stay the action, subject to the possible application of the forum of necessity doctrine, which I need not address in these reasons.  If jurisdiction is established, the claim may proceed, subject to the court’s discretion to stay the proceedings on the basis of the doctrine of forum non conveniens.

With respect to the “New” Van Breda test as applied to defamation actions, in Breeden c. Black, the Supreme Court reaffirmed the presumptive factor of the republication of the alleged libel in Ontario:

[20]                          The issue of the assumption of jurisdiction is easily resolved in this case based on a presumptive connecting factor — the alleged commission of the tort of defamation in Ontario.  It is well established in Canadian law that the tort of defamation occurs upon publication of a defamatory statement to a third party.  In this case, publication occurred when the impugned statements were read, downloaded and republished in Ontario by three newspapers.  It is also well established that every repetition or republication of a defamatory statement constitutes a new publication.  The original author of the statement may be held liable for the republication where it was authorized by the author or where the republication is the natural and probable result of the original publication (R. E. Brown,The Law of Defamation in Canada (1987), vol. 1, at pp. 253-54).  In my view, the republication in the three newspapers of statements contained in press releases issued by the appellants clearly falls within the scope of this rule.  In the circumstances, the appellants have not displaced the presumption of jurisdiction that results from this connecting factor.

Finally, in  Éditions Écosociété Inc. v. Banro Corp., the Supreme Court while declining to decide the issue, suggests that “one possible alternative to the lex loci delicti as the choice of law rule in defamation cases may be the place of most substantial harm to reputation.”  Whether applying the lex loci delicti rule or the locus of the most substantial harm to reputation  the applicable law was that of Ontario and this factor favoured Ontario in the forum non conveniens analysis, as did the factor of juridical advantage.

I intend to provide more detailed analysis of these significant Supreme Court of Canada private international law decisions, time permitting this week.

Supreme Court of Canada To Render Judgments in Conflict of Laws Trilogy on April 18, 2012

April 13, 2012

According to a press release today, the Supreme Court of Canada will be rendering  judgments in the long-awaited trilogy of conflict of laws cases dealing with jurisdiction on 9:45  A.M.  EDT  ON  WEDNESDAY,  APRIL  18,  2012. Here are the links to the SCC case summaries:

March 21st: Club Resorts Ltd. v. Anna Charron, Estate Trustee of the Estate of Claude Charron, deceased, the said Anna Charron, personally, et al. (Ontario) (Civil) (By Leave) 33606 and Club Resorts Ltd. v. Morgan Van Breda, et al. (Ontario) (Civil) (By Leave) 33692.

March 22, 2011: Richard C. Breeden, et al. v. Conrad Black, et al. (Ontario) (Civil) (By Leave) 33900

March 25, 2011: Les éditions Écosociété Inc., et al. v. Banro Corporation (Civil by Leave) 33819

Here is the SCC press release:



FROM:  SUPREME  COURT  OF  CANADA  (613) 995-4330



SOURCE:  COUR  SUPRÊME  DU  CANADA  (613) 995-4330

Club Resorts Ltd. v. Anna Charron, Estate Trustee of the Estate of Claude Charron, deceased, the said Anna Charron, personally et al. (Ont.) (33606)

Club Resorts Ltd. v. Morgan Van Breda et al. (Ont.) (33692)

Richard C. Breeden et al. v. Conrad Black et al. (Ont.) (33900)

Les éditions Écosociété Inc. et al. v. Banro Corporation (Ont.) (33819)

Comments / Commentaires :

Note for subscribers:

The summaries of the cases are available at

Click on Cases and on SCC Case Information, type in the Case Number and press Search.  Click on the Case Number on the Search Results screen, and when the docket screen appears, click on “Summary” which will appear in the left column

Alternatively, click on

Stay tuned for my blog post analysis after the judgments are posted.

Related Posts:

FURTHER UPDATED: Lord Black’s libel claim settled, SCC’s reserved decision now moot

June 24, 2011
Mug shot of Conrad Black.

Image via Wikipedia

As Conrad Black (a.k.a. Lord Black of Crossharbour) awaits the outcome  today of his resentencing hearing before U.S. Federal Court judge Amy St. Eve, who presided over Black’s original trial in 2007, another interesting development merits consideration.

According to various news sources, including The Canadian Press (via CTV News) :

Disgraced media mogul Conrad Black, who has seen his fortune nearly wiped out in his ongoing legal saga, will receive a handsome settlement for a series of libel suits.

His lawyer, David Jenkins said Thursday — the eve of his re-entering hearing — that Black has settled some libel-related lawsuits against his former associates at Hollinger International Inc. and the man who wrote the report that helped send him to jail.

“Hollinger International’s successor company, Sun Times Media Group, attached a substantial value to the libel action in the settlement figure that will be paid to Mr. Black,” Jenkins said in a statement.

Details of the settlement are not being disclosed until the settlements are granted approval in Delaware and Illinois.

Readers may recall Black’s libel action was the subject of a jurisdiction motion that ended up in the Ontario Court of Appeal:  Black v. Breeden, 2010 ONCA 547 and was discussed in my previous posts here and here. More recently, the Supreme Court of Canada granted leave and the appeal was argued on March 21, 2011: Richard C. Breeden, et al. v. Conrad Black, et al. (Ontario) (Civil) (By Leave) 33900 with the Court’s decision currently under reserve.

Given that the litigation has now settled (pending formal approval), the Supreme Court of Canada’s much anticipated decision is now moot. It is likely that Black’s counsel will soon file a Discontinuance under Rule 93 of the Rules of the Supreme Court of Canada, SOR/2002-156 as amended by SOR/2006-203, SOR/2011-74. All is not lost, however, as the  Supreme Court of Canada has also heard arguments on March 25, 2011 and reserved its decision in Les éditions Écosociété Inc., et al. v. Banro Corporation (Civil by Leave) 33819, which provides a welcome opportunity for the Court to clarify the law of jurisdiction in internet defamation or cyberlibel cases.

Stay tuned.


“U.S. Judge Amy St. Eve sentenced Black to 3 1/2 years in prison, but prosecutors say he will be given credit for the about two years he already had served. The resentencing came after an appeals court decision last year.” via Business Week: Read more

“Having already spent 29 months in jail, and with additional credit for good behaviour, Black is now expected to spend between eight and 13 more months behind bars. He can appeal the ruling, but it was unclear Friday whether he would.” via Winnipeg Free Press: Read More

According to the SCC Case Information Docket (and as I predicted):

Date Proceeding Filed By
(if applicable)
2011-06-22 Correspondence received from, Mr. Cherniak re: settlement underway, with cc. to all parties (sent to the Court June 23/11) Conrad Black

The National Post reports today on a dispute over the opposing characterizations of the terms of the pending out-of-court civil settlements (not yet memorialized) reached between Conrad Black and Chicago Newspaper Liquidation Corp (CNCL), the company formerly known as Hollinger and Sun-Media Inc.:

“Under the tentative settlement, neither Chicago Newspaper Liquidation Corp, nor the defendants in the defamation actions are paying anything to Mr. Black,” a New York-based lawyer who asked not to be named told the National Post.

According to the preliminary deals, Lord Black will receive money “from insurance proceeds that have been in dispute, as will the company,” the source explained. “Mr. Black will be dismissing and releasing all of his claims in his defamation actions, and neither the company nor the people he sued for defamation are paying him a penny.”

And apparently, there will be no apologies or regrets by anyone.

Not so, says the former media baron. During his 25-minute speech to Chicago Judge Amy St. Eve during his resentencing on June 24, Lord Black declared, “My libel suit, and several other lawsuits around this case, are being settled, including a sizeable payment to me on the libel claim.”

Hope Springs Eternal: SCC to hear 3 Conflict of Laws Appeals

January 13, 2011

Hope springs eternal in the human breast;
Man never Is, but always To be blest:
The soul, uneasy and confin’d from home,
Rests and expatiates in a life to come.

-Alexander Pope,
An Essay on Man, Epistle I, 1733

This is an update to my earlier post: Ontario court has jurisdiction over internet defamation action, discussing the Court of Appeal for Ontario decision on assumed jurisdiction over an internet defamation action:  Banro Corporation v. Les Éditions Écosociété Inc., 2010 ONCA 416 (per Weiler, Blair and Rouleau JJ.A)  affirming Banro Corporation v. Éditions Écosociété Inc., 2009 CanLII 7168 (ON S.C.) (per Roberts, J.).

The Supreme Court of Canada  today granted leave in the Banro case. Here is the SCC news release:

Les éditions Écosociété Inc. et al. v. Banro Corporation (Ont.) (Civil) (By Leave) (33819)

(The motion to expedite the application for leave to appeal is granted.  The application for leave to appeal is granted with costs in the cause.  The appeal is to be heard on March 25, 2011, and the schedule for serving and filing the material and any application for leave to intervene shall be set by the Registrar. /

La requête visant à accélérer la procédure de demande d’autorisation d’appel est accordée.  La demande d’autorisation d’appel est accordée avec dépens suivant l’issue de la cause.  L’appel sera entendu le 25 mars 2011, et l’échéancier pour la signification et le dépôt des documents et pour toute requête en intervention sera fixé par le registraire.)

Coram : McLachlin / Abella / Cromwell

As spring arrives on the vernal equinox, there is hope eternal that The Court will put the jurisdictional planets back into alignment. No less than three separate conflict of laws cases will be argued in the week of March 21st, 2011:

March 21st: Club Resorts Ltd. v. Anna Charron, Estate Trustee of the Estate of Claude Charron, deceased, the said Anna Charron, personally, et al. (Ontario) (Civil) (By Leave) 33606 and Club Resorts Ltd. v. Morgan Van Breda, et al. (Ontario) (Civil) (By Leave) 33692.

March 22, 2011: Richard C. Breeden, et al. v. Conrad Black, et al. (Ontario) (Civil) (By Leave) 33900

March 25, 2011: Les éditions Écosociété Inc., et al. v. Banro Corporation (Civil by Leave) 33819

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