The Supreme Court's Conflicting Reasons On Conflicts Of Law

The Law Times recently asked me about the Supreme Court's decision in Haaretz.com v. Goldhar, 2018 SCC 28 ("Goldhar"), and specifically, for the takeaway on convenient forums, in light of the Supreme Court's earlier decision in Club Resorts Ltd. v. Van Breda, 2012 SCC 17 ("Van Breda").

While it is possible to ferret out a takeaway, the decision involves five different judgments, with six judges concurring in the result, but for a variety of different reasons. It appears to be a departure from the former Chief Justice's approach, which was reportedly to seek unanimous decisions, and discourage concurring reasons (which she viewed as an unnecessary, confusing indulgence).1

Background: In 2011, Mitchell Goldhar commenced a claim for libel in connection with an article that was written about him by an Israeli newspaper, in English and Hebrew, and published in print and online. Mitchell Goldhar is a prominent Canadian businessman who owns and operates a number of SmartCentres in Ontario, as well as the Maccabi Tel Aviv Football Club in Israel. Mr. Goldhar maintains a residence in Israel and travels there every few months, and was described as something of a celebrity there.

The allegedly libelous article suggested that Mr. Goldhar's management style might doom the soccer club, and that this management style, which was imported from his Ontario businesses, involved "overconcentration bordering on megalomania, penny-pinching and a lack of long-term planning". The motion judge found it likely that 200 to 300 people in Canada read the article (including most of Mr. Goldhar's employees), while approximately 70,000 people read the article in Israel.

The Decision in Goldhar: The two questions the Court deal with in Goldhar were: (1) whether the Ontario court could exercise jurisdiction over the claim (whether there was a presumptive connecting factor pointing to a real and substantial connection between the dispute and the jurisdiction); and (2) whether it should (meaning, should it decline to exercise its jurisdiction, in favour of Israel, as a clearly more appropriate forum).

The majority of the Supreme Court found that the Ontario court did have jurisdiction to hear the dispute, based on a presumptive connecting factor (the tort was committed in Ontario, because the article was read or downloaded in Ontario) but that it should decline to exercise its jurisdiction, as Israel was a clearly more appropriate forum.

In Van Breda, the Court listed four...