Bangoura v Washington Post & Others
Court: Ontario Court of Appeal
Judge: McMurtry CJO, Armstrong & Lang JJA
Date of judgment: 16 Sep 2005
Summary: Libel - Internet - Jurisdiction - Forum - Publication - Damage
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The Claimant brought libel proceedings over two articles that had appeared in the Washington Post in January 1997. At the time of publication the Claimant was not resident in Ontario. He subsequently moved to Canada in 2000 and started the proceedings in 2003. The Washington Post only had 7 subscribers to the print edition of the newspaper living in Ontario although articles from the newspaper were also posted on line. At first instance, Pitt J found that the Ontario court did have jurisdiction to hear the case and was the appropriate forum. The newspaper appealed.
Whether the Ontario Court should assume jurisdiction for the case.
Reversing the first instance decision, declining jurisdiction and staying the claim, (1) the Plaintiff did not have a real and substantial connection with Ontario; his connection was “minimal at best” and he had had no connection with the province at all until 3 years after publication; (2) the Washington Post had no connection with Ontario; (3) the refusal by the US Courts to recognise Canadian libel judgments that did not conform with New York Times v Sullivan was not offensive to the notion of comity; (4) the case was different from the Australian High Court decision in Gutnick because in that case the Claimant had a real and substantial connection to Victoria where there had been substantial publication.
The first instance decision was greeted by the international media with dismay and prompted submissions by a 52-strong media coalition at the appeal. On the facts, publication was extremely limited and the Claimant had little to connect him with Ontario (and nothing at the relevant date of publication). Although the reversal of the first instance decision will be a relief to the international (and particularly Internet-based) media community, the Court of Appeal refused to accept any of the broad principles urged on them by the media coalition. The decision is unlikely to have any significant impact in the UK. Applying the decisions of King v Lewis and Jameel v Dow Jones, an English Court would probably have reached the same conclusion as the Ontario Court of Appeal.