Must still distinguish btwn R&S test from discretionary forum non conveniens doctrine

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  Relevant factors include:
  

2. Connection btwn forum and Df (occurs where reasonably foreseeable that Df’s actions would have result in harm or where Df has done something w/in jur’n that bears upon Pl’s claim)

3. Unfairness to Df in assuming jur’n

4. Unfairness to Pl in not assuming jur’n

5. Involvement of other parties to suit (incl avoiding multiplicity of proceedings and risk of inconsistent results)

6. Court’s willingness to recognize and enforce extra-prov judgment rendered on same jur’nal basis

7. Nature of case (interprovincial or intl) – bc assumption of jur’n easier to identify in interprovincial cases

8. Comity and standards of jur’n, recognition and enforcement prevailing elsewhere.

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  Here, factors favour assumption of jur’n against out-of-prov Defendants.
  
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  As for step 2. FNC discretion, Ont should not decline jur’n as factors taken into account (location of parties, location of key witnesses and evidence, and applicable law) don’t create clearly better place.
  

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  Motion by Df Washington Post for order staying action and setting aside service of claim.
  
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  Post claims Ont has no jur’n as there was no R&S connection btwn action or the Post and Ontario. Claims Ont is not the most convenient forum and most witnesses outside of Ont.
  
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  Pl Bangoura sought order requiring Post to cease and desist from publishing false communications re: B on website
  
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  B also sought damages for intentional infliction of mental anguish, etc.
  
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  B resident of Can for 2 yrs. Articles in Post website refer to his work for UN in Kenya in ’97 and still on site.
  

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  Df did not prove there was clearly more appropriate forum.
  
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  Problems would exist if action tried in Ont or in DC or anywhere for that matter since not all parties in either jur’n
  
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  Publication in DC but reputation affected in Ont – so either appropriate forum
  
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  Service properly effected respecting Ont Civil Procedure since damage arising from tort sustained in Ont.
  

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  Qn if Ont courts have jurn and its appropriateness
  
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  So far as jur’n is concerend in defamation action we know that rules of tort in Ont in addition to giving jur’n if tort occurs in Ont, or if damage is suffered in Ont arising out of a tort wherever it may have been committed.
  
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  Case law that says that for purpose of jurn in case of defamantion: as long as there is defamation in prov the tort is committed in prov and therefore serves ex juris is satisfied.
  
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  So far as dfamage is suffered in Ont, the damage here is reputation. As long as one has reputation in jurn that satisfy requmt that damage be suffered w/in jurn.
  
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  This is to decide whether there is pressumption that courts will exercise jurn here.
  
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  In Ont you have 2 heads of claim: tort in Ont (publication in Ont) and damage in Ont (loss of reputation in Ont)
  
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  However there has to be real and substnatial connection shown…ie not only satisfying these general headings.
  
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  Then go on to apply Courcelle case criteria
  
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  Ultimately, yes Ont court has jurn bc this is where Pl resides. Even if publication is not widespread in Ont, it is enough that there is loss of reputation in Ont. Plus Washington Post is widely read around the world with global reputaiton. Not disputed that there is publication in Ont just that it’s not widespread but though this standing is not enough, there still is loss of reputation in Ont and this is enough.
  
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  So this is jurn. Not choice of law.
  

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  Judge decides not to answer question of choice of law.
  
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  We need to look at lex loci delicti rule (so place of publication) as appropriate rule to look at. This would be DC
  
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  Or we look at place of residence
  
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  This is underdeveloped analysis that doesn’t even look at Australian dcisions that case looks at. These cases say that we have 4 possibilities.
  

2) Place of residence or principal establishment. Less the publication that’s at issue andm ore the harm so must take into account idea that harm is to reputaiton and what you’re seeking in defamation is not damages in $$ sense but vindication. This may be more appropriate choice of law rule for cases of defamation.

2 problems: What if place of residence is not place of defamation. Can we really apply law of home state of victim is case where no publication has occurred there. This may depend on nature of publication. If coming out of multi-natl type of publisher it does not matter that tehre is no publication in that particualr location. So focus is whehter impact is felt on place of residence. So now need multi jur’nal publisher if going to apply residence and not place of publication. If you don’t have this, go back to lex loci delicti (place of publication). So now depend on to what extend you have reputation in that place as opposed to your place of residence.

3) Multi-national reputation: wanna claim damage for reputation being lost in a number of fora. Then can have each publication give rise to separate tort, so different law depending on where each publication is located. Suing in one place for defamation that has occurred in a number of different states and want that court to take into account ALL place where defamation occurred (can show damage of reputation if publication occurred in diff places even if not resident in all). Problem since its appropriate to treat place of residence as appropriate choice of law but if you go to secondary place of is it appropriate for Df to be exposed to defamation under laws of all these different places? If go to separte tort publisher cant place themselve in place where there is no defamation liability. On other hand, entitlted to protection of law of place of publication to extend that it will protect them. Qn of assessing civil liability as publisher. Law of civil liability will be determined in place where publication takes place. So instead of taking place of publication or taking place of residence: gotta show loss of reputation and loss of reputaiton intlly so that there are several applicable, separate torts with separate applicable choice of law rules. As practical matter this is being handled so that litigants are claiming loss of reputation for only one jurn and for damages suffered only in that jurn so only one choice of law.and that gets most defamation victims what they need so they get what they need: vindication. In order to avoid difficult choice of law issue you do this…allyou really need is to find civil liability under one system so if in your place of residence then you’re set and don’t need to go through trouble of choice of law and demonstrating losses under all diff systems.

4) No publication in place of residence, but somewhere else, but there is harm felt in place of residence then here again you apply laws of place of residence. How well does this square up. CCQ 3126 says that in extra-contractual civil liability its governed by laws of place injurious act occurred, unless person who makes damages could have reasonably foreseen that injury would occur there. So if place of publication and of residence are diff but can show that it showed harm in place of residence, then second sentence of 3126 works since there was foreseeability.

Same with lex loci delicti, it is laws of place where damage was felt (LaForest in some case)

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  Parallel proceedings: in discussion of Air Canada mock case, what if different Pl want to sue in diff places and you have 2 actions by 2 diff plaintiffs w/ same facts. How would the Ont and Qc courts deal? For the Ont court it would be factor in FNC analysis that there is proceeding going on in Qc w/ other Qc plaintiffs and if Ont refuses jurn that would result in consolidation in Qc. So far as Qc is concerned, Qc has diff approach. It treats it separately than FNC. But 3137 deals w/ this if there are same parties, so not applicable here since parties are not the same. Qc wouldn’t do same as Ont an thus would not apply FNC.
  

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  3137 applies if Pl suing Df in Ont and then Df suing P in Qc with same dispute and same facts. Here there is difference in Qc and Ont apporaches. Qc in 3137 says that Qc authority may stay its ruling if it can be shown that other decision could be recognized and enforced in Qc. This discretion is more routine and not dealt w/ as exception as it is in 3135(I think).
  
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  Ont case faced with action in Qc would treat it under FNC analysis.
  
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  In CML courts can claim in-suit injunction where Pl applies to other crt to order Ont Df to withdraw it’s Qc suit. No lis alibi pendans but can deal w/ it by having injunction to order party to withdraw its case in the other court.
  
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  Rule in Ont says (Bangoura ¶26) that burden is on Pl to show forum is appropriate if Df questions it. But SCC does not agree: if there is foreign element the question is if another jurn is more appropriate and test if there is more convenient place: clearly more appropriate test. Nonetheless that Pl has burdened, in practice the assessmenet of relevant factors is the make it or break it. So result wil be the same. In Qc the burden is wholly on Df. Ont lower courts decision is not consistent with normal rules. Bc if Pl established jurn it shouldn’t have to go on to also proof that it’s best jurn. Some of burden should fall on Df if Df is challenging jurn
  
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  Spar test shows that only way of displacing jurn once taken is if you show there’s other better place and it’s Df who has to do this.
  

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  Qns: in Worthington, would decision be same if it was Ont and Qc would have to give full faith and credit? Full faith and credit based on diff constitutional issues. To answer this look at Hunt which christalized the whole full faith and creidt issue. Tort est’d in BC and BC courts had jurn. Qc Dfs ordered to produce certain business records but there was Qc Act that said you cant be bound to produce business records if est’d in Qc. Df says cant show docs bc then they’d be breaking Qc rule. SCC had 2 theories on which to shot down Qc legislation to prevent disclosure of evidence. Couldve siad it was unconstitutional bc it undermined civil rights in another province. But instead went full faith and credit route. Bc of FF&C cant pass legislation to prevent judgment of other province to be followed. FF&C gives positive obligation to produce docs.
  
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  Worthington diff bc it says Qc laws were consitutional since they only touch civil rights in Qc and not civil rights elsewhere.
  
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  What worthington doesn’t address is that diff in interprovincial context was that we are dealing with another constitutional doctrine: the one that poses positive obligation to give full faith and credit on sister province’s judgment. Didn’t have to bc it was intl jurn question. No obligationto give full faith and credit to foreign judgmt.
  
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  Worthington that its not in opwer of QC to pass such priovisions bc It affects civil rights in Qc only. What it doesn’t decide is whether full faith and credit can have exceptions. Perhaps can aruge that matter of provincial soverignty can carve out exceptions to full faith and credit.
  

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  Domicile or residence of DF is always basis of jurn (3138, 3148) in cases of patrimonial nature. Domicile defined as ordinary or habitual residence which oimplies intention to make Qc your principal home. Supported by principle of moral persons..it’s single place. Under 3148 don’t need to go all the way that saying Qc is habitual residence, only ordinary residence which includes a second home. This is to exclude transient presence.
  
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  In context of 3134 there is only one place of domicile Since 3148 says both domicile and residence, tehre’s implication that domicile may be only in one place while residence may be multiple.
  
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  For CML Beals majority says presence is part of what goes into R&S connection, but no definitibe case that says presence isnt enough. (yet)
  

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  LeBel suggesting more restrictive test for intl cases while Sharpe says more relaxed test for interprovincial.
  
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  Problem 2 and how Ont court assuming it exercised jurn we’d have Ont judgment: would it be recongnized in Qc? Ont damages and Qc fault. Would Qc court recognize Ont judgment. CCQ would sya no bc of 3168 that has more demanding test for recognition of foreign courts than it has for itself in 3148. So it would not recognize default judgment bc Qc requires fault and damage in foreign jurn. BUT there’s full faith and credit. Does this mean 3168 too demanding in that it demands more than constitutional test would require so then interprovincially it would go against constitutional imperative. So interprovincially it would have to be looked at criticaly and would not apply. Except in cases where public policy argument applies (ie Worthington hypothetical above).
  
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  Maybe provinces shhould not take jurn unless both fault and damage in their jurn if Qc is other place ohterwise their decision might end up as constitutional crisis :p
  

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