Ontario Court of Appeal rules that libel suit about sexual harassment allegations ...

Ontario Court of Appeal rules that libel suit about sexual harassment allegations by recent provincial resident against U.S. newspaper and reporters lacks “real and substantial” connection to Ontario required for assumption of jurisdiction
Cheickh Bangoura (plaintiff) sued the Washington Post and three of its reporters Messrs. Branigin, Rupert, and Buckley (defendants) plus the United Nations and Fred Eckhard (later dropped from the case) over two newspaper articles, which he claims are defamatory. When the Post published the articles in January 1997, plaintiff was working for the United Nations in Nairobi, Kenya. The articles had to do with plaintiff’s behavior in a prior position with the U.N. in the Ivory Coast, alleging sexual harassments and similar improper behavior.

Plaintiff was born and raised in Guinea on Africa’s west coast. Between 1987 and 1993, he served with the United Nations in Austria. In September 1993, he was seconded to the United Nations Drug Control Program (UNDCP) in the Ivory Coast as assistant regional director for West Africa, where he remained until December of 1994. The U. N. then transferred him to the UNDCP in Nairobi, Kenya under a contract that was to expire at the end of January 1997. In Kenya, Mr. Bangoura was assistant regional director of the UNDCP regional office for Eastern and Southern Africa.

On Sunday, January 5, 1997, the Washington Post published an article under the headline, “Cloud of Scandal Follows UN Drug Control Official: Boutros‑Ghali Ties Allegedly Gave Protection”. The article refers specifically to plaintiff and alleges that his UN colleagues had accused him of sexual harassment, financial improprieties and nepotism during his tenure in the Ivory Coast. The article suggests that he had evaded punishment in part by invoking close ties to Mr. Boutros‑Ghali, the former UN Secretary General, a close friend of plaintiff’s father‑in‑law. The UN suspended plaintiff from his job as assistant regional director on January 9, 1997.

On Friday, January 10, 1997, the Washington Post published a second article under the headline, “UN Removes African from Drug Agency: Controversial Envoy’s Misconduct Cited”. The second article repeated the previous allegations of misconduct.

In February 1997, plaintiff joined his wife and two children in Montreal, where they had moved in December 1996. He and his family lived in Montreal until June 2000, when they moved to Ontario in the Brampton area. Plaintiff filed this action in April 2003. In his statement of claim, plaintiff asked for the following relief against the Washington Post. First, he wanted the court to order the Post to remove the offending articles from its web site and to publish a retraction.

Moreover, he also sought damages of $5 million for intentional interference with prospective economic advantage and inducing a breach of employment contract. In addition, he wanted damages of $1 million each for intentional infliction of mental anguish, for negligence for its refusal to retract and to promptly remove the damaging statements from its web site. Finally, he demanded $2 million in punitive damages.

William Branigin lived in Washington, D.C. in 1997. He now lives in Reston, Virginia, a Washington suburb. James Rupert was a foreign correspondent for the Washington Post in Abidjan, Ivory Coast. He now lives in the state of New York. Steven Buckley was a foreign correspondent for the Washington Post in Nairobi, Kenya. He now lives in Florida.

WP Company LLC carries on business as The Washington Post. It is a wholly owned subsidiary of The Washington Post Company, which has its head office in the city of Washington. The circulation of the Washington Post on Sunday, January 5, 1997, was about 1,106,968. The Post distributed roughly 95% of its newspapers in the Washington metropolitan area. About 781,704 copies of the Washington Post went out on Friday, January 10, 1997 ‑‑ over 95% in the greater District of Columbia area. In both instances, only 7 copies got to subscribers in Ontario.

The Post also published the two challenged articles on the Washington Post Web site, making them available free of charge for fourteen days following publication. Only one person in Ontario, plaintiff’s counsel, has accessed the articles through the paid archive. The Washington Post has a small office in Toronto for use by a reporter for news-gathering purposes.

At the time of publication, the plaintiff did not live in Ontario. When he filed this action, more than six years after the publication of the articles, plaintiff had been an Ontario resident for about three years.

The newspaper defendants challenged the jurisdiction of the Ontario courts over them. They urged that there is no real and substantial connection between this action and Ontario or between the Post and Ontario. In dismissing the motion, the Superior Court of Justice held that it was appropriate for the Ontario courts to take jurisdiction. The Washington Post and its reporters appealed the order of the motion judge.

The appellate court seems to agree that the motion judge had rightly analyzed the jurisdictional situation under the eight factors spelled out in Muscutt v. Courcelles (2002), 60 O.R. (3d) 20 (C.A.). Nevertheless, it unanimously allows the appeal on the grounds that the judge had misapplied these factors in this case.

The first element is the extent of the link between the forum and plaintiff’s lawsuit. “The connection between Ontario and [plaintiff’s] claim is minimal at best. In fact, there was no connection with Ontario until more than three years after the publication of the articles in question. Even if the connection is significant, however, the case for assuming jurisdiction is proportional to the degree of damage sustained within the jurisdiction. It is difficult to justify assuming jurisdiction against an out‑of‑province defendant unless the plaintiff has suffered significant damage within the jurisdiction.” [¶ 22]

Plaintiff’s affidavit asserting local damage was not helpful to his case. “No details are provided. The distribution of the articles was minimal. Only [plaintiff’s] lawyer accessed the two articles on the Washington Post Internet database. Whatever damages were suffered by [plaintiff’s] losing his job with the UN, more than three years before he took up residence in Ontario, are not damages suffered in Ontario. In my view, there is no evidence that [he] has suffered significant damages within Ontario.” [¶ 23]

On the second factor, the motion judge held that the defendants had no connection to Ontario. He did note “that the Washington Post is a major newspaper which is ‘often spoken of in the same breath as the New York Times and the London Telegraph.’”

In the Court’s view, “there is no significant connection between the Washington Post defendants and Ontario. I cannot agree with the motion judge when he concluded that the appellants ‘should have reasonably foreseen that the story would follow the plaintiff wherever he resided.’ It was not reasonably foreseeable in January 1997 that [plaintiff] would end up as a resident of Ontario three years later. To hold otherwise would mean that a defendant could be sued almost anywhere in the world based upon where a plaintiff may decide to establish his or her residence long after the publication of the defamation.” [¶ 25]

The third factor is the degree of unfairness, if any, to the defendant in assuming jurisdiction. On this the motions judge opined that: “[w]hile the personal defendants have no connection to Ontario, the Post is a newspaper with an international profile, and its writers influence viewpoints throughout the English‑speaking world. I would be surprised if it were not insured for damages for libel or defamation anywhere in the world, and if it is not, then it should be.”[¶ 26] The Court of Appeal disagrees, however, pointing to the complete lack of record evidence about the Post’s insurance coverage.

Element 4 inquires whether there would be any unfairness to the plaintiff in not assuming jurisdiction. “Although unfairness to the plaintiff in not assuming jurisdiction might often be a powerful factor within a Muscutt analysis, it must be remembered that the plaintiff had no connection with Ontario until more than three years after the publication of the articles in question. ... If the plaintiff’s evidence does not support such a [real and substantial] connection elsewhere within the Muscutt analysis, it becomes increasingly difficult to accord weight to this factor.” [¶ 29]

The fifth factor looks at the involvement of other parties in the suit. “The motion judge stated ... that ‘the involvement of other defendants residing respectively in New York and Florida is a factor, in my view, in favour of the plaintiff’s choice of forum.’ In my view, [however], the fact that two of the personal defendants now live in New York and Florida does not favour Ontario. This factor relates more to a forum conveniens argument than to the assumption of jurisdiction. In any event, the main defendant, the Washington Post, is located in Washington, D.C., and the remaining personal defendant, William Branigin, resides in nearby Virginia.” [¶¶ 30-31]

The forum court’s willingness to recognize and enforce an extra‑provincial judgment rendered on the same jurisdictional basis constitutes element number 6. On this, the Court declares that, “it must be remembered that on the evidence presented before the motion judge, the articles did not reach significantly into Ontario. As I have mentioned, [plaintiff’s] lawyer was the only person in Ontario to access the two articles on the Washington Post Internet database. ... [Taking this element too far] could lead to Ontario publishers and broadcasters being sued anywhere in the world with the prospect that the Ontario courts would be obliged to enforce foreign judgments obtained against them.” [¶ 34]
Finally, the Courts should inquire the extent to which comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere support Ontario jurisdiction. “In considering this factor, the motion judge referred to New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964), a judgment of the United States Supreme Court, and Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, a judgment of the Supreme Court of Canada. In New York Times v. Sullivan, the United States Supreme Court held that public officials could only succeed in a defamation claim where they could establish that the defamatory statement was made ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ In Hill v. Scientology, the Supreme Court of Canada refused to adopt the so‑called actual malice rule in New York Times v. Sullivan.”

“Courts in the District of Columbia and in other American jurisdictions have uniformly held that libel judgments rendered in foreign courts where the law does not comport with the principle set forth in New York Times Co. v. Sullivan and its progeny are repugnant to the public policy of those jurisdictions and must therefore be denied recognition.” [¶¶ 36-37]

The court below chalked this up to a lamentable lack of comity. The Court of Appeal disagrees. “The motion judge’s conclusion does not take into account that the rule in New York Times v. Sullivan is rooted in the guarantees of freedom of speech and of the press under the First Amendment of the U. S. Constitution. In any event, the reality is that American courts will not enforce foreign libel judgments that are based on the application of legal principles that are contrary to the actual malice rule.”

“Although the Supreme Court of Canada has rejected the rule for perfectly valid reasons, it is, in my view, not correct to say that the American courts’ unwillingness to enforce a Canadian libel judgment is ‘an unfortunate expression of lack of comity’. Canada and the U.S. have simply taken different approaches to a complex area of the law, based upon different policy considerations related to freedom of speech and the protection of individual reputations. The Supreme Court of Canada has recognized that Canadian courts may refuse to enforce a judgment of a foreign court which is deemed to be contrary to the Canadian concept of justice.” [¶¶ 39-40].

“As a result of the above analysis, I conclude that the motion judge erred in his application of the Muscutt factors. This leads me to conclude further that there is simply no real and substantial connection between this action and Ontario and that it is not appropriate for the courts of Ontario to assume jurisdiction.” [¶ 46]

Citation: Bangoura v. Washington Post, C41379, 2005 WL 2254668 (Ont. C.A.) 2005, Carswell Ont. 4343 (Sept. 16).

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