2005 January
Wiebe v Bouchard, 2005 BCSC 47 Alleged Cyber Libel: Website posting
Non-Internet Defamation Also Alleged: Yes - printed matter
Canadian court has jurisdiction? Yes
Canadian court should decline jurisdiction? No
Summary
The British Columbia Supreme Court ruled that it has jurisdiction to hear a
defamation claim "based on information which was placed on a website by the
Government of Canada and the Minister Responsible for the Status of Women
Canada ...which in turn, was a translation of a report prepared by the
defendant Bouchard [a professor at Laval University, Québec] with the
assistance of the defendants Boily and Proulx ..."
Paper copies of the report were also available in the main library public
library in Victoria, British Columbia.
The Court also concluded that it is the appropriate forum to hear the
plaintiff's action.
The Alleged Defamation
The plaintiff, a British Columbia resident, alleged the Québec academic's
report defamed him in its criticism of the "B.C. Fathers Website," which the
Court discussed as follows [at paras 5 and 6}:
5. In pursuance of her research goals, the defendant Bouchard became
aware of an entire network of "Internet sites dealing with men's and
father's causes". She deposed that this discovery revealed a social
phenomenon "very much unknown to both the Quebec mainstream and the
province's scientific community".
6. As a result of this research, she located the B.C. Father's Website,
and the heading "Why don't we call it femi-Nazism which purported, according
to the defendant Bouchard, to list thirty alleged similarities between
feminism and early Nazism. In addition, the website displayed a swastika
with extra bars to each of the four branches of the swastika which might be
construed as the initials "F". ...
The Court noted that Bouchard's criticism of the" B.C. Father's Website" and
the language used in the course of that criticism is the basis upon which
the plaintiff alleges he has been defamed and his reputation in the Province
of British Columbia damaged.
The individual defendants Boily and Proulx were research assistants who were
involved in the preparation of the Bouchard report.
Bouchard's motion to dismiss on jurisdictional grounds
Bouchard, Boily and Proulx sought an order that the Court does not have
jurisdiction to hear the action, or alternatively, an order that the Court
decline jurisdiction on the basis the British Columbia Supreme Court is not
the forum conveniens.
The defendants Government of Canada and The Minister Responsible for the
Status of Women Canada took no position on the application except to say the
action should not be divided into two parts; one involving a trial in
British Columbia of the government defendants; the other involving a trial
in Québec of the individual defendants.
Jurisdiction simpliciter
The Court considered that it was relevant to the existence of jurisdiction
that "the topics discussed [in the report] were of national, and perhaps
international importance...It was a report prepared for the Status of Women
Canada and the Government of Canada" and that it had been placed on the
Government of Canada website "for the benefit of all Canadians."
As to the place of publication, the Court stated [at para 21] that in the
case before it, "the alleged offending words were published nationwide."
Note: It is unclear from the Reasons for Judgment of this Court what
evidence supported this conclusion. Did the Court assume that simply placing
material on the Website constituted publication? There is no express finding
in the judgment, for example, that anyone in British Columbia or anyone in
each of the other provinces accessed and read the report. The discussion of
the pertinent jurisprudence concerning jurisdiction in matters of cyber
libel is sparse. For example, nothing is said in this judgment about Dow
Jones & Co. v Gutnick
<http://www.austlii.edu.au/au/cases/cth/HCA/2002/56.html> , [2002] H.C.A. 56
or any of the recent British or Canadian decisions which have considered and
applied the proposition that publication occurs in the jurisdiction where
the allegedly defamatory expression is read and comprehended. The only
Canadian Internet decision cited by the Court is Braintech, inc. v Kostiuk
http://www.courts.gov.bc.ca/jdb-txt/ca/99/01/c99-0169.txt , (1999), 171
D.L.R. (4th) 46 (CA), which concerned enforcement of a foreign judgment.
Forum conveniens
The Court noted that British Columbia's common law differs from the law of
Quebec, which is governed by the Quebec Civil Code., referring in this
regard to Prud'homme v Prud'homme
http://www.lexum.umontreal.ca/csc-scc/cgi-bin/disp.pl/en/pub/2002/vol4/html/2002scr4_0663.html?query=%22Prud%22%20AND%20%22Homme%22&langue=en&selection=&database=en/jug&method=all&retour=/csc-scc/cgi-bin/srch.pl?language=en~~method=all~~database=en%2Fjug~~query=Prud%27Homme~~x=10~~y=9 (2002), 221
D.L.R. (4th) 115 (SCC).
In part because Bouchard herself agreed that the subject matter of her
report was of national and international importance, the Court concluded
that British Columbia law should govern and the British Columbia Court was
therefore the appropriate jurisdiction. The Court stated [at para 33]:
...The personal defendants, as well as any other witnesses they wish
to call, are able to come to British Columbia on their own behalf, or at the
behest of the corporate defendants, to testify as to the socio-economic
conditions in the Province of Quebec, and what impact, if any, the article
would have in that community in terms of fair comment. Nevertheless, in my
view, the defence of fair comment must relate to the actions of the personal
defendants at the location where the alleged defamatory material was
published and where it created the harm. In other words, British Columbia.
The court should be addressing the issue as to whether or not the content of
the report, insofar as it contains alleged defamatory language, is such that
the defence of fair comment would be applicable to the offending language in
the Province of British Columbia.
Although the Court does not advert in its Reason for Judgment to Imagis
Technologies v Red Herring et al
http://www.courts.gov.bc.ca/jdb-txt/sc/03/03/2003bcsc0366.htm , 2003 BCSC
366, similar reasoning was employed in Imagis where the Court rejected
defence submissions that a plaintiff should be obliged to sue in a
jurisdiction that has a connection to the cause of action where the law may
be most favourable to the defendants.
See McConchie and Potts, &Canadian Libel and Slander Actions
http://www.irwinlaw.com/books.cfm?pub_id=85&series_id=3 , "Where did the
wrong take place?" - page 156.
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