Burke v. NYP Holdings, Inc.,


2005 BCSC 1287

Date: 20050916
Docket: S051996
Registry: Vancouver


Brian Burke



NYP Holdings, Inc., doing business as the
New York Post, and Larry Brooks


Before: The Honourable Mr. Justice Burnyeat

Reasons for Judgment
(From Chambers)

Counsel for the Plaintiff

P.A. Gall, Q.C.
& H.D. Edinger


Counsel for the Defendants

D. F. Sutherland
& T.W. Brine


Date and Place of Hearing:

August 17, 2005


Vancouver, B.C.

[1]                Pursuant to Rule 14(6) and (6.1) of the Rules of Court, the Defendant, NYP Holdings, Inc., doing business as the New York Post (“Post”) applies for an order that the pleadings be struck out on the ground that the pleadings do not allege facts that, if true, would establish that the Supreme Court of British Columbia has jurisdiction over the Defendants, a stay of proceedings on the ground that the pleadings do not allege facts that, if true, would establish that the Supreme Court of British Columbia has jurisdiction over the Defendants in respect of the claims made, and for a stay of proceedings on the ground that the Court ought to decline to exercise jurisdiction over the Defendants in respect of the claims made.


[2]                Larry Brooks is a columnist with the Post.  Mr. Brooks wrote a Column that appeared in the February 27, 2005 edition of the Post (“Column”).  The Column related to the alleged activities of Mr. Burke relating to an incident that occurred in Vancouver at a hockey game between the Vancouver Canucks and the Colorado Avalanche as well as the anticipated testimony of Mr. Burke at a trial in an action commenced in Colorado relating to the incident.  On May 17, 2005, Mr. Burke commenced this Action claiming damages for defamation arising from the Column.  The alleged defamation arises from the suggestion that Mr. Burke “personally challenged” the Vancouver Canucks to “get” Steve Moore between the periods of a March 8, 2004 game and that Mr. Burke was a participant “... in the plot to retaliate against [Mr.] Moore....”

[3]                At the time the Column was published, the circulation of the Post was 431,003 copies.  The Post states that the majority of the circulation was delivered to subscribers or to newsstands in the greater New York City Metropolitan area.  The Post states that less than 250 copies of the newspaper are delivered to subscribers or newsstands in Canada and only in Ontario and Quebec and not in British Columbia.  The Post states that it has not previously delivered its newspapers into British Columbia and has no plans to deliver copies into British Columbia in the future.

[4]                The Column of Mr. Brooks along with some of the other pages of the February 27, 2005 edition of the Post appeared on a website maintained by the Post.  From the home page on the website, a visitor can access various articles in the online version of the newspaper by clicking on links to specific articles.  On February 27, 2005, there were 2,200,000 “page hits” arising when a page of the posted content of the February 27, 2005 issue of the Post was accessed by a browser on the Internet.  On February 27, 2005, there were 3,360 page hits on the website page containing the Column.    On February 28, 2005, the Column remained accessible on the website and there were 523 hits on the page containing the Column.  There were no hits on the page containing the Column during the period March 1, 2005 through March 5, 2005 after which the February 27, 2005 edition of the Post could no longer be accessed through the website.  The Post states it has no method to determine the geographic origin of the hits or the geographic location of any of the individuals directing their browsers to access the website. 

[5]                In support of the application of the Post, Colin Myler, Executive Editor, of the Post states:

[The Post] … does not maintain offices or agents for service of process in British Columbia, Canada.

[The Post] … derives little, if any, income from persons or entities in British Columbia. 

Advertising in the Post is targeted at readers in the New York metropolitan area.  To my knowledge, the advertising community considers the Post’s website to be a regional or local site.  There are no advertisers based in British Columbia that place advertisements in the Post.

[The Post] … rarely, if ever, sends reporters to British Columbia to cover news events and rarely uses articles from newspapers published in British Columbia....

Requiring [The Post] to litigate this case in British Columbia would be a considerable burden on … [The Post] … and a serious disruption of [our] … business.  A trial in British Columbia would require that critical [Post] … employees travel to British Columbia for depositions, conferences and trial, requiring these persons to leave their editorial and other duties for legal proceedings in British Columbia.

Employees of [The Post] … that are critical witnesses in this case include the following: (1) Joseph Gilkey, who can testify that no printed copies of the Post were distributed in British Columbia; (2) Vin Montori, Vice President of Marketing and Promotions for the Post, who can testify as to the limited number of hits on the Post’s website on the page containing the column at issue in this case (the “Column”); (3) Larry Brooks, the author of the Column, who can testify as to his research and writing of the allegedly defamatory statements contained in the Column; and (4) any editor(s) on duty at the Post’s office in New York who reviewed the Column. …

[6]                A copy of the web pages from the Post’s “online edition’s online media kit” which sets out the statistics concerning the online readership is in evidence.  That web page contains the information that 2,478,000 “Unique Users” accessed 78,346,785 “Page Views” in May, 2005.  The following “Overview” was also set out on that web page.

While the Post has seen its print circulation soar and is the fastest growing newspaper in the country, NYPOST.COM has grown to be the 7th largest newspaper website in the nation with more than 2.9 million unique users and over 78 million page views monthly.

Why advertise on NYPOST.COM?

Our hard-hitting, concise brand of journalism attracts upscale, professional, well-educated and active online readers from New York and throughout the country.

The Post’s famous gossip columnists draw attention from around the world -- from Vanity Fair, to Paris Match, people can’t stop talking about Richard Johnson’s PageSix.  With the most complete coverage of New York teams, the Post’s Sports writing has been dubbed “The Best Sports in Town”.

[7]                In opposing the application of the Post, Mr. Burke has sworn an affidavit as has Dan Russell, the host of “SPORTSTALK with Dan Russell”.  In his affidavit, Mr. Burke states that he resided in Vancouver between 1987 and 1992 while he was employed by the Vancouver Canucks, he took up residence again in Vancouver in 1998 and remained resident in Vancouver until July, 2005.  Mr. Burke further states:

During my considerable time in Vancouver, I have built very strong ties with the community.  I was involved in many civic matters and was generally involved to great extent in the Vancouver community.

On March 8, 2004, the Colorado Avalanche played a hockey game in Vancouver.  During the course of that game, Todd Bertuzzi of the Canucks was involved in a very significant incident with Steve Moore of the Avalanche (the “Bertuzzi/Moore incident”), which attracted considerable public attention in British Columbia. ....

It also led to Mr. Moore commencing a lawsuit in Colorado naming me as a defendant along the Vancouver Canucks, the coach of the Canucks, Marc Crawford, Todd Bertuzzi and another Canuck player, Brad May.

I am alleged in the lawsuit to have conspired to injure Mr. Moore.  No particulars are provided....

I strongly deny any involvement in a conspiracy to injure Mr. Moore.

I have applied to have the lawsuit in Colorado moved to British Columbia.

The Bertuzzi/Moore incident has received substantial, ongoing media and public attention in British Columbia. ....

My career interest at the time of the publication was in obtaining either a job in Vancouver or a general manager position in another city.

In July, 2005, I took up new employment as the General Manager of the Anaheim Mighty Ducks.  As part of that employment I moved to Southern California, but I intend to return to reside in Vancouver after I finish my job with Anaheim, because my wife is from Vancouver and I now consider Vancouver my home.  I have a four year contract with the Anaheim Mighty Ducks.

I learned of the Column on or about March 3, 2005 when the part of it containing the allegations against me were read to me by Mr. Dan Russell when I was appearing as a guest on his radio show.

I understand Mr. Russell’s SportsTalk show is broadcast throughout British Columbia by other radio stations and in Western Canada via satellite.

I have been asked about the Column by a number of people in British Columbia since March 3, 2005.  Some of them have told me that they became aware of the Column and the allegations against me contained therein through Mr. Russell’s radio show.  The others have not told me how they became aware of the Column.  ....

A necessary part of my position as General Manager of the Vancouver Canucks was dealing with the media.  As a result of those dealings, I am aware that the New York Post is a prominent newspaper both on the Internet and in its print edition.  Mr. Larry Brooks has for some time been one of the leading hockey writers in North America.  I understand he was the 2003 President of the Professional Hockey Writers’ Association....

His comments as expressed in the New York Post are commonly discussed in hockey circles, including by management, and players, and are often reported by the local media in the various NHL cities, as was the case with the Column in British Columbia.

The allegations contained in the Column are untrue and very damaging to my reputation in British Columbia.  Through this action, I want to make it clear to the residents of British Columbia that there is no factual basis for these allegations.  Since the New York Post refuses to publicly admit this, I have no alternative but to pursue this defamation lawsuit in British Columbia to clear my reputation in this province.

If the Defendants attempt to justify the statements in the Column, I expect that I will be required to call a number of witnesses who were in the Canucks dressing room during the game in which the Bertuzzi/Moore incident occurred, that is, the Canuck players, coaches and training staff.  The coaches and the training staff reside year round in Vancouver as do some of the players.  All of the players reside in Vancouver during the hockey season, which is about 9 months every year.  I have instructed my lawyers to schedule the trial for a time during the season when the Canucks are in Vancouver and available for a three to five day trial.

I believe because of my strong connections to British Columbia and the fact that the Bertuzzi/Moore incident has been, and continues to be so widely reported and hotly debated in British Columbia, that it is important for me to clear my reputation in this jurisdiction.  I have no personal connections to New York, and while my reputation amongst readers of the New York Post elsewhere may have also been harmed, I do not believe that I need to vindicate my reputation directly in any other jurisdiction.

[8]                In his first affidavit, Mr. Russell states:

In order to provide some of the material for my show, I check newspapers from other jurisdictions for sports information which would, in my opinion, be of interest to people in British Columbia.

I mostly read newspapers from other jurisdictions over the Internet.  ....

On February 27, 2005, which was a Sunday, I saw the column by Larry Brooks which I understand is the basis of Mr. Burke’s claim in this lawsuit.  I saw it posted on the New York Post’s web site.  I regularly read Mr. Brooks’ columns.

I understand from my regular reading of the New York Post Internet newspaper and my experience as a sports reporter, that Mr. Brooks is a prominent sports columnist, who regularly writes about hockey related topics.

Mr. Brooks’ February 27, 2005 column was obviously of interest to the people in British Columbia because the Bertuzzi/Moore incident occurred in Vancouver and involved the Canucks, because of Mr. Burke’s history with the Vancouver Canucks and the National Hockey League, and the fact that he was a regular guest on my show.  I reported on Mr. Brooks’ February 27, 2005 column ... on Monday, February 28, 2005.  I read a large excerpt of that column on the air.  My show that night was broadcast on CKNW and the Sportstalk Radio Network.

Since September of 2004, Mr. Burke was a guest on my show every Thursday.  He was a guest on my show on Thursday, March 3, 2005.  On that show, I read parts of Mr. Brooks’ column from February 27, 2005 to Mr. Burke and discussed it with him.

The March 3, 2005 show was broadcast on CKNW and the Sportstalk Radio Network.

Based on the last four rating books issued from the Board of Broadcast Measurement (BBM) dating back to the Spring of 2004, it is estimated that my show reaches nearly 125,000 different listeners per week on CKNW alone.

[9]                In his second Affidavit, Mr. Russell states that, on February 27, 2005 when he saw the Column which was posted on the website of the Post, he was: “... at my home in Richmond British Columbia.”  Mr. Russell also states:

I understand that it has been suggested that, or asked whether, Mr. Burke may have prompted me to read, or alerted me to, Mr. Brooks’ February 27, 2005 Column.  I confirm that neither is true.  I read the Column without prompting as part of my regular reading of the New York Post’s Internet newspaper.


[10]            Rule 13(1) (h) provides that service of an originating process or other document on a person outside British Columbia may be effected without leave if: “... the proceeding is founded on a tort committed in British Columbia....”

[11]            Rule 14(6) of the Rules of Court states:

(6)        A party who has been served with an originating process in a proceeding, whether served with the originating process in that proceeding in or outside of British Columbia, may, after entering an appearance,

(a)        apply to strike out a pleading or to dismiss or stay the proceeding on the ground that the originating process or other pleading does not allege facts that, if true, would establish that the court has jurisdiction over that party in respect of the claim made against that party in the proceeding,

(b)        apply to dismiss or stay the proceeding on the ground that the court does not have jurisdiction over that party in respect of the claim made against that party in the proceeding, or

[12]            Rule 14(6.1) states:

Whether or not a party referred to in subrule (6) makes an application or allegation under that subrule, the party may apply to court for a stay of the proceeding on the ground that the court ought to decline to exercise jurisdiction over that party in respect of the claim made against that party in the proceeding.


[13]            At the hearing on August 17, 2005, counsel for Mr. Burke sought an amendment to the Statement of Claim to allege that the republication in British Columbia was the “natural and probable consequence” of the actions of the Post in allowing access to the Column through the website of the Post.  It had been argued on behalf of the Post that, in the absence of such a pleading, republication within British Columbia was a separate tort for which the Post was not liable: Chinese Cultural Centre of Vancouver et al v. Holt et al (1978), 87 D.L.R. (3d) 744 (B.C.S.C.) and Brown v. Cole (1995), 14 B.C.L.R. (3d) 53 (B.C.C.A.). 

[14]            Prior to July 1, 2003, the then Rule 14(7) provided that an application under Rule 14(6) acted as a stay of all proceedings pending resolution of the application under Rule 14(6) but subject to an ability to apply to the Court for leave to lift the stay.  Presently, Rule 14(6.3) allows an application to be brought “on the application of a party of record” for a stay of proceedings (Rule 14(6.3)(a) of the Rules of Court).  No such application has been brought by either party.  Accordingly, there is no stay of proceedings and no inability to make the application to amend the Statement of Claim.

[15]            Whether a stay will be ordered is within the discretion of the Court exercising that discretion in an effort to achieve the ends of justice, balance the interests of the parties, and weigh relative prejudice: Canadian Commercial Bank v. Carpenter (1990), 42 B.C.L.R. (2d) 209 (B.C.S.C.) where Macdonald J. stated that the principles were similar to the principles as to whether a stay of execution pending appeal was warranted.  In that regard, he adopted the principles set out in Robitaille v. Vancouver Hockey Club Ltd. (1980), 26 B.C.L.R. 1 (B.C.C.A.) where Taggart J.A. on behalf of the Court stated: “... it seems to me that the underlying principle is that one must endeavour to do what is just and fair to both parties when exercising the discretion ....”  (at para. 18).  Whether an amendment to a Statement of Claim will be ordered is also within the discretion of the Court exercising that discretion in an effort to achieve the same goals as set out above.

[16]            In dealing with the possible prejudice to them if the amendment is ordered, the Post states that their materials relating to this application were provided to counsel for Mr. Burke on May 30, 2005 and that a draft argument was provided on July 3, 2005.  The Post submits that, to permit the amendments sought, would provide Mr. Burke with the benefit of the amendment but would deprive the Post of any chance to: (a) investigate the circumstances of the republication, its nature, extent and context; (b) to develop evidence as to whether Brian Burke has a “good arguable case” in respect of the allegation sought to be added; and (c) to research law, based on the facts learned and developed concerning what constitutes a sufficient “natural and probable consequence” to warrant imposition of vicarious liability for the act of another.

[17]            I am satisfied that it is just and fair to both parties to exercise the discretion available to me to allow the amendment of the Statement of Claim which is sought.  From the Statement of Claim and the Affidavits filed, it would be no surprise to the Defendants that Mr. Burke was alleging republication in British Columbia.  Accordingly, I am satisfied that the requirement that the Statement of Claim allege that republication in British Columbia was the natural and probable consequence of the actions of the Post does not change the issues raised in the Statement of Claim and the Affidavits filed.  As well, the Statement of Claim alleges that there was a direct publication in British Columbia as a result of the availability to the website of the Post.  Accordingly, the issue of republication merely goes to the secondary question of whether the Post will be liable in damages for republication as a separate tort or whether they would only be liable for the damages flowing from the publication on the website.  The amendment sought by the Plaintiff is ordered.


[18]            It is well established that public comments originating in another jurisdiction are actionable in a jurisdiction where the comments are published and where the reputation of a plaintiff is said to have been damaged:  Jenner v. Sun Oil Co. Ltd. et al [1952], 2 D.L.R. 526 (Ont. S.C.); Chinese Centre of Vancouver et al v. Holt et al (1978) 87 C.L.R. (3d) 744 (B.C.S.C.); Pindling v. National Broadcasting Corp. et al (1985) 49 O.R. (2d) 58 (Ont. H.C.J.); and Barrick Gold Corporation v. Lopehandia (2005) 71 O.R. (3d) 416 (Ont. C.A.).  There has been a steady expansion of that general principle regarding publication and republication as technology moves from radio broadcasts to television broadcasts to internet broadcasts to website broadcasts.

[19]            Jenner, supra, dealt with an Ontario defamation action against New York State defendants for alleged defamatory material broadcast by radio in New York with the broadcast being heard in Ontario.  In holding that the action could be maintained in Ontario, McRuer C.J.H.C. stated:

This is a case where it is necessary for Judges and lawyers to realize that statements in judgments written before modern methods of communication were developed or even thought of must be read in the light of the known circumstances under which they were written. (at p. 530)

I have come to the conclusion that there are fundamental and common-sense principles which govern the present case.  Radio broadcasts are made for the purpose of being heard.  The programme here in question was put on the air for advertising purposes.  It is to be presumed that those who broadcast over a radio network in the English language intend that the messages they broadcast will be heard by large numbers of those who receive radio messages in the English language.  It is no doubt intended by those who broadcast for advertising purposes that the programme shall be heard by as many as possible. A radio broadcast is not a unilateral operation.  It is the transmission of a message.  (at p. 535)

I think it a "startling proposition" to say that one may, while standing south of the border or cruising in an aeroplane south of the border, through the medium of modern sound amplification, utter defamatory matter which is heard in a Province in Canada north of the border, and not be said to have published a slander in the Province in which it is heard and understood.  I cannot see what difference it makes whether the person is made to understand by means of written word, sound-waves or ether-waves in so far as the matter of proof of publication is concerned.  The tort consists of making a third person understand actionable defamatory matter.  (at p. 537)

[20]            The decision in Pindling, supra, extended the principle to deal with a defamation action about what was broadcast on a television show originating in the United States but seen in Ontario.  The principle was extended to defamatory statements published on the Internet by the decision of the Ontario Court of Appeal in Barrick, supra where Blair J.A. stated on behalf of the majority:

The standard factors to consider in determining damages for defamation are summarized by Cory J. in Hill, [Hill v. Church of Scientology of Toronto, [1955] 2 S.C.R. 1130] at p. 1203 S.C.R. They include the plaintiff's position and standing, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence or refusal of any retraction or apology, the whole conduct and motive of the defendant from publication through judgment, and any evidence of aggravating or mitigating circumstances.

In the Internet context, these factors must be examined in the light of what one judge has characterized as the "ubiquity, universality and utility" of that medium. In Dow Jones & Company Inc. v. Gutnick, [2002] HCA 56 (10 December 2002), that same judge -- Kirby J., of the High Court of Australia -- portrayed the Internet in these terms, at para. 80:

The Internet is essentially a decentralized, self-maintained telecommunications network. It is made up of inter-linking small networks from all parts of the world. It is ubiquitous, borderless, global and ambient in its nature. Hence the term "cyberspace". ....  is a word that recognizes that the interrelationships created by the Internet exist outside conventional geographic boundaries and comprise a single interconnected body of data, potentially amounting to a single body of knowledge. The Internet is accessible in virtually all places on Earth where access can be obtained either by wire connection or by wireless (including satellite) links. Effectively, the only constraint on access to the Internet is possession of the means of securing connection to a telecommunications system and possession of the basic hardware.

Thus, of the criteria mentioned above, the mode and extent of publication is particularly relevant in the Internet context, and must be considered carefully. Communication via the Internet is instantaneous, seamless, interactive, blunt, borderless and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed: see Vaquero Energy Ltd. v. Weir, [2004] A.J. No. 84, 2004 ABQB 68, at para. 17.  (at pp. 431-2)

It is true that in the modern era defamatory material may be communicated broadly and rapidly via other media as well. The international distribution of newspapers, syndicated wire services, facsimile transmissions, radio and satellite television broadcasting are but some examples. Nevertheless, Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility. The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.  (at p. 433)

[21]            The general principle has since been extended to an alleged defamation of a plaintiff on the web-page of a newspaper.  In Bangoura v. Washington Post (2004), 235 D.L.R. (4th) 564 (Ont. S.C.J.), Pitt J. dealt with a plaintiff who had resided in Canada for two years, an article available on a web-page maintained by the Washington Post which referred to the work of the plaintiff while he was employed by the United Nations in Kenya, and publication in Ontario by virtue of access to the web-page and limited circulation of the newspaper in Ontario.  In concluding that the Ontario Court had jurisdiction simpliciter and that there was a real and substantial connection to Ontario, Pitt J. stated:

Castel and Walker, however, point out that the rule that publication takes place where the statement is heard is flexible since courts may set aside service ex juris if the publication within the jurisdiction is only slight compared with publications elsewhere (Kroch v. Rossell et Cie. (1937), 156 L.T. 379 (C.A.)), or if the forum is not convenient (Jenner, supra). This means, "that the mere fact that communication to a third party occurs in a particular jurisdiction does not as such make that jurisdiction the place of tort." See J.-G. Castel & Janet Walker, Canadian Conflict of Laws, 5th ed. (Toronto: Butterworths, 2003) at 11-18. There must be a substantial connection between the tort and the jurisdiction as well.

The interplay of the Internet adds a unique dimension to jurisdiction. Castel and Walker state that,

"[t]he dissemination of defamatory statements over the Internet could give jurisdiction to the court where damage is sustained by the plaintiff no matter where publication has taken place, especially if the defamatory material was targeted at the forum province. This constitutes a real and substantial connection with the forum and is an application of the effects principle [Calder v. Jones, 465 U.S. 783 (1984); Edias Software International v. Basis International, 947 F. Supp. 413 (1996)]."

See Castel, supra at 11-32.  (at p. 570)

[22]            In dealing with the argument advanced by the Washington Post relating to the decision in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), Pitt J. stated:

The key argument advanced by the Post is based on a case known as New York Times Co. v. Sullivan, 376 U.S. 254 (1964), where the court refused to enforce British libel judgments on the ground that British libel law is repugnant to the policies of the U.S.A. Our courts do not share the American view that British libel law, which is similar to our own, is any less civilized than the American law. See Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 at 1187-88, Cory J. The Supreme Court of Victoria (Australia) does not share the American view either. The following passages from the responding party's factum properly summarizes the Victorian view point and puts the whole issue in a proper perspective:

(a)        The High Court of Australia has very recently rendered judgment in a very similar factual situation. In Dow Jones & Company Inc. v. Gutnick, [2002] H.C.A. 56 (10 December 2002), a corporation registered in the United States, published material on the Internet that was allegedly defamatory of Mr. Gutnick, who sued in the Supreme Court of Victoria to recover damages to vindicate his reputation. In a unanimous decision, the High Court of Australia held that the Australian courts had jurisdiction over the matter, and that Australian courts were the most convenient forum ...

(b)        The publication of allegedly defamatory articles via the Internet that were accessed in Victoria was the factor that persuaded the Court that it had jurisdiction. In cases of multi-state defamation, it is the publication, not the composition of the libel, that is the actionable wrong. Defamation is to be located at the place where the damage to reputation occurs. Ibid., per Gleeson C.J., McHugh, Gummov and Hayne J.J. p. 8.

(c)        The court noted that those who make information accessible by a particular method, do so knowing of the reach that their information may have: "In particular, those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction." Ibid., per Gleeson C.J., McHugh, Gummov and Hayne J.J. p. 7.

(d)        Similarly, in a concurring judgment Justice Callinan stated:

A publisher, particularly one carrying on the business of publishing, does not act to put matter on the Internet for it to reach a small target. It is its ubiquity which is one of the main attractions to users of it ... Publishers are not obliged to publish on the Internet. If the potential reach is uncontrollable then the greater the need to exercise care in publication.

Ibid., per Gleeson C.J., McHugh, Gummov and Hayne J.J. p. 26-27.

(e)        This does not mean that publishers will be faced with uncertainty and the possibility of being sued in any jurisdiction in the world for each publication. The Honourable Chief Justice Gleeson noted that:

Those who would seek to order their affairs in a way that will minimize the chance of being sued for defamation must be able to be confident in predicting what law will govern their conduct. But certainty does not necessarily mean singularity. What is important is that publishers can act with confidence, not that they be able to act according to a single legal system, even if that system might, in some sense, be described as their "home" legal system.

Ibid., Gleeson C.J, McHugh, Gummov and Hayne J.J. p.5.

(f)         ... [i]n considering the real and substantial connection test, in the context of allegedly false and injurious communications over the Internet, the location of the plaintiff is a key factor that receives greater weight than other factors. This is the case because damage to the reputation and actual pecuniary loss is the key element in such an action, and a plaintiff will experience damages most keenly in the jurisdiction in which they reside. Moreover, those who publish via the Internet are aware of the global reach of their publications, and must consider the legal consequences in the jurisdiction of the subjects of their articles.

Frankly, I see the unwillingness of an American court to enforce a Canadian libel judgment as an unfortunate expression of lack of comity. This should not be allowed to have an impact on Canadian values. The Washington Post defendants' home jurisdiction's unwillingness to enforce such an order is not determinative of whether the court should assume jurisdiction. See Wilson v. Servier Canada Inc. (2000), 50 O.R. (3d) 219 (Sup. Ct.) where Cumming J. said at pp. 229-230 at paras. 29-31:

The defendants further argue that the Ontario action should be stayed because, should the plaintiff be successful in Ontario, the plaintiff would have to relitigate in France. In my view, that is not a factor with which this court should concern itself. It is for the plaintiffs to weigh the advantages and disadvantages of commencing an action in Ontario knowing that it may not be enforced in France. Moreover, as it seems as though not all of Biofarma's assets are located in France, should the plaintiff be successful, it may be possible to recover upon a judgment outside of France.

In my view, a "blocking statute" like Article 15 of the French Code Civil has no place in the contemporary, interconnected world of globalization and global trade, which depends upon mutual recognition and respect for settled international norms, including the principle of comity.

American courts will not adhere blindly to the directive of such a blocking statute: see for example, Société Nationale Industrielle Aérospatiale v. United States District Court for Southern District of Iowa, 482 U.S. 522 at p. 544 (1987).

In addition, there are other claims, for example, intentional interference with prospective economic advantage, breach of employment contract, intentional infliction of mental anguish, being advanced.  (at pp. 572-4)

[23]            In British Columbia, a plaintiff was allowed to continue a defamation action following dissemination of a report which appeared on the website of the Government of Canada in Wiebe v. Bouchard [2005] B.C.J. (Q.L.) No. 73 (B.C.S.C.) where Melvin J. determined that jurisdiction simpliciter had been established and that the Court ought not to decline jurisdiction.


[24]            The question of whether an action brought in this jurisdiction should stay in this jurisdiction involves a two-part test.  The first part of the test is whether the plaintiff has established jurisdiction simpliciter in the sense of a real and substantial connection with either the defendant or the subject matter of the litigation.  It is a determination that British Columbia has a sufficiently close connection with the defendants or the subject matter of the litigation to establish that British Columbia is the appropriate jurisdiction for the matter to be heard.  The question does not relate to connections with the plaintiff: Jordan v. Schatz (2000), 77 B.C.L.R. (3d) 134 (B.C.C.A.) at paras. 23 and 26. 

[25]            The second part of the test is the determination of forum conveniens, a determination in this case whether British Columbia or New York is the most convenient forum for the action between the parties to be heard.  This separate consideration is whether there is another forum that has a closer connection to the litigation so that it is the more appropriate forum in which to try the litigation.  If there is no other more appropriate forum, then the forum of British Columbia wins by default as it is the forum with the most real and substantial connection or the “natural forum”: Amchem Products Inc. v. British Columbia Workers’ Compensation Board [1993] 1 S.C.R. 897 at para. 28. 

[26]            It cannot be said with certainty that the qualification of an action under Rule 13(1) establishes jurisdiction simpliciter.  Rather, the Court may exercise jurisdiction only if it has a “real and substantial connection” with the subject matter of the litigation: Procon Mining and Tunnelling Ltd. v. Waddy Lake Resources Ltd. [2002] B.C.J. (Q.L.) No. 157 (B.C.S.C.); Tolofson v. Jensen [1994] 3 S.C.R. 1022 at p. 1049; and Beales v. Saldanha [2003] 3 S.C.R. 416 where Major J. on behalf of the majority stated:

The "real and substantial connection" test requires that a significant connection exist between the cause of action and the foreign court. Furthermore, a defendant can reasonably be brought within the embrace of a foreign jurisdiction's law where he or she has participated in something of significance or was actively involved in that foreign jurisdiction. A fleeting or relatively unimportant connection will not be enough to give a foreign court jurisdiction. The connection to the foreign jurisdiction must be a substantial one.  (at p. 439)

[27]            In Roth v. Interlock Services Inc. (2004), 33 B.C.L.R. (4th) 60 (B.C.C.A.), the Court allowed an appeal from a finding that jurisdiction simpliciter had not been established.  In determining the issue of whether there was jurisdiction simpliciter, Smith J.A. for the Court set out the process which is to be followed in British Columbia to determine whether or not jurisdiction simplicter had been established:

The correct approach to the question of jurisdiction simpliciter is outlined in two decisions of this Court which were pronounced the same day:  Furlan v. Shell Oil Co. (2000), 77 B.C.L.R. (3d) 35, 2000 BCCA 404 at paras. 14-16, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 476, and AG Armeno Mines and Minerals Inc. v. PT Pukuafu Indah (2000), 77 B.C.L.R. (3d) 1, 2000 BCCA 405 at paras. 14, 19. The first step is to examine the plaintiff's pleading to determine whether it alleges "jurisdictional" facts sufficient to establish a real and substantial connection to the defendant or to the cause of action.  (at pp. 64-5)

That the matter falls within one of the traditional categories for assumption of jurisdiction is not the end of the inquiry; the ultimate question "must be governed by the three principles of comity, order and fairness":  Marren v. Echo Bay Mines Ltd. (2003), 13 B.C.L.R. (4th) 177, 2003 BCCA 298 at para. 14, leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 364. In Beals v. Saldanha, [2003] 3 S.C.R. 416, 2003 SCC 72 at para. 22, Major J., writing for the majority, commented on the real and substantial connection test for the assumption of jurisdiction in the context of enforcement of a foreign judgment:

Modern ideas of order and fairness require that a court must have reasonable grounds for assuming jurisdiction where the participants to the litigation are connected to multiple jurisdictions.

As he explained, at paras. 27-28, the doctrine of comity is grounded in the need to facilitate the flow of wealth, skills, and people across international lines in an orderly and fair manner that ensures security of transactions.

Thus, there must be a substantial connection between the cause of action and British Columbia in order to justify bringing the foreign respondents within the jurisdiction; a passing connection of relative insignificance will not suffice. (at pp. 65-6)

[28]            In this regard, see also Pacific International Securities Inc. v. Drake Capital Securities Inc. [2000] B.C.J. (Q.L.) No. 2328 (B.C.C.A.) (at para. 15) and Uninet Technologies Inc. v. Communication Services Inc. (2005) 38 B.C.L.R. (4th) 366 (B.C.C.A.).

[29]            Defamation is a tort.  The tortious act took place in British Columbia when Mr. Russell accessed the Column on the website while he was within British Columbia.  Publication within British Columbia took place at that time as the tort of defamation occurs where the words are heard or read:  Berezovsky v. Michaels et al [2000] 2 All E.R. 986 (H.L.); Dow Jones & Co. v. Gutnick, [2002] H.C.A. 56; and Wiebe v. Bouchard [2005] B.C.J. (Q.L.) No. 73 (B.C.S.C.).  By publishing on its website a matter which was of interest to people in British Columbia whether or not they were hockey fans, I am satisfied that it was foreseeable that the Column would be picked up by the media in British Columbia given the publicity surrounding the incident at the March 8, 2004 game and the prominence of Mr. Burke within British Columbia.  The incident took place in British Columbia.  The witnesses to what might have been said by Mr. Burke prior to and during the game all reside in British Columbia.  I am satisfied that Mr. Burke has met the onus of establishing jurisdictional facts sufficient to establish a real and substantial connection within British Columbia to the cause of action.  Accordingly, I find that jurisdiction simpliciter has been established.

[30]            The questions which then arise are whether there is a substantial connection between the cause of action and British Columbia to justify continuing this litigation within this jurisdiction or whether New York is the more convenient forum.  In the context of which jurisdiction is the more appropriate jurisdiction to have the matter heard, it is necessary to review a number of factors including those factors set out in Muscutt v. Courcelles (2002), 60 O.R. (3d) 20 (Ont. C.A.) which Pitt J. in Bangoura v. Washington Post, [2004] O.J. (Q.L.) 284 (Ont. S.C.J.) summarized as follows:

Muscutt v. Courcelles, supra is the recent culmination of a number of decisions that identified the following eight factors as relevant to the determination of the jurisdictional issue. These factors can best assist the court in resolving the question of whether there is a real and substantial connection between the facts giving rise to the action, and Ontario.

The following are the eight factors:

(1)        The connection between the forum and the plaintiff's claim.

(2)        The connection between the forum and the defendant.

(3)        Any unfairness to the defendant in assuming jurisdiction.

(4)        Any unfairness to the plaintiff in not assuming jurisdiction.

(5)        The involvement of other parties in the suit.

(6)        The court's willingness to recognize and enforce a foreign judgment rendered on the same jurisdictional basis.

(7)        Whether the case is interprovincial or international in nature.

(8)        Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.   (at paras. 20-1)

[31]            In reviewing those factors which govern the question of the most convenient forum, I am satisfied that British Columbia is the appropriate forum for the determination of the issues between the parties.  I am satisfied that there is a real and substantial connection with British Columbia that favours a continuation of these proceedings in British Columbia as the forum to decide the issues between the parties and that this real and substantial connection meets the concerns of comity, order and fairness.

[32]            Mr. Burke resides in British Columbia, although his residency here is not alone sufficient to decide the issue of the most convenient forum.  Marren v. Echo Bay Mines Ltd. (2003), 13 B.C.L.R. (4th) 177 (B.C.C.A.); and Jordan v. Schatz (2000), 77 B.C.L.R. (3d) 134 (B.C.C.A.).  However, there are additional connecting factors set out in the Statement of Claim.  While not foregoing the possibility that damages were suffered in other jurisdictions, the substantial damages alleged to have been suffered by Mr. Burke to his reputation were suffered in British Columbia.  The incident at the hockey game referred to took place in British Columbia.  The witnesses to what was or was not said or done by Mr. Burke all reside in British Columbia.  Those who may have been in the locker room between periods in the hockey game would potentially include coaches, assistant coaches, equipment staff, trainers, and others who would be tending to the needs of players during the time between periods of play.  It is likely that all those individuals reside in British Columbia.  They would be potential witnesses to deal with the question of whether Mr. Burke was in the locker room between periods as is suggested in the Column.  The witnesses regarding any damages to the reputation of Mr. Burke within British Columbia would reside in British Columbia.  If a defence of justification is raised, it is likely that it will be made out by evidence gathered in British Columbia and, if such a defence is to be answered, it will have to be answered by evidence given by witnesses from British Columbia.

[33]            While the Defendants have little or no business connection in British Columbia, it is clear that the Post is a major newspaper in what many describe as the financial capital of the United States which, in turn, is described by many as the most powerful country in the world.  By establishing a website which is available on the Internet worldwide, it is reasonably foreseeable that the story set out in the Column would follow Mr. Burke to where he resided.  The concept of a “worldwide web” is aptly named.

[34]            I can find no substantial unfairness to the Defendants if this Court assumes jurisdiction.  While the personal Defendant has no connection to British Columbia, the same can be said for Mr. Burke and New York.  As to the Post, it is a newspaper with a substantial international profile and I adopt the comment of Pitt J. in Bangoura, supra, in this regard: “I would be surprised if it were not insured for damages for liable or defamation anywhere in the world, and if it is not, then it should be.” (at para. 19).  While witnesses for the Defendants will be called away from their duties in New York if it is necessary for them to attend in British Columbia, I anticipate that the ability of the parties to agree about certain facts will eliminate the necessity for Messrs. Gilkey and Montori to attend in British Columbia to provide evidence about the distribution of the newspaper within British Columbia or about the number of “hits” on the website maintained by the Post.  Although it will undoubtedly be necessary for Mr. Brooks to attend in British Columbia, I would be surprised if Mr. Brooks could not prepare his columns in British Columbia and transmit them electronically to New York so that his columns could continue during his absences from New York.

[35]            Mr. Burke has no connection with New York other than, as an employee of a hockey team, he will travel to New York from time to time.  I am satisfied that it would be inordinately costly to Mr. Burke to require him to retain New York counsel to be instructed by his British Columbia counsel and to require all of the witnesses to the event to travel to New York to appear at a trial there.  Without knowing the location of those witnesses who Mr. Brooks called upon in his “research”, it is not possible to ascertain whether those contacts would be inconvenienced by a trial which took place in British Columbia.  However, it is clear that those who would be in a position to provide testimony as to what Mr. Burke did or did not do relating to the incident would be greatly inconvenienced by having to travel to New York to testify rather than staying in British Columbia and testifying.

[36]            I accept that Mr. Burke has an interest in having his defamation claim heard in the jurisdiction where he resides as British Columbia Court is best able to assess reputational damage.  In this regard, I adopt the statement of Lord Nolan in Berezovsky, supra:

Standards of conduct and of tolerance in such matters vary widely from country to country.  This case is solely concerned with the plaintiffs’ reputations in England. They seek to have their reputations judged by English standards.  The Court of Appeal thought that for this purpose England was the natural forum, and I agree with them.  I do not follow the relevance of the judge’s remark that the article has “no connection with anything which has occurred in this country.”  A businessman or politician takes his reputation with him wherever he goes, irrespective of the place where he has acquired it.  (at p. 998)

[37]            I also accept that to require Mr. Burke to try this case in New York State would unfairly deprive him of a significant juridical advantage, given the differences that exist between defamation laws in British Columbia and in New York.  In Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, the Supreme Court of Canada expressly considered and rejected the importation of First Amendment Standards in the United States into Canadian defamation law as the Court rejected the approach taken in New York Times Co. v. Sullivan, 376 U.S. 254 (1964):

The New York Times v. Sullivan decision has been criticized by judges and academic writers in the United States and elsewhere.  It has not been followed in the United Kingdom or Australia.  I can see no reason for adopting it in Canada in an action between private litigants.  The law of defamation is essentially aimed at the prohibition of the publication of injurious or false statements.  It is the means by which the individual may protect his or her reputation which may well be the most distinguishing feature of his or her character, personality, and, perhaps, identity.  I simply cannot see that the law of defamation is unduly restrictive or inhibiting.  Surely it is not requiring too much of individuals that they ascertain the truth of allegations they publish.  The law of defamation provides for the defences of fair comment and of qualified privilege in appropriate cases.  Those who publish statements should assume a reasonable level of responsibility….

In conclusion, in its application to the parties in this action, the common law of defamation complies with the underlying values of the Charter and there is no need to amend or alter it.  (at pp. 1187-8)

[38]            To require Mr. Burke to clear his reputation in British Columbia by forcing him to proceed with an action in New York State under the standards set out Sullivan, supra, would be unfair.  Whether the action is heard in British Columbia or whether it is heard in New York, I am satisfied that any damages that Mr. Burke claims were suffered by him in the United States would be subject to the approach taken in Sullivan, supra.  Accordingly, I am satisfied that a British Columbia Court can most appropriately decide the issue of the damages suffered by Mr. Burke in British Columbia as a result of the publication of the Column in British Columbia while, at the same time, receiving expert testimony about whether damages in the United States have been suffered as a result of the restrictions set out in Sullivan, supra.

[39]            If a New York Court is not prepared to recognize any judgment obtained by Mr. Burke in these proceedings in British Columbia, then it may well be an advantage to the Post for Mr. Burke to continue these proceedings here.  Having made that choice, Mr. Burke must take the chance that any judgment he obtains will not be enforceable against assets owned by the Defendants and located in New York.  However, that is a choice for Mr. Burke to make.

[40]            The interest in hockey and those who were involved with it and the particular incident in Vancouver on March 8, 2004 has taken on significance in the world of sport and world of hockey worldwide.  Having chosen to broadcast the Column on a website which is available worldwide to those who speak English, the Post can hardly complain that Mr. Burke would choose a jurisdiction most convenient to him to have his defamation action heard.


[41]            I am satisfied that Mr. Burke has met the onus of establishing jurisdiction simpliciter.  As well, I am satisfied that Mr. Burke has met the onus of establishing that the most convenient forum for this matter to be heard is British Columbia and that New York is not a convenient forum for the parties to resolve the issues which have been raised in that action.  Accordingly, the application of the Defendant, NYP Holdings Inc., doing business as the New York Post that the Pleadings in this Action be struck out and/or that there be a stay of proceedings is dismissed.

“G.D. Burnyeat, J.”
The Honourable Mr. Justice G.D. Burnyeat