In a recent decision released in August 2015, an Ontario Court held that a plaintiff could bring a defamation action in Ontario over allegedly defamatory statements made in a foreign based news publication which were posted online. The plaintiff is a Canadian billionaire owner of a soccer club in Israel. The defendants are Israeli journalists and an Israeli based news outlet, Haaretz, which has no print circulation in Canada but is available globally online.
When the plaintiff sued the foreign defendants in Ontario, these defendants brought a jurisdictional motion arguing the action should be heard in Israel. Despite all the dispute’s Israeli links, the Court allowed the claim to proceed to trial in Ontario primarily because the allegedly defamatory statements had been posted online and viewed by at least some people in Ontario.
First, the Court held that Ontario has Jurisdiction Simpliciter over the action. Because people read the allegedly defamatory statements in Ontario, a tort was committed in Ontario and thus a presumptive connecting factor linked the case to Ontario. This presumption could not be rebutted just because more people read the Article in Israel than in Ontario. Even a small number of viewings in Ontario would be sufficient to ground the claim.
Second, the Court held that Israel is not a clearly more appropriate forum for the action despite the fact that the corporate and individual defendants are based in Israel and have no assets in Ontario, the witnesses would have to fly in from Israel, and the widest readership of the publication is Israel. Rather, fairness to the parties weighed in favour of Ontario. The Court held that the defendants published an article that impugned a Canadian business man’s reputation, and the businessman should be allowed to attempt to vindicate his reputation in Ontario, where he lives and works.
The key to the decision in Goldhar v Haaretz.com et al., 2015 ONSC 1128, is that at least some people read the impugned article in Ontario. At the time of publication, the article could be accessed from anywhere in the world using the internet. The court heard evidence that it is likely 200-300 people read this article online. This decision has repercussions for worldwide publications available on the web. It implies that even a single or few views of a seemingly defamatory statement on a foreign website may give rise to the legal right to sue in Ontario.
Andrew Pinto has once again been invited by organizers of the Law Society of Upper Canada’s 2015 Employment Law Summit to speak on the topic of the Duty to Accommodate in Canadian law. Andrew is one of Canada’s leading experts in the areas of administrative and human rights law, and has been repeatedly recognized as such by Best Lawyers in Canada, Lexpert, his legal peers and his clients.
Pinto Wray James LLP welcomes Dina Awad to our team of legal professionals. Dina has advocacy experience before courts and tribunals. She provides strategic advice and representation to clients in all our practice areas including civil litigation, administrative law, and workplace law.
Prior to joining the firm, Dina practiced as a litigator on Bay Street and spent a year in Ottawa clerking at the Federal Court of Appeal. She holds dual civil and common law degrees from McGill University and can assist clients in both French and English. Dina brings a wealth of experience that will greatly benefit our clients.
Dina’s detailed biography can be found here
The Ontario Government has begun the roll-out of the Ontario Retirement Pension Plan (“Retirement Pension Plan”) which is intended to provide a predictable source of retirement income for Ontarians. The costs associated with the Retirement Pension Plan may come as a sudden shock to employers and employees absent informed financial and legal planning. The Retirement Pension Plan is meant to address the reality in the modern workplace of reduced long-term employment and a corresponding reduction of enrollment in workplace pension plans. The Retirement Pension Plan will represent a significant additional payroll cost to employers and reduce employees’ take home pay. The government hopes to offset some of the costs of the Retirement Pension Plan to employers and employees through a simultaneous reduction in Employment Insurance premiums.
Under the Plan, employees and employers will contribute an equal amount, capped at 1.9% each on an employee’s annual earnings up to $90,000. For an employee earning $90,000 annually, the Retirement Pension Plan will cost the employer and the employee $1,710 each on an annual basis. This additional cost will have to be factored in to employers’ balance sheets and employees’ household budgets. Employees already participating in a comparable workplace pension plan would not be enrolled in the Retirement Pension Plan.
Employers will be obligated to contribute to the Retirement Pension Plan in four waves.
Contributions to start: January 1, 2020.
Employers who do not currently provide pension plans to their employees are well-advised to start planning for a long-term increase in payroll costs. If you have any questions or require advice regarding the Ontario Retirement Pension Plan or any other workplace law related matter do not hesitate to contact Pinto Wray James LLP, we are ready to help.
Earlier this summer, the Supreme Court refused to grant leave to appeal from the Ontario Court of Appeal’s decision of InStorage Limited Partnership and InStorage Trustee Corp. v. Matthew Brady Self Storage Corporation. In refusing to grant leave, the Supreme Court implicitly approved the Court of Appeal’s holding that specific performance is an appropriate remedy for vendors of commercial properties when buyers back out of a deal.
The key legal issue in Matthew Brady was whether a vendor could compel a buyer to complete a purchase where the property itself is not unique, which is habitually the key consideration in granting specific performance. The court ruled that where a vendor seeks specific performance, the focus is not on the uniqueness of the property. Rather, the appropriateness of specific performance depends on the special character and circumstances of the transaction and the subject matter of the contract viewed more broadly. This is a threefold test dependent on the circumstances of the case. It considers whether, looking at the contract as a whole: (i) damages will afford the vendor an adequate remedy; (ii) the vendor has established a fair, real and substantial justification for specific performance; and (iii) the equities between the parties favour a granting of specific performance.
The plaintiff satisfied the test in Matthew Brady. Some of the factors the court looked at to ground the special character of the transaction as a whole included that: the plaintiff renovated the property according to the defendant’s specifications in preparation for the sale; the defendant had managed the facility poorly; the plaintiff would not have bought the property but for its agreement with the defendant to buy it; and the defendant was always intended to be the sole owner of the property. Fairness dictated this result.
This is a significant decision in property litigation. In the past, courts commonly ordered specific performance only where a property was itself unique. Commercial properties, like the one at issue in Matthew Brady, are usually available in mass quantities and it is more difficult to prove they are unique. Since the test for specific performance traditionally turns principally on the uniqueness of the property itself, vendors had a harder time obtaining this remedy than purchasers and relied on exceptional circumstances. Purchasers could more readily argue that a property is “unique” for the specific purposes of the purchase (e.g. a special family home or farm), in that a ready substitute cannot be found.
Where a vendor or a purchaser wants to back out of or renegotiate the terms of a binding property deal, litigation is obviously an option. If there is a firm deal, courts can award damages or compel specific performance, which may now be a more viable remedy for vendors. In all cases, clients are encouraged to carefully determine if specific performance may be available on their facts or if it is best to seek damages.