On March 14, 2016, the Ontario
Superior Court of Justice released its decision in SciQuest Inc
v Hansen et al, 2016 ONSC 1488, dismissing a defendant's
motion to stay or dismiss a defamation action on the basis that the
Ontario Superior Court did not have jurisdiction, or that another
forum was more convenient for the trial of the action. The decision
converts the established test for jurisdiction to hear a defamation
action to the realities of the internet era. The court found that
blog post views, "tweets", "retweets", and
evidence of the plaintiff's reputation, all in Ontario, were
sufficient to support a real and substantial connection to Ontario
and that the plaintiff had not engaged in "forum
The plaintiff has alleged that 18
blog posts written by the defendant contained defamatory statements
which have caused damage to the plaintiff's reputation in
Ontario, Canada, and elsewhere. It chose to bring its defamation
action in Ontario, where it has a significant number of customers.
However, the plaintiff itself is headquartered in the United
States, does business as a cloud-based software provider throughout
the world, and the defendant wrote the blog posts in Quebec.
Accordingly, the defendant argued that a "real and substantial
connection" of the action with Ontario did not exist.
The court found that a "real
and substantial connection" to Ontario did exist, and that the
defendant had not shown that another forum was clearly more
appropriate. "The tort of defamation occurs when such material
is read or downloaded by a third party," wrote Justice
Lederman. Accordingly, the following evidence demonstrated that the
alleged tort occurred in Ontario:
The defendant's blog was viewed over 105,000 times by users in
over 160 jurisdictions. 10,588 of those viewers or readers were
located in Canada. Accordingly, it could be inferred that many of
those readers are in Ontario, when tweeted by the defendant.
Many of the followers of the defendant's Twitter page are
located in Ontario, meaning that notification of each of the blog
posts at issue were sent to the Twitter feeds of followers located
In at least seven instances, the defendant's tweets of links to
the blog posts were "re-tweeted" by another entity
located in Ontario. According to Justice Lederman, this is "in
a sense a republication of the original tweet."
While a majority of the plaintiff's customers are headquartered
in the United States, it has significant annual revenue in Canada
Timothy Pinos and Christopher Selby
of Cassels Brock acted for the plaintiff in successfully opposing
the defendant's motion seeking to stay the action.
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