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 shopping".
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 Ontario.
- 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 and Ontario.
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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