Watch What You Say

A recent Court of Appeal decision has reminded me of the sage teachings of my Father; if you don’t have anything nice to say, shut your big fat mouth…or something to that effect.


In Black v. Breeden, the Court held that Conrad Black is free to pursue a libel action on Ontario against the directors and officers of Hollinger International Inc. who allegedly accused him of, among other things, running a corporate kleptocracy.


Specifically the case deals with a jurisdictional issue, but more broadly, the case deals with defamation and the extent to which courts are willing to go to allow plaintiffs to address it. In the Black case, the defendants posted the allegedly defamatory comments online. The question before the courts was where was the harm that followed the defamation was done – where the comments were posted, or where they were likely to be read.


The defense arguments were myriad. Among them one that went along the lines that if the comments were read in Ontario, but about Black’s control of an American company, then there really wasn’t much of a connection to Ontario and there wasn’t going to be any significant harm to his reputation in Ontario. The court neither bought that argument, nor rented it.


Another argument was that Black was forum shopping, and preferred Ontario’s stricter libel laws. This too, fell flat; the Court held that is was fair to hold the defendants liable for their actions and their words, wherever those words fell.


Whatever the outcome of the eventual trial, the lessons from this ruling are clear, and well in keeping with the line of jurisprudence in this province. Courts are more than willing to answer jurisdictional questions in the affirmative, where the internet is involved and where real connections to Ontario can be found. Courts are seemingly less concerned with what the best or most appropriate jurisdiction might be in these matters – if there is a connection to Ontario, then the plaintiff has a right to bring their action here.


To paraphrase a popular internet saying: In Ontario, defamations r serious bizness.


Although it should not need restating at this point, I’m going to say it anyway. Don’t say things about people that are likely to damage their reputation unless 1) you know without a shadow of a doubt that those things are true, 2) you are willing and able to endure costly litigation to defend your comments and 3) those things really need to be said. Wherever, whenever and however defamation occurs in Ontario, there is probably going to be a pretty smooth path to a trial for damages on the matter.


If you are a director or officer of a corporation and you are involved in acrimonious proceedings, let your lawyer do the talking. One of the things you pay us for is to translate your emotion and passion into rational enunciations of your legal position. We are, generally speaking, pretty good at that. And if that’s too complicated to remember, just harken back to my father’s simple rule of thumb.


Scott R. Young