Mixed Messages: Ontario Court of Appeal Overturns Jurisdiction Decision in Washington Post Case but BC Court Finds it has Jurisdiction in Action Against New York Post

The Ontario Court of Appeal has overturned a controversial lower court decision finding jurisdiction in a lawsuit against the Washington Post by a United Nations official. The appellate Court held that there was no substantial connection with Ontario. When the Washington Post articles were published in January 1997, Cheickh Bangoura was employed by the United Nations in Africa. The articles related to Mr Bangoura's conduct in a prior posting with the United Nations. Bangoura moved to Ontario some time before the action was commenced, more than six years after the publication of the articles. There were only seven subscribers to the Washington Post in Ontario when the articles were published. Although the articles were available through the newspaper's online archive, there was no evidence that anyone in Ontario other than Bangoura's lawyer had accessed them. The Washington Post and other defendants had filed a motion to dismiss the Ontario action. The trial court held that it did not matter that Mr Bangoura had no connection with Ontario at the time the articles were published. The newspaper continued to make its articles available through the electronic archive and should have known that they might be read anywhere in the world. The decision caused a considerable stir in media and Internet publishing circles, because it raised the potential for any publisher to be sued anywhere in the world. The Court of Appeal ruled that it was not reasonably foreseeable that Bangoura would move to Ontario. Online availability of the articles and a newsgathering office in Toronto were not sufficient to create a "real and substantial connection" with Ontario. Meanwhile, the British Columbia Supreme Court, relying in part on the lower court decision in Bangoura, has held that it has jurisdiction in a defamation action by Brian Burke, former General Manager of the Vancouver Canucks hockey team, against the New York Post, over comments a columnist made about Burke's alleged role in a notorious on-ice attack by the Canucks' Todd Bertuzzi against Steve Moore of the Colorado Avalanche. The New York Post filed a motion to strike the claim and stay the action, arguing that it has no office and doesn't generally cover any news events in the province, and has few readers or advertisers there. The Court rejected the motion, finding that Mr Burke had a real and substantial connection in the province, even though he didn't actually live in Vancouver at the time the article was published. The Court noted that the column was available on the Internet to readers in BC and had been referred to and quoted on a popular sports radio show in Vancouver. The Court held that the New York Post should have known that the column would have been of interest to, and read by, sports fans in BC because the Bertuzzi/Moore incident and related civil and criminal cases were of interest to local hockey fans. For the text of the Ontario Court of Appeal decision in Bangoura v Washington Post et al, see: http://www.ontariocourts.on.ca/decisions/2005/september/C41379.htm For the BC Supreme Court decision in Burke v NYP Holdings Inc et al, visit: http://www.courts.gov.bc.ca/Jdb-txt/SC/05/12/2005BCSC1287.htm Summary by: Michael Erdle