The Lawyers Weekly - February 10, 2012

The International Olympic Committee (IOC) and its internal ethics commission have won the most recent leg of a legal battle against a Canadian suing them for defamation.

The Ontario Superior Court of Justice found that the province is not the appropriate jurisdiction to hear the claim—and, in the process, made it clear that “ publication” in Internet terms goes beyond merely posting information.

“The issues that are raised in this case are also being considered by the Supreme Court of Canada. The impact of this case, therefore, will depend on what the Supreme Court does,” said Yashoda Ranganathan, an associate with Lenczner Slaght Royce Smith Griffin LLP in Toronto and co-counsel for the defendant.

But, she added, Ontario Justice Kenneth Campbell spells out how he would apply the test as set out in Van Breda v. Village Resorts Ltd., [2010] O.J. No. 402, which is now before the Supreme Court of Canada and is considered the leading authority in relation to when the court should assume jurisdiction over the litigation of a claim. One of the requirements is demonstrating a real and substantial connection to the jurisdiction in question.

“The interesting issue here is, how do we apply the real and substantial connection test in the defamation context,” Ranganathan said.

In this case, Mahmoud Elfarnawani, an Egyptian national and Canadian citizen who lives in Ontario, was claiming defamation, breach of a duty of good faith and abuse of process flowing from a decision of the IOC to declare him personae non grata within the Olympic movement and to recommend that the members of the Olympic family not grant him any accreditation or have any dealings with him. This decision, recommended by IOC’s ethics commission, was posted on the international organization’s website in August 2004.

Elfarnawani contended that he is entitled to prosecute his claim in Ontario, where he has allegedly suffered the greatest damage to his reputation, as there is a real and substantial connection between Ontario and the claim, and between Ontario and the defendants. He also argued the province was the most convenient forum to determine the claim.

The IOC and its ethics commission asserted that there was no real and substantial connection and that, even if the court has jurisdiction, they believe that Switzerland, where the IOC is headquartered, is the more convenient forum for a trial of this action.

The Ontario court agreed that Switzerland was the best jurisdiction to hear the case.

“First, and perhaps most fun-
damentally, I am unable to con-
clude that there is no other forum
in which the plaintiff can reason-
ably seek relief. No evidence on
the record suggests that the
plaintiff could not pursue his
action against the defendants
in Switzerland. The plaintiff
may experience limitation per-
iod problems in Switzerland,
but he has the same limitation
period problems in Ontario,”
Justice Campbell wrote in his
19-page decision.

The interesting issue here is, how do we apply the real and substantial connection test in the defamation context.

“

yashoda ranganathan, lenczner slaght royce smith griffin llp

“Second,” he stated, “the prac-
tical difficulties relied upon by
[the] plaintiff in advancing this
argument suggest only that it
would be inconvenient for him
personally to pursue the action in
Switzerland. Such inconvenience
does not justify the assumption of
this exceptional jurisdiction.”
In reaching his decision, Jus-
tice Campbell addressed the issue
of what constitutes publication in
an online environment. “In cases
where it is alleged that the
defamatory material was posted
on an Internet website, the neces-
sary ‘publication’ takes place
whenever and wherever a third
party downloads or views the
impugned material from the
website. This is where the plain-
tiff’s reputation is damaged, and
this is where the tort of defama-
tion is committed.

reasons: Elfarnawani v. International Olympic Committee, [2011] o.j. no. 5059.

Court confirms enforceability of depiction release

Release
Continued From Page 15

Show participants were also
given a Contestant Guide, which
advised that “anything goes” when
making a pitch and that “anything
that is discussed on camera can be
broadcast on the show.”
The guide also stated that
there was “no guarantee” that a
participant would actually appear
on the broadcast version of the
show or that they would receive
funds from the “Dragons.”
Both trial-level decisions indi-
cated that Turmel had been pro-
vided with both the guide and the
release prior to his participation,
told to read it carefully and given
time to review the release (and
even to have his own lawyer
review it).

Turmel appealed the decisions dismissing his actions and both appeals were heard together. On appeal he advanced a new argu-

photo courtesy of cbc television

Dragons (from left) Jim Treliving, Kevin O’Leary, Arlene Dickinson, Robert Herjavec and Bruce Croxon in the Den.

lar circumstances? Are things such as a Contestant Guide and a considerable period of time between being presented with the release and the signing of it required? The Court of Appeal made specific mention of the fact that Turmel did not raise any concerns about the content of the release. What if he had but signed it anyway?

Nevertheless, the Turmel decisions are significant because they provide authoritative confirmation of the general practice of relying upon signed depiction releases. Film and television producers, and their counsel, can now rest assured that the weapon in their arsenal is actually loaded. n

ment: conceding that he had
signed the release, he argued that
it nevertheless constituted an
unconscionable contract and so
should not be enforceable against
him. This offered the Ontario
Court of Appeal an opportunity
to consider an important issue,
since one of the lingering con-
cerns about depiction releases
is whether they constitute
unenforceable “contracts of
adhesion” because they are
effectively provided on a “take
it or leave it” basis, with no
opportunity to negotiate terms.