The Lawyers Weekly - May 18, 2012

grounds that there was no real and sub-
stantial connection between the actions
and Ontario or, alternatively, that an Illi-
nois court was the more appropriate forum.
The respondent, a well-known business
figure, had served as the chairman of
Hollinger International, Inc. The legitim-
acy of certain payments that had been
made to the respondent was questioned.
Hollinger formed a Special Committee to
conduct an investigation, which concluded
that Hollinger had made US$32,150,000
in unauthorized payments to the respond-
ent, Hollinger, and certain senior man-
agers, and that the respondent himself had
received US$7,200,000. The Committee
completed a report, which was posted on
Hollinger’s website. The respondent filed
six libel actions in the Ontario Superior
Court against the appellants, who were
directors, advisers and a vice-president of
Hollinger International. The respondent
alleged that certain statements issued by
the appellants and posted on Hollinger
International’s website were defamatory
and were published in Ontario when they
were downloaded, read and republished in
the province by three newspapers, and he
claimed damages for injury to his reputa-
tion in Ontario. The appellants countered
that the Ontario court should not assume
jurisdiction over the actions because they
were essentially American in substance or,
alternatively, because the Illinois court was
a more appropriate forum than the Ontario
court. The Ontario Court of Appeal found
that a real and substantial connection was
presumed to exist on the basis that a tort
was committed in Ontario. The appellants
had failed to rebut this presumption. With
regard to forum non conveniens, the Court
of Appeal found that there was no basis on
which to interfere with the motion judge’s
exercise of discretion.
HELD: Appeal dismissed. It was neces-
sary to engage in the real and substantial
connection analysis to determine whether
the Ontario court might properly assume
jurisdiction over the respondent’s actions.
The framework for the assumption of
jurisdiction was recently set out by the
Supreme Court of Canada in Club Resorts.
The issue of the assumption of jurisdiction
was easily resolved in this case based on a
presumptive connecting factor, namely the
alleged commission of the tort of defama-
tion in Ontario. It was well established in
Canadian law that the tort of defamation
occurred upon publication of a defamatory
statement to a third party. In this case,
publication occurred when the impugned
statements were read, downloaded and
republished in Ontario by three news-
papers. It was also well established that
every repetition or republication of a
defamatory statement constituted a new
publication. The original author of the
statement might be held liable for the
republication where it was authorized by
the author or where the republication was
the natural and probable result of the ori-
ginal publication. The republication in the
three newspapers of statements contained
in press releases issued by the appellants
clearly fell within the scope of this rule. In
the circumstances, the appellants had not
displaced the presumption of jurisdiction
that resulted from this connecting factor.
Having found that a real and substantial
connection existed between the actions
and Ontario, it had to be determined
whether the Ontario court should none-
theless decline to exercise its jurisdiction
on the ground that a court of another
jurisdiction was clearly a more appropri-
ate forum for the hearing of the actions.
The factors to be considered by a court in
determining whether an alternative forum
was clearly more appropriate were numer-
ous and variable. When the forum non
conveniens analysis was applied to the
circumstances of the instant appeal, it
became apparent that both the courts of
Illinois and Ontario were appropriate
forums for the trial of the libel actions. The
factors of the comparative convenience
and expense for the parties and their wit-
nesses, location of the parties, avoidance of
a multiplicity of proceedings and enforce-
ment of judgment favoured the Illinois
court as a more appropriate forum, while
the factors of applicable law and fairness
to the parties favoured the Ontario court.
The forum non conveniens analysis
required that one forum ultimately
emerged as clearly more appropriate, and
the decision not to exercise jurisdiction
and to stay an action based on forum non
conveniens was a discretionary one. Con-
sidering the combined effect of the rel-
evant facts, and in particular the weight of
the alleged harm to the respondent’s repu-
tation in Ontario, and giving due defer-
ence to the motion judge’s decision, an
Illinois court did not emerge as a clearly
more appropriate forum than an Ontario
court for the trial of the respondent’s libel
actions against the appellants.

CRIMINAL LAW
PRISON ADMINISTRATION –
Grievances – Judicial review – Rights of
prisoners.
Motion by Fabrikant for leave to insti-
tute a proceeding pursuant to s. 40( 3) of
the Federal Courts Act. In 1993, Fabrikant
was convicted on four counts of first
degree murder and sentenced to life
imprisonment without eligibility for par-
ole for 25 years. In 1999, he was declared
a vexatious litigant and was required to
present a formal motion before instituting
any Federal Court proceedings. In 2011,
he was granted leave to file an application
for judicial review challenging a directive
prohibiting inmates from communicating
electronic media by mail. The deadline to
file the application was extended due to
deficiencies in the notice of application.
The documents required to file the appli-
cation had yet to be duly filed. Fabrikant
now sought leave to institute a proceeding
for a declaration that the seizure of his
computer by corrections officials was
illegal. His computer had been seized fol-
lowing an inspector’s report which
revealed unauthorized use and other
irregularities of his computer. Fabrikant
sought an order for the return of his com-
puter. The Crown submitted that Fab-
rikant was unable to contest the legality of
corrections grievance decisions by way of
motion, and that refusal of access to the
computer was justified.
HELD: Motion dismissed. The griev-
ance of the removal of Fabrikant’s com-
puter was denied at all levels. The directive
clearly stated the conditions which inmates
were required to comply with in order to
retain their personal computers. It was
determined that the warden had properly
followed the policy in denying Fabrikant
access to his computer. The present motion
was an impermissible attempt to re-liti-
gate a matter determined three years ear-
lier and was clearly out of time. In any
event, there was no basis for finding that
Fabrikant’s computer was illegally seized
or that any impugned decision was illegal
or unreasonable in the circumstances.
Were an extension of time granted, any
judicial review of the warden’s decision
had no chance of success.

CRIMINAL CODE OFFENCES –
Impaired driving or driving over the
legal limit – Canadian Charter of Rights
and Freedoms – Protection against self-
incrimination, right to silence.
Trial of the accused for driving while
impaired by a drug. Police responded to
a report of two youths drinking alcohol
and observed a vehicle approaching at
excessive speed, swerving toward the
centre line. The vehicle matched the
complaint and the officer took pursuit.
The officer momentarily lost sight of the
vehicle, but pulled it over after regaining
contact. The accused was the driver. The
officer detected a strong odour of burnt
marijuana. The accused appeared nerv-
ous and fumbled while trying to get his
licence from his wallet. He had blood
shot eyes and a placid demeanor. The
accused was arrested, cautioned and
issued a drug recognition demand. The
accused spoke with counsel and con-
sented to the drug evaluation. The only
drug found following the evaluation was
cannabis. A voir dire was held on the
issue of the qualifications of a police wit-
ness as a drug recognition evaluator, and
whether the witness could provide expert
opinion evidence regarding the process
of determining whether a driver’s ability
to operate a motor vehicle was impaired
by a drug and the categories of drugs
that caused such impairment. In support
of qualifying its police witness, the
Crown sought to have another witness, a
toxicologist, declared as an expert in
drug evaluation and classification,
including the testing procedure for the
presence of drugs in the human body
and the effect on the operation of a
vehicle. Defence counsel sought the
exclusion of inculpatory statements
made by the accused admitting drug use
on the basis of involuntariness due to
police questioning during the mandatory
drug evaluation.
HELD: Accused was convicted. The
toxicologist was qualified in all areas
sought by the Crown. Defence counsel
accepted the qualification of the police
witness as a drug recognition evaluator
for the purpose of s. 254( 3.1) of the Crim-
inal Code. The police witness was
declared an expert for the purposes
sought by the Crown. The accused’s state-
ments regarding his drug use were
excluded based on a breach of his s. 7
Charter rights. Although the accused was
aware of his right to silence and had con-
sulted counsel, police failed to differenti-
ate between the mandatory nature of the
physical aspects of the drug evaluation,
and the oral portion of the evaluation,
which remained subject to the accused’s
right against self-incrimination. Despite
the exclusion of the statements, the
remaining evidence, comprised of the
expert opinion and the arresting officer’s
observations, was sufficient to prove that
the accused’s ability to drive was impaired
by a drug.

FAMILY LAW
MARITAL PROPERTY – Equaliza-
tion or division – Exempt acquisitions
and deductions – Unequal division of
property – Maintenance and support –
Spousal support.
Appeal by the wife from a trial judgment
refusing to permit her to move to Calgary
with the parties’ children, awarding her
$150,000 in lump sum spousal support,
and ordering an equal division of the family
assets, most of which had been inherited by
her. Cross-appeal by the husband from the
spousal support award and the finding that
the house inherited by the wife in Calgary
was not a family asset. The parties separ-
ated after a 14-year marriage. They agreed
on joint custody of their two children, aged
14 and nine. The wife was awarded primary
care at trial. Both parties were lawyers.
After the birth of the first child, the wife
worked part-time in a law firm while the
husband pursued a partnership track. At
the time of the marriage, the wife had assets
exceeding $1,000,000, most of which were
in a trust settled by her grandmother,
including the Calgary house. During the
parties’ marriage, the property was rented
out and managed by the wife’s father. She
had placed the house in the parties’ joint
names in 2003 so that the husband could
hold the house in trust for the children in
case she predeceased him. Near the end of
the marriage, the wife asked the husband to
sign his interest back to her, which he did.
The trial judge found that the interest in
the house had never been conveyed to the
husband with the intention that he would
be an owner during the wife’s lifetime and
that it was not a family asset. The parties
did not enter into any prenuptial agree-
ment. The trial judge found that the inten-
tion of the parties was that the wife’s assets
should remain in her name and under her
control throughout the marriage. He held
that division of the family assets, including
some of the wife’s inherited assets, was not
unfair. After separation, the wife remained
with the children in the matrimonial home
while the husband resided in an apartment
about one hour’s drive away. The wife
wanted to return to Alberta to reside near
her family and to pursue better employ-
ment opportunities.
HELD: Appeal allowed in part; cross-
appeal dismissed. The trial judge did not
err in concluding that the factors in favour
of the move to Calgary, the fact that the
wife would find it easier to live as a single
parent in a more supportive family
environment and might be able to find
employment more easily due to her fath-
er’s contacts, were outweighed by the
benefits of their remaining in British Col-
umbia, where the children were doing well
and were able to see the husband much
more often than would be the case if they
were in Calgary. The benefits that the chil-
dren would experience by moving to Cal-
gary were only marginal. The trial judge
erred in equally dividing the assets that
were inherited by the wife and found to be
family assets. The husband made no con-
tribution to the maintenance or apprecia-
tion of these assets, whereas both he and