DIRECT ENERGY MARKETING LIMITED Plaintiff - v. -, 1999 ABQB 455

Direct Energy Marketing Limited v. Hillson , 1999 ABQB 455 Date: 1999 06 09 Action No. 9801 09342 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF CALGARY BETWEEN: DIRECT ENERGY MARKETING LIMITED Plaintiff - and - JACK HILLSON Defendant _______________________________________________________ REASONS FOR JUDGMENT of the HONOURABLE MADAM JUSTICE C.L.

KENNY _______________________________________________________ INTRODUCTION [ 1 ] This decision arises out of an appeal from the decision of a Master to set aside service ex juris on a Saskatchewan defendant for which leave had been granted, ex parte, by a different Master on an earlier application. FACTS [ 2 ] The plaintiff, Direct Energy Marketing Limited (“DEML”), is bringing a defamation action against Jack Hillson (“Hillson”), a member of the Saskatchewan Legislative Assembly residing in Regina, Saskatchewan.

DEML is an Alberta corporation which carries on the business of buying and selling gas in Alberta and throughout North America. It is wholly owned by the OPTUS Natural Gas Distribution Income Fund, one of the trustees of which is Owen Mitchell. [ 3 ] The action relates to statements that Hillson allegedly made on June 2 nd , 1998, in a hearing of the Legislature’s Crown Corporations Committee and repeated immediately thereafter to press reporters outside the hearing. DEML had, in April, 1997,

purchased Channel Lake Petroleum Ltd. from the Saskatchewan Power Corporation and the Committee was reviewing that sale. During the hearing Hillson allegedly linked DEML to the Russian mafia through a chain of company ownership and directorship structures and in particular through Mr. Mitchell. He allegedly stated that Mr. Mitchell was a director of a company, OPTUS, that owned DEML and was also a director of a company, YBM, which is under RCMP and FBI investigation for its ties to Russian mafia. The effect of these statements, says the plaintiff, was to imply that DEML is linked to the Russian mafia. [ 4 ] The discussion with the press reporter resulted in an

article appearing in the Saskatoon Star Phoenix on June 3 rd , 1998, entitled “Hillson links Russian Mob to DEML.” The plaintiff alleges that several copies of this publication were sold in Calgary and intends to call a staff member from Billy’s News in Calgary to testify to that effect.

DEML further alleges that the defamatory words and innuendo were also published in Alberta on the Internet sites of the Regina Leader Post and the Saskatoon Star Phoenix. [ 5 ] DEML claims that its reputation, character and credit has been damaged as a result of the statements and filed a Statement of Claim in this jurisdiction on July 13 th , 1998. Six days prior to that filing, a very similar Statement of Claim was filed in the Court of Queen’s Bench of Saskatchewan in Regina by Channel Lake, now wholly owned by DEML. The companies have two directors in common.

Naturally, the Channel Lake claim is slightly different, alleging that the statements implied that Channel Lake was linked to the Russian mafia. It also states that the innuendo was published throughout Saskatchewan and Alberta in an

article in the Regina Leader-Post entitled “Channel Lake, Russian Mafia Linked: Liberal MLA” and in various television and radio broadcasts. [ 6 ] DEML was granted leave to serve a copy of its Statement of Claim ex juris upon Hillson on the 16 th of July, 1998. On the 16 th of October, 1998, a different Master granted an order setting aside the original Order permitting service ex juris .

DEML appealed to this Court on the grounds that the Master erred in finding that the Plaintiff has the burden of proving that Alberta is the forum conveniens and, in the alternative, that the Master erred in finding that Saskatchewan was the forum conveniens . [ 7 ] In the statement of defence filed by Hillson to the DEML action, he takes the position that the words were spoken in circumstances that were absolutely privileged, and that he is immune from civil action pursuant to the Saskatchewan Legislative Assembly and Executive Council Act 1979 S.S. c.L-11.1 and Queen ’ s Bench Act R.S.S. 1978, c.Q-1 .

The presence of this defence in Saskatchewan is held out by DEML as a juridical advantage to its benefit were the action to proceed in Alberta. Whether or not the defence has application even in Alberta remains to be seen, however, its existence is noted on this application. [ 8 ] In support of its appeal DEML has filed additional affidavit evidence not available to the Master.

That information indicates that DEML has small offices in Oakville, Ontario and Winnipeg but that the vast majority of DEML’s business records, 70% of its employees and seven out of eight of its senior management personnel are located in Calgary. It has no office, business records or employees in Saskatchewan. It says that its head office and “most substantial business presence” is in Alberta. ISSUES 1.

Is DEML correct in asserting that, in multi-jurisdiction defamation cases the plaintiff has, to the exclusion of the usual rules of forum conveniens , a right to sue in its “home” jurisdiction if the defamatory statements were published in that jurisdiction? 2. If not, and forum conveniens is the test, did the Master err in finding that Saskatchewan was the forum conveniens ? DECISION [ 9 ] With respect to issue one, the right of a plaintiff to sue a non-resident for defamation in its home jurisdiction is governed by the test of forum conveniens .

However, the publication of the allegedly defamatory material in the plaintiff’s home jurisdiction is an important factor in the application of that test. [ 10 ] With respect to the second issue, it is my view that, notwithstanding the existence of an action brought by Channel Lake, DEML has established that Alberta is the forum conveniens .

ANALYSIS Issue #1: The test in a multi-jurisdiction defamation action and the Burden of Proof [ 11 ] As a preliminary matter I note that issue appears not to be taken with the conclusion of the Master that Rules 30 and 31 of the Alberta Rules of Court are satisfied in this case. The only issue is the application and effect of the test of forum conveniens .

THE PLAINTIFF ’ S ARGUMENT [ 12 ] DEML submits that, “in defamation actions, the plaintiff has a right to sue in its home jurisdiction if defamatory statements were published in that jurisdiction” and that “the normal principles of forum conveniens do not apply.” All the plaintiff need show, says DEML, is the publication within the home jurisdiction. THE DEFENDANT ’ S ARGUMENT [ 13 ] Hillson responds that defamation actions ought to be subject to the usual rule of forum conveniens . He argues that he did not personally publish the material in Alberta but rather it was republished by the newspapers.

His actions were entirely in Saskatchewan and he cannot be said to have published anything in Alberta at all. [ 14 ] The remainder of his argument on this point is directed to distinguishing the three cases cited by DEML in support of its position: C.B.C. v. United Association of Journeymen et al (October 30, 1979, Edmonton Appeal Nos. 12814, 12815 and 12845) (Alberta C.A.), Jenner v. Sum Oil Company Limited et al. 1951 CanLII 129 (ON SC) , [1952] O.R. 240 (Ont.H.C.), Pindling v. National Broadcasting Corp. et al. (1984) 1984 CanLII 1910 (ON SC) , 14 D.L.R. (4 th ) 391 (Ont.H.C.).

It is therefore necessary to review these cases. THE PLAINTIFF ’ S CASES ON DEFAMATION [ 15 ] In the C.B.C. case, supra , the plaintiffs sued the defendant for statements made on “the Fifth Estate” and broadcast across Canada.

At page 4 Morrow J.A. said: Her [defendant] counsel agrees that to the extent any such publication may have taken place uniformly and simultaneously throughout Canada including Alberta there is no complaint with respect to jurisdiction in the Alberta Court to grant an order permitting service ex juris. [ 16 ] The Court decided to permit the service ex juris but limited the scope of the claim to the damages resulting only from the broadcasting in Alberta.

In my view, this case is of little assistance as counsel there conceded that the Court had jurisdiction to the extent that it was to deal with Alberta publication. There was no discussion of forum conveniens and the case has, to a large extent, been overtaken by more recent developments in the case law on this point. [ 17 ] In Jenner , supra, the Ontario plaintiff sued New York defendants for statements that they had made in a New York radio studio and broadcast in Ontario.

The Court considered the forum conveniens test and said, in the passage relied upon here by DEML, at page 252: In an action for defamation it is a matter of great importance whether the Plaintiff is a resident of the locality in which the writ is issued, whether he has a place of business there and whether he seeks to clear his good name of the imputation made against him in that locality.

McRuer, J. continued at page 255 as follows: ...it must be remembered that in considering the forum conveniens the court should have regard for the interests of the Plaintiff as well as those of the Defendants. ... I cannot see that there is any other forum in which [the plaintiff] can satisfactorily clear his name except in Toronto. To the people of the United States of America he may be quite unknown. ...

The substance of the matter here complained of is the defamation of the Plaintiff by defamatory matter published in Ontario, where the Plaintiff lives and has his place of business and vocation in life. [ 18 ] The defendant seeks to distinguish this case on the basis that the Court there was comparing the forum of different countries, not different provinces, and because there was no other action in the alternative forum. In my view, these distinctions do not make a difference. It is clear that the Court in that case was not saying that the doctrine of forum conveniens did not apply.

It was, rather, emphasising the significance of the place of publication as a factor in that test.

McRuer J. commenced his analysis with the words: “...it is necessary to decide whether, taking all the facts of the case into consideration, the “ forum conveniens ” lies here or abroad.” The case, in my view, stands for the proposition that publication in a plaintiff’s home jurisdiction is a major factor in assessing the forum conveniens, for a defamation action. [ 19 ] In the Pindling case, supra , the plaintiff was a resident of the Bahamas who sued American television producers in Ontario for broadcasting defamatory statements in that Province.

Notwithstanding that the plaintiff had commenced a parallel action against the same defendants in the Bahamas, the Court upheld the service ex juris. I note that again in this case the Court dealt with the question on the basis of forum conveniens. At page 396 the Court said: I also propose to deal with forum conveniens ... is Ontario the appropriate forum for a Bahamian resident to sue an American corporation. [ 20 ] The court went on to apply the traditional components of the forum conveniens test.

After noting that the rule for service ex juris was satisfied and that the plaintiff ought not to have his service set aside unless the Ontario action was oppressive, vexatious or abusive of the Court’s process, Montgomery J. said: In order to establish that an action is oppressive or vexatious the defendant must satisfy the court, (

a) that there is another forum in which justice can be done between the parties at substantially less inconvenience or expense, and (

b) that a stay would not deprive the plaintiff of a legitimate personal or juridical advantage available to him in Ontario. The advantage to the plaintiff in suing in Ontario was that it lacked the requirement in American jurisprudence for malice as a component of defamation. [ 21 ] Suffice it to say that, in my view, the three authorities provided by the Plaintiff, irrespective of any distinctions drawn by the Defendant, do not remove defamation from the usual principles of forum conveniens but only establish the place of publication as a factor in making that assessment. UNITED OILSEED V.

AMCHEM RECONCILIATION [ 22 ] Although the Grounds of Appeal are not framed to reflect it, there is a third bone of contention between DEML and Hillson,

namely disagreement over what the correct test is generally for forum conveniens , that is, what it really means and who bears the onus of establishing it. Having decided that a particular Latin maxim applies in its usual form is only the first step. The second step is to give meaning to the maxim and the third step is to apply it to the facts of the case. DEML argued that the Master relied upon the Alberta Court of Appeal’s decision in United Oilseed Products Ltd. v.

Royal Bank, 1988 ABCA 207 (CanLII) , [1988] 5 W.W.R. 181, which distinguishes between cases of service ex juris and applications to stay actions commenced “as of right.” It submits that this principle of the case has been overruled by the Supreme Court of Canada’s decision in Amchem Products Inc. v. British Columbia (Workers Compensation Board) (1993), 1993 CanLII 124 (SCC) , 77 B.C.L.R. (2d) 62. Before proceeding to apply the test it is, therefore, necessary to consider the interaction of these two leading authorities. [ 23 ] The passage quoted in the Master’s decision is found at page 83 of the Alta.

L.R. edition and describes the test for ascertaining the forum conveniens as follows: 1. The test to be applied in all cases where there is an issue of determining the appropriate forum is that of forum conveniens, the forum which is more suitable for the ends of justice. 2. Where a forum possesses jurisdiction over a defendant as of right, the defendant must show that there is another available forum which is clearly or distinctly more suitable. 3. Where the jurisdiction does not exist as of right, the same burden rests on the party seeking to establish jurisdiction (typically service ex juris). 4.

While the overall burden is as stated, the party alleging an advantage or disadvantage must establish it. [ 24 ] The Master also relied upon a passage from page 81 of the decision which reads as follows: We do however recognize that the plaintiff may choose a forum which possesses jurisdiction “as of right”. That will occur when the defendant is properly served within the jurisdiction. It is not necessarily the plaintiff’s “home” forum; the term “as of right” applies when the plaintiff chooses to sue where the defendant is “resident”.

In such a case the person seeking another forum must establish that it is ‘clearly or distinctly more appropriate.” He decided that since the Defendant here does not reside in Alberta, DEML could not sue him here “as of right” and bore the onus of satisfying the Court that its discretion ought to be exercised to find that Alberta was the forum conveniens. He held that DEML did not satisfy that onus. [ 25 ] In the United Oilseed case, supra , Stevenson J.A. embarked on a thorough and detailed analysis of the law to that point relating to the choice of forum.

He noted that the issue arose in three contexts: cases of service ex juris, cases where there are proceedings in more than one jurisdiction (lis alibi pendens) and cases where a defendant applies to stay service in juris. The issue for the Court was whether to embrace the forum conveniens test propounded by the House of Lords shortly before in Spiliada Maritime Corp. v.

Cansulex Ltd. [1987] A.C. 460, [1986] 3 W.L.R. 972, [1986] 3 All E.R. 843, 71 N.R. 372 (“the Spiliada”) or to adhere to the older English tests previously adopted which emphasized the right of a plaintiff to sue in the jurisdiction in which he resides. The decision is a resounding endorsement of the forum conveniens doctrine. At page 81 Stevenson J.A. said: I prefer the forum conveniens test as expressing a principle, freed, as Lord Goff noted, of rules reminiscent of judicial chauvinism. I think it a suitable test for all cases involving a choice of forum.

With increasing numbers of transaction cutting across jurisdictional borders, some fair and consistent general principle is preferable. Our courts should not insist on taking jurisdiction when there is an obvious injustice to a defendant in doing so. The forum conveniens test is an adequate expression of the general principle, one already in place in cases of service ex juris. ...

I do not see any formula preferable to the forum conveniens test, which has the added merit of providing consistency in areas which are overlapping and closely related. [ 26 ] DEML has raised the question as to whether this case is still good law in light of the Supreme Court of Canada’s decision in Amchem, supra . It appears, to date, the case is still being applied by Alberta courts and would appear to be very much alive and well.

[ 27 ] Notwithstanding the current body of jurisprudence, it is incumbent upon me to address the plaintiff’s argument by considering the effect of the Amchem decision afresh. Amchem involved an application to set aside an anti-suit injunction issued in British Columbia which enjoined the plaintiffs from pursuing their action in Texas. The defendants were manufacturers of asbestos and the plaintiff was the British Columbia Workers’ Compensation Board subrogated to the claims of injured workers.

The passage reproduced by the plaintiff in its brief is at page 78 where the Court says: It seems to me that whether it is a case for service out of the jurisdiction or the defendant is served in the jurisdiction, the issue remains: is there a more appropriate jurisdiction based on the relevant factors. ... Whether the burden of proof should be on the plaintiff in ex juris cases will depend on the rule that permits service out of the jurisdiction.

If it requires that service out of the jurisdiction be justified by the plaintiff, whether on an application for an order or in defending service ex juris where no order is required, then the rule must govern. The burden of proof should not play a significant role in these matters as it is only applies in cases in which the judge cannot come to a determinate decision on the basis of the material presented by the parties.

While the standard of proof remains that applicable in civil cases, I agree with the English authorities that the existence of a more appropriate forum must be clearly established to displace the forum selected by the plaintiff. [ 28 ] Based upon this passage, DEML asserts that the burden is no different in service ex juris cases and that, since DEML has satisfied Rules 30 and 31, the onus is on Hillson to demonstrate that Saskatchewan as a forum is clearly more appropriate. The inconsistency perceived by DEML is described at page 11 of its written brief: 15.

In setting aside the order for service ex juris in the within case, the Master relied on the Court of Appeal decision in United Oilseed Products Ltd. v. Royal Bank , 1988 ABCA 207 (CanLII) , [1988] 5 W.W.R. 181. It is submitted that this case has been overruled by Amchem. In United Oilseed , the Court applied the English cases which draw a distinction between cases in which a Defendant is served within the jurisdiction and cases in which it is not.

It is submitted that this distinction was expressly rejected by Sopinka J. in Amchem . [ 29 ] The question then, is whether the above passage from Amchem is inconsistent with United Oilseed such that it overrules it and renders the Master’s subsequent decision applying it incorrect. In my view, it is not. I note that in the midst of the above passage Sopinka, J. says: In most provinces in Canada, leave to serve ex juris is no longer required except in special circumstances and this trend is one that is likely to spread to other provinces.

Leave of the Court is still, as yet, required by the Alberta Rules of Court. Rule 30 reads: 30 Service outside of Alberta of any document by which any proceeding is commenced, or of notice thereof, may be allowed by the Court whenever: (

h) the action is founded on a tort committed within Alberta [ 30 ] For this reason, the Supreme Court of Canada’s comments on the topic of forum conveniens should not be taken as overruling the Alberta Court of Appeal’s decision in United Oilseed . The inconsistency perceived by DEML is small and it is adequately addressed by this qualification to Sopinka J.’s remarks. I note that this is in keeping with the scholarly literature on the topic. At page 252 of the 4 th edition of Canadian Conflict of Laws ,(Butterworths, Vancouver, 1997), J.G. Castel includes a

section entitled “Burden of Proof” and quotes from the same passage in Amchem cited by DEML. After the quote, the author continues thus: In provinces where leave to serve the defendant ex juris is always required [and there is a footnote here to Alberta and Newfoundland and specifically the United Oilseed case], the plaintiff must show affirmatively that the local forum is clearly more appropriate than any alternative forum.

[ 31 ] Remarkably, there is a recent Alberta Court of Queen’s Bench decision which addresses and defeats DEML’s argument directly. In University of Calgary v. Colorado School of Mines et al. (1995) 1995 CanLII 9265 (AB KB) , 179 A.R. 81 (Q.B.) Kent J. considered the question of forum conveniens in an action brought in both defamation and contract. The U of C and the CSM had an agreement whereby U of C would do work relating to a project CSM had developed for processing seismic data. A dispute arose over U of C’s use of certain data.

A professor from CSM wrote to one at U of C outlining the grievance and demanding a remedy. In the letter, he made statements about the actions of certain U of C employees who had worked on the project. After settlement discussions failed, U of C brought an action for defamation relating to the aforementioned letter and an action for breach of contract relating to an alleged breach of an agreement as to the use of the data. The first issue facing Kent J. was forum conveniens.

After quoting the same four well known conclusions from the United Oilseed case that the Master reproduced, Kent J. continued at page 84: [9] That test must be read in the context of the decision of the Supreme Court of Canada in Amchem Products Inc. et al. v. Workers ’ Compensation Board (B.C.), 1993 CanLII 124 (SCC) , [1993] 1 S.C.R. 897...

She then quoted the passage reproduced and relied upon by DEML in this case and continued: [10] While it might be argued that the last sentence of this quote suggests a burden which shifts during consideration of the issue, because it does not clearly do so, I find that the law to be applied to these facts requires UC to prove that Alberta is the most convenient forum so that if I find that the facts do not favour Alberta over Colorado, UC loses. [ 32 ] I agree with this statement of the law as it stands in Alberta.

With the exception of the remarks as to the placing of the burden, there is nothing that could be perceived as inconsistent between the two judgments.

In any event, Sopinka J. specifically remarked, at page 78, that: ...The burden of proof should not play a significant role in these matters as it only applies in cases in which the judge cannot come to a determinate decision on the basis of the material presented by the parties. [ 33 ] I will, therefore, proceed to consider the question on the basis of the material provided by Counsel and only if I am unable to reach a decision on that will DEML’s arguments as to the burden f proof become critical.

However, I am satisfied in light of the authorities that DEML does bear the onus of establishing Alberta as the forum conveniens. Issue #2: Identification and Application of Factors in The Forum Conveniens Test

a) The Ingredients [ 34 ] With respect to the elements of the test, I note that Castel, at page 257, catalogues a number of factors that are generally considered in the determination of forum conveniens: ...For instance, the court will consider as important the relative ease of access to sources of proof, the location of key witnesses, and all practical problems that make the trial of a case easy, expeditious and inexpensive.

Considerations of public interest in applying the doctrine of forum non conveniens include the undesirability of piling up suits in congested centres, the interest in having localized controversies decided at home, the unnecessary injection of problems in conflict of laws as well as the possibility of inconsistent decisions and the avoidance of multiplicity of proceedings. ... In exercising its discretion the court will also weigh the relative advantages and obstacles to a fair trial. Will the plaintiff be prejudiced by having to sue in the foreign country.

The substance of the plaintiff’s action must also be considered. To what extent is it connected with the forum?

[ 35 ] I have located a number of recent Alberta cases determining the forum conveniens. Mr. Justice Hawco succinctly listed the main criteria to be addressed in the case of Camco International (Canada) Ltd. v. Porodo (1997) 1997 CanLII 24722 (AB KB) , 211 A.R. 71 (Q.B.). That case involved a tort claim for the return of money paid by an Alberta Company with an office in the United Arab Emirates to its former employee for moving expenses. The money was paid on the basis that it would be used to move the employee and his family back to Canada from the U.A.E..

However, he got another job in Dubai and did not use it for that purpose. At page 74 Hawco J. said: [15] What must now occur is a determination of whether those factors are present which would ensure that this province has the closest connection to the action. That is, is Alberta the most appropriate or convenient forum within which to try this dispute between these parties? [16] In my view, it is not. Mr. Justice Campbell in Poulsen (Jan) & Co. v.

Seaboard Shipping Co., 1994 CanLII 598 (BC SC) , [1995] 2 W.W.R. 633 (B.C.S.C.), having reviewed a number of decisions concerning “forum shopping” set out, at p.643 of that decision, the factors which a court should consider when attempting to determine what the most convenient forum is.

They were: 1) Where each party resides. 2) Where each party carries on business. 3) Where the cause of action arose. 4) Where the loss or damage occurred. 5) Any juridical advantage to the plaintiff in this jurisdiction. 6) Any juridical disadvantage to the defendant in this jurisdiction. 7) Convenience or inconvenience to potential witness. 8) Cost of conducting the litigation in this jurisdiction. 9) Applicable substantive law. 10) Difficulty in proving foreign law, if necessary. [ 36 ] Hawco J. noted a number of reasons why the U.A.E. was the more convenient jurisdiction and then added that, since the action was framed in tort, the law of the U.A.E. would apply as the “lex loci delicti” which also militated against Alberta being the forum. [ 37 ] Another very recent Alberta decision considering the factors in the determination of forum is Rivas v.

Damacio et al (1998) 1998 ABQB 703 (CanLII) , 226 A.R. 287 (Q.B.). In that case, Lee J. decided that Montana was a more appropriate forum than Alberta for deciding the question of liability for a Montana accident. In doing so he outlined the relevant criteria as follows at page 292: [14] general factors then that should be considered by this court in this case in determining the “forum conveniens” include: whether

[14] general factors then that should be considered by this court in this case in determining the “forum conveniens” include: whether there is a real and substantial connection to the foreign jurisdiction; identifying the home of the evidence including the location of witnesses and evidence; weighing the significance of witnesses and evidence in comparison to that location; measuring advantages and disadvantages relating to cost and inconvenience; determining the choice of law to be applied to the cause of action; determining whether substantial justice may be done in a foreign jurisdiction notwithstanding the differences in procedure; considering Rivas’ choice of forum; and, avoiding multiplicity of proceedings. [ 38 ] This brings us to the question of forum selection in the context of multi-jurisdiction defamation specifically.

The Alberta case most similar to the one at bar is University of Calgary v. Colorado School of Mines , supra. Having addressed the question of the burden as discussed above, Kent J. went on to consider the factors in determining forum conveniens. At page 85 she said: [11] Taking the several factors which are relevant in determining “forum conveniens”: 1. Nature and subject matter of the action - The defamation action is clearly an action in tort. There was no serious disagreement that the defamation occurred at least partially in Alberta.

In my view, even if the defamation occurred partially in Colorado, which is open to some doubt since it was not published to a third party in Colorado, UC’s reputation in Alberta is more important than in Colorado, so that if a wrong was committed in Alberta, it was a more significant wrong. [ 39 ] She considered the additional factors of the location of witnesses and the location of documents and numbered them “2" and “3" respectively before proceeding to address juridical advantage at page 86: 4.

Juridical advantage or disadvantage - No juridical disadvantage exists in Colorado with respect to the contract action. However, with respect to the defamation action there is one. UC argues that Colorado governmental immunity legislation bars an action against CSM in tort. CSM argues that there is not an absolute bar, but there is a limit on the type of relief that can be claimed. That in itself is a juridical disadvantage to proceeding in Colorado. There is no such limit in Alberta.

Because in my view, the other factors weigh in Alberta’s favour with respect to both actions, I need not deal with the issue of splitting the two actions. [ 40 ] Kent J. found that Alberta was the forum conveniens and disallowed the applications to strike the actions. REAL AND SUBSTANTIAL CONNECTION - PLACE OF THE TORT - THE PROPER LAW [ 41 ] The above cases state that one factor in the decision is whether the jurisdiction has a real and substantial connection to the action.

This likely originates from when Stevenson J.A. quoted Lord Goff at page 81 of United Oilseed as follows: Lord Goff, in The Spiliada (at p.856), uses the term “natural forum” in the sense used by Lord Keith in The Abidin Daver as “ ‘that with which the action has the most real and substantial connection.’” The natural forum is not, therefore, necessarily that chosen by the plaintiff. ...

In a given case a court may find that a particular jurisdiction is the “natural forum” in the sense that it is the logical home of the litigation, a conclusion which will be given weight in applying a forum conveniens test. [ 42 ] I note that, while the determination of the place of the tort of defamation can be a difficult issue, that question first goes to the satisfaction of rule 30(

h) which the Master held was satisfied, which conclusion is not in issue. Establishing that the tort took place in the jurisdiction clothes the domestic forum with jurisdiction to hear the action but that jurisdiction is still subject to a determination of forum conveniens. This question is not, therefore, decisive on the forum question beyond its relevance to the question of the claim’s real and substantial connection to Alberta. It will become of significance again on the determination of the choice of law but that is a decision for a later application.

The proper law of the tort is a factor to be considered in the choice of forum. Without prejudging this substantive issue, I am of the view, given the precedent just cited, that it is both appropriate and sensible for a court considering the question of forum to turn its mind to the question of the law that that forum will be bound to apply.

[ 43 ] Hillson cites Tolofson v. Jensen 1994 CanLII 44 (SCC) , [1994] 3 S.C.R. 1022; for the proposition that the proper law to be applied to a tort was the place of the wrong and cites a passage from [1994] 120 D.L.R.(4th) page 305 in which the Court says: Ordinary people expect their activities to be governed by the law of the place where they happened to be and expect that concomitant legal benefits and responsibilities will be defined accordingly. [ 44 ] Hillson then argues that an “ordinary person” would expect that the present action would be brought in Saskatchewan.

I note that just before this passage the Court briefly addresses the problem of inter-provincial torts as follows: ...as a general rule, the law to be applied in torts is the law of the place where the activity occurred, i.e., the lex loci delicti. There are situations, of course, notably where

an act occurs in one place but the consequences are directly felt elsewhere, when the issue of where the tort takes place itself raises thorny issues.

In such a case, it may well be that the consequences would be held to constitute the wrong. [ 45 ] All the comments in the above cases are also consistent with Castel’s text on the subject in which the author concludes, at page 695: However, since the principal aim of the Canadian law of defamation is to protect the plaintiff’s interest in maintaining an unsullied reputation rather than to punish the defendant, it would be better to ignore the distinction between libel and slander, and, for choice of law purposes, to hold that the place of tort, in multi-state defamation cases, is where the reputation of the plaintiff has been most injured (i.e. where substantial damage is suffered).

This is the place where the effect of the wrongful act is mostly felt and where in substance the cause of action arose. PLACE OF THE EVIDENCE - WITNESSES AND DOCUMENTS [ 46 ] At the close of the decision in United Oilseed , Stevenson J.A. proceeded upon the most illuminating part of the judgment, the application to the facts.

He noted the following factors: the location of the relationship underlying the dispute, the location of the misstatement, the location of the plaintiff’s reliance on the statement, the location of the defendant’s witnesses and records as well as the location of those of the plaintiff, the relative inconvenience of relocating either side to a forum and the connection of the action with Alberta. He commented that “in short, all of [the defendant’s] documents and witnesses are in Ontario, and the alleged tort was largely committed there” and concluded that it was clearly and distinctly the more appropriate forum.

At page 80, he said: In a choice of forum question, identifying the home of the evidence is highly important. JURIDICAL ADVANTAGE [ 47 ] United Oilseed also provides guidance relevant to the question of the effect to be given to the Saskatchewan Legislative immunity. At page 83, Stevenson J.A. says: I would eliminate any special status for a “legitimate personal or juridical advantage”. The expression is not only difficult to define but suggests some special advantage to a plaintiff.

If such matters touch upon the suitability of a forum they are to be assessed within the general test. [ 48 ] DEML pointed out that the decision in Amchem recognises that juridical advantage to the plaintiff is an important consideration. The discussion comes from 78 of the decision where Sopinka J. says: In my view there is no reason in principle why the loss of juridical advantage should be treated as a separate and distinct condition rather

In my view there is no reason in principle why the loss of juridical advantage should be treated as a separate and distinct condition rather than being weighed with the other factors which are considered in identifying the appropriate forum. ... The weight to be given to juridical advantage is very much a function of the parties’ connection to the particular jurisdiction in question. If a party seeks out a jurisdiction simply to gain a juridical advantage rather than by reason of a real and substantial connection of the case to the jurisdiction, that is ordinarily condemned as “forum shopping”.

On the other hand, a party whose case has a real and substantial connection with a forum has a legitimate claim to the advantages that that forum provides. The legitimacy of this claim is based on a reasonable expectation that in the event of litigation arising out of the transaction in question, those advantages will be available. [ 49 ] I conclude that juridical advantage is another factor to be weighed in the test and its weight depends upon the connection between the jurisdiction and the action.

DEML accordingly has directed much of its argument to establishing the reality and substantiality of the connection between itself, the events giving rise to the claim and Alberta.

LIS ALIBI PENDENS: THE PARALLEL ACTION [ 50 ] Hillson points out that Channel Lake, DEML’s “wholly owned subsidiary, has already commenced an action in Saskatchewan.” He says that there “has been an open invitation to the Plaintiff herein to be added to that lawsuit as an additional plaintiff.” The courts, he says, have historically been “loathe to have multiplicity of actions arising from the same facts” as it allows for conflicting judgments and findings of fact from the same evidence. [ 51 ] This problem comes under the heading of Lis Alibi Pendens and has been the topic of some jurisprudence and scholarship.

At page 259 of the Fourth Edition, Castel says: The court of a common law province or territory has inherent and statutory, discretionary jurisdiction to intervene to prevent possible injustice arising where two actions are pending, one in the province and the other in another province or foreign state, between the same parties and in respect of the same subject matter.

The intervention may take the form of ordering a stay or dismissal of the local action, or of restraining the institution or continuation of the extra-provincial or foreign action or, where the same person is plaintiff in both actions, of putting him or her to his or her election. In determining whether or not to grant the remedy, the court will apply the rules that have been analysed in the preceding paragraphs.

Where the plaintiff in the local proceeding is the defendant in the foreign proceeding, the court will be reluctant to stay the local proceeding for fear of denying the plaintiff access to its process, especially if it is the natural forum. On the other hand, where the same person begins a proceeding in the forum and in a foreign court, the forum may be more inclined to intervene.

In both situations the stay should not deprive the plaintiff of a legitimate personal or juridical advantage. [ 52 ] I have located one Alberta case which specifically considers the issue of lis alibi pendens and a handful of others that give it passing mention. The most thorough discussion is found in a decision of Mr. Justice Mason in Gerling Global Gen. Ins. Co. v. PCL Const. Ltd. (1986) 1986 CanLII 1775 (AB KB) , 48 Alta. L.R.(2d) 375 (Q.B.), a decision which, I note, predates The Spiliada, United Oilseed and Amchem .

In that case the plaintiff insurance companies issued insurance policies in Alberta to the defendant. Loss was incurred by third parties as a result of a fire at a Minnesota site upon which the defendant was the contractor. The defendant was sued in Minnesota and the question was raised in Alberta by originating notice whether the policies were payable in U.S. or Canadian funds. The same question was raised in Minnesota and the defendant applied for a stay of proceedings in Alberta on the ground that the same question was being litigated in the U.S..

In reaching his decision Mason J. reviewed the authorities which highlight the policy concerns where there exist two parallel actions.

At page 382 of the decision he quoted Lord Diplock in The Abidin Daver [1984] A.C. 398 at 411 as follows: Lord Diplock goes on to consider the rule in the following terms at pp. 411-12 where there exists a lis alibi pendens: Where a suit about a particular subject matter between a plaintiff and a defendant is already pending in a foreign court which is a natural and appropriate forum for the resolution of the dispute between them, and the defendant in the foreign suit seeks to institute as plaintiff an action in England about the same matter to which the person who is plaintiff in the foreign suit is made defendant, then the additional inconvenience and expense which must result from allowing two sets of legal proceedings to be pursued concurrently in two different countries where the same facts will be in issue and the testimony of the same witnesses required, can only be justified if the would-be

plaintiff can establish objectively by cogent evidence that there is some personal or judicial advantage that would be available to him only in the English action that is of such importance that it would cause injustice to him to deprive him of it. Lord Diplock bases his approach on his concerns over, not only the factors of additional inconvenience and expense, but (

a) the consideration of the possibility that the two countries may reach conflicting decisions, (

b) the issue of the recognition and enforcement of a judgment by the foreign court or by the English court, it being a court of competent jurisdiction, (

c) the possibility of an unseemly race to obtain judgment as between the two jurisdictions and (

d) what he terms... novel problems relating to estoppel per rem judicatam and issue estoppel ...The decision of Lord Brandon of Oakbrook in The Abidin Daver is an excellent review of the development of the reformulated rule based on his particular experience in this field of law.

At pp. 423-24 of his judgment, after reviewing the authorities, Lord Brandon sets out the proper approach to the consideration of the factor lis alibi pendens as part of the rule as follows: Mere balance of convenience cannot, of itself, be decisive in tilting the scales; but strong, and a fortiori overwhelming, balance of convenience may easily, and in most cases probably will, be so. Similarly, the mere disadvantage of multiplicity of suits cannot of itself be decisive in tilting the scales,; but multiplicity of suits involving serious consequences with regard to expense or other matters, may well do so.

In this connection it is right to point out that, if concurrent actions in respect of the same subject matter proceed together in two different countries, as seems likely if a stay is refused in the present case, one or other of two undesirable consequences may follow: first, there may be two conflicting judgments of the two courts concerned; or, secondly, there may be an ugly rush to get one action decided ahead of the other, in order to create a situation of res judicata or issue estoppel in the latter. [ 53 ] Justice Mason went on to hold that the Court was to balance all the relevant factors and advantages to the plaintiff against those of the defendant but qualified the conclusion by saying that the balance was strongly in favour of the plaintiff where it sued in its natural forum.

The multiplicity of actions was another such factor. He denied the stay of the Alberta action as Alberta was the natural forum. While the discussion of the natural forum has, to some extent, been overtaken by the more recent decisions of both the English and Canadian courts, Mason J.’s discussion of the policy considerations in cases of lis alibi pendens remains relevant. [ 54 ] The factors discussed by Mason J. appear to be those raised as concerns by Hillson in this case and I will consider them as factors in my overall assessment of the forum conveniens.

This is consistent with Lee J.’s recent judgment in Rivas v. Damacio et al. , supra, in which avoidance of a multiplicity of actions was considered as another factor in the general determination of the convenient forum. Similarly, in Gentra Can. Investments Inc. v. Lehndorff United Properties (Can) et al., (1995) 1995 CanLII 18044 (AB CA) , 169 A.R. 138 (C.A.), the Alberta Court of Appeal upheld the decision of a Chambers’ Judge not to stay an Alberta action simply because of the existence of a parallel Ontario action where Alberta was the appropriate forum for the particular question at hand.

b) Application to the facts [ 55 ] The Master noted that DEML had provided essentially no information relating to the issue of forum conveniens. There was, he said, no evidence as to the number of witnesses required or where they are located or as to the location of records. On this application DEML has filed a supplementary affidavit providing answers to these questions. REAL AND SUBSTANTIAL CONNECTION, PLACE OF TORT AND CHOICE OF LAW [ 56 ] I am satisfied that the jurisdiction of Alberta has a real and substantial connection to the cause of action in this case.

As with the U of C case, supra, DEML’s reputation and business identity are located in Calgary and it is in this jurisdiction that the alleged damage has been caused to it. As a tort, the defamation is to be governed by the lex loci delicti which is, according to the authorities, likely to be where the damage to the plaintiff’s reputation occurred. Accordingly, the Law of Alberta is likely to apply and is another factor connecting the action to this jurisdiction.

PLACE OF THE EVIDENCE [ 57 ] In the Supplemental Affidavit of Louis Dufresne, the Senior Vice President of DEML, it is stated that DEML has small offices in Ontario and Manitoba, has no office in Saskatchewan and has its main office in Calgary. The vast majority of its business records are in Calgary, 70% of its employees are ordinarily resident in Alberta, and seven of eight of its senior management personnel reside in Calgary. It has no employees ordinarily resident in Saskatchewan and has no records there. Paragraph 5 of that affidavit says: 5.

DEML has brought this action in Alberta because it is an Alberta corporation with its head office and its most substantial business presence in Alberta. ... I am satisfied that this is the case. [ 58 ] While Hillson will suffer some inconvenience in travelling to Calgary and may have to transport witnesses and documents to some extent, I am satisfied that he will suffer the lesser inconvenience as it appears not to be seriously contested that the impugned statements were made. In any event, that inconvenience is a matter which can easily be made the subject of a costs award at the end of the day.

JURIDICAL ADVANTAGE [ 59 ] The absence of the Saskatchewan M.L.A. immunity for Hillson in Alberta constitutes, in my view, a clear juridical advantage to DEML to bringing the action in Alberta. If any support were needed for this conclusion, I note that Castel’s 4 th edition, at page 258, lists a number of examples that have been held to amount to legitimate juridical advantage.

I includes in that list: “that a defence in the alternative forum is not available locally.” [ 60 ] The only remaining question on this point is the “legitimacy” of the advantage which depends upon the connection between the jurisdiction and the cause of action. As I have decided that Alberta is really and substantially connected to the cause of action the absence of the defence is a legitimate juridical advantage to which DEML is entitled.

LIS PENDENS - THE PARALLEL ACTION IN SASKATCHEWAN [ 61 ] While I am cognisant of the potential for multiplicity of actions, a number of points are to be noted in considering this factor. First, while the plaintiff in the Saskatchewan action is now a wholly owned subsidiary of the plaintiff in the Alberta action, they are nonetheless different persons at law with different, independent, reputations that have come under assault in different places.

It is then, not a classic example of lis alibi pendens. [ 62 ] Second, I note that since the two plaintiffs have their business presence and identity in different jurisdictions, their causes of action in defamation are subject to different proper laws which necessitates their independent consideration. [ 63 ] Finally, I note that, even if the Saskatchewan action is similar enough to be a parallel action giving rise to lis alibi pendens considerations, this is but one factor to be weighed amongst the others in determining the forum conveniens.

In my view, the inconvenience arising from the existence of the other action is insufficient to outweigh the injustice that would occur if DEML was deprived of the legitimate juridical advantage of bringing its claim free from the Saskatchewan defence of M.L.A. immunity. [ 64 ] Hillson advanced a policy argument that “the avoidance of a statute which is meant to protect democratic principles by protecting legislative comments... represents a significant incursion into the sovereignty of Saskatchewan and encourages forum shopping.” I do not agree.

If the statements have extraterritorial effect, and they do, and the alleged defamer raises a Saskatchewan Act as a shield, which he does, it is that shield which is impinging upon the sovereignty of the affected jurisdiction. Besides, the authorities have clearly established that a juridical advantage that might otherwise be shopped for is legitimate when it is an incident of a jurisdiction with which the plaintiff and the action are really and substantially connected. I am satisfied that Alberta is sufficiently connected to the plaintiff and

the action to render the advantage of the absence of the immunity defence legitimate for DEML. CONCLUSION [ 65 ] On the evidence before me, much of which was unavailable to the Master in the decision below, I am satisfied that DEML has established that Alberta is the convenient forum for the action and the service ex juris is reinstated. [ 66 ] DEML’s principal place of business, its identity and its reputation are all located primarily in Alberta and it is natural and appropriate that actions to remedy damage inflicted to that reputation be brought in this jurisdiction with its attendant juridical advantages.

The advantage in this case is the absence of a defence available to Hillson only under the Law of Saskatchewan. Additionally, all of DEML’s witnesses and documentary evidence are located in Calgary. While Hillson will have to travel to Calgary and may have to transport certain evidence and witnesses, I am of the view that he would suffer the lesser inconvenience. While I recognise the potential difficulties caused by the existence of a similar action in Saskatchewan, they are not sufficient to outweigh the other factors, all of which point to Alberta as the proper forum.

DATED at Calgary, Alberta this 9 th day of June , 1999. J.C.Q.B.A. APPEARANCES: Michael J. Donaldson for the Plaintiff Clink Docken, Q.C. Thomas W. Buglas for the Defendant