Court v. Debaie, 2012 ABQB 640

Court of Queen ’ s Bench of Alberta Citation: Court v. Debaie, 2012 ABQB 640 Date: 20121018 Docket: 1203 02594, 1203 02581 Registry: Edmonton Between: Cheryl Court and Twyla Campbell Plaintiffs - and - Carolyn Trider Debaie Defendant

And Between: Cheryl Court and Twyla Campbell Plaintiffs - and - Wendy MacKay Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.M. Ross _______________________________________________________ I. Introduction [ 1 ] In applications in each of these companion cases, the Defendants seek to set aside service outside of Alberta of the Statements of Claim upon them.

Alternatively, the Defendants seek to dismiss or stay the actions on the grounds that there is no real and substantial connection with Alberta or pursuant to the doctrine of forum non conveniens. II. Facts [ 2 ] The Plaintiffs, Cheryl Court and Twyla Campbell, live in Alberta. They are the daughters of Mr. Ruf, who also lives in Alberta. The Defendants, Carolyn Debaie and Wendy MacKay, are, respectively, the daughter and sister of Mrs. Ruf. Mr. and Mrs. Ruf lived together in Alberta at the time of the alleged events. Ms. Debaie lives in Nova Scotia and Ms.

MacKay lives in Ontario. [ 3 ] The Statements of Claim in these actions allege that, in January 2012, Ms. Debaie and Ms. MacKay published defamatory comments about the Plaintiffs on their Facebook pages. The defamatory comments related to the Plaintiffs ’ alleged treatment of Mrs. Ruf.

[ 4 ] The Statements of Claim allege that at the time the Defendants posted the comments on their Facebook pages, the Facebook options on the pages were set to open access. As a result, anyone with an internet connection could view the comments. The posted comments would also appear on the “ wall ” of the Defendants ’ Facebook “ friends ” . Ms. Debaie is alleged to have had 286 Facebook friends and Ms. MacKay to have had 51 Facebook friends at the time of the postings. [ 5 ] Ms. Debaie filed an affidavit in the application stating that only seven of her 289 Facebook friends resided in Alberta in January 2012.

Six of the seven Facebook friends had no connection with the Plaintiffs and one was the Plaintiff, Ms. Court. Ms. MacKay deposed that only one of her 51 Facebook friends resided in Alberta in January 2012. [ 6 ] The Plaintiffs also filed affidavits. They stated that in January 2012 they accessed the Defendants ’ Facebook pages and viewed posts containing defamatory statements against them. They gave evidence that the posts were “ public ” and therefore visible to anyone with access to the internet.

They also stated that they were advised by their sister, Karen Hache, who lives in Canmore, Alberta, and believe that Ms. Hache viewed the Facebook pages and saw the defamatory comments. Ms. Hache did not swear an affidavit and the admissibility of the Plaintiffs ’ hearsay evidence is an issue in the Defendants ’ applications. III. Real and Substantial Connection (

i) Law [ 7 ] Service outside Alberta and in Canada is governed by Rule 11.25(1) of the Alberta Rules of Court , Alta Reg 124/2010 ( “ New Rules ” ). Rule 11.25(1) reads: 11.25(1) A commencement document may be served outside Alberta and in Canada only if (

a) a real and substantial connection exists between Alberta and the facts on which a claim in the action is based, and (b)the commencement document discloses the facts in support and specifically refers to the grounds for service of the document outside Alberta and in Canada. [ 8 ] Rule 11.25(3) sets out a number of grounds for service outside Alberta. These are circumstances in which a real and substantial connection is presumed to exist.

These include where the claim relates to a tort committed in Alberta: New Rules , Rule 11.25(3)(d). [ 9 ] The principles governing a real and substantial connection and these applications have been reviewed by the Supreme Court of Canada ( “ SCC ” ) in a series of recent decisions. [ 10 ] In Club Resorts Ltd v Van Breda , 2012 SCC 17 ( “ Club Resorts ” ), the SCC held that the common law test of real and substantial connection depends on the demonstration of a presumptive connecting factor, such as the place where a tort was committed.

The lack of a presumptive connecting factor cannot be replaced by a case-by-case exercise of discretion: Club Resorts at para 70. [ 11 ] The SCC reviewed a number of possible presumptive connecting factors relating to claims in tort and held that neither the presence of the plaintiff in the jurisdiction, nor sustaining damage in the jurisdiction, constitutes a presumptive connecting factor: Club Resorts at paras 86 and 89. In a case concerning a tort, the presumptive connecting factors that entitle a court to assume jurisdiction over a dispute are: (

a) the defendant is domiciled or resident in the province; (

b) the defendant carries on business in the province; (

c) the tort was committed in the province; and

(

d) a contract connected with the dispute was made in the province. (Club Resorts at para 90.) [12] In the SC actions, the only possible connecting factor is the place of the tort. [13] The SCC applied the Club Resorts analytical framework to the tort of defamation in Éditions Écosociété Inc v Banro Corp,2012 SCC 18 (“Éditions Écosociété”). The SCC held that the tort of defamation is “crystallized upon publication of the libellousmaterial” and “publication occurs when libellous material is read by a third party”: Éditions Écosociété at para 34.

Where libellousmaterial is printed in a book that is circulated in a library, there is an inference of publication establishing jurisdiction: ÉditionsÉcosociété at para 34. [14] In Éditions Écosociété the plaintiff provided evidence that 15 copies of the book were circulating in Ontario libraries and onecopy had been checked out. This entitled the Ontario court to take jurisdiction: 38 Here, the alleged tort of defamation occurred in Ontario. Noir Canada was distributed in Ontario. At this stage of the proceedings,the plaintiff need not show evidence of harm or that the book was read.

The plaintiff need only allege publication and its allegationsshould be accepted as pleaded unless contradicted by evidence adduced by the defendants. (Éditions Écosociété at para 38). [15] In Breeden v Black, 2012 SCC 19 (“Breeden”), the SCC applied Club Resorts in a case where allegedly defamatory materialhad been posted in press releases on a company website.

The SCC held: 20 It is well established in Canadian law that the tort of defamation occurs 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 threenewspapers. (Breeden v Black at para 20). [16] A question that is not addressed by these decisions is whether, in the case of publication on the internet, there must beevidence that statements were read or downloaded, or whether there may be an inference of publication in certain circumstances,analogous to the presence of books in a library. [17] This question was addressed in a concurring decision by Deschamps J in the case of Crookes v Newton, 2011 SCC 47(“Crookes v Newton SCC”), an appeal of a trial decision.

The issue in Crookes v Newton SCC was whether posting an internethyperlink to defamatory material constituted publication, particularly in the absence of evidence as to whether someone had actually usedthe hyperlink or read the defamatory material. The majority of the SCC held that a hyperlink, by itself, is not “publication” of the contentto which it refers.

As a result, the majority of the Court did not consider whether proof of publication required evidence that someone hadused the hyperlink or read the material. [18] However, in her concurring decision, Deschamps J commented on publication on the internet: 55 ... “Publication” has an established meaning in the law of defamation. It refers to the communication of defamatory information insuch a way that it is “made known to a third party”: Gaskin v.

Retail Credit Co., (SCC), [1965] S.C.R. 297, at p. 299.Professor Brown explains that “[i]t is a bilateral act by which the publisher makes available to a reader, listener or observer in a comprehensible form the defamatory information” (R.E. Brown, Brown on Defamation (2nd ed. (loose-leaf)), at para. 7.2). Thus,publication has two components:

(1) an act that makes the defamatory information available to a third party in a comprehensible form,and (2) the receipt of the information by a third party in such a way that it is understood.

62 ... Publication is not complete until someone other that the person referred to receives and understands the defamatory information. . .

In the context of the internet, a simple reference, absent evidence that someone actually viewed and understood the defamatory information which it directs third parties, is not publication of that content. 63 ... [P]ublication is not complete unless the plaintiff adduces evidence that satisfies, on a balance of probabilities, the requirements of the second component of publication: that a third party received and understood the information to which reference is made. 94 Whether defamatory information is readily available is a question of fact.

A court asked to infer that information has been made readily available should consider all circumstances related to the case with which a third party would be able to gain access to it. Defamatory information is readily available if, in the circumstances, it can be immediately accessed. In other words, there must be no meaningful barrier that would prevent a third party from receiving it. 109 ... [T]he requirements of the second component of publication can be satisfied either by adducing direct evidence or, and this is more likely, by asking the court to draw an inference.

Inferring that defamatory information has been read and understood is not new. In Gaskin , the Court, quoting Gatley on Libel and Slander , observed (at p. 300): It is not necessary for the plaintiff in every case to prove directly that the words complained of were brought to the actual knowledge of some third person. If he proves facts from which it can reasonably be inferred that the words were brought to the knowledge of some third person, he will establish a prima facie case. [ 19 ] The issue of publication on the internet had also been discussed by the British Columbia Court of Appeal.

In Crookes v Newton , 2009 BCCA 392 ( “ Crookes v Newton CA ” ), Saunders JA, for the majority, held that proof of publication of material on the internet requires proof that someone has read the material: 80 There are two aspects to the publication element of the tort of defamation. The first, relating to the defendant as publisher, concerns the act of promulgating the impugned item.

The second, relating to the third party receiver of the impugned item, concerns the receipt of that item by a person within the court ’ s jurisdiction. (I refer to the issue of jurisdiction because publication, to be actionable, must be within this jurisdiction, and publication of internet material occurs where the words are read. . .) [ 20 ] Mr. Crookes also commenced a separate defamation action against Yahoo! Inc. ( “ Yahoo ” ): Crookes v Yahoo , 2007 BCSC 1325 ( Crooks v Yahoo SC) , aff ’ d 2008 BCCA 165 .

Yahoo was not the author of the allegedly defamatory material, but was sued for having provided the means by which the material was published: an internet service that allows users to create online discussion groups ( “ GPC-Members Group ” ). The suit was dismissed for lack of jurisdiction because Mr. Crookes had not provided evidence that the material had been downloaded or read in British Columbia. In Crookes v Yahoo SC , the application judge held: 26 With respect to internet communications, the site of the alleged defamation is where the damage to reputation occurs. . .

It is when a person downloads the impugned material from the internet that the damage to the reputation may be done, and it is at that time and place that the tort of defamation is committed. 29 Mr. Crookes must show that alleged defamatory postings on the GPC-Members website, hosted by Yahoo on servers outside British Columbia, were accessed, downloaded and read by someone in British Columbia, thereby damaging his reputation in British Columbia. Mr.

Crookes has neither alleged nor tendered any evidence that any individual in British Columbia has downloaded and read the impugned material posted on the GPC-Members website. 30 Publication is an essential element for an action in defamation. In this case, the pleadings are deficient as there is no pleading alleging the purported defamatory postings were published in British Columbia. . .

There is no evidence anyone read the material in British Columbia and there is no basis for this court to draw that inference. [ 21 ] The Court of Appeal affirmed the decision, noting that while publication on a public website such as a Government of Canada website might support a presumption of publication, “ the mere fact a statement was posted on a website with the kind of restricted access there was in this case ” did not support the presumption it was read by anyone in British Columbia: Crookes v Yahoo , 2008 BCCA 165 at

para 6 ( Crookes v Yahoo CA) . (ii) Defendants ’ Position [ 22 ] The Defendants submit the service outside of Alberta of the Statements of Claim should be set aside. The Defendants argue that the British Columbia decisions in Crookes v Yahoo SC and Crookes v Newton CA , and the concurring decision of Deschamps J in Crookes v Newton SCC , correctly describe the requirement of proof of publication as a condition of jurisdiction in a defamation action.

Following those decisions, the Defendants argue that evidence that statements were posted on Facebook is not evidence that the statements were read by anyone in Alberta. [ 23 ] The only additional evidence that the Plaintiffs have provided is their own affidavits where they state that their sister read the comments in Alberta. The Defendants argue that this evidence is insufficient on two grounds. First, that it is hearsay and second, that it fails to explain how the Plaintiffs ’ sister came to access the material.

If the Plaintiffs ’ sister accessed the Facebook comments because of the Plaintiffs ’ actions, this would amount to republication by the Plaintiffs for which the Defendants would not be liable: O(

J) v Strathcona-Tweedsmuir School , 2010 ABQB 559 at para 51 . (iii) Procedural and Substantive Context [ 24 ] The Defendants ’ arguments fail to consider important procedural and substantive points. [ 25 ] The procedural context in which the issue of publication arises is important. The Defendants ’ applications seek to set aside the service of the Statements of Claim and to dismiss the actions for lack of jurisdiction.

In this context, the standard of proof of publication that would apply at trial, as discussed in Crookes v Newton SC and Crookes v Newton CA , does not apply. [ 26 ] As held in É ditions É cosoci é t é , “ [a]t this stage of the proceedings, the plaintiff need not show evidence of harm ” : É ditions É cosoci é t é at para 38. The Plaintiffs do not need to prove that the comments were read and understood by someone as referring to the Plaintiffs.

Instead the Plaintiffs ’ “ need only allege publication and its allegations should be accepted as pleaded unless contradicted by evidence adduced by the defendants ” : É ditions É cosoci é t é at para 38. [ 27 ] The evidence supporting the Defendants ’ position, or the lack of evidence supporting the Plaintiffs ’ position, must be clear in the procedural context of these applications. In responding to the application to set aside service outside the jurisdiction, the Plaintiffs need to make out only a “good arguable case”.

This standard, which applied to justify the granting of a service ex juris order under Rule 30 of the Alberta Rules of Court , Alta Reg 390/1968 ( “ Old Rules ” ), continues to apply under the New Rules in determining whether service outside Alberta ought to be set aside: Scott & Associates Engineering Ltd v Ghost Pine Windfarm LP , 2011 ABQB 630 at para 40 . [ 28 ] Essentially t he same standard, the demonstration of a “ genuine issue for trial ” , applies to the Plaintiffs ’ response to the Defendants ’ application to dismiss.

Again, the standard has not changed with the New Rules : Kwan v Superfly Inc , 2011 ABQB 343 at para 20 and cases cited therein. [ 29 ] Another consequence of the procedural context is that hearsay evidence is admissible under Rule 13.18 of the New Rules : 13.18(1) An affidavit may be sworn (

a) on the basis of personal knowledge, or (

b) on the basis of information known to the person swearing the affidavit and that person ’ s belief.

(2) If an affidavit is sworn on the basis of information and belief, the source of the information must be disclosed in the affidavit.

(3) If an affidavit is used in support of an application that may dispose of all or part of a claim, the affidavit must be sworn on the basis ofthe personal knowledge of the person swearing the affidavit. [30] This compares with Rule 305 of the Old Rules which allowed hearsay evidence on “interlocutory motions”: 305

(1) Affidavits shall be confined to the statement of facts within the knowledge of the deponent.

(2) In an action or proceeding to which a corporation is a party any affidavit required by these Rules to be made by a party may be madeby an officer, servant or agent of the corporation having knowledge of the facts required to be deposed to, who shall state therein that hehas that knowledge.

(3) On interlocutory motions affidavits containing statements as to the belief of the deponent with the source and grounds thereof may beadmitted. [31] While there are some differences in wording, case law under the Old Rules remains instructive in interpreting Rule 13.18:Renfrew Insurance Ltd v Donald, 2012 ABQB 228 at para 19. [32] An application to set aside service outside the jurisdiction does not, in and of itself, dispose of a claim. Of course, if theapplication is not granted, the case will continue.

But even if the application is granted, if the time for service of the statement of claimhas not expired, the plaintiff may obtain further evidence and serve again: Thod Investment Ltd (cob Jeff Parry Promotions) v André-Philippe Gagnon Inc, 2005 ABQB 601 at para 16.

In addition, the doctrine of res judicata does not apply to a second application forservice ex juris, although it is subject to the exercise of judicial discretion: Stainton v Milner Fraser, 1999 ABQB 575 at para 19, Talbot v Pan Ocean Oil Corporation and Pan Ocean Oil Ltd (1977), 1977 ALTASCAD 176 , 3 Alta LR (2nd) 354 at para 9 (ABCA). [33] It is true that the applicant who seeks to dismiss an action on the ground of lack of jurisdiction seeks a final disposition of theaction, and, like other applicants for

summary judgment, cannot rely on hearsay: Airco Aircraft Charters Ltd v Edmonton RegionalAirports Authority, 2010 ABQB 397 at para 25, aff’d 2010 ABCA 354, Yellowbird v Samson Cree Nation No 444, 2003 ABQB 535 atpara 16. [34] However, the respondent to the application, who does not seek to dispose of the action but to have it proceed to trial, may relyon hearsay: Airco Aircraft Charters Ltd v Edmonton Regional Airports Authority at para 26, Murphy Oil Co v Predator Corp, 2006ABCA 69 at para 38. [35] This practice under the Old Rules is consistent with the wording of Rule 13.18(3), which provides that “[i]f an affidavit isused in support of an application that may dispose of all or part of a claim, the affidavit must be sworn on the basis of the personalknowledge of the person swearing the affidavit” (emphasis added).

Rule 13.18 does not require that an affidavit used in response to suchan application be based on personal knowledge. Thus both the wording of Rule 13.18(3), and the previous practice, allow the use ofhearsay in a respondent’s affidavit. [36] The substantive point which is ignored in the Defendants’ argument is that publication need not always be proved by directevidence. Publication may be inferred from other evidence in appropriate cases.

Justice Deschamps was specific about this and held that“if a plaintiff proves facts from which it is reasonable to infer that the words were brought to the knowledge of some third person, thatwill establish a prima facie case of publication”: Crookes v Newton SCC at para 109. [37] The Defendants’ reliance on Crookes v Yahoo as establishing that the Plaintiffs must provide direct evidence that thedefamatory material was read by someone in Alberta is misplaced.

Both courts in that case specifically acknowledged both the role ofpleadings and of inferences in considering whether an action should be dismissed for lack of jurisdiction. The British Columbia SupremeCourt stated: 30 In this case, the pleadings are deficient as there is no pleading alleging the purported defamatory postings were published in BritishColumbia. . . There is no evidence anyone read the material in British Columbia and there is no basis for this court to draw thatinference.

( Crookes v Yahoo SC at para 30). [ 38 ] The Court of Appeal held that the application judge correctly dismissed the action on the grounds that the “ pleaded case was deficient and no evidence had been adduced on the application that the statements had been read in this province, or that would permit an inference to that effect to be drawn ” : Crooks v Yahoo CA at para 7. (iv) Analysis [ 39 ] Applying these principles to the Defendants ’ applications, I note firstly that the pleadings in these actions are deficient.

The Statements of Claim allege that the Defendants live in Nova Scotia and Ontario, and that they published the defamatory words by way of their Facebook pages. It is alleged that the Facebook pages were set to open access so that anyone could view the defamatory words, that the words would appear on the Facebook pages of “ friends ” linked to the Defendants ’ Facebook pages, and that the words were commented upon by other persons.

However, there is no allegation that the words were published in Alberta. [ 40 ] During the applications, evidence was provided by the Defendants that each of them had Facebook friends residing in Alberta at the time of the postings - seven in the case of Ms. Debaie and one in the case of Ms. MacKay. The Plaintiffs gave evidence that they were advised by their sister, Ms. Hache who lives in Canmore, Alberta, and believe that she viewed the Defendants ’ Facebook pages and saw the defamatory comments.

This evidence responds to the deficiency in the pleadings and provides some direct evidence of publication in Alberta, as well as evidence from which an inference can be drawn establishing a prima facie case that the material was read by a person or persons in Alberta. [ 41 ] The Plaintiffs ’ evidence is admissible hearsay as it complies with the requirements of Rule 13.18 of the New Rules by stipulating the source of the hearsay and the Plaintiffs ’ belief in it. The Defendants argue that, even if admissible, the evidence should be given no weight as it does not state how Ms. Hache became aware of the postings.

The Defendants submit I should assume that it was through republication by the Plaintiffs. [ 42 ] However, the Defendants did not cross-examine the Plaintiffs on their affidavits. The Plaintiffs are certainly able to give evidence about whether or not they republished the postings to their sister; the Defendants were not disadvantaged by having the Plaintiffs, rather than their sister, available for cross-examination on this subject.

In the absence of cross-examination, and given that the Plaintiffs are required to establish only a triable or arguable case of publication in Alberta, I am prepared to rely on their affidavits as some direct evidence that the postings were read in Alberta. [ 43 ] More persuasive evidence of publication in Alberta is, in my view, provided by the Defendants ’ own evidence that each of them had at least one Facebook friend in Alberta at the time of the postings.

Combined with the Plaintiffs undisputed evidence that the consequence of this is that the Defendants ’ postings would appear on the “ wall ” of those friends ’ Facebook pages, without any intervening action by the friends, justifies an inference that the postings were read by those friends. The postings were thus published in Alberta. This is a different situation from a hyperlink, or even a general website, in which potential readers must take action to access the posted material.

None of the cases cited by the Defendants involved a similar situation, in which residents of the province, who had already signed up for Facebook pages of their own, would have the allegedly defamatory words automatically appear on their computer screens when they next signed in to their own Facebook pages. (

v) Conclusion [ 44 ] I conclude that the evidence on these applications provides support for an arguable or triable case that the allegedly defamatory material was published in Alberta. This is sufficient to establish the presumptive connecting factor of a tort committed in Alberta and, therefore, a real and substantial connection between this jurisdiction and the action. The applications to set aside service outside Alberta and the applications to dismiss the actions for lack of jurisdiction are dismissed. IV. Forum Non Conveniens [ 45 ] In the alternative, the Defendants seek an order staying the actions on the grounds of forum non conveniens .

(

i) Law [ 46 ] The burden is on the Defendants to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the Plaintiffs. The Defendants must show what connections the alternative forum has with the subject matter of the litigation and that the alternative forum is “ clearly more appropriate ” .

As stated by the SCC: 109 The burden is on a party who seeks to depart from this normal state of affairs to show that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to do so and that the plaintiff should be denied the benefits of his or her decision to select a forum that is appropriate under the conflicts rules. The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, that comparable forums exist in other provinces or states. It is not a matter of flipping a coin.

A court hearing an application for a stay of proceedings must find that a forum exists that is in a better position to dispose fairly and efficiently of the litigation. But the court must be mindful that jurisdiction may sometimes be established on a rather low threshold under the conflicts rules.

Forum non conveniens may play an important role in identifying a forum that is clearly more appropriate for disposing of the litigation and thus ensuring fairness to the parties and a more efficient process for resolving their dispute. ( Club Resorts at para 109). [ 47 ] Some factors to be considered in determining the “ clearly more appropriate forum ” are: (

a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum; (

b) the law to be applied to issues in the proceeding; (

c) the desirability of avoiding multiplicity of legal proceedings; (

d) the desirability of avoiding conflicting decisions in different courts; (

e) the enforcement of an eventual judgment; and (

f) the fair and efficient working of the Canadian legal system as a whole. ( Club Resorts at para 105). (ii) Analysis [ 48 ] The Defendants argue that the factor of comparative convenience and expense for parties and witnesses favours the courts in Nova Scotia (Ms. Debaie) and Ontario (Ms. MacKay). This is on the ground that very few of the Defendants ’ Facebook friends reside in Alberta. However, the Defendants have not provided any evidence as to how many of their Facebook friends reside in Nova Scotia or Ontario, nor any indication that they will be calling their Facebook friends as witnesses.

The Plaintiffs both live in Alberta and have deposed that any witnesses they intend to call reside in Alberta. I agree with the Plaintiffs ’ submission that this factor either favours the Plaintiffs or is neutral. [ 49 ] Regarding applicable law, the Plaintiffs argue that the law of Alberta applies based on either the place of the tort, or the place where the Plaintiffs ’ reputation suffered the most substantial harm.

This factor favours the Plaintiffs. [ 50 ] Regarding avoidance of a multiplicity of proceedings and conflicting decisions, the Plaintiffs have filed claims only in Alberta and there is no indication they intend to file elsewhere. It would appear, given the similarity of the issues in the two Alberta actions, that they may be dealt with together, as they have been in these applications. On the other hand, should the Defendants ’ argument be accepted, there would presumably be a need for two proceedings, one in Nova Scotia and one in Ontario. This factor favours the Plaintiffs.

[ 51 ] As to enforcement of judgments, the Defendants note that there is no evidence to suggest that Ms. Debaie or Ms. MacKay have any assets or conduct any business in Alberta. The Plaintiffs express themselves willing to pursue enforcement under reciprocal enforcement of judgments legislation in Nova Scotia and Ontario. They also argue that an Alberta judgment will have inherent value in restoring their reputations in Alberta.

This factor is neutral. [ 52 ] In considering the factor of fairness to the parties, the SCC held in Breeden v Black at para 36 that the balance of fairness favoured litigation in Ontario because it would be unfair to prevent a suit in the community where the plaintiff ’ s reputation was established. That factor also favours the Plaintiffs in this case. (iii) Conclusion [ 53 ] The Defendants have not met the onus on them of demonstrating that either Nova Scotia or Ontario would be a clearly more appropriate forum for the resolution of these actions.

The applications to stay the actions on the grounds of forum non conveniens are dismissed. V. Conclusion [ 54 ] The Defendants ’ applications are dismissed. The parties may speak to me regarding costs if they are unable to agree. Heard on the 8 th day of August, 2012. Dated at the City of Edmonton, Alberta this 17 th day of October, 2012. J.M. Ross J.C.Q.B.A. Appearances: Patricia C. Tiffen for the Respondents

Derek J. Hopfner for the Applicants