CHRIS WATTS, PLAINTIFF - v. –, 2022 NBKB 230

File No. SJC-155-2021 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF SAINT JOHN CITATION: 2022 NBKB 230 BETWEEN: CHRIS WATTS, PLAINTIFF - and – BRAD HUNTER, TORONTO SUN/POST MEDIA NEWS, (NORTH BAY NUGGET/FOR SASKATCHEWAN RECORD), CHRONICLE HERALD/SALTWIRE, CRUNCBASE, REDDIT, MIA URQUHART, CBC NEWS, GREG MERCER, SUSAN ROBB, WATERLOO REGION RECORD/HAMILTON SPECTATOR, GORDON PAUL, TIMES GLOBE/TELEGRAPH JOURNAL, and MIKE LANDRY, DEFENDANTS DECISION BEFORE: Justice Darrell J. Stephenson AT: Saint John, N.B.

DATE OF HEARING: August 3, 2022 DATE OF DECISION: November 17, 2022 COUNSEL: Chris Watts, per se Nancy G. Rubin, K.C., for certain of the Defendants Stephenson, J. INTRODUCTION [ 1 ] This is my decision in the matter of a Motion in the Action in which Chris Watts is the Plaintiff and Brad Hunter, Toronto Sun/Post Media News, (North Bay Nugget/Fort Saskatchewan Record), Chronicle Herald/Saltwire, Crunchbase, Reddit, Mia Urquhart, CBC News, Greg Mercer, Susan Robb, Waterloo Region Record/Hamilton Spectator, Gordon Paul, Times Globe/Telegraph Journal and Mike Landry are the named Defendants (the “ Action ”).

[ 2 ] Under the Action, Mr. Watts claims damages against the Defendants in defamation. He claims that, as a consequence of libelous statements published by the Defendants, he has “suffered threats, physical assaults, disassociation, and lived in constant fear of reprisals from others”. Mr. Watts pleads that he “continues to suffer irreparable financial, physical and mental distress” in consequence thereof.

THE MOTION [ 3 ] Under the within Motion (the “ Motion ”), certain of the Defendants; namely, Brad Hunter, Toronto Sun/Post Media News, North Bay Nuggett/Fort Saskatchewan Record, Chronicle Herald/Saltwire, Greg Mercer, Waterloo Region Record/Hamilton Spectator and Gordon Paul (collectively, the “ Moving Parties ” and individually a “ Moving Party ”) ask that the Action be dismissed (stayed) against them on the grounds that: i. service of the Action outside New Brunswick was not authorized by the New Brunswick Rules of Court (the “ Rules ”); ii. this Court lacks jurisdiction to try the Action as it pertains to the Moving Parties; or, in the alternative, iii. this Court is not a convenient forum for the trial of the Action. [ 4 ] The Motion is brought pursuant to Rules 19.05(2)(a), 23.01(2)(

a) and 23.01(2)(d). Rules 23.01(2)(

a) and 23.01(2)(

d) provide the Court with the authority to dismiss or stay an action “at anytime before the Action is set down for trial … on the ground that the Court does not have jurisdiction to try the Action” or “is not a convenient form for the trial of the Action”. In considering the issue of jurisdiction, the Supreme Court of Canada, in Van Breda v. Club Resorts Ltd. , 2012 SCC 17 , directs at paragraph 100 that “the party arguing that the Court should assume jurisdiction has the burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum”.

I will turn first to an examination of the relationships that existed between Mr. Watts and the Moving Parties, as evidenced by the Record, before moving on to identify and discuss the applicable legal principles. FACTUAL BACKGROUND [ 5 ] Mr. Watts was a long-time resident of Ontario who informs us, in his Statement of Claim, that in 2003 he was sentenced to 15 years for manslaughter and sex crimes and was made subject to a long-term Supervision Order.

He advises that he was released to a halfway house in Vancouver in 2015 and subsequently transferred to a Community Corrections Centre in Dartmouth, N.S., where he was later incarcerated in the Burnside jail. Mr. Watts states that he came to New Brunswick for the first time in August 2019, when he was transferred to Dorchester Penitentiary. From there, Mr. Watts tells us he was sent to the Parrtown Community Corrections Facility in Saint John. Mr. Watts advises he was in and out of the Parrtown facility throughout the later portion of 2019 and into 2020.

He states he was arrested in June 2020 for breach of his long-term Supervision Order. It is unclear when Mr. Watts left New Brunswick, and he is currently incarcerated in Ontario. Mr. Watts confirmed during the hearing that he was brought to New Brunswick by Correctional Services Canada (“ CSC ”) and was at all times, while in New Brunswick, in custody/under the supervision of the CCC. In short, Mr. Watts was at no time an independent resident of New Brunswick – he was transferred into and taken out of this jurisdiction by CCC. Mr.

Watts is currently incarcerated in Warkworth Institution in Campbellford, Ontario from where he called into the hearing of the Motion. [ 6 ] Mr. Watts pleads, in paragraphs 35-37 of his Statement of Claim, that while at the Parrtown facility he was “shunned by other parolees, called a rapist, and threatened on multiple occasions”, “rarely had any sleep in fear of other parolees who had threatened out loud they could “beat you” while he slept”, “threatened regularly” and “moved to another pod where one young parolee told him to never talk to him”. In paragraph 40 of his Statement of Claim, Mr.

Watts states that he found a full-time job, “but was fired after his employer read articles about him on-line”. Mr. Watts asserts that these incidents, and his abusive treatment at the hands of other parolees, was a direct consequence of his being libeled by the Defendants in various articles and publications. Mr. Watts makes similar assertions regarding his treatment by other inmates in the Burnside Jail in Dartmouth in June 2019 in paragraph 32 of his Statement of Claim. [ 7 ] Mr. Watts names Brad Hunter, Toronto Sun/Post Media News and North Bay Nugget / Fort Saskatchewan Record as Defendants.

For clarity, the Record establishes as follows:

a) Postmedia Network Inc. (“ Postmedia ”) is a federally incorporated company with a registered office in Toronto;

b) Postmedia is the publisher of the Toronto Sun, North Bay Nugget and The Record (a newspaper published in Fort Saskatchewan, Alberta);

c) Toronto Sun, North Bay Nugget and The Record are tradenames registered to Postmedia; and

d) Brad Hunter is a resident of Ontario employed as a journalist with the Toronto Sun. [ 8 ] Mr. Watts also names the Chronical Herald/Saltwire as Defendants. For clarity, the Record establishes as follows:

a) The Halifax Herald Limited is a Nova Scotia company that publishes the Chronicle Herald;

b) Saltwire Network Inc. is a Nova Scotia company that publishes other daily and weekly newspapers in Atlantic Canada; and c) “The Saltwire Network” is a business name for a collection of media titles published by Saltwire Network Inc. / The Halifax Herald Limited on-line. [ 9 ] Mr. Watts further names Greg Mercer, Waterloo Region Record / Hamilton Spectator and Gordon Paul as Defendants. For clarity, the Record establishes as follows:

a) Waterloo Region Record and Hamilton Spectator are business names of newspapers owned and published by Metroland Media Group Ltd. (“ Metroland ”), an Ontario company with a registered office in Toronto;

b) Greg Mercer is a former employee of Metroland who, at all times relevant to the matters addressed in the Statement of Claim, was an Ontario resident (he currently resides in Halifax and is an employee of the Globe and Mail); and

c) Gordon Paul is an employee of Metroland who resides in Ontario. [ 10 ] Mr. Watts alleges that he was defamed in various articles written and/or published by or on behalf of the Moving Parties. Specifically, in a May 2019

article by Brad Hunter, published in the Toronto Sun, and a series of articles by Greg Mercer, Gordon Paul and others published in the Waterloo Region Record and Hamilton Spectator over the period 2002-2019. The Record reflects that none of these articles was published in New Brunswick. Mr. Hunter’s

article was published in the Toronto Sun and available through the on- line platforms of Postmedia, North Bay Nugget, Fort Saskatchewan Record and Saltwire Network. The Waterloo Region Record and Hamilton Spectator articles were similarly assessable through their on-line platforms. [ 11 ] The Record further reflects that:

a) none of the individual Moving Parties was ever a resident of or employed within the Province of New Brunswick; and

b) none of the corporate Moving Parties, at any time relevant to the matters addressed in the Action, published a print edition in New Brunswick, solicited business in New Brunswick, extra-provincially registered to carry on business in New Brunswick, maintained a physical place of business in New Brunswick or had employees located in New Brunswick. [ 12 ] Mr. Hunter’s

article describes Mr. Watts as a Hamilton native, and details a history of criminal activity in Ontario dating back to 1989. It contains no reference to New Brunswick, and appears under a heading of “Why was psychopath in Kitchener teen’s death shipped to Halifax?” The Waterloo Region Record/Hamilton Spectator articles similarly contain no reference to New Brunswick or any events that transpired in this jurisdiction. They detail a history of criminal activity on the part of Mr. Watts dating back to the early 1980’s in Ontario and describe Mr.

Watt’s incarceration in British Columbia for violation of the terms of his release. [ 13 ] In short, the Record reflects no nexus between New Brunswick and the Moving Parties at any time relevant to the matters addressed in the Action. Further, the only possible nexus between New Brunswick and the publications in issue is the possibility that a New Brunswick resident could have viewed on-line content authored by an individual Moving Party and available via the on-line platform of a corporate Moving Party. This would obviously be the case for newspaper publications world-wide.

Each of Postmedia and Metroland provided Affidavit evidence (pages 12 and 60 of the Record) that they have a limited number of on-line subscribers who are residents of New Brunswick, and The Halifax Herald Limited that Mr. Hunter’s

article on the Saltwire Network was only viewed twice from an IP address in New Brunswick. SERVICE

[14] Rule 19.05(1)(

a) authorizes a party to apply for an order setting aside service of an action outside New Brunswick on the groundsthat service was not authorized by the Rules or an order made pursuant thereto. Mr. Watts did not obtain an order authorizing service ofthe Action upon the Moving Parties prior to his purported service thereof.

On this basis, the Moving Parties ask that the Action bestayed or dismissed against them. [15] Rule 19.01 authorizes service of an action outside New Brunswick without leave in respect of a tort committed in New Brunswickor in respect of damages sustained in New Brunswick arising from a tort wherever committed. Rule 19.03(1) mandates that proceedingserved outside New Brunswick without leave disclose the facts relied on in support of such service. [16] The tort of defamation is committed where defamatory statements are read, accessed or downloaded by a third party – see Haaretzv.

Goldhar, 2018 SCC 28 at paragraph 36 and Crookes v. Holloway, 2007 BCSC 1325 at paragraph 26 (affirmed 2008 BCCA 165, 2008 B.C.C.A 165). In other words, to prove that the defamation occurred in New Brunswick, Mr. Watts must plead and provethat the articles in question were read and accessed by a third party in New Brunswick, thereby damaging his reputation in this province.

As noted at paragraph 26 of the Crookes decision: “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.” [17] In this instance, Mr. Watts makes no claim that any

article authored and/or published by a Moving Party was downloaded and/orotherwise accessed by a New Brunswick resident. It is impossible to conclude that any of the alleged behaviors or incidents detailed inparagraph 6 resulted from the viewing of these materials by someone in New Brunswick. The closest Mr. Watts comes to pleading alinkage between online content and the incidents he claims damages for is in paragraph 40 of his Statement of Claim where he states that“he was fired after his employer read articles about him online. However, once again, no specific linkage is alleged between thisstatement and an

article written and/or published by a Moving Party. [18] Rule 19.03(1) is clear: an originating process served outside New Brunswick without leave must disclose the facts relied upon insupport of such services. The burden is on the originating party to fulfill this obligation in order to inform the responding party whichbranch of Rule 19.01 is being relied upon to support service without leave – see SM White (Woodworking) Ltd. v. Biso RoofingEnterprises Ltd. at paragraph 3. Here we have no allegation that an

article written and/or published by a MovingParty was viewed and/or downloaded in New Brunswick. Moreover, no specific linkage is plead between the alleged New Brunswickincidents for which Mr. Watts claims damages (see paragraph 6), and the publication of these materials elsewhere. In thesecircumstances, Mr. Watts has failed to substantiate an entitlement to serve the Action outside New Brunswick without leave pursuant toRule 19.01 and, in accordance with Rule 19.05(1), service of the Action upon the Moving Parties is therefore set aside. [19] This ruling leaves open the possibility that Mr.

Watts could seek leave to serve the Action upon the Moving Parties outside NewBrunswick on the basis of a further evidential record. I will therefore continue on to consider if this Court has jurisdiction to hear theAction as it pertains to the Moving Parties. JURISDICTION [20] As referenced in paragraph 4, this part of the Moving Parties’ Motion is brought pursuant to Rule 23.02(2)(

a) and is grounded onthe considerations identified in Club Resorts. In that decision, the Supreme Court of Canada identified four presumptive connectingfactors which, prima facia, entitles a court to assume jurisdiction, as follows:

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. [ 21 ] The Club Resorts decision was referenced and followed by our Court of Appeal in Best v. Palacios and the Massachusetts Port Authority, et al, 2016 NBCA 59 . Our Court of Appeal applied the Club Resorts framework in upholding the decision of the trial judge that our Court lacked jurisdiction to hear the claim. In Pro Transport Inc. v.

ABB Inc., et al 2017 NBQB 241 Justice LaVigne, after noting the four presumptive connecting factors from Club Resorts and observing that they were not exhaustive, stated as follows: “[30] When jurisdiction of a court is at issue, it is incumbent upon the plaintiff to establish the elements needed to justify the court’s jurisdiction. If the plaintiff establishes that at least one presumptive connecting factor applies, the court will assume jurisdiction unless the defendant can demonstrate the absence of a real and substantial connection.

The burden of rebutting the presumption created by the existence of the connecting factor, and of satisfying the Court that it does not have jurisdiction notwithstanding the factor, rests with the party challenging the assumption of jurisdiction.” [ 22 ] So keeping the foregoing in mind, I now turn back to the matters at issue in this case. The Moving Parties maintain that:

a) none of the Moving Parties are resident or domiciled in New Brunswick;

b) none of the Moving Parties carry on business in New Brunswick;

c) the alleged tort of defamation was not committed by a Moving Party in New Brunswick; and

d) no contract connected with the matters in issue was made in New Brunswick. On the basis of these submissions, and in reliance on the Club Resorts legal framework, the Moving Parties submit that this Court has no jurisdiction to hear the Action. [ 23 ] To begin, as summarized in paragraphs 7–9, it is clear that none of the Moving Parties are domiciled or resident in New Brunswick. Further, as observed in paragraph 11, it is equally clear that none of the Moving Parties, at any relevant time, carried on business in New Brunswick.

Club Resorts makes it clear that carrying on business requires some form of actual, not merely virtual, presence in a jurisdiction such that mere advertising or the fact that a website can be accessed in the jurisdiction is not sufficient to establish carrying on business (see Club Resorts at paragraph 87). [ 24 ] As observed in paragraph 13, the only possible nexus between New Brunswick and a Moving Party at any relevant time was the possibility that someone in New Brunswick could view online content authored by an individual Moving Party and available via the online platform or a corporate Moving Party.

This is clearly inadequate to meet the threshold requirements for carrying on business in New Brunswick. Otherwise, anyone in the world who maintains a website would potentially be subject to the jurisdiction of the New Brunswick courts. [ 25 ] One final comment with respect to the issue of residency / carrying on business. The Record reflects that in March 2022 Postmedia acquired the shares of Brunswick News Inc. (“ BNI” ). BNI is the publisher of the Telegraph Journal, a New Brunswick newspaper, and Mr.

Watts’ Statement of Claim pleads that articles authored by Mike Landry for the Telegraph Journal during the period August 2020 – February 2021 were also libelous. Both the Telegraph Journal and Mike Landry are named Defendants in the Action, and are not party

to the Motion. [ 26 ] All matters address in the Action occurred prior to Postmedia’s acquisition of the share of BNI, and as noted both the Telegraph Journal and Mr. Landry continue as named Defendants in the Action. Accordingly, I do not treat the March 2022 acquisition of the BNI shares as giving rise to the creation of a presumptive connecting factor to Postmedia. However, to the extent that assessment is in any way open to question, I find the presumption to have been rebutted by the reality that the Action is unrelated to and was commenced prior to the share acquisition.

Bottom line, at the time the Action was commenced the Record is clear, Postmedia was not carrying on business in New Brunswick. [ 27 ] I now move to the third question. Was the alleged tort of defamation committed by a Moving Party in New Brunswick? As noted in paragraph 16, to prove that defamation occurred in New Brunswick, Mr. Watts must plead and prove that the articles in questions were read or accessed by a third party in New Brunswick. In relation to that question, we have evidence that:

a) the only possible nexus between New Brunswick and the publications in question was the possibility that a New Brunswick residence could have viewed online content authored by an individual Moving Party and available via the online platform of a corporate Moving Party (paragraph 13); and

b) each of Postmedia and Metroland have a limited number of online subscribers who are residents of New Brunswick, and Mr. Hunter’s

article on the Saltwire Network was only viewed twice from an IP address in New Brunswick (paragraph 13). [ 28 ] We previously observed that Mr. Watts makes no claim that any

article authored and / or published by a Moving Party was downloaded and / or otherwise accessed by a New Brunswick resident (paragraph 17), and Mr. Watts was unable to point the Court to any specific instance in which he alleged this occurred in oral argument. [ 29 ] In order to pursue a claim in defamation, a plaintiff is required to specifically plead the words spoken or printed, the occasion on which they were spoken or printed and the audience who heard or read them. To demonstrate jurisdiction, the plaintiff must also show that the words were spoken or published in the applicable jurisdiction – see Difeo v.

Blind Ferret Entertainment Inc . , 2013 NBQB 337 , at paragraphs 32 – 33 , and the Crookes decision, at paragraphs 29 – 30. Bottom line, Mr. Watts is unable to meet the burden of demonstrating that an

article written and / or published by a Moving Party was read, downloaded or accessed by a third party in New Brunswick. He has therefore failed to satisfy the threshold requirement of providing a basis upon which the Court could reasonably conclude that the tort of defamation was committed by a Moving Party in New Brunswick. [ 30 ] The final Club Resorts presumptive factor – a contract connected with the dispute was made in New Brunswick – is not relevant. Consequently, none of the presumptive Club Resorts connecting factors are of application in the circumstances of this case.

Club Resorts tells us that courts have the ability to identify new presumptive connecting factors and that in so doing “should look to connections that give rise to a relationship with the forum that is similar in nature to the ones that result from the listed factors” ( Club Resorts at paragraph 91). [ 31 ] I am unable to identify any new presumptive connecting factors that could potentially be of application, with the exception of the possibility that the history of the Moving Parties reporting regarding Mr. Watts might provide helpful context for the later reporting by the Telegraph Journal / Mike Landry.

However, that is not clear on the Record and, even if the Moving Parties could somehow be regarded as necessary or proper parties, the jurisprudence is clear: “the fact that a party is a necessary party does not constitute a presumptive connection to the domestic court” see NTI Boilers Inc. v. Muelink & Grol B.V. et al , 2021 NBQB 241 [ 32 ] By reason of the foregoing, I will not address the Moving Parties alternate argument of “form non-convenience” pursuant to Rule 23.01(2)(

d) other than to observe as follows:

a) Mr. Watts is a long-term resident of Ontario who is currently incarcerated in Ontario;

b) the criminal activities referenced in the articles written and / or published by the Moving Parties took place in Ontario, and the articles were originally published in Postmedia and Metroland publications in Ontario; and

c) as already noted, none of the Moving Parties is resident in or carries on business in New Brunswick. DISPOSITION

[ 33 ] Consequently, the Motion is granted and the Action, as it pertains to the Moving Parties, is hereby stayed on the basis that this Court lacks jurisdiction to hear same. With respect to costs, I exercise my discretion to order that costs, in the all-inclusive amount of $1,000.00, are forthwith payable by Mr. Watts to the Moving Parties. DATED at the City of Saint John, N.B. this ___ day of November, 2022. _____________________________ Mr. Justice Darrell J. Stephenson Court of King’s Bench – Trial Division