[1]
I. Simmons
Justice,
O.R.
William
On
Heard:
Paul
BETWEEN
Haaretz.com,
appeal
(3d)
Schabas
The INTRODUCTION
November
McDowell,
dated
619.
J.A.:
issues
article
from
and
March
the
Haaretz
on
uploaded
10,
Ren
Emily
appeal
order
2015
6,
COURT
Shiomi
Bucholz
Simmons,
2015,
Bala,
Daily
of
in
CITATION:
concern
Israel,
Justice
for
Barzel
OF
Newspaper
with
and
Mitchell
the
APPEAL
Cronk
reasons
Julian
can
whether
and
appellants
Mario
and
Goidhar
Goldhar
and
and
David
Porter,
Ltd.,
FOR
reported
D.
should
Pepall
an
Haaretz
v.
Marouani
Faieta
internet
ONTARIO
Q.C.,
Haaretz.com,
JJ.A.
proceed
at
of
for
Group,
Defendants
2015
libel
the
the
Plaintiff
in
action,
DOCKET:
Superior
ONSC
respondent
Ontario.
DATE:
Haaretz.Co.ll,
2016
(Respondent)
(Appellants)
based
ONCA
1128,
20160628
Court
C60259
on
125
515
of a Page: 2
[2] In November 2011, an Israeli newspaper, Haaretz, published an article criticizing the management practices of Mitchell Goldhar, the owner of the
Maccabi Tel Aviv Football Club, a soccer team based in Tel Aviv, that plays in the Israeli Premier League.
[3] Goldhar is a prominent Canadian businessman and lives in Toronto.
[4] In addition to being published in print, the article was available on the newspaper’s Hebrew and English-language websites. It came to the attention of some Canadian readers through the English-language website.
[5] The article asserted that Goldhar imported his management model from his main business interest — a partnership with Walmart to operate shopping centers in Canada — and that he “runs his club down to every detail.” It also included a suggestion that his “managerial culture is based on overconcentration bordering on megalomania” and questioned whether “his penny pinching and lack of long term planning [could] doom the [soccer] team.”
[6] In December 2011, Goldhar launched an action in Ontario, claiming damages for libel against Haaretz, its sports editor and the reporter who wrote the article (collectively “Haaretz”).
[7] Haaretz moved to stay the action, arguing that Ontario courts lack jurisdiction simpliciter or, alternatively, that Israel is a clearly more appropriate jury convenience appropriate argument. witnesses [11] committed that and presumption [10] came Haaretz suffered
forum. Club [9] undertakings [8] process. it substantial
trial, Resorts is The to Further, Haaretz When In likely the in argued the to a in motion Israel forum. attention travel Haaretz’s and further Ontario mode not that
of Ltd. the did connection” jurisdiction to expense that, or 200-300
judge v. to He seek motion not alternative, of anywhere
— Van Ontario of weighed motion one under trial many dismissed dispute
damages Breda, to people of test judge the not for was was the of the else the Haaretz purposes for parties the 2012 available presumptive that in heard, factors at rebutted. second held outside determining Haaretz’s Page: Canada 200 the SCC Ontario favours sought that trial Goldhar’s people of 3 raised in of step the 17, read The of motion. connecting Israel Canada Israel. to Israel, jurisdiction this action. readership [2012] in by the of stay motion Goldhar’s counsel Haaretz action the was article They and He the and 1
S.C.R. factors Van found action that for not
judge simpliciter to claimed online. also established and Toronto reputational pay
convenience Breda a that as concluded 572. under provided clearly rejected for he an the office set However, Haaretz’s test, wishes abuse the a article out more harm “real that and and oral this tort the of in a [15] the that, [14] and abuse reputational [13] expense law,
[12] Rules accommodation loss if For Haaretz In Finally, of the the process. of to
the of action juridical witnesses iii)
ii) I) Civil harm result, reasons the raises juridical failing the did clearly and presumption motion In Did
In Procedure, proceeds suffered motion the the advantage, the the he three expenses
expense Van that slightly further to alternative, err more judge motion motion advantage stay judge follow,
main Breda in in in R.R.O. of Ontario, alternative, Canada the appropriate favours his to err and for judge jurisdiction? judge issues rejected I witnesses, action test, findings would
if in Haaretz’s fairness and 1990, Page: Ontario failing err dismissed Goldhar’s and Israel. on fairness Haaretz as dismiss in did Haaretz’s appeal: Reg. 4 forum concerning that an failing to to has applicable the witnesses However, the abuse find 194. Goldhar to jurisdiction, the motion claim and, had Haaretz’s to parties the that claim find appeal. of rebutted parties? in convenience is process? law, at judge he that, shall Israel favour limited particular, that the found motion did loss under err pay rates the is Ontario. the the to of in that a for damages action but provided the choice directed travel is for an of in
via
below
reasons: copies
[18]
70,000
share
Hebrew [17] circulation
[16]
II.
the
The
The
of
BACKGROUND
Haaretz
the
internet
were
copies.
on
about
(1)The
portions
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term
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cent.
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Canada.
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newspaper
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on
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Haaretz.com
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even
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article
Canada,
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also
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lack
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posted
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reasons.
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way
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Israel,
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with
the
body
online
available
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of
I
smallest
no
set
market
of
about print
—
out
his in
of
[20] Ontario
published
punitive
[19]
the
•
disorder
displays Among
article
In
and
damages
(2)The
his
in
Canada,
that
overconcentration Within
pinching
the
sporting
of to
is “By Tel from
spelled
Goidhar’s to
Mart wants
“Mitch’s
Haaretz
Hebrew
amended
other
or
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fans
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leave
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things,
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out
ahead
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as
main
and
approach,” game
and
get
of
club,
management
statement
well
his
illness;
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week.
a
rid
their
revolution
in
business
Goldhar
lack
of
Haaretz
managerial
plan
as
of,
shopping
English
however,
characteristics
disciplinary
managerial
Sunday
bordering own
internationally.
of
until
he
is
long-term
of
pleads
to
wrote, interest
-
they’ve Page:
accord,”
for
on
model
claim,
a
wear
night’s
there
centers
vision
the
process
libel.
on
matters,
that
“we
6 culture
-
planning.
had
down
internet
are
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Goldhar
was
megalomania,
of
one
derby
in
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the
partnership
are
in
a
enough
those
of
megalomania,
Canada.
natural
imported
alleges
leaflet
commitment
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club
now
building
against
is
and
claims
who
at
insider
based
and
distributed
distributed
and
the
with
that
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who
believe
Hapoel
directly
penny-
a
decide
both
dawn
ordinary
even
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new
and
the
told
on
he
a
general
article
personality
throughout
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was and
court
at
litigation
action.
presumptive presumptive
[23] fabrications,
connection”
[22] (1)
damage
Ill.
[21]
para.
•
•
•
•
At test,
should
DISCUSSION
when
In Did treats
Goldhar
allegations
is
makes
The
94.
compelled
to
and
the
Van
the
his
Haaretz
test
test
employees
and
effect,
that
reached
irrational
connecting
assume
first
reputation
Breda, motion
also
has
for
that
the
in
to
stage,
the
determining
two
pleads
had
exists:
defendant
involve
by
business
the
for
judge
that
article.
in
stages.
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reason
in
factors,
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the
that
comment,
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Supreme
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it
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himself
err
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plaintiff
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Breda,
of
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in
the
the
or
article
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Page:
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in
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presumption
declined
and
a
publication
all
at
must
and
a
properly
new
daily
para.
seized includes
court 7
irrationally
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personal
set
establish
find
activities
factor
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out
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factual
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factor
soccer
and
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it”:
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has
and
exists,
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Van
substantial
refute
errors
club;
the
be
suffered
over
Breda,
of
Breda
given
listed
“the
and
the
the an
than
tort
harm
[26] answer Thus,
factor
a at
the
relatively
rebut
[25] para.
and
does
by
[24]
weak
para.
(a)
“establish[ing]
was
presumption
the
in
to
not
95.
Before
it
Concerning
the
At
is
Ontario.
proceedings
would
his
relationship
96.
forum
committed
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the
minor
point
presumption
reputation
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second
the
motion
of
such
“not
or
to
element
Haaretz
a
of
motion points
any
facts
the
tort
be
jurisdiction
in
a
between
in
stage,
case
judge’s
real
in
reasonable
Ontario
second
that
committed
which
only
in
of
Ontario.
judge,
also
relationship
the
the
jurisdiction”:
the
a
to
demonstrate
defendant
the
relied
stage,
reasons
because
tort
presumptive
will
a
case
Haaretz
weak
forum
to
in
has
be
on
expect
Page:
the
the
of
difficult
between
occurred
relationship
far
the
Van
may
argued
and
a
Supreme
forum.
that
more
8
multi-jurisdictional
connecting
that
fact
Breda,
the
rebut
where
the
the
the
that
that
in
However,
people
subject
the
Court
presumptive the
between
subject
at
defendant
only
Goldhar
the
para.
chosen
presumption
factor
read
presumptive
cautioned
matter
a
it
matter
minor
97.
them”:
may
would
led
the
tort
forum:
would
connecting
of
no
article
element
be
of
where
the
Van
that
of
point
the
evidence
be
Van
possible
connecting
jurisdiction
litigation”.
Breda,
rebutting
called
in
litigation
only
only
Breda,
of
Israel
factor
the
“to
of
to
to
at a Page: 9
[27] The motion judge rejected Haaretz’s arguments that it had rebutted the presumption of jurisdiction arising from a tort committed in the forum.
[28] The motion judge observed, at para. 24, that in Editions Ecosoclété Inc. v.
Banro Corp., 2012 SCC 18, [2012] 1 S.C.R. 636, “the absence of the substantial publication ... in Ontario was not viewed as rebutting the presumption that the chosen forum has a real and substantial connection with the subject matter of the litigation.” In that case, the Supreme Court “found that even a small number of publications in the forum would be sufficient to ground jurisdiction.”
[29] As for Haaretz’s argument that there was no evidence of harm to Goidhar’s reputation in Ontario, the motion judge said, at para. 25, that “proof of harm to reputation is not an element of the tort of defamation” and thus “is an irrelevant consideration for purposes of determining whether a minor element of the tort occurred in Ontario.” The motion judge added that even if proof of harm to reputation was relevant to determining whether a minor element of the tort occurred in Ontario, Haaretz had not adduced evidence to rebut the presumption of harm to Goidhar’s reputation arising from publication of the article in Ontario.
(b) Haaretz’s arguments on appeal
[30] On appeal, Haaretz argues that the motion judge erred by failing to recognize that the connection between this action and Ontario is extremely weak
because [34]
presumption litigation
business, book, and soccer
publisher article
connecting
[33]
about
read
[32] subject
“few
in
[31] and
the
that
by
people”
the
According
Haaretz
province
Haaretz
Haaretz
not
are
the
team
effectively
matter
is
was
damage
specifically
article
which
where
internet
located
the way
—
in
of
connected
is
says
also
of
litigation
as
Ontario
submits
harm
was
located
in
to
Goidhar
he
the
irrebuttable.
sustained
treating
in
postings.
Israel.
says
Haaretz,
this
would
sought
located
Israel.
to
litigation
read
to
case that
Goidhar’s
in
the
to
Ontario
runs the
Significantly,
have
Israel.
the
to
Moreover,
in
Ontario
the
at
motion
It
a
is
presumptive
sell
and
the
says
article.
least
Maccabi
suffered
real
distinguishable
article
And,
is
the
reputation
Ontario
jurisdiction
Page:
a
judge
because
that,
and
partially
small
book
the Goidhar
—
the
reputational
Tel
and
10
people
substantial
in
connecting
is
erred
in
number
subject
in
not
in Banro,
Ontario.
Aviv.
therefore
the
is
is
from
Ontario
Ontario.
not in
involved established
a
book
of
relying
prominent
They
matter
harm.
Banro,
the
a
factor
readers.
connection
presumptive
the
had
criticized
Moreover,
subject
in
say
on
of
litigation
which
and
of
not
merely
the
figure
the
Far
a
the
been
affected
tort
matter
the
between
was
fact
article
more
the
only connecting
—
because
in
committed
rebutted,
plaintiff’s
is
that
Quebec
about
Israel
people
of
by
solely factor
—
the
the the
the the
—
a a Page: 11
factor that must be rebutted. In any event, Haaretz argues that it was unreasonable to require it to demonstrate that Goidhar had not suffered any damages when Goldhar led no evidence of damages and when Ontario readership was so small.
[351 Finally, Haaretz argues that it is inconsistent with the principles of order, fairness and jurisdictional restraint to expect them to answer proceedings in
Ontario where:
• they have no connections to Ontario;
• the article was written, published in print, and read primarily, in Israel;
• the article concerned Goidhar’s management of an Israeli soccer team;
and
• almost no one in Ontario read the article.
Haaretz contends that, particularly in cases involving allegations of internet libel, the failure of the courts to exercise appropriate restraint may lead to both a chill on freedom of speech and libel tourism.
(c) Analysis
[36] I would not accept Haaretz’s submissions that the motion judge erred in failing to find that it had rebutted the presumption of jurisdiction.
[37] I would not accept Haaretz’s claim that the connection between the subject matter of this action and Ontario is limited to the fact that a relatively small
Although
link
[41]
related
offensive
[40]
meanings
natural Canadian
mental [39]
connection
and
management operation
confined
[38]
both
number
spends
between
the
What
Whether
As
Contrary
to
and
disorder,
of
article
manner,
the
I
to
how
shopping
is
of
have
front
people
ordinary
not
is
most
a
main
Maccabi
model
Goidhar
Goidhar’s
the
important
and
discussion
to
at
said,
and
makes
and
Haaretz’s
of
issue
in
words
subject
the
center
meaning
center
for
his
in
Ontario
is
conducts
Tel action
his
at
Maccabi
irrationally
time
irrational
is
of
management
partnership.
this
of
of
amended
Aviv.
by
that
the
submissions,
of
read
has
the
in
Goidhar’s
acknowledging
stage
the
article
business
Canada
the
Tel
Rather,
a
article
business the
thrifty
Page:
significant
article
of
statement
alleged
Aviv
article.
are
the
business
may
model
concerning
and
in
the
12
the
is
capable
from
litigation.
Canada
that
decisions,
sting
subject
that
be
by
connection
In
article
of
his
and
my
he
asserting
the
claim,
he
dealings
of
of
displays
main
because
benefits
view,
is
management
matter
puts
bearing
his
the
treats
a
Goidhar
to
long
business
the
article
Canadian
that
Goldhar’s
Ontario.
in
of
characteristics
to
the
these
employees
distance
subject
the
Israel
employees.
he
pleads
article
is
imported
of
article
interest,
defamatory
very
an
Canadian
or
business.
matter
operator
draws
that
of
Israeli
much
is
in
of
the
the
not
his
his
an
of
a a
defamation
[44]
not
and (2002),
the
whether,
also
tort
As
Israel.
[43]
reputation not
because
Moreover,
lives
origins
soccer
[42]
the
the
subject
have
and
substantial
take
Finally,
in
Further,
This
At
most motion
—
team,
60
Ontario
of
Ontario
objectively
an
come
the
jurisdiction
here.
O.R.
the
is
the
matter
action,
integral
real
rebuttal
the
not
judge
I
I
as
subject
link
connection
do
(3d)
see
is
and
article
a
and
a
of
weak
case
drawn
not
damage
part
speaking,
surprise
observed
substantial
20
stage
over
the
no
has
accept
matter
makes
(C.A.),
of
of
because
error
action,
between
the
that
test
libel
of
operated
to
is
the
when
Ontario
action.
Haaretz’s
of Goldhar’s
subject.
Haaretz
at
requires
tourism.
in
connection.”
presumed
not
jurisdiction
the
the
p.
the
the
Page:
addressing
36,
whether
a
article
litigation
See,
has
article
motion
that
On
only
business
where
claim
management
13
a
and
for
the
Goldhar
was
simpliciter
a
real
and
there
that
example,
real
is
judge’s
Sharpe
motion
forum
that
published
Goldhar’s
and
connected
here
the
is
and
would
Haaretz
non
another
substantial
model
judge’s
analysis,
connection
J.A.
for
statements
substantial
Muscutt
conveniens,
seek
Canadian
more
observed, at
—
to
forum
findings,
did
and
least
to
Ontario
the
extensively
connection
v.
between
vindicate
not
its
connection,
question
that,
Courcelles
that
17
business.
Canadian
“the
it
Goldhar
adduce
should
largely
years.
could
in
real
the
his
to
in
is a
forum.
jurisdiction
factors
turned
that
within
on
“clearly with
judge
[47]
the
(2)
element
lead
[46]
[45] adduced
evidence
Rather,
the
absence
Israel
this
evidence
appropriate
After
Did
the The
In
was
to
He
basis
Haaretz
more
he
of
conclusion.
the
the
no
jurisdiction.
to
is
the
found
the
motion
was
concluding
created
not
the
evidence
of
question
end,
rebut
that
appropriate”
motion
tort
of
evidence
responding
clearly
suggesting
relied
that
Israel
reputational
judge
was
I
forum?
that
by
am
whether
of
Haaretz
judge
that
committed
more
on
the
is
presumption.
not
rejected harm
demonstrating
standard
the
to
Ontario
to
presumptive
that
satisfied
appropriate
err
claim
Haaretz’s
in
clearly harm
the
had
in
Ontario
this
damage
in
court
failing
Page:
had
not
set
that
Ontario.
to
that
argument.
more
In
establish
out
discharged
jurisdiction
should
no
argument
forum.
supported
connecting
Israel
making
14
Haaretz
is
to
reputational
in
appropriate
find a
Van
decline
is
presumptive
In
jurisdiction
these
the
that
that
Breda,
rebutted
effect,
simpliciter,
its
its
factor
position
clearly
to the
burden
Israelis
forum. harm,
statements,
exercise
at
he
fact
of
the
simpliciter.
para.
connecting
concluded
more Goldhar
a
of
the
that
that
He
a
presumption
tort
demonstrating
its
clearly
motion
reviewed
109,
only
Goidhar
appropriate
the
jurisdiction
committed
need
and
a
I
that,
motion
factor.
agree
judge
minor
more
had
the
the
not
of in Page: 15
[48] Haaretz argues that the motion judge’s decision to not exercise his discretion to stay the proceedings at the forum non conveniens stage of the analysis was unreasonable. It submits that virtually every factor identified in Van
Breda favours a trial in Israel, and that the motion judge committed several errors in his analysis that, individually or collectively, render his conclusion unreasonable. In particular, Haaretz claims that the motion judge erred in his analysis of the following factors: convenience and expense to witnesses, applicable law, loss of juridical advantage and fairness to the parties.
[49] I will analyze these alleged errors in turn. However, I would reiterate that the party seeking to displace Ontario’s jurisdiction bears the burden, in the forum non conveniens analysis, “to demonstrate that the court of the alternative jurisdiction is a clearly more appropriate forum”: Breeden v. Black, 2012 SCC 19,
[2012] 1 S.C.R. 666, at para. 23 (emphasis added).
[50] Further, the motion judge’s decision not to stay the proceedings on the basis of forum non conveniens is a discretionary one, and accordingly entitled to a high degree of deference on appeal. This court will intervene only “ifthe motion judge erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision”: Banro, at para. 41.
with
defendants, whether
Maccabi
motion
from
[54]
witnesses
mean
responsible
Haaretz
[53] favours
motion
[52]
convenience
[51]
(i)
(a)
Haaretz,
the
that
In
On
After
In
Convenience
judge’s
judge
would
the
Tel
a
his
sports
his
The
the
that
the
trial
finding
article
who
Aviv
communication
affidavit,
and
reasons
other
acknowledged motion
evidence
three
he
rely
reasons).
editor,
in
he
staff,
expense
would
is
that
on
hand,
Israel,
“anticipate[d]
and
a
were
judge’s
the
Mr. concerning
matter
six
Mr.
the
at
call
Of
Expense
Haaretz
defences
were
trial
to
Barzel
comparative
former
the
Barzel
these
at
in
witnesses
that
of
reasons
trial.
would
the
motion
current
public
Goidhar
named witnesses, —
...
had
convenience
to
Maccabi
public
of Page:
indicating
could
deal
Witnesses
truth,
filed
interest
slightly
Maccabi
judge
convenience
21
with
16
had
interest.
be
evidence
fair
Tel
three
individuals,
that
called
in
favours
concluded
events
not
comment,
and
Tel
Aviv
Israel.
were
if
filed
Haaretz
Aviv
expense
and the
—
to
that
players,
a
in
testify”
any
trial
or
action
staff,
expense
including
the
that
qualified
occurred
had
claimed
in
evidence
form
to
one
(emphasis
Israel.
the
six
been
proceeds
witnesses,
for
of
was
the
were
privilege
in
comparative
an
associated
this
the
Israel
regarding
personal
a
affidavit
former
former
parties
to
would
in
and
and
trial
the the Page: 17
Goidhar representative and one was a former Goidhar spokesperson. And of the
21 proposed witnesses, 18 live in Israel.
[55] The motion judge also noted that Goldhar filed an affidavit from an Israeli
lawyer, Moran Meiri, who had represented Maccabi Tel Aviv in the past and who
had interviewed eight of Haaretz’s proposed witnesses by telephone. In his
affidavit Mr. Meiri was skeptical about the relevance of Haaretz’s proposed witnesses’ evidence. However, he acknowledged on cross-examination that two of the witnesses had relevant evidence. In response, Mr. Barzel filed a supplemental affidavit briefly describing the evidence that the eight could give to assist Haaretz at trial.
[56] Mr. Meiri’s notes revealed that the eight witnesses he interviewed told him that they did not intend to testify for Haaretz.
[57] In response to Haaretz’s argument that it would therefore be unable to lead
necessary evidence if the trial proceeded in Ontario, the motion judge observed that, in light of the witnesses’ statements, “this concern will exist even if the trial
is held in Israel.” He also said, “compelling the attendance of these witnesses to a court in Ontario can be accomplished through the use of letters rogatory.”
[58] Finally, the motion judge noted that Goldhar had offered two responses to
Haaretz’s argument that, because most of the witnesses reside in Israel and
judge’s
in
r.
by
holding
[62] unreasonable. and
[611
convenience factor
the
[601
rates
Second,
[591
and
none
34,
the
(b)
means
additional
far
expense
can
witness’s
As live
On
provided
In
First,
addressed
that more
conclusion
Goidhar
Haaretz’s
a
the
in
only
appeal,
of
starting
the
witnesses
North
and
convenient.
letters
inconvenience.
to
end,
be
own
foreign
by
witnesses
expense
had
the
used
America,
Haaretz
the
point, arguments
jurisdiction.
the
that
rogatory.
additional
offered
outside
witnesses
rules.
to
motion
this
Haaretz
compel
to
asserts
a
overwhelmingly
witnesses
to
The
trial
Letters
factor
of
on
fund
expense
judge
Canada could
in
a
submits
motion
appeal
that
Page:
foreign
Israel
their
only
of
slightly
testify
found
the
request,
of
travel
can
18
judge
would
that
slightly
witness
a
favours
factor
via
trial
favours
be
that
the
and
observed
be
videoconference
as
compelled
in
of
favours
motion
to
accommodation
substantially
the
Israel
they
Ontario,
comparative
submit
Israel.
factor
are
judge
that,
and
a
to
to
it
now
trial
testify
that
did
of
an
while
erred
less
under
called
convenience
comparative
examination
not
in
costs
the
in
expensive
the
in
Israel
address
Ontario
r.
motion
law
under
at
latter
1
.08.
the
in is
and
purchase
possibly
[66]
compel
evidence
requiring
evidence
demonstrated for
[65]
ignored
about will
[64]
lack
Tel
is
defendants,
[63]
a
Haaretz
not
Aviv
former
travel
of
Finally, As
Further,
Haaretz
Haaretz’s
a
come
through
reluctant
the
staff
to
for
a
mechanism
to
many
expenses
forum.
Gold
to
give.
most
establish
Goldhar’s
cross-examinations
to
or
fairly
Haaretz
Haaretz
that
asserts
Ontario
har
former
of
interpreters,
proposed
of
witnesses
defend
Haaretz’s
spokesperson.
virtually Haaretz’s
is
to
that
says
this
claims
proposed
players,
voluntarily
nothing
compel
itself
Israel
witnesses
is
that
could
all
to
a
that
proposed
witnesses
in
them
one
more
significant
would
testify
Goldhar’s
Haaretz’s
solutions,
of
Ontario.
to
the
undermine
It
Page:
is
Mr.
testify
is
to
and
than
motion
a
undisputed
respond
witnesses
come
via
former
to
Meiri
19
their
error.
for
an
undertaking Haaretz
proposed
testify
videoconferencing.
judge
the
to
Haaretz.
attempt
and
evidence
Goldhar
to
Ontario
Apart
fairness
are
that
Ontario
via
was
says
Mr.
current
witnesses
many
by
from
Haaretz
videoconferencing,
to
representative
unreasonably
will
Barzel, Goldhar
—
of
a
pay
letters
and
the
wealthy
the
make
of
or
these
accommodation
submits
trial.
former
that
In
three
which
failed
had
of
it
any
impossible
request
he
plaintiff
witnesses
skeptical
personal
and
Maccabi
relevant
that
it
to
largely
event,
says
lead
and
one
the
to to attend Ontario
53 be 1
person Ontario.
to
witnesses;
in
potential testimony
[69] factors
Haaretz’s undertaking
assessment
[68]
Ontario. 1
rogatory [67]
Rule c.P.c.
compelled
accept
Israel (c) and 34.07(2)(b) is
may
Contrary
Based
I drove to
(7th) acknowledge
be
through
means
Analysis
could that
be proposed
issue
Nonetheless, of to
examined and 237
found, of
come
witnesses
on
to
his reluctant provides
a
(Master), this
to
be
letter third,
of
my
the analysis:
to fund
requesting
Haaretz’s
factor obtaining
Ontario
witnesses. used review
of
use that Letters that,
at
the
request foreign
unwilling travel
para.
I
unreasonable. of
to
the to
where am
the
first, lack of
testify
arguments,
of letters
62.
compel the request
issuing motion
directed
not
witnesses
the and
an
the
of or
in evidence examination
an
record
persuaded
evidence
unable
of availability of
are
Page: judge
to accommodation
Ontario the
such request not,
the
in
could
attendance and process
judicial
however, my
20
to
of erred court:
is
come
concerning
any
view,
to and
the
that
of be see authorities take
as
videoconferencing in
a
witnesses
compelled
motion that
means to
is
the this
Moore law place
necessary
Ontario;
of
expenses
motion
videoconferencing
by error of by
v. Haaretz’s
outside
the
judge’s suggesting Bertuzzi, the
which
unwilling to
to likely
jurisdiction
makes
judge
second, provide of compel a foreign
Ontario, reasons,
2014
for
witnesses
testimony
to
was
to
the his that
ONSC obtain
in
Goldhar’s Haaretz’s
witness
evidence come a which
person
entitled
overall was
court
letters three
1318, the can
the
to
of in to
in a 22 to trial [72] conclusion common accommodate official of videoconferencing to Multi-jurisdictional [71] use appropriate case. dealing undermine [70] See, fund a accept was of civil for In Further, These Haaretz technology the example, languages with my not trial. feature that that Goidhar’s travel forum. view, unreasonable. are witnesses We testimony in Ontario bore Moore using the of the and and available parties live would On the — the v. absence submissions motion these interpreters Bertuzzi, accommodation in this letters are burden outside Canadian be an by — record, and procedures available methods, age judge videoconferencing. to at of of para. of witnesses of request be the evidence cannot that it demonstrating carefully judicial Page: international 77. was jurisdiction. 2 in expected. under these expenses that would would not be 21 who system. or jurisdiction. qualified viewed methods the unreasonable adverse not do be communication Interpreters Courtroom
of Rules that undermine Haaretz not honoured The the as the would Israel speak judicial undermining foreign
effect of motion for
led Civil is be have either the by procedures of commentary, the the witnesses no and available judge’s
Israel Goidhar’s Procedure, fairness motion long clearly of evidence the commerce. Canada’s and fairness been implicit in of judge when more must offer that this the the for to a
was
found
expense
[74]
the
of
motion
Mr.
could
their
information
of
The
unreasonably
[73]
Ontario.
he
the
conversations
motion.
Marouani,
noted
unreasonable.
Israeli
information
The
that
Finally,
judge
have
proposed
for
it
that
motion
lawyer
about
Nor
witnesses
slightly
was
information
skeptical
the
I
the
did
was
witnesses
reject
entitled
what
with
judge and
reporter
favoured
Haaretz
offer
second
was
Mr.
particular
the
about
Haaretz’s
did
to
did
about
Barzel
neutral
who
treat
had
proposed
produce
hand.
not
a
not
Haaretz’s
trial
wrote
been
witnesses
relevant
Haaretz’s
conclude
made
address
or
While
in
Page:
submissions
that
any
the
Israel.
contacted
witnesses.
conflicting
proposed
it
many
witness
22
article,
matters,
favoured
proposed
the
are
that
I
am
actually
of
inconvenience
the
by
did
statements
that
Haaretz’s witnesses
not
In
claims
the
a
Haaretz.
factor
witness
not
these
trial
persuaded
likely the
record
provide
about
in
of
proposed
motion
circumstances,
Ontario.
and
to
list
or
In
convenience
of
say.
whether
with
even
both
contains
their
an
his
proceeding
Importantly,
judge
caution.
affidavit
conclusion
Rather,
any instances,
witnesses
evidence.
various
notes
scant
and
was
the
he
on in
judge
the
result should
place the
Court
[77]
para.
another
delicti [1994]
[76] Ontario.
or
law
[75]
(ii)
a
(a)
court,
general
applies
“most
51,
in
The
also
The
of
The
left Applicable
choice
3
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the
province,
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S.C.R.
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adopted
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substantial
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to
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Supreme
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of
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1022,
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approach
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analysis
torts
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Page:
lex
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Banro,
motor
fori,
23
Canada
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vehicle
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gathering
LeBel
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1042,
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and
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favour
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the
test
of
v.
foci
Supreme Banro,
a
law
Jensen,
lex
Ontario
motion
trial
would delicti
—
rule
loci
the
for
to
at
in in
concluded
seek
undertaking,
[79]
In
evidence
was
Ontario
read [78]
the
•
•
•
•
“no
damages
here,
team
year;
periodically Goldhar years;
Goidhar
Goldhar
Gold
Turning
light
Taking
as
comparative
of
that
har
the
of
a
and
and
Goidhar’s
the
result
that
account
to
has
is
has
the
for
rents
lex
his
a
motion
this
been
reputational
factor
most
wealthy
loci
owned
operated
personal
of
an
case,
evidence
reputation
of
the
delicti
newspaper
apartment
substantial
judge
and
the
a
publication
businessman
the
soccer
a
life.
Supreme
is
the
shopping
harm
found,
motion
Ontario.
of
other
evidence
reputational
in
articles
team
harm
Page:
outside
Israel
at
than
of
judge
Court’s
center
He
who
to
para.
in
the
24
about
he
evidence
the
and
Israel
further
of
found
Article,”
lives
Canada
had
business
50, approach
harm
plaintiff’s
visits
his
for
in
Goldhar’s
referred
noted,
that,
involvement
that:
a Ontario;
to
and
Israel
few
“a
the
in
reputation
because
in
very
that
at
Ontario
years
Breeden
to, plaintiff
about
para.
undertaking
significant
there
the
and
with
the
five
for
49,
is
motion
in
to
was
in
there
article
at
his
Israel
that
times
a
Ontario.
least
factor.”
soccer
similar
limited
not
judge
there
have
was
and
per
17 to
substantial the
pointed on
facilitating
[83]
Moreover, substantial
because
[82]
Banro
rule [81]
law damages
delicti [80]
(c)
the
(b)
applicable
applies
of
I
Haaretz
Haaretz
Haaretz
leads
choice
lex
“most
would
to
Analysis
Haaretz’s
the
for
applying
forum
an
loci
harm
harm
to
inevitably
reputational
substantial
undertaking lex
this
of
not
law
submits
submits
argues
delicti
shopping
law
to
to
loci
action.
accept
favours
Ontario
arguments
reputation”
reputation”
rule
choice
to
delicti
that
that
that,
the
harm
harm
Haaretz’s
and
and
such
a
law.
the
a
conclusion
trial
of
particularly
rule
proper
should
by
to
sustained motion
test
as on
test
law
in
reputation”
relying
leads
that
appeal
Ontario,
Page:
arguments.
posited rule.
is
application
not
judge
the
offered
that
to
in
be
outside
Rather,
on
25
more
Israeli
the forum
in
cases
countenanced.
erred
identified
Goidhar’s
by
Banro
motion
In
of
appropriate
of
he
Goidhar
law
in
reaching
shopping
the
of
Canada
law
also
and
should
by
internet
alternative
judge
undertaking
by
the
considered
concluded
is
applying
the
to
simply
choice apply
and
did
Supreme
hold
libel,
conclusion
not
choice
libel
in
that
not
a
of
the
rely
this
that
the
the
means
tourism. law
Court
to
Ontario
lex
case. of
solely
“most
“most
it
seek
that
rule
too
law
foci
of in Page: 26
[84] Contrary to Haaretz’s submissions, I see no error in the motion judge’s approach to the “most substantial harm to reputation” test on the facts of this case.
[85] Haaretz relies significantly on the evidence of broad publication in Israel to argue there was no evidence in the record of loss of reputation in Ontario. Given that the article was published much more widely in Israel, Haaretz argues the motion judge should have inferred that Goidhar would have suffered greater harm to his reputation there. Haaretz also points to articles published in Israel about Goldhar’s personal life as evidence that he is a public figure in Israel and accordingly that he has a significant reputation to protect there.
[86] In my view, Haaretz’s reliance on the extensive publication in Israel as evidencing harm to Goldhar’s reputation there is misplaced. Relying on the extent of publication as a decisive factor in assessing where a plaintiff has suffered the most substantial harm to his or her reputation does little more than turn the “most substantial harm” approach into a proxy for the “substantial publication” rule, which the Supreme Court rejected in Banro, at para. 55. In any event, even assuming that Goldhar has some form of celebrity status in Israel, as the motion judge recognized, that does not address the nature of his reputation in
Israel. Nor does it automatically follow that he would suffer more substantial reputational harm in Israel as compared to Ontario, where he lives and initially
an
more
[89] (iii) confirms
Goldhar the
him considered”
[88]
Ontario. noted, suffered
in
undertaking
continues
[87] established
any
(a)
Ontario
Supreme
of
favourable
Loss
Before
Contrary
Further,
vindicating
other
at
in
the As
outside
The
para.
to
trial
this
of
(emphasis
jurisdiction,
significance a both
carry
given
Court
the
motion
Legitimate
while
would
result,
case
33,
to
to
of
his
motion
on
his
Haaretz’s
that,
Goldhar as
Canada,
by
does
Haaretz
reputation
his
judge’s
provide
only
business
an
added).
Goldhar
and
“Lord
main
to
judge,
not
important
Juridical
harm
him
than
submissions,
has
a
takes
him
demonstrate
reasons
business.
Black
similar
of
here.
and
limited
Haaretz
not
resulting
with
Ontario
his
issue
Page:
factor
Advantage
has
his
to
reputation
two
undertaking
his
undertaken
seek
with
business
law.
argued
27
juridical
in
in
that
from
claim
the
my
the
For
damages
he
in
choice
publication
view,
to
that
motion
is
advantages Ontario
his
was
reputation
damages
“forum
not
part,
the
Israeli
of
accepted
to
judge’s
for
law
and
undertaking
bring
Goldhar shopping.”
in
to
defamation
reputational analysis. —
—
the
Ontario
his
access
any
reliance
and
in
importance
reputation
Breeden
argued
libel
where
Rather,
given
need
LeBel
to
on
law
action
a
harm
that
jury
the
be he
by
by
to
J.
in
is it Page: 28 trial, and the absence of a public figure defence that would be available to
Haaretz in Israel.
[90] The motion judge concluded that this factor favours a trial in Ontario because Goldhar would be deprived of access to a jury trial if the case were tried in Israel. He rejected as irrelevant Haaretz’s claims about juridical advantages in
Israel, holding that the proper question is whether a trial in Israel would lead to loss of legitimate juridical advantage based on the plaintiff’s choice of forum.
Having regard to the record before him, the motion judge was unable to resolve whether real differences exist between Ontario law and Israeli law concerning defences available to Haaretz in each jurisdiction.
(b) Haaretz’s arguments on appeal
[91] Haaretz submits that the motion judge erred in concluding that the inability to have the case tried before a jury in Israel constitutes a loss of juridical advantage. In addition, Haaretz argues that the motion judge erred in holding that juridical advantages to a plaintiff in an alternative forum are irrelevant at this stage of the analysis.
(c) Analysis
[92] I agree that the motion judge erred in accepting that Goldhar would suffer a loss of juridical advantage if this action were stayed in favour of proceeding in
Israel. Prior to the motion, Goldhar had not delivered a jury notice. Instead, Page: 29 counsel on his behalf asserted that he intended to deliver a jury notice. Counsel for Haaretz confirmed in oral argument that, as of the date this appeal was heard,
Goldhar had still not delivered a jury notice.
[93] In Eastern Power Limited v. Azienda Communale Energia and Ambiente
(1999), 125 O.A.C. 54 (C.A.), this court held that where the plaintiff had not served a jury notice in the 20 months since serving its statement of claim it was not entitled to claim a loss of juridical advantage because a jury trial was not available in Italy.
[94] I see no reason why the same conclusion should not apply in this case.
[95] However, I am not persuaded that the motion judge erred in holding that potential juridical advantages to a plaintiff in the alternate forum are irrelevant to the forum non conveniens analysis.
[96] In Amchem Products Inc. v. British Columbia (Workers’ Compensation
Board), [1993] 1 S.C.R. 897, at p. 920, Sopinka J. observed that advantages to both the plaintiff in its chosen forum and the defendant in its proposed alternate forum (assuming that the alternate forum also has a real and substantial connection to the action) can properly be taken into account in the analysis.
[97] Haaretz has provided no authority for the proposition that possible advantages to the plaintiff in the proposed alternate forum are a relevant consideration. In my view, because the plaintiff has chosen a particular forum in
judge’s
emphasis favoured
[100]
legitimate this
112, [99]
Goldhar
law to forum,
is
perceived
[98] with
which
may must
not
the
case.
rule
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be
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be
However,
clear
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plaintiff.
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to
it
overall
entitled
that
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forum,
proceed,
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advantages
juridical
trial
not
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its
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event,
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for
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juridical
to
any
I
the
Ontario.
am
absent
the
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rely
so
apply
advantage
at
were
focus
of
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advantage
my
not
defendant
long
to
am
on
para.
Haaretz’s
advantage
from
view,
to
persuaded
plaintiffs
to
on
loss
in
as
not
this
proceed
27,
forum
assessing
the
Haaretz’s
of
was
persuaded
on
action
in
to
proposed
LeBel
its
plaintiff
under
the
the
suggest
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Page:
in
juridical
a
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forum
the
should
neutral
record
Israel.
conveniens.
the
J.
evidence
Israeli
this
30
has
chosen
that
cautioned
“advantages”
that
plaintiff’s
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advantage
error
it
a
before
factor
defamation
Haaretz
proceed
the
real
conveniens
is
forum.
was
alternate
any
In
and
loss
against
the
rather
both
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in
opinion
in
demonstrated
would
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Although
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preferable
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accrue
choice
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that
at
loss
motion
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para.
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the
to
of
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in it
reputation: defamation
the
[102]
said,
entitled
in
Ontario
Ontario.
[101]
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motion
Ontario
(a)
Supreme
at
To
The
Fairness
of
judge’s
para.
arising
to
While
support
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read,
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motion
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defamation
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reputation
recognized
[Emphasis
in
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reputation injustice
impugned
businessman’s
65:
motion
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from
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demonstrated
cautions.
noting
to
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importance
importance
[appellants]
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judge
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his
conclusion,
to
emphasized
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Haaretz’s
Parties
added.]
article
his
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in
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reputation
concluded
Canadian
where
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recognized
judge
ownership
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reputation.
[respondent’s]
of
published
familiarity
of
about
reasons
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concerns
locality
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accepted
a
the
in
that
Page:
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motion
plaintiff
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where
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Ontario. of
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with
importance
fairness
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where
31
in
article
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Goidhar’s
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Israeli
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I
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defend
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59
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confident
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judge
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reasons
[104]
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result
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Israel,
[103]
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the
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article
I
of
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interest
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Haaretz
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defending
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demonstrate
and
Haaretz’s
readership
readership
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omitted.] enjoyed
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reject
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argues
of
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by
name
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the
arguments
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Haaretz’s
would
team
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suing
that
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expense
that
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in
that
not
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to
it
reputation
of
important
a
Ontario,
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write
the business
of
in
Ontario.
connections
Canadian
for
the
not
case,
he
say
Haaretz’s
a
in
motion
no arguments.
defamation
and
imputation
on
an
manner
was
be
Ontario,
that
surprise
the McRuer
—
article
appeal
was
Page:
able
inconvenience
and
that
well
judge’s
businessman. subject
the
arguments
to
that
that
to
is,
and
about
vocation 32
—
Israel.
“interests
Read
made
aware
in
C.J.H.C.
where
and
satisfactorily
Goldhar
implicated
matter
conclusion
because the
him
as
not
At
against
locality
concerning
of
that
he
in
the
a
impugning
In
of
unfair
of
found
lives
the
whole,
lived
life.
these
the
this
Haaretz
justice”
end
his
overlooks
him”
“clear
where
evidence
and article,
—
and
action [Citation
that
of
Canadian
that
circumstances,
the
the
the
other
works
his
favour
would
had
the
his
motion he
Goldhar
subject
and
day,
is
management
the
a
concerning
in
Goldhar’s
face
matter
business
evidence
what
a
Ontario
judge’s
trial
matter
would
as
the
the
of
in a Page: 33
choose to vindicate his reputation in Ontario. I see no basis on which to interfere with this conclusion.
(3) Did the motion judge err in failing to stay the action as an abuse of process? (a) The motion judge’s reasons
[105] The motion judge held that the action should not be stayed as an abuse of process. He distinguished an English case relied on by Haaretz, Jameel (Yousef) v. Dow Jones & Co, [2005] EWCA Civ. 76, on two bases. First, in Jameel, only five people had accessed an internet news article, which was a “small fraction” of the readership in Canada and Ontario of the article in this case. Second, the plaintiff in Jameel had no connection to England, where the action was brought.
The motion judge concluded, at para. 76, that this action is “far from being an abuse of process” and “itis not surprising that the plaintiff has sought to vindicate his reputation in an Ontario court.”
(b) Haaretz’s arguments on appeal
[106] Haaretz argues that this action amounts to a SLAPP (a “strategic lawsuit against public participation”) and that it should be dismissed as an abuse of process. Haaretz claims that Goidhar has suffered no damage in Ontario and is only asserting that he wishes to vindicate his reputation to facilitate forum shopping and “to muzzle Haaretz by making it impossible to defend itself and which will impose crushing costs.”
an
business. reputation
action
Phillion
[1101 para.
2014),
[109]
administration
Law
manifestly
inherent
[108]
be
[107]
stayed
(c)
abuse
of
49.
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However,
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motion
disrepute”:
General),
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process
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lives
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Page:
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fail
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to
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exercised
and
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34
see
or
conclusion
recognizes
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be at Page: 35
IV. DISPOSITION
[111] Based on the foregoing reasons, I would dismiss the appeal. Goldhar may make written submissions on costs within 10 days of the release of these reasons. Haaretz may respond within 10 days thereafter.
Released:
9i4 the regularly dramatically. [115] has newspapers publish on newspapers. [114] English [113] uneasy Introduction I.C.L.Q. [112] Pepall country, circulation, experienced Soccer This Haaretz The J.A. the 25 one. language feature appeal at balance newspaper the (Dissenting): We has potential people around 26, is is Its In it Maccabi to articles all Israel’s an Professor difficult is his illustrates publisher, print attempt should believe the between also extremely
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editor,
Haaretz
Marouani
[118]
in
the
misplaced. While
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Israel.
English
researched,
Hebrew
[117]
owner,
of
there
maintains
Canadian
[116]
Tel
great
suggestion
article
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Goldhar
on
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reference
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The
Goldhar.
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interest
about
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focus
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was
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private
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companies.
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defamatory.
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published
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estimated
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heart,
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and
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article
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lawsuit
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publisher
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the
Marouani,
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couple
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Goidhar.
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on
websites
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that
celebrity
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and
paper’s
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wrote
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of
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these
proceedings
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citizens
provides a
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shopping
actually
by
in
attention
may
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proceedings,
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defendants
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sign
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tort
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Page:
domiciled
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Ontario
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Ontario
action,
2012
why
allow
the
evidence,
of
less
court
engaged.
in
jurisdiction
I
appellants’
soc
factors.
disagree
Ontario.
to
the
and
of
and
in
of
had
at
the
Ontario
appeal.
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17,
the
the
least
those
jurisdiction,
Rather,
of
respondent
[2012]
with
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simpliciter
action
existence
these
As
appeal
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or
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S.C.R.
on
of
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with
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this
the
not
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a a Page: 40
[125] The motion judge then considered whether the appellants had rebutted the presumption and concluded that they had not. He anchored his conclusion on two bases:
(i) In Editions Ecosociété Inc. v. Banro Corp., 2012
Soc 18, [2012] 1 S.C.R. 636, the Supreme Court did
not view the absence of substantial publication in
Ontario as having rebutted the presumption. In that case, “only 15 of the 5,000 published copies of a book containing libellous material (including 93 copies that had been sent to stores in Ontario) were in public libraries in Ontario and only one copy of the book had been checked out.”: at paras. 22-24.
(ii) Proof of harm to reputation is not an element of the tort of defamation and therefore is an irrelevant consideration. In any event, if relevant, harm to the plaintiff’s reputation was presumed and that presumption had not been rebutted: at para. 25.
[126] My colleague agrees with the motion judge’s conclusion that the presumption of jurisdiction had not been rebutted and that jurisdiction had been established over the foreign appellants. In doing so, she quotes with approval
Sharpe J.A.’s observation in Muscutt v. Courcelles (2002), 60 O.R. (3d) 20
(C.A.), at para. 44:
wrote:
cases,
world. where
[1281
defamation
person
plead
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one
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wrote:
Page:
Doctrine
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42
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actions based on where the defamatory content is accessed rather than where it is produced exposes foreign newspapers and foreign journalists to legal actions in countries around the world.
[174] In the article “Book Reviews, the Common Law Tort of Defamation, and the Suppression of Scholarly Debate” (2010)11:6 German L.J. 656 at 667-69,
Associate Professor Kate Sutherland addressed the conundrum in the context of freedom of expression:
Clearly then, the specifics of defamation law doctrine aside, threats of lawsuits, or even just the fear of threats of lawsuits, can suppress scholarly debate and thereby compromise academic freedom. Libel chill is further heightened by the prospect of libel tourism. Even more daunting than the idea of facing a defamation lawsuit at home is that of facing such a suit in a foreign jurisdiction that may offer less protection to academic freedom and impose more severe sanctions.
At a time when critical scholarship is increasingly disseminated electronically to a global audience, it is necessary to be attuned not just to the defamation laws of one’s own jurisdiction but to those of a multitude of jurisdictions around the world. Defendants may only be able to rely on the degree of academic freedom provided by the most draconian of libel regimes.
[175] In an article entitled “Jurisdiction and Choice of Law Issues in Multistate
Defamation on the Internet” (2013) 51:1 Alberta L. Rev. 153 at 162, Matthew
Castel wrote: Page: 58
In order to establish jurisdiction simpliciter, Canadian common law courts should continue to assume jurisdiction on the basis of the place of tort. This rule would not promote libel tourism as it is kept in check by the doctrine of forum non conveniens and also by a choice of law rule which would apply the law of the place of most substantial harm to the plaintiff’s reputation, rather than the law of the place of publication. This choice of law rule maintains a proper balance between the reputational interests of the plaintiff and the freedom of speech concerns of the defendant in addition to respecting comity as the organizing principle of the conflict of laws.
[176] The motion judge relied on both lex loci delicti and substantial harm to reputation in concluding that the applicable law was that of Ontario. In my view,
the motion judge erred in his analysis of choice of law. I have already addressed the issue of the undertaking. In discussing choice of law, the motion judge also did not consider that, as pleaded, the tort occurred in both Ontario and in Israel.
Secondly, while harm may be presumed, there was no evidence of substantial harm to Goldhar’s reputation in Ontario. Thirdly, the motion judge did not consider the principle of comity. Although on a different point, in Kaynes v. BP,
2014 ONCA 580, 122 O.R. (3d) 162, Sharpe J.A. found that the motion judge in that case had properly concluded that Ontario had jurisdiction but had erred in her forum non conveniens analysis by failing to consider the principle of comity.
As such, this court reversed the motion judge’s decision and imposed a stay of proceedings.
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[184] In contrast, there is evidence from the appellants that the respondent has
“celebrity status” in Israel and is often discussed in the Israeli media. In his amended statement of claim, the respondent pleaded that he continues to suffer damages in Israel, Canada and the United States. Taken together, the facts support the conclusion that any harm suffered in Israel was much more significant than any allegedly suffered in Ontario.
[185] Finally, the article was written in Israel about an Israeli soccer team and aimed at an Israeli audience. While Goldhar may be habitually resident in
Ontario, he has chosen to buy one of the most popular soccer clubs in Israel and to become involved in a very public and high-profile enterprise in that country.
[186] A consideration of these factors leads me to conclude that under the most substantial harm test, the law of Israel should govern the parties’ dispute and is therefore the applicable law.
(iv) Juridical Advantage
[187] Although not mentioned in either Van Breda or Breeden, the fourth factor relied upon by the motion judge was juridical advantage. He concluded that this factor favoured a trial in Ontario. He divided his discussion on this issue into two categories: the appellants’ submissions on Israel’s law of defamation and the respondent’s submissions.
the
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of of Page: 63 juxtaposition of the respondent’s circumstances. No mention was made on the ability to disseminate in Ontario, through Google Alerts and otherwise, the outcome of any trial in Israel so as to achieve a vindication of reputation. No mention was made of the range of monetary awards available to the respondent if successful in Ontario and their minimal nature relative to the respondent’s circumstances. No mention was made of the competing theory that this lawsuit was instituted in Ontario with a view not to protect a reputation, but to burden a foreign newspaper and individuals, no longer employed by the corporate parties, with the expense and attendant time away from work implicit with an order for trial in Ontario, or to use the appellant’s terminology, to muzzle the newspaper from commentary on the respondent’s actions in Israel. The ‘on the fly’ undertakings made at the hearing of the motion itself offer some confirmation of that theory. These omissions, coupled with my earlier comments, undermine the motion judge’s conclusion on fairness. When one considers these factors, fairness clearly favours Israel.
(vi) Enforcement
[192] Lastly, I note that although the motion judge enumerated the factors considered by the Supreme Court in Breeden, he neglected to address all of them. Most notably, he said nothing about enforcement. The only evidence before him on that issue was that the appellants had no assets in Ontario whereas one may readily infer from the evidence that the respondent does have Page: 64 assets in Israel. Based on the record before him, this factor therefore would also favour Israel.
Summary
[193] To summarize, given the low threshold that permits jurisdiction in a defamation case to be taken by an Ontario court, a robust and carefully scrutinized review must be undertaken by a motion judge on a stay motion based on forum non conveniens. Here, such a review was not undertaken.
Furthermore, and in any event, given the errors, the decision is not entitled to deference.
[194] When the issue of forum non conveniens is considered anew, the relevant factors lead to the inevitable conclusion that the appellants have established that
Israel is clearly the more appropriate forum. Additionally, such an outcome is in the interests of justice.
Disposition
[195] For these reasons, I would allow the appeal and stay the respondent’s action. Page: 65
Appendix ‘A’
Soccer I Profile I Long-distance operator
Though he spends most of his time in Canada, Maccabi Tel Aviv owner Mitch Goldhar runs his club down to every detail. But could his penny pinching and lack of long term planning doom the team. by David Marouani
Crises are par for the course at Maccabi Tel Aviv, even when the club appears to be on an even keel. Most of the crises don’t make it onto the public’s radar, but they have one thing in common: their connection to way that Canadian owner Mitch Goldhar runs the club.
Just over a year ago, Goldhar’s representative in Israel, Jack Angelides, complained about the job that Clarice Zadikov, the long-time CEO of the team, was doing. Goidhar’s immediate response was to suggest appointing someone to do an identical job, with a slightly different title — but reporting back to the owner. So Tomer Shmuel was appointed commercial manager and Zadikov’s authority was slowly eroded. Two months ago, the policy had the desired effect and Zadikov reached an agreement with Angelides over her retirement.
“Mitch’s game plan is to wear down anybody who he wants to get rid of, until they’ve had enough and decide to leave of their own accord,” one club insider told Haaretz this week.
The departure of CEO Uzi Shaya, following the gradual erosion of his powers, is a case in point. “The dismissal of Avi Nimni is the exception that proves the rule,” the same insider said. “Eor the most part, [Goldhar is] supremely patient. One could even say he’s cold and calculated.”
Goldhar is also playing with time in the battle between coach Moti Ivanir and star striker Barak Yitzhaki. Goldhar landed in Israel on Eriday, but he opted not to address the spat until Monday evening.
According to club sources, the owner is currently observing the situation and has not yet decided how he willhandle this latest crisis.
“Whatever happens,” one source said, “he will be remembered as the knight in shining armor who came in and saved the day.” Page: 66
Goldhar’s management model was imported directly from his main business interest — a partnership with Wal-Mart to operate shopping centers in Canada. He even spelled out his managerial vision in a leaflet distributed to fans ahead of Sunday night’s derby against Hapoel Tel Aviv.
“By dealing with disciplinary matters, commitment and the right approach,” he wrote, “we are now at the dawn of a cultural revolution — a process of building a new sporting culture.”
Within the club, however, there are those who believe that Goldhar’s managerial culture is based on overconcentration bordering on megalomania, penny- pinching and a lack of long-term planning.
“With all due respect to ‘cultural revolutions’, the gap between Maccabi Tel Aviv and Maccabi Haifa is getting wider since he arrived,” said one team insider.
And with all due respect to Angelides, everyone at Maccabi knows that it’s a one- man show. Anything that Goidhar’s Cypriot lieutenant says to the players or to the coaching staff is prefixed by the words “Mitchsays...”
When lvanir read the riot act to his players at a meeting in Caesarea last week, almost every sentenced included the phrase, “the owner told me that...”
Despite running the club from afar, decisions are only made once Goldhar has given them the green light. He was even involved in the minute details of the search for a location for the club’s new souvenir shop.
“I want to invest in branding the store,” he told his employees over a year ago. For months, he was presented with dozens of potential locations for the store in north Tel Aviv, but rejected them all. In the end, he decided to renovate the mobile home in the south of the city where the store is currently located.
Do as your boss says
Goldhar boasts to his business contacts in Toronto that he is not only the owner of Maccabi Tel Aviv but also its soccer director. The last time he was in Israel, he brought Ivanir into his office and tried to tell him how the team should be playing. “[Hans] Medunjanin should be playing in the same position that he plays for the [Bosnian] national team,” Goldhar reportedly told his coach. In fact, it was at Goidhar’s suggestion that Medunjanin was returned to the starting line-up at the expense of Gal Alberman. “Ivanir doesn’t know how to respond in these Page: 67 situations,” says a club source. “But he believes that he really should do as his boss suggested — even ifthat boss knows nothing about soccer.”
This week, too, in the aftermath of the defeat in Sunday’s derby match, Goldhar got involved.
“You showed that you’ve got the ability,” he told the players, “but you seem to have misplaced the character that you showed at the start of the season. I am convinced that you still have that character and now’s the time that you have to show it.”
Goldhar has invested hundreds of millions of shekels in Maccabi since he arrived on scene some two and a half years ago, but club sources say that he borders on the frugal when it comes to the managerial side of the club. When Angelides was first offered a job, for example, Goldhar did not see fit to offer him a company car. Angelides complained bitterly but silently about this, until he eventually persuaded one of the team’s sponsors to provide him with a vehicle — without Goldhar’s knowledge.
In an interview with Yedioth Ahronoth’s Nahum Barnea, Goldhar spoke about how much he values the work done behind the scenes by the club’s equipment manager, David Zachi, who earns a fraction of the salary of the players. What he failed to point out, however, is that he has steadfastly refused to raise Zachi’s measly pay by just a few hundred shekels. To Goldhar’s credit, it should be noted that, when it comes to frugality, he practices what he preaches: he rented a dingy apartment for himself in Tel Aviv and he drives nothing more fancy than a Hundai Getz.
Goldhar, according to club insiders, thrives on the media attention that Maccabi brings him. Despite the fact that he planned his latest visit to Israel well in advance, for example, and the crew aboard his private jet was briefed a week in advance, he made sure that the media were kept in the dark, in order to create an aura of expectation.
When Maccabi played against Panathinaikos earlier this season, he read everything that was written about him [sic] the Greek press and even cut out a cartoon of him that appeared in one [sic] the paper, asking all his employees whether it was flattering. He also has articles in which his name appears translated into English.
Despite his many statements, Goidhar does not have a long-term plan for the team. The only plan he has presented so far has been to upgrade the club’s Page: 68 training facilities, but that still hasn’t happened. The only changes he has made have been to the youth team set-up, and he often boasts about that team’s accomplishments.
This has become a sore point with former owner Alex Shnaider, who complained that Goldhar was taking credit for a five-year plan that was implemented before he even arrived at the club.
As for his long-term future, Goidhar says that he’s here to stay. “He is so keen to prove to everybody that his business model can work that he won’t leave until he’s won at least a league championship,” according to one of his close associates.
There are those, however, who see things differently. Goldhar plays soccer at least once a week in Toronto with han Sa’adi, a former professional player and close friend. One of the people who plays with them says that, between the lines, there are clear signs that Goldhar is getting frustrated with Maccabi.
“He’s very distressed at the way the team is playing,” the source says. “If I understand him correctly, he willgive the team until the end of this season to win the championship and then he’ll start looking for someone to take Maccabi off his hands.”
Goidhar declined to comment for this article.