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SCC Court File No. 33900 in THE S.C.C. Court File No. 33900 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR THE PROVINCE OF ONTARIO) BETWEEN: RICHARD C. BREEDEN, RICHARD C. BREEDEN & CO.: GORDON A. PARIS: JAMES R. THOMPSON, RICHARD D. BURT, GRAHAM W. SAVAGE and RAYMOND G.H. SElTZ Appellants (Appellants) - and - CONRAD BLACK Respondent (Respondent) AND BETWEEN: RICHARD C. BREEDEN, RICHARD C. BREEDEN & CO., GORDON A. PARIS, JAMES R. THOMPSONl RICHARD D. BURT, GRAHAM W. SAVAGE and RAYMOND G.H. SElTZ Appellants (Appellants) - and - CONRAD BLACK Respondent (Respondent) FACTUM OF THE RESPONDENT, CONRAD BLACK (Pursuant to s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26 as am. 1990, c. 8 and Rule 36 and 42 of the Rules of the Supreme Court of Canada) AND BETWEEN: RICHARD C. BREEDEN, RICHARD C. BREEDEN & CO., GORDON A. PARIS, JAMES R. THOMPSON, RICHARD D. BURT, GRAHAM W. SAVAGE and RAYMOND G.H. SElTZ Appellants (Appellants) - and - CONRAD BLACK Respondent (Respondent) AND BETWEEN: RICHARD C. BREEDEN, RICHARD C. BREEDEN & CO.: GORDON A. PARIS. JAMES R. THOMPSON: RICHARD D. BURT: GRAHAM W. SAVAGE and RAYMOND G.H. SElTZ Appellants (Appellants) - and - CONRAD BLACK Respondent (Respondent) AND BETWEEN RICHARD C. BREEDEN, RICHARD C. BREEDEN & CO.! GORDON A. PARIS, GRAHAM W. SAVAGE, RAYMOND G.H. SElTZ and PAUL B. HEALY Appellants (Appellants) - and - CONRAD BLACK Respondent (Respondent) AND BETWEEN: RICHARD C. BREEDEN, RICHARD C. BREEDEN & CO., GORDON A. PARIS, JAMES R. THOMPSON, RICHARD D. BURT, GRAHAM W. SAVAGE, RAYMOND G.H. SEITZ, SHMUEL MEITAR and HENRY A. KlSSlNGER Appellants (Appellants) - and - CONRAD BLACK Respondent (Respondent) LERNERS LLP GOWLING LAFLEUR HENDERSON LLP Barristers & Solicitors Barristers & Solicitors 130 Adelaide Street West 160 Elgin Street Suite 2400 Suite 2600 Toronto, ON M5H 3P5 Ottawa, ON K1P 1C3 Earl A. Cherniak, Q.C. (LSUC #09113C) Henry S. Brown, Q.C. Kirk F. Stevens (LSUC#: 27515P) Lisa C. Munro (LSUC# 36006R) Tel: 61 3.786.0139 Tel: 416.867.3076 Fax: 61 3.563-9869 Fax: 416.867.9192 [email protected] Solicitors for the Respondent, Agent for Counsel for the Respondent Conrad Black TO: THE REGISTRAR Supreme Court of Canada 301 Wellington Street Ottawa, ON KIA OJ1 AND TO: BLAKE, CASSELS & GRAYDON LLP BLAKE, CASSELS & GRAYDON LLP 199 Bay Street 45 O'Connor Street Commerce Court, Suite 2800 World Exchange Plaza, Suite 2000 Toronto, ON M5L 1A9 Ottawa, ON KIP 1A4 Paul Schabas LSUC#26355A Nancy Brooks LSUC#37690H Tel: 416.863.4274 Tel: 61 3.788.2218 Email: [email protected] Fax: 613.788.2247 Email: [email protected] Ryder Gilliland LSUC#45662C Tel: 416.863.5849 Ottawa Agents for the Appellants Email: [email protected] Erin Hoult LSUC#54002C Tel: 416.863.4011 Email: [email protected] Fax: 41 6.863.2653 Solicitors for the Appellants, Richard C. Breeden and Richard C. Breeden & Co. AND TO: BENNETT JONES LLP BLAKE, CASSELS & GRAYDON LLP One First Canadian Place 45 O'Connor Street 100 King Street West, Suite 3400 World Exchange Plaza, Suite 2000 Toronto, ON M5X 1A4 Ottawa, ON KIP 1A4 Robert W. Staley LSUC#27115J Nancy Brooks LSUC#37690H Tel: 416.777.4857 Tel: 61 3.788.2218 Email: [email protected] Fax: 61 3.788.2247 Email: [email protected] Julia E, Schatz LSUC#37412V Tel: 416.777.4665 Ottawa Agents for the Appellants Email: [email protected] Solicitors for the Appellants, Gordon A. Paris, James R. Thompson, Richard D. Burt, Graham W. Savage, Raymond G.H. Seitz, Paul B. Healy, Shmuel Meitar and Henry A. Kissinger TABLE OF CONTENTS PART I .STATEMENT OF FACTS ................................................................................. I A . Overview .......................................................................................................... I B . The connection between the subject matter of Black's claim and Ontario ........ 2 1. Black's connections to Ontario .........................................................................2 2 . Black exercised control over International from Ontario ................... .... ...... 3 3 . The defamatory statements ..............................................................................5 4 . Other litigation in the U.S. and Canada ............................................................7 (a) U.S. criminal proceedings against Black ..........................................................7 (b) Civil litigation in the U.S. and Canada ..............................................................8 (c) The defendants' freshly minted estoppel issue ................................................9 (d) The defendants' connections to Ontario in civil proceedings .......................... 10 C . Reasons of the courts below ..........................................................................12 PART II .STATEMENT OF ISSUES .............................................................................13 PART Ill - STATEMENT OF ARGUMENT ....................................................................13 ... A . Jur~sd~ct~on..................................................................................................... 13 1. Black's position on jurisdiction simplicifer .......................................................13 2 . The "real and substantial connection'' test ......................................................14 (a) Service ex juris rules and the "real and substantial connection" test .............. 14 (b) The basis of a "real and substantial connection1'in this case ......................... 15 (c) The relevant connections in the "real and substantial connection" test ......... 16 (d) The defendants' agenda .replacement of the "real and substantial connection" test with a "personal subjection" test ...........................................18 (e) The defendants' approach conflates jurisdiction simpliciter and forum non conveniens ..................................................................................................... 21 3 . The "real and substantial connection" test and defamation ............................22 . (a) Black's pos~t~on........... .. ...............................................................................22 (b) The defendants' position deconstructed ......................................................... 23 (c) The focus of defamation law is still the plaintiffs reputation. not the defendant's conduct .......................................................................................25 (d) Ordinarily. the place of publication is the locus delicti ....................................26 (e) The defendants' criticism of the Canadian approach is unjustified ................. 29 (f) The supposed spectre of unlimited liability ..................................................... 30 (g) Considerations of comity do not support the defendants' position .................. 31 (h) The "targeting" test is satisfied on these facts ................................................ 33 (i) The Canadian approach to "targeting" ............................................................ 34 B . Forum non conveniens ...................................................................................35 1 . Location of the majority of the parties .............................................................36 2 . Location of key witnesses and evidence ........................................................37 3 . Avoidance of multiplicity of proceedings .........................................................37 4 . The applicable law ..........................................................................................38 5 . Loss of juridical advantage .............................................................................38 6 . Enforceability of an Ontario judgment ............................................................39 7 . Conclusion on forum non conveniens ............................................................40 PART IV . SUBMISSIONS ON COSTS .........................................................................40 PART V .ORDER SOUGHT .........................................................................................40 PART VI - TABLE OF AUTHORITIES ...........................................................................41 PART VII - STATUTES AND REGULATIONS ..............................................................44 PART I - STATEMENT OF FACTS A. Overview 1. If the respondent, Conrad Black, were a "libel tourist", he would have brought these defamation actions in the United Kingdom, a jurisdiction so roundly condemned by the appellants ("defendants") as a "plaintiff friendly" forum, where Black has connections. Justice Belobaba, the motion judge, and a unanimous Court of Appeal (Doherty, Juriansz, and Karakatsanis JJ.A.) correctly appreciated that Ontario may properly assume jurisdiction over the defendants, who are former directors, officers, and advisors of Hollinger International Inc. ("International"), on the basis that they knew or ought to have known that Black's reputation is more substantially connected to Ontario than any other place in the world and that the highly inflammatory charges that they posted on International's web site in the United States were certain to be widely published in Ontario. Those statements charged Black with having run International, while he controlled it, as a "corporate kleptocracy" and having "looted it" of "hundreds of millions'' of dollars. 2. The issue upon which this court granted leave to appeal is the proper application of the "real and substantial connection" test for the
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