COURT OF APPEAL
    FOR ONTARIO

CITATION: Goldhar v. Haaretz.com, 2016 ONCA 515

DATE: 20160628

DOCKET: C60259

Simmons, Cronk and Pepall JJ.A.

BETWEEN

Mitchell Goldhar

Plaintiff (Respondent)

and

Haaretz.com, Haaretz Daily Newspaper Ltd.,
    Haaretz Group, Haaretz.Co.Il, Shlomi Barzel and David Marouani

Defendants (Appellants)

Paul Schabas and Emily Bala, for the appellants

William McDowell, Ren Bucholz and Julian Porter, Q.C.,
    for the respondent

Heard: November 10, 2015

On appeal from the order of Justice Mario D. Faieta of
    the Superior Court of Justice, dated March 6, 2015, with reasons reported at
    2015 ONSC 1128, 125 O.R. (3d) 619.

Simmons
    J.A.:

I.

INTRODUCTION

[1]

The issues on appeal concern whether an internet
    libel action, based on a newspaper article uploaded in Israel, can and should
    proceed in Ontario.

[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 newspapers 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 forum. In the further alternative, Haaretz
    sought to stay the action as an abuse of process.

[8]

When Haaretzs motion was heard, Goldhars
    counsel claimed he wishes a jury trial, a mode of trial not available in
    Israel. They also provided oral undertakings not to seek damages at the trial
    of this action for reputational harm suffered in Israel or anywhere else
    outside of Canada and to pay for Haaretzs witnesses to travel to Ontario for
    purposes of the action.

[9]

The motion judge dismissed Haaretzs motion. He found
    that the article came to the attention of many of the 200 people in Goldhars
    Toronto office and that it is likely that 200-300 people in Canada read the
    article online.

[10]

Haaretz did not dispute that Ontario readership established
    a tort committed in Ontario  one of the presumptive connecting factors under
    the real and substantial connection test for determining jurisdiction
simpliciter
set out in
Club Resorts Ltd. v. Van Breda
, 2012 SCC 17, [2012] 1
    S.C.R. 572. However, Haaretz argued that, under the second step of the
Van
    Breda
test, the presumption of jurisdiction was rebutted. The motion judge
    rejected this argument.

[11]

Further, the motion judge held that Israel was
    not a clearly more appropriate forum. He weighed the factors raised by Haaretz
    and concluded that convenience and expense to the parties
favours
Israel, and that convenience and expense to witnesses slightly
favours
Israel. However, he found that choice of law, loss of
    juridical advantage, and fairness to the parties favour Ontario.

[12]

Finally, the motion judge rejected Haaretzs
    claim that the action is an abuse of process.

[13]

In the result, the motion judge dismissed
    Haaretzs motion but directed that, if the action proceeds in Ontario, Goldhars
    claim is limited to damages for reputational harm suffered in Canada and that Goldhar
    shall pay for the travel and accommodation expenses for Haaretzs witnesses at
    the rates provided in the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194
.

[14]

Haaretz raises three main issues on appeal:

i)

Did the motion judge err in failing to find that, under the
Van
    Breda
test, Haaretz had rebutted the presumption of jurisdiction?

ii)

In the alternative, if Ontario has jurisdiction, did the motion judge err
    in failing to find that Israel is a clearly more appropriate forum and, in
    particular, did he err in his findings concerning convenience and expense to witnesses,
    applicable law, loss of juridical advantage and fairness to the parties?

iii)

In the further alternative, did the motion judge err in failing to stay
    the action as an abuse of process?

[15]

For the reasons that follow, I would dismiss the
    appeal.

II.

BACKGROUND

(1)

The Article

[16]

Haaretz is Israels oldest daily newspaper  but
    also has the smallest circulation of the five daily Hebrew-language newspapers
    in Israel, with a market share of about seven per cent.

[17]

The article was published in print in Israel, with
    a distribution of about 70,000 copies. While print copies were also distributed
    outside of Israel, no print copies were distributed in Canada. However, the
    article was posted online  in Hebrew on Haaretz.co.il and in English on
    Haaretz.com  and thus was available via the internet in Canada.

[18]

The article is reproduced in full in Appendix A
    of these reasons. I set out below the portions of the article the motion judge
    reproduced in the body of his reasons:

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.

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 dont make it onto
    the publics radar, but they have one thing in common: their connection to the way
    that Canadian owner Mitch Goldhar runs the club.

Mitchs game plan is to wear down anybody who he wants to get
    rid of, until theyve had enough and decide to leave of their own accord, one
    club insider told Haaretz this week.

Goldhars 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 nights 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
    Goldhars managerial culture is based on overconcentration bordering on
    megalomania, penny-pinching and a lack of long-term planning.

(2)

The Action

[19]

In his amended statement of claim, Goldhar
    claims both general and punitive damages against Haaretz for libel. He alleges that
    the article was published in Hebrew and in English on the internet and
    distributed throughout Ontario and Canada, as well as internationally.

[20]

Among other things, Goldhar pleads that the
    natural and ordinary meaning of the article is that he:

·

displays
    behavioural characteristics of megalomania, a personality disorder or mental
    illness;

·

is
    compelled to involve himself in all daily activities of the soccer club;

·

makes
    irrational business decisions;

·

treats
    employees in an offensive and irrationally thrifty manner; and

·

when
    reached for comment, declined the opportunity to refute the allegations in the
    article.

[21]

Goldhar also pleads that the article includes
    significant factual errors and fabrications, and that by reason of the
    publication of the article, he has suffered damage to his reputation in his
    business and personal life.

III.

DISCUSSION

(1)

Did the motion judge
err in failing to
    find that, under the
Van Breda
test, Haaretz had
    rebutted the presumption of jurisdiction?

[22]

In
Van Breda
, the Supreme Court set out
    the real and substantial connection test for determining whether a court can
    assume jurisdiction over an action. The test has two stages.

[23]

At the first stage, the plaintiff must establish
    that one of the listed presumptive connecting factors, or a new factor which
    should be given presumptive effect, exists:
Van Breda
, at para. 80. If
    such a factor exists, the court should assume that it is properly seized of
    the subject matter of the litigation and that the defendant has been properly
    brought before it:
Van Breda
, at para. 94.

[24]

At the second stage, a defendant may rebut the
    presumption of jurisdiction by establish[ing] facts which demonstrate that the
    presumptive connecting factor does not point to any real relationship between
    the subject matter of the litigation and the forum or points only to a weak
    relationship between them:
Van Breda
, at para. 95.

[25]

Concerning the second stage, the Supreme Court
    cautioned that rebutting the presumption of jurisdiction will be difficult where
    the presumptive connecting factor is that of a tort committed in the forum. However,
    it may be possible to rebut the presumption in the case of a multi-jurisdictional
    tort where only a relatively minor element of the tort has occurred in the
    chosen forum:
Van Breda
, at para. 96. In such a case the presumptive
    connecting factor would point only to a weak relationship between the forum
    and the subject matter of the litigation. Thus, it would not be reasonable to
    expect that the defendant would be called to answer proceedings in that
    jurisdiction:
Van Breda
, at para. 97.

(a)

The motion
    judges reasons

[26]

Before the motion judge, Haaretz argued that
    only a minor element of the tort was committed in Ontario because far more
    people read the article in Israel than in Ontario. Haaretz also relied on the
    fact that Goldhar led no evidence of harm to his reputation in Ontario.

[27]

The motion judge rejected Haaretzs 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
Éditions
    Écosociété 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 Haaretzs argument that there was no
    evidence of harm to Goldhars 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 Goldhars
    reputation arising from publication of the article in Ontario.

(b)

Haaretzs
    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 and by effectively treating the presumptive
    connecting factor of a tort committed in the province as irrebuttable.

[31]

Haaretz submits that a real and substantial
    connection between the subject matter of the litigation and Ontario is not
    established merely because a few people in Ontario read the article.

[32]

According to Haaretz, the article  and
    therefore the litigation  is solely about the way Goldhar runs Maccabi Tel
    Aviv. They say the only factor connecting the litigation to Ontario is a small
    number of readers. Far more people read the article in Israel. Significantly,
    the subject matter of the article  the soccer team  is located in Israel. And,
    the people involved in and affected by the article are located in Israel.
    Moreover, Goldhar is a prominent figure in Israel  and that is where he would
    have suffered reputational harm.

[33]

Haaretz says this case is distinguishable from
Banro
,
    which

was about a book, not internet postings. It says that, in
Banro
,
    the subject matter of the litigation was connected to Ontario because the book
    criticized the plaintiffs business, which was located at least partially in
    Ontario. Moreover, the Quebec publisher specifically sought to sell the book in
    Ontario.

[34]

Haaretz also says the motion judge erred in
    relying on the fact that the presumption of harm to Goldhars reputation in
    Ontario had not been rebutted, because damage sustained in the jurisdiction is
    not a presumptive connecting factor that must be rebutted. In any event, Haaretz
    argues that it was unreasonable to require it to demonstrate that Goldhar had
    not suffered
an
y
damages when Goldhar led no evidence of
    damages and when Ontario readership was so small.

[35]

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 Goldhars 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 Haaretzs submissions that the
    motion judge erred in failing to find that it had rebutted the presumption of
    jurisdiction.

[37]

I would not accept Haaretzs claim that the
    connection between the subject matter of this action and Ontario is limited to
    the fact that a relatively small number of people in Ontario read the article. In
    my view, the subject matter of both the article and the action has a
    significant connection to Ontario.

[38]

Contrary to Haaretzs submissions, the subject
    matter of the article is not confined to a discussion of Goldhars business
    dealings in Israel or of the operation of Maccabi Tel Aviv. Rather, the article
    puts Goldhars Canadian connection front and center by acknowledging that he is
    a long distance operator and spends most of his time in Canada and by asserting
    that he imported his management model for Maccabi Tel Aviv from his
main
business interest, his Canadian shopping center partnership.

[39]

As I have said, in his amended statement of
    claim, Goldhar pleads that the natural and ordinary meaning of the article is
    that he displays characteristics of a mental disorder, makes irrational
    business decisions, treats employees in an offensive manner, and is
    irrationally thrifty concerning benefits to employees.

[40]

Whether the words of the article are capable of
    bearing these defamatory meanings is not at issue at this stage of the
    litigation.

[41]

What is important is that the alleged sting of
    the article is very much related to how Goldhar conducts business in Canada
    because the article draws a link between Goldhars management model and his
    Canadian business. Although the main subject of the article may be the
    management of an Israeli soccer team, the article makes Goldhars management
    model  and its Canadian origins  an integral part of that subject.

[42]

This is not a case of libel tourism. On the
    motion judges findings, Goldhar lives in Ontario and has operated a business
    here for at least 17 years. Moreover, the subject matter of the litigation is
    connected to Ontario largely because of the link drawn between the article and
    Goldhars Canadian business. As the motion judge observed when addressing
forum
    non conveniens
, it should not have come as a surprise to Haaretz that Goldhar
    would seek to vindicate his reputation here.

[43]

Further, I do not accept Haaretzs claim that the
    connection between the tort and Ontario is weak because the article was
    published more extensively in Israel. At the rebuttal stage of the jurisdiction
simpliciter
analysis, the question is whether, objectively speaking,
    Ontario has a real and substantial connection to the subject matter of the
    action, not whether there is another forum that could also take jurisdiction
    over the action. See, for example,
Muscutt v. Courcelles
(2002), 60
    O.R. (3d) 20 (C.A.), at p. 36, where Sharpe J.A. observed, the real and
    substantial connection test requires only a real and substantial connection,
    not the most real and substantial connection.

[44]

Finally, I see no error in the motion judges
    statements that, in a defamation action, damage is presumed and that Haaretz
    did not adduce evidence to rebut that presumption. In making these statements,
    the motion judge was not suggesting that damage is a presumptive connecting
    factor. Rather, he was responding to Haaretzs argument that the fact that Goldhar
    had adduced no evidence of harm in Ontario supported its position that only a
    minor element of the tort was committed in Ontario.

[45]

The motion judge rejected this argument. In
    effect, he concluded that, in the absence of evidence demonstrating
no
reputational harm, Goldhar need not lead evidence of reputational harm to
    establish jurisdiction
simplicite
r
. I agree with this
    conclusion.

[46]

In the end, I am not satisfied that Haaretz
    rebutted the presumption of jurisdiction created by the presumptive connecting
    factor of a tort committed within the jurisdiction.

(2)

Did the motion judge err in failing to find that Israel is a
    clearly more appropriate forum?

[47]

After concluding that Ontario had jurisdiction
simpliciter
,
    the motion judge turned to the question whether the court should decline to
    exercise its jurisdiction on the basis that Israel is the clearly more
    appropriate forum. He reviewed the clearly more appropriate standard set out
    in
Van Breda
, at para. 109, and the factors Haaretz relied on to claim
    that Israel is the clearly more appropriate forum. He found that Haaretz had
    not discharged its burden of demonstrating that Israel is the clearly more
    appropriate forum.

[48]

Haaretz argues that the motion judges 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 Ontarios 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 judges 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 if the motion judge erred in principle,
    misapprehended or failed to take account of material evidence, or reached an
    unreasonable decision:
Banro
, at para. 41.

(i)

Convenience and Expense to Witnesses

(a)

The motion judges reasons

[51]

After finding that the comparative convenience
    and expense for the parties favours a trial in Israel, the motion judge
    concluded that the comparative convenience and expense to witnesses slightly
    favours a trial in Israel.

[52]

In his reasons concerning convenience and
    expense to witnesses, the motion judge acknowledged that Goldhar had not filed
    any evidence regarding witnesses that he would call at trial.

[53]

On the other hand, Haaretz had filed evidence
    in the form of an affidavit from the sports editor, Mr. Barzel  indicating
    that if the action proceeds to trial Haaretz would rely on the defences of
    truth, fair comment, qualified privilege and responsible communication in the
    public interest. Haaretz claimed this would mean that the evidence at trial
    would deal with events that occurred in Israel and whether the article is a
    matter of public interest in Israel.

[54]

In his affidavit, Mr. Barzel named 21 individuals,
    including the personal defendants, who he
anticipate[d]

could
be called to testify (emphasis in the
    motion judges reasons). Of these witnesses, three were or had been associated
    with Haaretz, three were former Maccabi Tel Aviv players, six were former
    Maccabi Tel Aviv staff, six were current Maccabi Tel Aviv staff, one was a
    former Goldhar representative and one was a former Goldhar 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 Haaretzs proposed witnesses
    by telephone. In his affidavit Mr. Meiri was skeptical about the relevance of
    Haaretzs 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. Meiris notes revealed that the eight
    witnesses he interviewed told him that they did not intend to testify for
    Haaretz.

[57]

In response to Haaretzs 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 Haaretzs argument that, because most of the witnesses
    reside in Israel and none live in North America, a trial in Israel would be
    substantially less expensive and far more convenient.

[59]

First, the foreign witnesses could testify via
    videoconference under r. 1.08. Second, Goldhar had offered to fund their travel
    and accommodation costs at the rates provided by the rules. The motion judge
    observed that, while the latter factor addressed the additional expense of a
    trial in Ontario, it did not address the additional inconvenience.

[60]

In the end, the motion judge found that the
    factor of comparative convenience and expense to witnesses slightly favours
    Israel.

(b)

Haaretzs
    arguments on appeal

[61]

On appeal, Haaretz asserts that the factor of
    comparative convenience and expense to witnesses overwhelmingly favours Israel
    and that the motion judges conclusion that this factor only slightly favours a
    trial in Israel is unreasonable.

[62]

As a starting point, Haaretz submits that the
    motion judge erred in law in holding that witnesses outside of Canada can be
    compelled to testify in Ontario by means of letters rogatory. Letters of
    request, as they are now called under r. 34, can only be used to compel a
    foreign witness to submit to an examination in the witnesss own jurisdiction.

[63]

Haaretz asserts this is a significant error.
    Apart from the three personal defendants, most of Haaretzs proposed witnesses
    are current or former Maccabi Tel Aviv staff or former players, one is a former
    Goldhar representative and one is a former Goldhar spokesperson. It is
    undisputed that many of these witnesses will not come to Ontario voluntarily to
    testify for Haaretz. Haaretz submits that the lack of a mechanism to compel
    them to come to Ontario will make it impossible for Haaretz to fairly defend
    itself in Ontario.

[64]

Further, Haaretz claims that the motion judge
    was unreasonably skeptical about Haaretzs proposed witnesses and their
    evidence  and that he largely ignored the cross-examinations of Mr. Meiri and Mr.
    Barzel, which it says demonstrated that virtually all Haaretzs proposed
    witnesses had relevant evidence to give.

[65]

As for Goldhars proposed solutions, Haaretz
    says Goldhar failed to lead evidence to establish that Israel would respond to
    Ontario letters of request to compel reluctant witnesses to testify via
    videoconferencing. In any event, requiring many of Haaretzs witnesses to testify
    via videoconferencing, and possibly through interpreters, could undermine the
    fairness of the trial.

[66]

Finally, Haaretz says that Goldhars undertaking
    to pay accommodation and travel expenses is nothing more than an attempt by a
    wealthy plaintiff to purchase a forum.

(c)

Analysis

[67]

I acknowledge that the motion judge erred in law
    by suggesting that letters rogatory could be used to compel the attendance of
    Haaretzs witnesses in Ontario.
[1]
Nonetheless, I am not persuaded that this error makes his overall assessment of
    this factor unreasonable.

[68]

Based on my review of the record and the motion
    judges reasons, three factors drove his analysis: first, the availability of
    videoconferencing to obtain the testimony of witnesses unwilling or unable to
    come to Ontario; second, Goldhars undertaking to fund travel and accommodation
    expenses for Haaretzs witnesses; and third, the lack of evidence concerning
    the likely testimony of Haaretzs proposed witnesses.

[69]

Contrary to Haaretzs arguments, in my view, the
    motion judge was entitled to accept that reluctant foreign witnesses could be
    compelled to provide evidence in Israel through the use of letters of request
    and that videoconferencing was a potential means of obtaining the evidence of
    any witnesses unwilling to come to Ontario.

[70]

These are available methods, under the
Rules
    of Civil Procedure
, for dealing with witnesses outside the jurisdiction.
[2]
Haaretz led no evidence to
    undermine Goldhars submissions that these methods would be available in this case.
    Haaretz bore the burden of demonstrating that Israel is the clearly more
    appropriate forum. On this record, it was not unreasonable for the motion judge
    to accept that Ontario letters of request would be honoured by Israel and that
    videoconferencing would be available in that jurisdiction.

[71]

Further, in the absence of evidence or adverse
    judicial commentary, the use of technology and interpreters cannot be viewed as
    undermining the fairness of a civil trial. We live in an age of international
    communication and commerce. Multi-jurisdictional parties  and witnesses who do
    not speak either of Canadas official languages  are to be expected. Courtroom
    procedures must accommodate testimony by videoconferencing. Interpreters have
    long been a common feature of the Canadian judicial system. The motion judges
    implicit conclusion that using these procedures would not undermine the
    fairness of the trial was not unreasonable.

[72]

In my view, the motion judge carefully qualified
    the effect of Goldhars offer to fund the travel and accommodation expenses of
    the foreign witnesses when he noted that the offer did not address the
    inconvenience of proceeding in Ontario.

[73]

Finally, I reject Haaretzs submissions that the
    motion judge was unreasonably skeptical about Haaretzs proposed witnesses and
    their evidence. The Israeli lawyer and Mr. Barzel made conflicting claims about
    whether various of the proposed witnesses had been contacted by Haaretz. In
    both instances, their information was second hand. While many of Haaretzs
    proposed witnesses could have information about relevant matters, the record
    contains scant information about what particular witnesses are actually likely
    to say. Importantly, Mr. Marouani, the reporter who wrote the article, did not
    provide an affidavit on the motion. Nor did Haaretz produce any witness
    statements or even any notes of conversations with the proposed witnesses. In
    these circumstances, the motion judge was entitled to treat Haaretzs proposed
    witness list with caution.

[74]

The motion judge did not conclude that the
    factor of convenience and expense for witnesses was neutral or that it favoured
    a trial in Ontario. Rather, he found that it
slightly
favoured a trial
    in Israel. I am not persuaded his conclusion was unreasonable.

(ii)

Applicable Law

(a)

The motion judges reasons

[75]

The motion judge found that whether the
lex
    loci delicti
choice of law rule or a most substantial harm to reputation
    choice of law rule is applied, Ontario law applies to this case. He therefore
    concluded that this factor favours a trial in Ontario.

[76]

The motion judge began his analysis by noting
    that in
Tolofson v. Jensen
, [1994] 3 S.C.R. 1022, which involved a
    motor vehicle accident that occurred in another province, the Supreme Court of
    Canada determined that the
lex loci delicti
choice of law rule, rather
    than
lex fori
, should apply. However, the motion judge also observed,
    at para. 47, that in both
Tolofson
, at p. 1042, and
Banro
, at
    para. 51, the Supreme Court had left open room for the creation of exceptions
    to the general rule of
lex loci delicti
for torts such as defamation.

[77]

The motion judge observed that in
Banro
,
    a defamation case, the Supreme Court left for another day the question whether
    a rule other than
lex loci delicti
should be adopted in such cases. He
    noted however, that LeBel J., speaking for the court, also considered another
    approach that had been gathering favour  the place of most substantial harm to
    reputation  and found that that test would result in the same choice of law in
    that case as the
lex loci delicti

test.

[78]

Turning to this case, the motion judge found
    that, because the article was read here, the
lex loci delicti
is
    Ontario. He further noted, at para. 49, that there was no comparative evidence
    of reputational harm to the plaintiff in Israel and Ontario as a result of the
    publication of the Article, and that there was limited evidence of Goldhars
    reputation other than evidence that:

·

Goldhar
    is a wealthy businessman who lives in Ontario;

·

Goldhar
    has operated a shopping center business in Ontario for at least 17 years;

·

Goldhar
    rents an apartment in Israel and visits Israel about five times per year; and

·

Goldhar
    has owned a soccer team in Israel for a few years and there have periodically
    been newspaper articles about his involvement with his soccer team and his
    personal life.

[79]

Taking account of the Supreme Courts approach
    in
Breeden
to a similar undertaking, the motion judge found, at para.
    50, Goldhars undertaking not to seek damages for reputational harm outside of
    Canada a very significant factor. In the light of that factor and the
    evidence he had referred to, the motion judge concluded that the most
    substantial harm to the plaintiffs reputation is in Ontario.

(b)

Haaretzs arguments on
    appeal

[80]

Haaretz submits that the motion judge erred in
    law by applying the
lex loci delicti
choice of law rule and by relying
    on Goldhars undertaking not to seek damages for reputational harm sustained outside
    of Canada to hold that Ontario law applies to this action.

[81]

Haaretz submits that a proper application of the
    alternative choice of law rule of most substantial harm to reputation
    identified by the Supreme Court in
Banro
leads inevitably to the
    conclusion that Israeli law should apply in this case.

[82]

Haaretz argues that, particularly in cases of
    internet libel, the most substantial harm to reputation test is the more appropriate
    choice of law rule because the
lex loci delicti
rule leads to forum
    shopping and libel tourism. Moreover, an undertaking such as that offered by Goldhar
    is simply a means of facilitating forum shopping and should not be
    countenanced.

(c)

Analysis

[83]

I would not accept Haaretzs arguments. In
    reaching the conclusion that the applicable law favours a trial in Ontario, the
    motion judge did not rely solely on the
lex loci delicti
choice of law
    rule. Rather, he also considered the most substantial harm to reputation test
    posited in
Banro
and concluded that it too pointed to applying Ontario
    law.

[84]

Contrary to Haaretzs submissions, I see no
    error in the motion judges 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 Goldhar
    would have suffered greater harm to his reputation there. Haaretz also points
    to articles published in Israel about Goldhars 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, Haaretzs reliance on the extensive
    publication in Israel as evidencing harm to Goldhars 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 established both his business
    and his business reputation  and where he continues to carry on his main
    business.

[87]

Further, while Haaretz takes issue with the
    motion judges reliance on the undertaking given by Goldhar not to seek damages
    for reputational harm suffered outside of Canada, a similar undertaking was
    accepted in
Breeden
by the Supreme Court as an important factor in the
    choice of law analysis. LeBel J. noted, at para. 33, that, Lord Black has
    undertaken not to bring any libel action in any other jurisdiction, and has
    limited his claim to damages to his reputation in Ontario.
As a result, only harm resulting from publication in Ontario
    need be considered
 (emphasis added).

[88]

Contrary to Haaretzs submissions, in my view,
    the undertaking given by Goldhar in this case does not demonstrate that he is forum
    shopping. Rather, it confirms the significance to him of his reputation in
    Ontario and the importance to him of vindicating his reputation here.

(iii)

Loss of Legitimate
    Juridical Advantage

(a)

The motion
    judges reasons

[89]

Before the motion judge, Haaretz argued that
    Israeli defamation law is more favourable to Goldhar than Ontario law. For his
    part, Goldhar argued that an Ontario trial would provide him with two juridical
    advantages  access to a jury 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 Haaretzs
    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 plaintiffs 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)

Haaretzs 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, 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 which to proceed, so long as the plaintiff has a
    real and substantial connection with that forum, the focus in assessing the
    plaintiffs loss of juridical advantage must be on its juridical advantage in
    the chosen forum. Although a defendant may be entitled to rely on loss of its juridical
    advantage in its proposed alternate forum, it is not for the defendant to
    suggest that the alternate forum is preferable to the plaintiff.

[98]

In any event, I am not persuaded that Haaretz
    demonstrated that any perceived advantages to plaintiffs under Israeli
    defamation law were relevant in this case. Notably absent from Haaretzs
    evidence is any opinion on the choice of law rule that would apply to this
    action should it proceed in Israel. Accordingly, it is not clear that any of
    Haaretzs proposed advantages would in fact accrue to Goldhar if the action
    were to proceed in Israel.

[99]

In the end, in my view, on the record before the
    motion judge, loss of legitimate juridical advantage was a neutral factor
    rather than a factor that favoured a trial in Ontario.

[100]

However, I am not persuaded that this error was significant to the
    motion judges overall conclusion on
forum non conveniens
. In both
Van
    Breda
, at para. 112, and
Breeden
, at para. 27, LeBel J. cautioned
    against placing too much emphasis on juridical advantage in the
forum non
    conveniens
analysis. Given the motion judges demonstrated familiarity
    with the case law, I am confident he was aware of these cautions.

(iv)

Fairness to the Parties

(a)

The motion
    judges reasons

[101]

The motion judge concluded that fairness to the parties favours a
    trial in Ontario. While noting Haaretzs concerns about having to defend an action
    in Ontario arising from an article about an Israeli soccer team that virtually
    no one in Ontario read, the motion judge accepted Goldhars position that he
    should be entitled to vindicate his reputation in Ontario. In this regard, the
    motion judge said, at para. 65:

The [appellants] published an article about a Canadian
    businessmans ownership of an Israeli soccer team that impugned his reputation.
There is no surprise or injustice to the [respondents]
attempt
    to vindicate his reputation in Ontario, where he lives and works.
[Emphasis
    added.]

[102]

To support his conclusion, the motion pointed to para. 59 of
Banro
,
    where the Supreme Court emphasized the importance of being able to sue for
    defamation in the place where a plaintiff lives and works and enjoys his
    reputation:

The importance of place of reputation has long been recognized
    in Canadian defamation law. For example, the importance of permitting
    plaintiffs to sue for defamation in the locality where they enjoy their
    reputation was recognized  in
Jenner v. Sun Oil Co. Ltd
.
. In
    that case, McRuer C.J.H.C. found that the plaintiff would not be able to
    satisfactorily clear his good name of the imputation made against him other
    than by suing for defamation in the locality where he enjoyed his reputation
    that is, where he lived and had his place of business and vocation in life.
    [Citation omitted.]

(b)

Haaretzs
    arguments on appeal

[103]

Haaretz argues that the motion judges conclusion overlooks the
    evidence of the tiny readership in Ontario, the subject matter of the
    article, and Goldhars connections to Israel. They say that the interests of
    justice favour a trial in Israel, because of the expense and inconvenience
    that Haaretz would face as a result of defending the action in Ontario, and
    because this action is a matter of public interest in Israel, not Ontario.

(c)

Analysis

[104]

I would reject Haaretzs arguments. Read as a whole, the motion
    judges reasons demonstrate that he was well aware of the evidence concerning
    disparity in readership and of Haaretzs arguments concerning the subject
    matter of the article and Haaretzs connections to Israel. At the end of the
    day, what the motion judge considered important was that Goldhar lives and
    works in Ontario and that Haaretz chose to write an article about him impugning
    his management of an Israeli soccer team in a manner that implicated his
    Canadian business practices and integrity as a Canadian businessman. In these
    circumstances, the motion judge concluded it was no surprise  and not unfair
    that Goldhar would 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
    judges 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 it
    is not surprising that the plaintiff has sought to vindicate his reputation in
    an Ontario court.

(b)

Haaretzs
    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 Goldhar 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.

(c)

Analysis

[107]

I see no error in the motion judges conclusion that the action
    should not be stayed as an abuse of process.

[108]

The doctrine of abuse of process recognizes that [t]he court has an
    inherent and broad jurisdiction to prevent the misuse of its process that would
    be manifestly unfair to a party to the litigation or would in some other way
    bring the administration of justice into disrepute: Paul M. Perell & John
    W. Morden,
The Law of Civil Procedure in Ontario
, 2d ed. (Markham, ON:
    LexisNexis Canada, 2014), at p. 107.

[109]

However, the doctrine should be exercised only in the clearest
    cases:
Phillion v. Ontario (Attorney General)
, 2014 ONCA 567, 121
    O.R. (3d) 289, at para. 49.

[110]

At this early stage of the litigation, and in
    the context of a defamation action where damage is presumed, I fail to see how
    it can be said that it would be an abuse of the courts process to allow Goldhar
    to attempt to vindicate his reputation in the place where he lives and has long
    carried on a successful business.

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:

JS                                                     Janet
    Simmons J.A.

JUN 28 2016                                     I agree
    E.A. Cronk J.A.

Pepall J.A. (Dissenting):

Introduction

[112]

The balance between free speech and protection of reputation is an
    uneasy one.  In his article Libel Tourism and Conflict of Laws (2010) 59
    I.C.L.Q. 25 at 26, Professor Trevor C. Hartley wrote:

We all believe in free speech.  We also believe that people
    should be protected from defamation.  There is a potential conflict between
    these two values and the law has to attempt some kind of balance.

[113]

This appeal illustrates the elusiveness of any such balance.

[114]

Haaretz is Israels oldest daily newspaper.  It was founded in
    1918.  Based on circulation, it is also the smallest of Israels five daily
    Hebrew-language newspapers.  Its publisher, Haaretz Daily Newspaper Ltd. also
    publishes an English language print edition of the paper.  Haaretz.co.il and
    Haaretz.com publish the newspaper online in Hebrew and in English
    respectively.  Like other newspapers around the world, Haaretz has been subject
    to financial pressures, has experienced difficult economic circumstances, and
    has had to downsize dramatically.

[115]

Soccer is an extremely popular sport in Israel and the Israeli media
    regularly feature articles on one of the most popular professional soccer teams
    in the country, the Maccabi Tel Aviv Football Club (the Maccabi Club).

[116]

The Maccabi Club is owned by the respondent, Mitch Goldhar.  He is a
    Canadian billionaire.  He has been described as a celebrity in Israel.  He maintains
    a residence there and is in Israel every couple of months.  He travels there on
    his private jet.  Not surprisingly, the performance of the Maccabi Club is of
    great interest in Israel and articles on the team often include reference to
    its owner, Goldhar.

[117]

One of the individual appellants, David Marouani, wrote an article
    in Hebrew about the Maccabi Club and its owner, Goldhar.  The article was
    researched, written and edited in Israel and primarily relied on sources in
    Israel.  The article was published in print and on the Haaretz websites in
    Hebrew and in English and was estimated to have been read by approximately
    70,000 people in Israel.  The focus of the article was Goldhars management of
    the Maccabi Club.  While reference is made to Canada and the respondents
    Canadian business, the suggestion that the article places emphasis on this is,
    with respect, misplaced.  At its heart, the article is about one of the most
    popular soccer teams in Tel Aviv and how it is being managed by its owner.

[118]

Goldhar commenced a lawsuit in Ontario alleging that the article
    written by Marouani was defamatory.  He sued Marouani and the papers former
    sports editor, Shlomi Barzel, as well as Haaretzs publisher and three
    associated Haaretz Israeli companies.

[119]

The two individual defendants are Israeli citizens who reside in
    Israel.  They also work in Israel but are no longer employed by the Haaretz
    newspaper or any of the corporate defendants.  All of the corporate defendants
    are based in Israel and none carry on business or market in Ontario.  They are
    all appellants on this appeal.  Goldhar is the lone respondent.

[120]

Although he did not swear an affidavit in these proceedings, Goldhar
    is stated to reside in Toronto and owns and operates a shopping centre business
    in Ontario known as SmartCentres Inc.

[121]

The appellants filed a motion for a stay of proceedings based on
    lack of jurisdiction,
forum non conveniens
and abuse of process.  In
    response, the respondent filed affidavits from two people who had actually read
    the article in Ontario.  They are Goldhar company employees: N.D. Di Cesare and
    Joseph Amato.  Cesare reviewed the article online as a result of a Google
    Alert.
[3]
The Google Alert then contained a link to the article.  Amato also got the
    article online from Google Alert.  In addition, Amato was given the article by
    a co-worker.

[122]

Amato estimated that the article came to the attention of most of
    the approximately 200 people who work at SmartCentre Inc.s office in Toronto
    (Haaretz estimated that between 200 and 300 people in Canada likely read the
    article).  It is unclear how the article came to the attention of all of these
    readers.  Based on the cross-examination and affidavit evidence, those who were
    identified and who did read the article did not think less of the respondent as
    a result.

[123]

The motion judge determined that the Ontario court had jurisdiction,
    Israel was not a clearly more appropriate forum for the action, and the action
    was not an abuse of process.  My colleague would dismiss the appellants appeal
    of this decision.  For the reasons that follow, I will explain why I disagree
    with her on the issue of
forum non conveniens
and would therefore
    allow the appeal.

Jurisdiction
Simpliciter

[124]

The motion judge commenced his discussion of jurisdiction
simpliciter
with a consideration of
Club Resorts Ltd. v. Van Breda
, 2012 SCC 17,
    [2012] 1 S.C.R. 572 and the four established presumptive connecting factors.
    There was no suggestion that the appellants were domiciled or resident in
    Ontario or that they carried on business in Ontario.  Nor was any contract
    engaged.  Rather, because the article was read in Ontario, that is,
    communicated to at least one person other than the respondent, the tort was
    committed in Ontario.  As such, the appellants conceded that a tort was committed
    in Ontario and the existence of a presumptive connecting factor.

[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
Éditions Écosociété Inc.
    v.

Banro Corp.
, 2012 SCC 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 plaintiffs reputation
    was presumed and that presumption had not been rebutted: at para. 25.

[126]

My colleague agrees with the motion judges 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:

The real and substantial connection test requires only a real
    and substantial connection, not the most real and substantial connection.

[127]

To succeed in an action for defamation, the plaintiff must prove on
    a balance of probabilities that the defamatory words were communicated to at
    least one person other than the plaintiff: see
Crookes v. Newton
, 2011
    SCC 47, [2011] 3 S.C.R. 269, at para. 1.  As well, at the jurisdiction stage of
    the proceedings, the plaintiffs pleadings are accepted as true unless
    contradicted by evidence adduced by the defendants: see
Banro
, at
    para. 38.  Accordingly, all that is needed for the presumptive connecting
    factor to be found is for the plaintiff to plead that the alleged defamatory
    material was communicated to at least one person in Ontario other than the
    plaintiff.  While this is easy to establish in any defamation case, it is
    virtually automatic in a case of defamation on the Internet, where online
    publications are readily shared and accessed by users across the world.

[128]

In both
Banro
and
Van Breda
, LeBel J. acknowledged
    that in Internet libel cases, the jurisdiction hurdle is not a high one.  In
    the former, at para. 3, he wrote:

The tort of defamation presents an interesting challenge for
    the principles underlying the assumption of jurisdiction.  At common law, the
    tort of defamation crystallizes upon publication of the libellous material
    This also raises difficult issues when publication occurs through the Internet.

[129]

In the latter, at para. 109, he wrote:

But the court must be mindful that jurisdiction may sometimes
    be established on a rather low threshold under the conflicts rules.

[130]

Some commentators have questioned the ease with which jurisdiction
simpliciter
may be asserted and have suggested that the rebuttable nature of the
    presumptive factors, supposedly an important check on jurisdiction, may be
    illusory.  See David Paulson
Canada Update: A New Framework for
    Determining Jurisdiction, the Application of the Doctrine of Forum Non
    Conveniens, and Limitations of the Solicitor-Client Privilege
 (2012) 18
    Law & Bus. Rev. Am. 411 at 414; and Professor Tanya J. Monestier,
(Still)
    A Real and Substantial Mess: The Law of Jurisdiction in Canada
 (2013)
    36 Fordham Intl L.J. 396 at 428-31.

[131]

In the light of the Supreme Courts dicta and the facts in
Van
    Breda
,
Banro
and
Breeden v.

Black
, 2012 SCC 19,
    [2012] 1 S.C.R. 666, I am persuaded that the Ontario court has jurisdiction.
    But for the latter two cases, I would have held that the presumption was
    rebutted.

[132]

Having said that, given the ease with which jurisdiction
simpliciter
may be established in a defamation case, in a motion for a stay, a motion judge
    must conduct a robust and carefully scrutinized review of the issue of
forum
    non conveniens
.

Forum Non Conveniens

[133]

This brings me to the doctrine of
forum non
    conveniens
and the treatment of this issue by the motion judge and my
    colleague.

(a)

Need for Robust Review

[134]

I start with a brief reiteration of the applicable law.  In both
Van
    Breda
and
Breeden
,

when discussing
forum non
    conveniens
, LeBel J. wrote that a party seeking a stay must show that the
    alternative forum is clearly more appropriate.  A party must establish that:
    (i) a plaintiff should be denied the benefits of his or her decision to select
    a forum that is appropriate under the conflicts rules; (ii) it would be fairer
    to select the alternative forum; and (iii) it would be more efficient to select
    the alternative forum.  In
Van Breda
, he wrote, at para. 109 that:

Forum non conveniens
may play an important role in
    identifying a forum that is clearly more appropriate for disposing of the
    litigation and thus ensuring fairness to the parties and a more efficient
    process for resolving their dispute.

As noted by Professor Joost Blom, in

New Ground Rules for Jurisdictional Disputes: the Van Breda Quartet
;
    (2012) 53:1 Can. Bus. L.J. 1 at 5, the decision in
Van Breda
drew a
    clear distinction between the role to be played by the jurisdiction
simpliciter
analysis and that of
forum non conveniens
:

Another outcome of the new approach, again expressly desired by
    the court, is to separate jurisdiction
simpliciter
, which is now going
    to depend on specific rules, more clearly from the
forum non conveniens
discretion, which is inherently a matter of balancing both factual and
    policy-oriented factors.

[135]

The doctrine of
forum non conveniens
tempers the
    consequences of a strict application of the rules governing the assumption of
    jurisdiction and requires a court to go beyond a strict application of the
    test governing the recognition and assumption of jurisdiction:
Van Breda
at para. 104.

[136]

Subject to certain caveats, deference is owed to a motion judges
    exercise of discretion.  In
Banro
, LeBel J. wrote at para. 41:

The application of
forum non conveniens
is an exercise
    of discretion reviewable in accordance with the principle of deference to
    discretionary decisions: an appeal court should intervene only if the motion
    judge erred in principle, misapprehended or failed to take account of material
    evidence, or reached an unreasonable decision (see
Young v. Tyco
    International of Canada Ltd.
, at para. 27).

[137]

As mentioned, given the framework established by
Van Breda
and its progeny, the issue of
forum non conveniens
must receive a
    robust and carefully scrutinized review by the motion judge.  In my view, such
    an analysis was lacking here and in any event, for reasons I will describe, the
    analysis that was done by the motion judge was infected by errors.

(b)

Factors

[138]

In
Van Breda
, at para. 110, LeBel J.
    stated that the factors that a court may consider in deciding whether to apply
forum
    non conveniens
may vary depending on the context.  The factors might
    include:

-

the locations of parties and witnesses;

-

the cost of transferring the case to another jurisdiction or of
    declining the stay;

-

the impact of a transfer on the conduct of the litigation or on related
    or parallel proceedings;

-

the possibility of conflicting judgments;

-

problems related to the recognition and enforcement of judgments; and

-

the relative strengths of the connections of the two parties.

[139]

In
Breeden
, a defamation case, LeBel J. identified, at
    para. 23, the following factors as being relevant:

-

comparative convenience and expense for the parties;

-

comparative convenience and expense for the witnesses;

-

applicable law;

-

avoidance of a multiplicity of proceedings and conflicting decisions;

-

enforcement of judgment; and

-

fairness to the parties.

In that case, LeBel J. concluded that
    the motion judge made no errors.

[140]

In contrast, in this case, my colleague identified a number of
    errors made by the motion judge in his
forum non conveniens
analysis.
    First, she notes at para. 67 that the motion judge erred in law by suggesting
    that letters rogatory could be used to compel the attendance of the appellants
    witnesses in Ontario.  Second, she notes at para. 92 that the motion judge
    erred in accepting that the plaintiff would suffer a loss of juridical
    advantage if this action were stayed in favour of proceeding in Israel.

[141]

I agree with her.

[142]

That said, I do not agree that these errors were immaterial to the
    conclusion.  Rather, when these errors are placed in context and analysed with
    the remainder of the motion judges reasoning, his conclusion was unreasonable
    and a different result must ensue.

(i)

Comparative Convenience and Expense for Parties

[143]

The motion judge considered some of the factors identified in
Breeden
.
    On the first factor considered, comparative convenience and expense for the
    parties, the motion judge concluded that this factor favoured Israel.  This was
    understandable given that, among other things:

-

all of the appellants are based in Israel;

-

none of the appellants, be they corporations or individuals, have any
    assets in Canada;

-

the absence of any affidavit sworn by the respondent that addressed,
    among other things, expense, convenience, or any need to vindicate any
    reputation;

-

the respondent is a billionaire, has a private jet and maintains a
    residence in Israel; and

-

the submissions noted by the motion judge, at paras. 33-34, that:

[A] lengthy libel trial thousands
    of miles from Israel would place a huge strain on the [appellants] who could
    not reasonably expect to be sued over the article in Canada.  The [appellants]
    also stated that a trial would be a massive commitment of time taking staff
    away from their function of gathering news.

In addition, the [appellants]
    submit that the trial may need to be conducted in Hebrew with interpreters.
    The [respondent] submits that interpreters may not be required as the
    cross-examinations of the three affiants from Israel on this motion were
    conducted in English.

[144]

The motion judge correctly found that this first factor favoured a
    trial in Israel.  Given the lack of evidence on any inconvenience or undue
    expense for the respondent associated with a trial in Israel, the first factor
    clearly and overwhelmingly supported a trial in Israel.

(ii)

Comparative Convenience and Expense for the Witnesses

[145]

On the second factor, comparative convenience and expense for the
    witnesses, the motion judge concluded that this factor also favoured Israel,
    albeit slightly.  In my view, the motion judge erred in characterizing the
    distinction as slight.  My conclusion is not based on a mere difference of
    opinion but on the faulty basis of his reasoning.

[146]

The motion judges analysis of the second factor rested on two
    bases.

[147]

First, he relied on  his incorrect assessment of the availability of
    letters rogatory, an error acknowledged by my colleague, to compel the
    attendance of Israeli witnesses in Ontario.  It was undisputed that many of the
    witnesses from Israel will not testify voluntarily.  Subpoenas can be issued in
    Israel requiring the Israeli witnesses to attend at trial in Israel.  The same
    cannot be said with respect to a trial in Ontario.

[148]

On this issue, my colleague states at para. 70 of her reasons that
    the appellants led no evidence to undermine the respondents submissions on the
    availability of methods to deal with witnesses outside the jurisdiction.  She
    goes on to say that it was not unreasonable for the motion judge to accept that
    Ontario letters of request would be honoured by Israel and that
    videoconferencing would be available in that jurisdiction.

[149]

I have two difficulties with my colleagues argument.  First, there
    was no such acceptance by the motion judge.  He made no findings on these
    points.  Indeed, he did not even use the words letters of request or make a
    finding with respect to videoconferencing.  Second, with respect, typically evidence
    is filed in response to evidence, not to submissions.  The appellants cannot be
    faulted for failing to provide an evidentiary response to an issue raised in
    oral submissions.

[150]

The motion judges second finding which grounded his analysis was
    that the respondent undertook to fund the travel and accommodation costs of the
    appellants foreign witnesses in accordance with the rates provided in the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, Tariff A.

[151]

I make two observations.  First, a plaintiff ought not, due to his
    or her financial heft, be permitted to buy passage to a forum.  Second, as far
    as expenses are concerned, the only travel and accommodation rates in the
Rules
are contained in Tariff A of the
Rules
.  They bear little resemblance to
    the actual cost of accommodation.  For instance, $75 is allocated for overnight
    accommodation and meal allowance, an inadequate amount in Toronto by any measure.

[152]

The motion judge ignored this reality when he accepted that
    Goldhars undertaking addressed the issue of additional expense.

[153]

In addition, the motion judge ignored his own finding that the
    respondent filed no evidence identifying any witness he would call.  Indeed,
    there was no evidence before the motion judge that Goldhar himself would even
    be called as a witness.  In contrast to the non-existent witness list of the
    respondent, the appellants filed evidence anticipating and identifying 22 people
    who could be called to testify, 18 of whom reside in Israel.

[154]

My colleague makes much of the fact that the author of the article,
    Marouani, did not file an affidavit and states that this was important.
    However, I note that he is one of numerous appellants, is no longer employed by
    any of the corporate appellants, has no assets in Canada, and unlike Goldhar,
    who of course filed no affidavit, he does not have independent control of the
    proceedings.

[155]

While I accept that we live in an age of international communications
    and commerce, on the basis of the record before him, there were potentially 22
    witnesses to be called by the defence and none for the plaintiff.  There was no
    comparison to be made.  To use sports, if not soccer parlance, the respondent
    was scoreless.

[156]

In my view, the motion judges error on letters rogatory, his
    failure to consider the purport of the Tariff, and his disregard of his finding
    on the absence of any witnesses identified by the respondent, in comparison to
    the appellants identification, all served to cause him to incorrectly conclude
    that the distinction between Ontario and Israel was slight.  His description,
    findings and conclusion were unreasonable and his decision is therefore not
    entitled to deference in this regard.  Rather, this factor overwhelmingly
    favoured Israel as the clearly more appropriate forum.

(iii)

Choice of Law

[157]

Turning to the third factor, the motion judge concluded that choice
    of law favoured Ontario.  He stated that the
lex loci delicti

[4]
of the tort of defamation
    was Ontario and that the most substantial harm to the respondents reputation
    was in Ontario.

[158]

In his amended statement of claim, Goldhar claimed general damages
    of $600,000 and punitive damages of $100,000.  He pleaded that he suffered
    damage to his reputation in his business and personal life.  He pleaded that he
    will continue to suffer damage, and in particular, financial loss, and that he
    conducts business in Israel, Canada and the United States, and will continue
    to suffer damages in these countries and elsewhere.

[159]

When the stay motion was argued before the motion judge, in oral
    submissions made by his counsel, Goldhar undertook not to seek at the trial of
    this action to recover damages for reputational harm in Israel or anywhere else
    outside of Canada. In reaching his decision on substantial harm, the motion
    judge stated, at para. 50, that the damages undertaking provided by the
    [respondent] is a very significant factor.  In so finding, he relied on the
    Supreme Courts apparent acceptance of Lord Blacks undertaking in
Breeden
as being a significant factor in the analysis of the most substantial harm to
    reputation.

[160]

I will first address Goldhars undertaking and then will discuss
lex
    loci delicti
and substantial harm to reputation.

(1)

Undertaking

[161]

First, Goldhars undertaking, while similar to that of Lord Blacks
    in some respects, is materially different.  Lord Black undertook not to bring
    any libel action
in any other jurisdiction
, and has limited his claim to
    damages to his reputation in Ontario.  This is in contrast to Goldhars
    undertaking, which merely stated that he would limit his damages to those in
    Ontario
at the trial of this action
.  Goldhars undertaking does not
    preclude legal proceedings in other jurisdictions, whereas Lord Black
    relinquished such a right.

[162]

This omission in Goldhars undertaking detracts from one of the
    relevant factors for
forum non conveniens
enumerated in
Breeden
:
    the avoidance of a multiplicity of legal proceedings and conflicting
    decisions.  Goldhars undertaking does not prevent him from bringing an action
    in Israel where, based on the evidence of the expert witness filed, the
    limitation period for defamation actions is seven years.

[163]

Second, in relying on the Supreme Courts acceptance of Lord Blacks
    undertaking in
Breeden
, the motion judge failed to recognize that the
    court did not rely on that undertaking in isolation.  Rather, the court
    emphasized the evidence establishing Lord Blacks reputation in Ontario as
    being significant.  That evidence was detailed and extensive.  Lord Black also
    led evidence of the importance to him of his reputation in Ontario and his
    desire to vindicate it here.  LeBel J. wrote:

Lord Blacks undertaking and the evidence of his reputation in
    Ontario therefore suggests that, under the most substantial harm to
    reputation approach discussed in
Éditions Écosociété
, Ontario law
    should be applied to the libel actions.

[164]

In fairness, LeBel J. also noted that the tort of defamation was
    committed in Ontario under
lex loci delicti
and Ontario law would
    apply on that basis.  In that regard, however, unlike this case, there had been
    massive republication of the impugned statements in three newspapers in
    Ontario.

[165]

Lastly, in
Banro
, it would appear that LeBel J. considered
    the most substantial harm test at least in part so as to discourage forum
    shopping in defamation cases.  That objective would be defeated if the mere
    fact of a late breaking undertaking could control the choice of law analysis.
    In my view, his commentary in this regard should not be interpreted as
    permitting a damages limitation undertaking as being enough on its own to
    dictate the governing law.  The motion judge treated the respondents
    undertaking in essence as determinative of his choice of law analysis and in my
    view, erred in this regard.

(2)

Lex Loci Delicti and Most Substantial Harm

[166]

The current choice of law rule for torts is derived from
Tolofson
    v. Jensen
, [1994] 3 S.C.R. 1022.  There the Supreme Court enunciated a new
    rule for conflicts of laws stating at p. 1050 that at least as a general rule,
    the law to be applied in torts is the law of the place where the activity
    occurred,
i.e.
the
lex loci delicti
.  However, La Forest J.
    recognized that
lex loci delicti
may not be an appropriate rule for
    all torts.

[167]

In
Banro
, LeBel J. observed that there were arguments for
    changing the governing choice of law rules for cases of multi-jurisdictional
    defamation stating at para. 56:

Although I need not decide the question in this case, I note
    that one possible alternative to the
lex loci delicti
in defamation
    cases, which has gained some significant support, may be the place of most
    substantial harm to reputation.

[168]

It would appear from LeBel J.s commentary on defamation that some
    support has been given to the place of most substantial harm to reputation as
    being the yardstick on which choice of law should be based.

[169]

He observed that the most substantial harm test might be a way to
    curb forum shopping as there would be little strategic advantage to forum
    shopping if the conflicts rules were to require application of the same law
    regardless of where the matter were tried.  He referred to Professor
    Jean-Gabriel Castels opinion that rules of jurisdiction and of choice of law
    address different concerns and  the test of place of publication should not
    always be used for both purposes.: J.-G. Castel,
Multi-state Defamation: Should the Place of Publication Rule be
    Abandoned for Jurisdiction and Choice of Law Purposes?
 (1990) 28:1
    Osgoode Hall L.J. 153 at 154.

[170]

The principle of comity influenced the adoption of
lex loci
    delicti
as the choice of law rule for multi-jurisdictional torts:
Tolofson
,
    at 1050.  Comity was described in
Spencer v. The Queen
, [1985] 2
    S.C.R. 278 at p. 283:

Comity in the legal sense is neither a matter of absolute
    obligation, on the one hand, nor of mere courtesy and goodwill, upon the other.
    But it is the recognition which one nation allows within its territory to the
    legislative, executive or judicial acts of another nation, having due regard
    both to international duty and convenience, and to the rights of its own
    citizens or of other persons who are under the protection of its laws.
    [Citations omitted.]

[171]

The Supreme Court reiterated this principle in
Pro Swing Inc. v.
    ELTA Golf Inc.
, 2006 SCC 52, [2006] 2 S.C.R. 612, at para. 27: Comity is
    a balancing exercise.  The relevant considerations are respect for a nations
    acts, international duty, convenience and protection of a nations citizens.

[172]

In
Equustek Solutions Inc. v. Jack
, 2015 BCCA 265, 75
    B.C.L.R. (5th) 315, at para. 91, the British Columbia Court of Appeal noted the
    comity concern raised in the context of freedom of expression, quoting from the
    factum submitted by the Canadian Civil Liberties Association:

A nations treatment of freedom of expression is a core part of
    its self-determination, rooted in the nations historical and social context,
    and the ways in which its constitutional values (whether written or unwritten),
    norms and legal system have evolved.

[173]

The Internet makes information easily accessible across
    jurisdictional lines.  In the newspaper world, as a matter of practical
    reality, it is not easy for a publisher to restrict the availability of its
    published materials.  The application of
lex loci delicti
to Internet
    communication cases frequently exposes people who engage in speech or
    expression in one jurisdiction to civil liability in another.  See Daniel
    Taylor,
Libel Tourism: Protecting Authors
    and Preserving Comity
 (2010) Geo. L.J. 189 at 193.  As Taylor
    observes, ours is a world without informational borders.  The willingness of a
    foreign court to exercise jurisdiction for defamation 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 ones 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:

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 plaintiffs 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 Goldhars 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 judges decision and imposed a stay of
    proceedings.

[177]

Given the motion judges errors, identification of the applicable
    law falls to be decided by this court.

[178]

As I have stated, in
Banro
, LeBel J. said that in that
    case, nothing turned on the question of whether
lex loci delicti
ought
    to be abandoned as the choice of law rule in multijurisdictional defamation
    cases and that therefore it was prudent to leave this issue for another day.
    However, he did observe that the most substantial harm test may be more
    appropriate than the
lex loci delicti
test in cases of
    multi-jurisdictional defamation.  To repeat, at para. 56, he stated:

[T]he question of whether the
lex loci delicti
represents the proper rule for choice of law in defamation remains.  Although I
    need not decide the question in this case, I note that one possible alternative
    to the
lex loci delicti
in defamation cases, which has gained some
    significant support, may be the place of most substantial harm to reputation.

[179]

As discussed, in an Internet age, in my view,
lex loci delicti
is too thin a strand on which to anchor choice of law in an Internet defamation
    case such as this one. Using a most substantial harm test incorporates considerations
    of freedom of speech, comity and reputation.  Accordingly, I propose to apply
    such a test.

[180]

As no Canadian court has formally adopted the most substantial
    harm rule, there is no clear guidance on how it should be applied.  In
Banro
at para. 59, LeBel J. referred to factors adopted in Australia to address the
    most substantial harm test.  These factors provide a useful guide in this
    case.  They are:

a)

the place at the time of publication where the plaintiff was ordinarily
    resident or, in the case of a corporation, the place where the corporation had
    its principal place of business at that time;

b)

the extent of publication in each relevant jurisdiction;

c)

the extent of harm sustained by the plaintiff in each relevant
    jurisdiction; and

d)

any other matter that the court considers relevant.

[181]

While I note that obviously Goldhar is engaged in the business of
    soccer in Israel, indeed he pleads in his statement of claim that he conducts
    business there, the first factor favours the law of Ontario, as the respondent
    is ordinarily resident in Ontario.  However, the remaining three factors all
    favour applying the law of Israel.

[182]

There is no question that the extent of publication in Ontario is
    dwarfed by the extent of publication in Israel.  This factor favours the law of
    Israel.

[183]

Second, the plaintiff led no evidence to establish a significant
    reputation in Ontario.  The allegations in his pleadings do not establish a
    reputation.  Further, the evidence led by the respondent is from two of his
    employees who claim that the article did not lessen their (or their
    colleagues) opinion of Goldhar.

[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
    Israels law of defamation and the respondents submissions.

[188]

The respondent advanced two juridical advantages associated with
    having the action tried in Ontario:

i)

the respondents counsels advice that the respondent would serve a jury
    notice; and

ii)

the availability of a public figure defence in Israel.

[189]

The motion judge stated that he could not draw the conclusion sought
    by either party on the issue of the availability of a public figure defence in
    Israel.  Given his reluctance to rely on this factor and in the absence of
    identification of any other factor, the motion judge must be taken to have
    relied solely on the availability of a jury trial in Ontario to conclude that
    the loss of juridical advantage favoured a trial in Ontario.  Again to repeat,
    I agree with my colleague that the motion judge erred in accepting that the
    respondent would suffer a loss of juridical advantage in this regard.
    Accordingly, there was nothing to anchor the motion judges finding that this
    fourth factor favoured Ontario.  Consequently, at most, this factor is neutral.

(v)

Fairness

[190]

The last factor considered by the motion judge was fairness.

[191]

In reaching his conclusion that fairness favoured a trial in
    Ontario, the motion judge focused on vindication of reputation in the place
    where the respondent lives and works as the key determinant.  No mention was
    made of the huge financial strain and financial pressures on the appellants and
    the juxtaposition of the respondents 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 respondents
    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 appellants terminology, to muzzle
    the newspaper from commentary on the respondents 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 judges 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
    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
    respondents action.

S.E. Pepall J.A.

Appendix A

Soccer / Profile / 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 dont make it onto the publics 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, Goldhars
    representative in Israel, Jack Angelides, complained about the job that Clarice
    Zadikov, the long-time CFO of the team, was doing. Goldhars 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 Zadikovs authority was slowly eroded. Two
    months ago, the policy had the desired effect and Zadikov reached an agreement
    with Angelides over her retirement.

Mitchs game plan is to wear
    down anybody who he wants to get rid of, until theyve 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. For
    the most part, [Goldhar is] supremely patient. One could even say hes 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 Friday, 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 will
    handle 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.

Goldhars 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 nights 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 Goldhars 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 its a one-man show. Anything that
    Goldhars Cypriot lieutenant says to the players or to the coaching staff is
    prefixed by the words Mitch says

When Ivanir 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
    clubs 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. [Haris]
    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
    Goldhars suggestion that Medunjanin was returned to the starting line-up at
    the expense of Gal Alberman. Ivanir doesnt know how to respond in these
    situations, says a club source. But he believes that he really should do as
    his boss suggested  even if that boss knows nothing about soccer.

This week, too, in the aftermath
    of the defeat in Sundays derby match, Goldhar got involved.

You showed that youve 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 nows 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 teams sponsors to provide him with a vehicle  without Goldhars
    knowledge.

In an interview with Yedioth
    Ahronoths Nahum Barnea, Goldhar spoke about how much he values the work done
    behind the scenes by the clubs 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 Zachis measly pay by just a few
    hundred shekels. To Goldhars 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,
    Goldhar does not have a long-term plan for the team. The only plan he has
    presented so far has been to upgrade the clubs training facilities, but that
    still hasnt happened. The only changes he has made have been to the youth team
    set-up, and he often boasts about that teams 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,
    Goldhar says that hes here to stay. He is so keen to prove to everybody that
    his business model can work that he wont leave until hes 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
    Ilan Saadi, 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.

Hes very distressed at the way
    the team is playing, the source says. If I understand him correctly, he will
    give the team until the end of this season to win the championship and then hell
    start looking for someone to take Maccabi off his hands.

Goldhar declined to comment for
    this article.

[1]
Rule 34.07(2)(b) provides that, where an examination is to take place outside
    of Ontario, a court in Ontario may issue a letter of request directed to the
    judicial authorities of the jurisdiction in which the person is to be found,
    requesting the issuing of such process as is necessary to compel the person to
    attend and be examined. Letters of request are not, however, a means by which
    a foreign witness can be compelled to come to Ontario to testify in an Ontario
    court: see
Moore v. Bertuzzi
, 2014 ONSC 1318, 53 C.P.C. (7th) 237
    (Master), at para. 62.

[2]
[2]
See, for example,
Moore v. Bertuzzi
, at para. 77.

[3]
Google, a search engine company, provides a service in which a user may sign up
    for a Google Alert based on designated search terms.  Once signed up, Google
    Alert provides e-mail notification to the user anytime Google finds new results
    that match a users search terms.

[4]
The law of the place where the activity occurred.