11.25: Real and substantial connection
13.18: Types of affidavit

Case Summary

The Action involved the posting of allegedly defamatory remarks by the Defendants on their Facebook pages. The Statements of Claim alleged that at the time the Defendants posted the comments on their Facebook pages, the Facebook options on the pages were set to open access. As a result, anyone with an internet connection could view the comments. As well, the posted comments would appear on the wall of the Defendants’ Facebook friends.

The Defendants sought to set aside the service outside of Alberta of the Statements of Claim. Alternatively, the Defendants sought to dismiss or stay the Actions on the grounds that there was no real and substantial connection, or pursuant to the doctrine of forum non conveniens.

The Defendant, Debaie, filed an Affidavit stating that only seven of her 289 Facebook friends resided in Alberta. Six of the seven Facebook friends had no connection with the Plaintiffs and one was the Plaintiff, Ms. Court. The Defendant, Ms. MacKay, deposed that only one of her 51 Facebook friends resided in Alberta.

The Plaintiffs’ Affidavits stated that they accessed the Defendants’ Facebook pages and viewed posts containing defamatory statements against them. They gave evidence that the posts were visible to anyone with access to the internet. They also stated that they were advised by their sister who lives in Alberta that she viewed the Facebook pages and saw the defamatory comments. The Defendants took issue with this hearsay evidence.

The Court allowed the hearsay evidence. Rule 13.18 requires personal knowledge of the Affiant where the Affidavit is “used in support of an application that may dispose of all or part of a claim”. In this Application, the hearsay evidence was used by the Respondent, so it was not used in support of an Application that may dispose of all or part of a claim. Additionally, setting aside service does not dispose of all or part of a claim.

The Court applied Éditions Écosociété Inc v Banro Corp, 2012 SCC 18 (“Éditions”). Éditions applied the jurisdiction framework to a defamation case. The Supreme Court of Canada in Éditions held that the tort of defamation is “crystallized upon publication of the libellous material” and “publication occurs when libellous material is read by a third party”.

The Court held that the evidence supports an arguable case that the allegedly defamatory material was published in Alberta, and that is sufficient to establish the presumptive connecting factor of a tort committed in Alberta. Therefore, there was a real and substantial connection between this jurisdiction and the Action. Additionally, the Court held that the Defendants did not establish that there was a clearly more appropriate forum.

The Application was dismissed.

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