West Edmonton Mall Property Inc v. Proctor, 2020 ABQB 477

Mere use of social media websites based in other countries cannot dis-entitle the Courts to hear defamation matters where both the parties are situated in its territory.

The genesis of this case began when Ms. Proctor’s beach and swimwear store was shut down by West Edmonton Mall in 2017. The mall also seized and disposed of the inventory of Respondent’s store for arrears of rent. Perturbed by this, Ms. Proctor started a vast, concerted and relentless internet campaign of vengeance and vilification targeting not just the Plaintiffs but their employees, family members, and businesses related to them as well. To prevent the respondent from defaming, the plaintiffs has filed this lawsuit of defamation and had primarily applied for injunction relief along with the costs of the proceedings. This also gave rise to a residual issue regarding the responsibilities of social media platforms with regard to the offensive material posted by the respondent on receiving Plaintiff’s notification.

Because of persistent defamatory statements by the respondent inspite of interim injunction against her, the Court found that the relief of permanent injunction will be fit in this case as the respondent shows no sign of stopping her defiance and there is no possible defences to her rescue. Out of all the arguments presented by the Respondent, the Court examined her stand of court’s disputed jurisdiction on the basis of her usage of USA based social media platforms, at length.

To determine whether there the incumbent Court was a proper forum for the case, the court applied two-step test as per the judgment of Banro Corp v. Editions Ecoscoiete Inc, 2012 SCCC 18. The first test elucidated was of “real and substantial connection”. The plaintiffs were residing in Alberta and the time when the material was posted by Respondent, she lived in Alberta as well (inspite of her denial of the same). On being able to trace existence of any substantial connection in given facts, the Court proceeded on the second test of “forum non conveniences” doctrine which aids to argue that the chosen forum is inappropriate. The respondent to this, claimed that the platforms used by her are owned and operated in the U.S which makes the forum inconvenient. However, this argument was rejected by the Court which also re-iterated that the jurisdictional arguments of a lawsuit are to be made at the beginning, and not at the end. The court granted a permanent injunction along with the costs in a way to protect the plaintiffs and respondent was allowed to use the internet for her other usages.