P was a pornographic actor in California who bought the copyright to the videos he was in. He took down all the videos, found that they were still available to the public through the Wayback Machine, which was making them available to other sites. Although Internet Archive Canada was incorporated in Canada, their website ran out of Calofirnia.
Should this appeal of a Prothonotary's decision proceed on a de novo basis because the Prothonotary's discretion was exercised on a wrong legal principle such that the decision is clearly wrong?
No, the decision is not clearly wrong since there was a substantial connection to Canada due to the availability of the online material in Canada and the corporate nexus.
If a discretionary decision by Protho . Is final, then it is heard at trial level on a de novo basis, however if it’s an interlocutory decision it’s heard on a reasonableness basis.
-Standard of review is “clearly wrong”
The non-arm’s length nature of the American and Canadian company establish a connection to Canada.
-Prothonotary Aalto using SOCAN found that "there is evidence of not just collecting the information in Canada but making it accessible in Canada"
-You don’t have to prove that anyone actually did access the pages in Canada only that they could
Forum Non Conveniens (factors from Breeden v Black)
(1) the Plaintiff's witnesses he named and is entitled to call, are all in Canada,
(2) the applicable law is in Canada, and the Plaintiff is entitled to that benefit,
(3) the interests of justice favoured the Plaintiff not being forced to litigate his claim in a foreign jurisdiction, and
(4) the cost of litigating the claim in California favoured the Plaintiff.
-the forum non conveniens analysis does not require each factor to point to a single jurisdiction, but one forum must emerge as clearly more appropriate
--Factors go both ways but California not clearly more appropriate
D lost appeal dismissed.