Conflation!? If We Were in Ontario, I'd Sue for Defamation!

I know I said yesterday that I was going to take a break, but there was something that happened yesterday that I must address, even at the cost of sleeping.

Chris Peters at The United States of Hockey[1] posted that Herschel Fink confirmed that The Michigan Daily and reporter Matt Slovin (“TMD”) had indeed been served with the Kitchener Rangers’ libel claim.  He then reposted a quote from Mr. Fink’s Sportsnet 590 interview, which I had discussed over the weekend.  He was then kind enough to repost some of my discussion from the weekend, in what he called an “intriguing post.”[2]

Mr. Peters then posted a quote from an e-mail he received from an anonymous California attorney.  The last paragraph of the quote was this:

"If the Kitchener court has jurisdiction over the Daily, that doesn’t guarantee that Ontario law would govern this case.  Fink and puckandgavel.com have conflated personal jurisdiction and choice of law.  The two are separate, however.  Jurisdictions such as Ontario have their own rules for when to apply its own law and when to apply a different jurisdiction’s law.  The Michigan Daily operating in Michigan but not Ontario would likely have a significant role in this determination.  The plaintiff’s inability to enforce the judgment based on Ontario law in Michigan might also play a role.  It might not, but it would be sensible if it did."

Conflation!? How dare you, sir or madam!  If this were Ontario I would file a $1,000,000 claim for defamation! 

First, let’s get something straight.  This blog isn’t a fancy place with its own domain name.  Don’t rob me of precious readers with the wrong URL.  Although, if you’re reading this, you have undoubtedly found the right one.  Subscribe, follow me on Twitter, and tell your friends!

Second, and much more importantly, I have not conflated the exercise of jurisdiction with conflict of laws.  Conflict of laws is a large concept within which there are several considerations.  Yes, technically a court deciding whether it can exercise jurisdiction over foreign parties or claims is an issue that falls within the umbrella of conflict of laws.  However, I have only focused on that one arm of the discussion because I felt it was the most important to discuss, as the Ontario Superior Court deciding whether it has jurisdiction over the parties is the first threshold question in the case.  Without jurisdiction, the case would be dismissed. 

This has all been discussed at length in the case of Club Resorts Ltd. v. Van Breda,[3] which I have previously discussed as the case that defines Canada’s rules for the exercise of long-arm jurisdiction.  As I stated previously,

"Ontarian long-arm jurisdiction had been fairly nebulous until just recently, when the Supreme Court of Canada issued decisions on three cases to clarify the test for determining long-arm jurisdiction. The Supreme Court of Canada limited the test to the following factors:

(a) the defendant is domiciled or resident in the province;

(b) the defendant carries on business in the province;

(c) the tort was committed in the province; or

(d) a contract connected to the dispute was made in the province."[4]

The Court stated that the existence of one of these factors creates a presumption of jurisdiction.  However, this presumption can be rebutted by the opponent of the court exercising its jurisdiction over the claim.  The Court then stated

"If the court concludes that it lacks jurisdiction because none of the presumptive connecting factors…apply or because the presumption of jurisdiction that flows from one of those factors has been rebutted, it must dismiss or stay the action, subject to the possible application of the forum of necessity doctrine.  If jurisdiction is established, the claim may proceed, subject to the court’s discretion to stay the proceedings on the basis of the doctrine of forum non conveniens."[5]

Instead, it is my anonymous California-based critic that is guilty of conflation.  He has conflated the concept of “conflict of laws” with “choice of law,” which is also an issue within the larger concept of conflict of laws.  

Choice of law is not a ground for dismissal of the action.  Instead, it is just the decision of which set of laws to apply when parties and/or the dispute are located in different jurisdictions.  Meanwhile, dismissal of the action can be warranted if it is determined a court is unable to exercise jurisdiction over the parties and/or the claims brought by the parties, aka, personal and subject matter jurisdiction.  In Van Breda,[6] the Court was discussing personal jurisdiction.  I have made no conflation!

For the sake of completeness, the concept described by the CA lawyer concerns which jurisdiction’s law to apply for a given dispute in a given forum.  For example, in the Rangers’ claim against TMD, it is Ontario court having to decide whether to apply Ontario or Michigan law for the lawsuit proceeding before it.  

There are several common rules that are applicable for a choice of law decision.  The two most common are lex fori and lex loci. “Lex fori” means the law of the forum.  Under this concept, the law of the forum where the lawsuit is brought is the controlling choice of law.  “Lex loci” means the law of the place.  For contracts, this is known as “lex loci contracti” (law of the place of the contract) and for torts (as we have here) “lex loci delicti”[7] (law of the place where the tort was committed).

The leading case in Canada regarding choice of law rules in tort cases is Tolofson v. Jensen.[8]  In that case, the Supreme Court of Canada decided that the choice of law rule for torts in Canada is lex loci delicti, the place where the tort occurred.  In deciding in favor of lex loci delicti, the Court stated

"The nature of Canada's constitutional arrangements ‑‑ a single country with different provinces exercising territorial legislative jurisdiction ‑‑ supports a rule that is certain and that ensures that an act committed in one part of this country will be given the same legal effect throughout the country.  This militates strongly in favour of the lex loci delicti rule…"[9]

The Court then explained the distinction between a province exercising jurisdiction and choosing the law to apply over a particular dispute:

"In this respect, given the mobility of Canadians and the many common features in the law of the various provinces and the essentially unitary nature of Canada's court system, an invariable rule that the matter also be actionable in the province of the forum is not necessary.  This factor should be considered in determining whether there is a real and substantial connection to the forum to warrant its exercise of jurisdiction.  Any problems that might arise could be resolved by a sensitive application of the doctrine of forum non conveniens."[10]

In other words, a court’s consideration of the exercise of jurisdiction is a separate and distinct analysis than that of which choice of law to apply to a particular dispute.  Who has conflated conflict of laws now?

Furthermore, the CA lawyer’s analysis of which law the Ontario Superior Court would apply to the Rangers’ defamation suit against TMD is incorrect.  As explained above, the conflict of law rules for torts in Canada is lex loci delicti, the place where the tort occurred.  As I explained in a previous post, under Ontarian law, Ontario courts would rule that the tort of defamation occurred in Ontario.  As I stated,

"In Brown v. Breedan, 2012 SCC 19, the plaintiff was a former director of the foreign defendant company.  Defendant issued certain press releases on its website.  The plaintiff alleged that the press releases contained defamatory statements that were downloaded, read, and republished in Ontario.  In holding that Ontario would have jurisdiction over the foreign defendant, the Supreme Court of Canada stated that 

'it is necessary to engage in the real and substantial connection analysis to determine whether the Ontario court may properly assume jurisdiction over the actions.  The framework for the assumption of jurisdiction was recently set out by this Court in Club Resorts Ltd. v. Van Breda, 2012 SCC 17.  The issue of assumption of jurisdiction is easily resolved in this case based on a presumptive connecting factor ― the alleged commission of the tort of defamation in Ontario.  It is well established in Canadian law that the tort of defamation occurs upon publication of a defamatory statement to a third party, which, in this case, occurred when the impugned statements were read, downloaded and republished in Ontario by three newspapers.'

 In other words, because the defamatory statements were read, downloaded, and republished in Ontario by Ontario newspapers, the tort of defamation occurred in Ontario.  That satisfies the third factor for the exercise of long-arm jurisdiction as stated by the Court in Resorts Ltd. 

In this case, the defamatory statements contained in TMD’s report were read, downloaded, and republished in Ontario by at least one newspaper. Therefore, based upon the rulings of the Supreme Court of Canada, the tort of libel occurred in Ontario."

Not only would TMD’s report being read, downloaded, and republished in Ontario form the basis of Ontario courts exercising jurisdiction over the parties and the claims, but it would also form the bases of Ontario courts applying Ontario law to the dispute as Ontario is the lex loci delicti.

So, to my Californian critic: J’accuse!

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[1] An excellent blog that you should definitely read if you are not already doing so.

[2] My wife said that is the first time anyone described something I said as “intriguing.”  Sadly, I think she’s right.

[3] 2012 SCC 17.

[4] Id.

[5] Id. (emphasis added). Also, I promise a discussion on forum non conveniens will come in the future.

[6] In America, cases are usually referred to by the name before the “v.” In looking up Canadian law, I’ve seen this case frequently cited as Van Breda. Can any Canadians (or non-Canadians, I suppose) shed some light on the proper way to refer to Canadian cases in shorthand?

[7] The full term is “lex loci delicti commissi,” but I was taught and always have referred to it only as lex loci delicti.  The Supreme Court of Canada also refers to it as "lex loci delicti."

[8] 3 SCR 1022 (1994).

[9] Id.

[10] Id.

Puck and Gavel in Recess

Please accept my apologies for not posting for a couple of days. Sometimes, my real job will get in the way of this one. This week is one of those times.

Part of the problem is that I also want to provide original content. By that I mean that I don't want to just link to a bunch of news stories and regurgitate what they said. There are plenty of websites that do that, and do it well. I want to provide analysis that you won't find in media reports. I also am not a reporter, so what little investigation that I do is only going to be germane to my legal analysis. But providing that analysis takes three things: an idea, resources, and time.

Sometimes, it is hard for me to come up with an original idea to write about, a way to look at an issue that has not already been done. For instance, I don't know what I could add about the NHL's first offer that hasn't been explained in depth in every single media report.

Then I thought that I could maybe put some insight into negotiation strategy, but the book I wanted to reference must be in the same box as the Land Use Controls book I wanted to cite regarding the construction of a new arena for the Islanders. This is an example of resource problems.

But I probably could have looked around and found the information to support what I would be advocating. However, this week I do not have the time to search for those resources. As an example, the two posts I made on the Kitchener Rangers took a total of over ten hours to research, write, edit, and publish.

But if you want me to aggregate reports and highlight the pertinent information from those reports, just let me know. It would not take me long to compile that information, but I feel like I wouldn't be adding much value to what you could just read from those other reports.

Anyway, I look to be back by Monday at the latest with some original content. I hope to see you all then. If you want to discuss other issues that I've previously written about, feel free to comment on the posts, e-mail me at puckandgavel@gmail.com, or tweet me @puckandgavel. I can still quickly discuss those issues.

Kitchener Rangers v. The Michigan Daily et al., New Developments and Issues

When I first analyzed the lawsuit filed by the Kitchener Rangers I had no idea that the issues therein could prove so rich. 

As reported by multiple sources, The Michigan Daily (“TMD”) issued a statement yesterday supporting its reporter Matt Slovin and the story he wrote regarding the Kitchener Rangers allegedly offering Jacob Trouba $200,000 to play hockey for the Rangers in contravention of the OHL’s rules on player benefits.  This was followed by news that TMD retained the services of Herschel Fink to represent it with respect to the legal dispute.

There also became a discussion of whether Matt Slovin would be prevented from entering Canada if a judgment was entered against him.  I will examine that first before analyzing Mr. Fink’s retention and some legal issues that he raised.

Could Matt Slovin Be Prevented from Entering Canada?

In a report by the Student Press Law Center, attorney advocate Adam Goldstein suggested that a civil judgment for libel against reporter Matt Slovin could limit his ability to travel to Canada. I found this to be surprising and so I contacted Mr. Goldstein to have him explain the basis of his opinion. He explained to me that

"Among the reasons why the Canada Border Services Agency[1] can deny entry into Canada are two that an unsatisfied civil judgment might touch on. The one I was primarily looking at was "criminality." As CBSA words it on their site, a basis for refusing someone entry is that "[t]hey have, or there are reasonable grounds to believe they have, committed an indictable crime."[2] So the standard for refusing entry, as I understand it, isn't whether they've been convicted or even accused, it's whether there's reasonable grounds to believe they've committed an indictable crime. 

Defamation is an indictable crime in Canada.[3] You can look at the elements there, but I don't see a whole lot of daylight between those elements and what would be alleged in a civil libel case.[4]" 

So, in other words, by the letter of the law, it appears that CBSA could have the power to prevent Mr. Slovin from entering Canada.  Mr. Goldstein stated that while it appears that CBSA has the authority, it is unclear of whether it would actually exercise that authority.

But I think that may be against the spirit of the law.  The portion of the CBSA website Mr. Goldstein cited is labeled “other criminality,” and gives “importation of narcotics” as an example of the crimes considered.  I find it hard to believe that the CBSA would equate defamatory libel with the importation of narcotics, but it appears that by the letter of the law, they could.

Surprised by this discovery, I contacted the CBSA for clarification of whether a civil judgment for libel could prevent a person from entry into Canada.  We had the following e-mail exchange:

P&G: If an American citizen is sued for libel in Ontario and loses (or doesn't even appear in the action) and has judgment entered against him/her, would that American citizen then be denied entry into Canada either because of reasonable grounds of criminality, financial issues, or for any other reason?

CBSA: Persons who are inadmissible to Canada include those who have been convicted of minor offences (e.g. shoplifting, theft, assault, dangerous driving, unauthorized possession of a firearm, possession of illegal substances), or of indictable criminal offences (e.g. assault with a deadly weapon, manslaughter). As well, those who have been convicted of driving while intoxicated (DWI) are considered members of an inadmissible class. Driving while under the influence of alcohol is regarded as an extremely serious offence in Canada…[5]

P&G: What about a civil (not criminal) judgment for libel? There have been no criminal charges brought, although there would be a reasonable suspicion of an indictable offense. Would that offense be serious enough to cause me to be unable to visit Canada? 

CBSA: Unfortunately, the Canada Border Services Agency (CBSA) is not in a position to answer your inquiry; yours is an issue which should be answered by Citizenship and Immigration Canada (CIC), the organization responsible for work permit, study, visitor, temporary, and resident applications in Canada.

As this issue falls under the responsibility of CIC, we recommend that you contact them about this matter.[6]

Please note that the CBSA didn't even link to its own website containing that information. It seems the CIC sets the standards for entry into Canada and CBSA merely acts as an enforcing agency.  Interestingly enough, the CIC website does not include CBSA’s statement regarding reasonable suspicion of an indictable offense, but rather only discusses actual convictions for crimes.  This does not mean what is listed on the CBSA website is inaccurate; it’s just an interesting observation.  Perhaps it is an illustration over what the priorities of enforcement are.  But that is just speculation.

I tried to contact the CIC consulate in New York.  However, my efforts were frustrated because the consulate does not accept phone calls of the nature I was making.  Indeed, other than general tourism information, the only phone calls the consulate would accept are those requiring emergency assistance, such as a Canadian being arrested in New York.[7]  I sent an e-mail to CIC but it was not answered.

So to sum up, the answer is maybe.  It was interesting that CBSA drew a distinction for indictment and conviction.  The crimes mentioned for indictment were all much more serious crimes than libel.  The less serious crimes required a conviction, and even then, some of those crimes significantly more severe than defamatory libel (i.e. unauthorized possession of a firearm, assault).  Based on the information before me, I would think that refusing Mr. Slovin entry into Canada would require a criminal conviction for defamatory libel, not merely a civil judgment.

The Michigan Daily Lawyers Up

The other big piece of news on this story was that The Michigan Daily (“TMD”) hired attorney Herschel Fink to represent it with respect to the lawsuit.  Mr. Fink participated in an interview on Sportsnet 590.[8]  Aside from his posturing,[9] Fink stated that TMD had not yet been served with the complaint, and raised two legal issues.  The first was whether Ontario would have jurisdiction over the claims, which I have previously discussed, but will expand upon shortly.  The second was whether allegations regarding prior reports that the Kitchener Rangers had previously made offers similar with what Mr. Slovin alleges, would be admissible in court.

In the interview, Mr. Fink stated that

"They’re forum shopping. They try to find a forum, a court, a country, where the law will favor them. It should be apparent to the Rangers and their lawyers, there’s really no jurisdiction over The Michigan Daily in the courts of Ontario. We don’t do business there, we don’t target that audience, we don’t sell newspapers or distribute newspapers in Canada. The Canadian court, if it is given the issue and pursues a decision on it, the Canadian court is likely, I would think, to throw the case out for lack of jurisdiction."

I disagree with Mr. Fink’s position.  As I explained previously, I firmly believe that the Ontario court would exercise jurisdiction over this claim.  As I stated,

The Supreme Court of Canada limited the test to the following factors: (a) the defendant is domiciled or resident in the province; (b) the defendant carries on business in the province; (c) the tort was committed in the province; or (d) a contract connected to the dispute was made in the province.[10] We can quickly eliminate two of these factors. TMD is not domiciled or a resident of Ontario and the dispute does not arise out of a contract that was made in the province. 

It seems by Mr. Fink’s comments that he is focusing on the second factor, meaning that TMD is not carrying on business in the province.  And I would agree with that assessment.  As I stated,

Without having more information about TMD’s activities within Ontario as far as business operations, I cannot say conclusively whether TMD would be subject to jurisdiction within Ontario.  However, I believe it is a very fair assumption that TMD does not carry on any business within Ontario.  Perhaps the University of Michigan does, but it would very unlikely that its student newspaper does, and even less likely that a single reporter would as well.  Furthermore, the accessibility of the website in Canada would not be enough to establish carrying on of business. The Supreme Court of Canada stated that “the fact that a Web site can be accessed from the jurisdiction would not suffice to establish that the defendant is carrying on business there.”[11] So we can ignore this factor as well.

However, what Mr. Fink has either failed to consider, or improperly considered, is the third factor.  In Brown v. Breedan, 2012 SCC 19, the plaintiff was a former director of the foreign defendant company.  Defendant issued certain press releases on its website.  The plaintiff alleged that the press releases contained defamatory statements that were downloaded, read, and republished in Ontario.  In holding that Ontario would have jurisdiction over the foreign defendant, the Supreme Court of Canada stated that

"it is necessary to engage in the real and substantial connection analysis to determine whether the Ontario court may properly assume jurisdiction over the actions.  The framework for the assumption of jurisdiction was recently set out by this Court in Club Resorts Ltd. v. Van Breda, 2012 SCC 17.  The issue of assumption of jurisdiction is easily resolved in this case based on a presumptive connecting factor ― the alleged commission of the tort of defamation in Ontario.  It is well established in Canadian law that the tort of defamation occurs upon publication of a defamatory statement to a third party, which, in this case, occurred when the impugned statements were read, downloaded and republished in Ontario by three newspapers."

In other words, because the defamatory statements were read, downloaded, and republished in Ontario by Ontario newspapers, the tort of defamation occurred in Ontario.  That satisfies the third factor for the exercise of long-arm jurisdiction as stated by the Court in Resorts Ltd.

In this case, the defamatory statements contained in TMD’s report were read, downloaded, and republished in Ontarioby at least one newspaper.[12] Therefore, based upon the rulings of the Supreme Court of Canada, the tort of libel occurred in Ontario.  Accordingly, I disagree with Mr. Fink and strongly believe that the Ontario Supreme Court will exercise jurisdiction over this claim.[13]

Mr. Fink also implied that if the case was fully heard in Michigan, prior allegations regarding the Kitchener Rangers offering compensation for players.  Mr. Fink referred to the situation in Notre Dame.  By that he meant previous reports that Cam Fowler was offered $500,000 to play for the Rangers.  This evidence would be offered to examine the character of the Kitchener Rangers and their propensity to make such allegations.

Generally, in the United States, character evidence is inadmissible to prove propensity in civil cases. However, there are is an exception to this general rule where such character is an essential element of the claim or defense.  A claim for defamation is such a claim.  Therefore, even though evidence regarding any prior allegations would not normally be admissible, it may be admissible in this context.  However, I expect that the questioning on any such prior allegations would have to be extremely limited and a large portion to be excluded as hearsay.[14]

Mr. Fink hasn’t revealed any of his litigation strategy, but I think the prudent course of action for TMD would be to default on the suit in Canada and just wait for the Rangers to try and enforce the judgment in the United States.  This, to me, is the best strategy because it would be cheapest to TMD in litigation costs, would be most expensive to the Kitchener Rangers in litigation costs, and would leave TMD free from any potential liability until the Kitchener Rangers filed suit in the United States.

So what do you think of all of this? Do you think Mr. Slovin should or would be allowed to enter Canada with the judgment against him?  Do you think Mr. Fink is right that the Canadian courts will not exercise jurisdiction over these claims? Do you think TMD should fight the Kitchener Rangers in Canada?

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[1] Hereinafter, “CBSA”

[2] http://www.cbsa-asfc.gc.ca/security-securite/admiss-eng.html 

[3] See the Canadian criminal code, sec. 296-300:http://www.laws.justice.gc.ca/eng/acts/C-46/page-145.html#docCont

[4] Mr. Goldstein also suggested a financial reason for refusing entry, but we both agreed that ground was very unlikely to prevent Mr. Slovin from entry into Canada.

[5] CBSA then provided an extensive list of pages on the Citizenship and Immigration Canada (CIC) website to see for further information on admissibility into Canada, as well as CIC’s telephone contact information.

[6] I was then provided with the telephone contact information again.

[7] My efforts to call the CIC offices in Canada were frustrated because the toll-free number provided is only available to people in Canada and I would have a very hard time explaining to the partners of my firm why I was required to make a long distance call to Canada.  So if you are a Canadian and want to help me get to the bottom of this story, tweet me @puckandgavel or e-mail me at puckandgavel@gmail.com.

[8] Stick tap to United States of Hockey, who pointed me toward the interview.

[9] Mr. Fink referred to the Kitchener Rangers as “bullies.”

[10] Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (2012)

[11] Id.

[12] There are probably more, but I’m being lazy and not finding them.  Certainly there have been plenty that have republished it after Kitchener filed suit, but that would create an odd, meta-accrual situation.

[13] There may be an issue of venue and forum non conveniens as well, but honestly, I just don’t have any more time today to go into them. I will post an update soon that expands on this issue.

[14] I’ll provide an explanation for why if the case progresses to the point where this becomes an issue.

Coyotes Clear Remaining Legal Issues; Sale to Jamison Group Could Be Soon

Quite a bit happened on Thursday surrounding the potential Coyotes sale and it seems that the three year long saga could soon be coming to a close.

There were a pair of reports by Lisa Halverstadt of the Arizona Republic. The first was that the City of Glendale rejected the petitions submitted by a political action committee called Save Glendale Now on July 5 to have a proposed sales tax increase placed on the November ballot. The second was that Ken Jones and Joe Cobb made good on their promise to submit their petitions on behalf of the taxpayers to have the City of Glendale’s lease and arena management deal with the Jamison group placed on the November ballot, but that the city of Glendale would be rejecting their submission. Finally, there was a report by Mike Sunnucks of the Phoenix Business Journal that the Jamison group has enough financing to complete the purchase of the Coyotes.

These three reports all work together to suggest that a sale of the Coyotes to the Jamison group could be imminent.

Sales Tax Increase

As discussed a few days ago on Puck and Gavel, it had been suggested that the sales tax increase was required in order for Glendale to fund the lease and arena management deal with the Jamison group.  Glendale’s rejection of the petition, keeping it off the ballot, would seem to eliminate that hurdle, providing there is no litigation over their rejection, or if that litigation is resolved in Glendale’s favor.  Glendale cited three reasons to reject the petitions. 

The first was that Save Glendale Now, the political action committee submitting the petitions, forgot to include its organization number on the petitions, as required by statute.  The second reason was that the description listed on the petition was inaccurate and misleading in that it misstated the purpose and effect of the ordinance it purported to challenge. The third reason was that the petitions were not submitted in a timely fashion because they were not submitted within four months of the next city election, which is scheduled on August 28, 2012.

I imagine Save Glendale Now will challenge all three of these bases in Court.  They would likely challenge the first basis of denial as a harmless error.  They would likely challenge the second basis of denial as a dispute over whether the language of the petition accurately describes the ordinance it purports to challenge.  Finally, they would likely challenge the third affirmative defense in that an acceptance of the Glendale’s interpretation of timing would allow Glendale to simply sidestep the people’s right to petition by just timing their ordinances so that they are within four months of an election.

Of these challenges, I feel that the first and third have a likelihood of success, but that the second challenge will be difficult. I am very persuaded by the reasoning listed in the letter issued by Pam Hanna on behalf of Glendale rejecting the petitions submitted by Save Glendale Now.  Therefore, I believe that there will not be a public referendum on the increase of sales tax.  That clears a major hurdle for the deal between Glendale and the Jamison group to keep the Coyotes in Arizona.

Jones and Cobb Petition

As discussed during his interview on Puck and Gavel, Joe Cobb stated that he and Ken Jones intended to obtain sufficient signatures to have petitions submitted to Glendale to have their ordinance to enter into a 20 year lease and arena management agreement with the Jamison group placed on the November ballot. As reported today by Lisa Halverstadt of The Arizona Republic, the final number of signatures submitted was only 1,568.  Glendale has already said that it would reject the petition because it is late and because it did not have sufficient signatures.

These issues were addressed in Joe Cobb’s interview and in my post regarding Shane Doan’s future.  To briefly summarize, by statute, petitions are required within 30 days of the passing of the ordinance by the City Council.  The ordinance was passed on June 9, and as such, the petitions would be required by July 9.[1] The number of signatures required would be 10% of the prior election, which Glendale has said would be 1,862 signatures, based upon an election in 2008.

Mr. Cobb debated both the date the submission was due and the number of signatures required.  He stated that since the petition documentation was not made available to him until June 15, his deadline should actually be 30 days from that date.  Second, he cited an election held in 2010, which had only 11,309 voters, 10% of which is 1,131.  Therefore, Cobb believed he only needed 1,131 signatures, which would have to be submitted by July 16.[2]  I believe that Glendale’s rejection of the petitions on these grounds will be challenged in court.  The Arizona Republic report cites Phoenix-based election law attorney Andy Gordon, who believes that such a challenge would likely be unsuccessful and that he thinks “they’re pretty clearly out of time.”

It seems like Cobb and Jones’ efforts have failed.

Jamison Group Has Financing

Mike Sunnucks of the Phoenix Business Journal has reported today that a source close to the Jamison group states that Jamison’s group has the money to purchase the team.  He further reports that city officials and the NHL believe they can withstand a legal challenge, presumably from the Goldwater Institute, based on the Arizona State Gift Clause.[3]  

The report states that there is no timetable for the sale.  However, with the main challengers to the sale apparently vanquished, and with Jamison having the financing available to purchase the team, it seems that there really is nothing standing in the way of this deal being completed within the very near future.  At the very least, this should be enough for Shane Doan to feel confident by his July 16 deadline to not field offers from other teams and to begin working on a deal to  resign with the Coyotes.

For how long the Coyotes ownership saga has lasted, it seems like it is about to come to a quick and conclusive end.  Apologies to those in cities hoping to have the Coyotes relocated to their city ::cough:: QUEBEC! ::cough::, but it seems that the Coyotes are destined to remain in Phoenix for the foreseeable future.  Let the speculation about the Devils’ impending bankruptcy and the Islanders’ expiring arena lease in 2015 begin!

What do you think about all of this news?  What do you think of the likelihood of success of any legal challenges to Glendale’s rejection of the two petitions?  Are you happy with the Coyotes staying in Phoenix?

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[1] 30 days from June 8 is actually July 8, but since July 8 was a Sunday, the deadline tolled until July 9.

[2] 30 days from June 15 is actually July 15, but since July 15 is a Sunday, the deadline according to Cobb will be tolled until July 16.

[3] This is the final hurdle that I discuss in my post regarding Shane Doan’s future with the Coyotes. Furthermore, it is the basis of Cobb’s belief that the agreement should be invalidated, as he explained in his interview with Puck and Gavel. 

Kitchener Rangers v. The Michigan Daily

As I stated in the Introduction, I will occasionally discuss legal issues in hockey that are outside of the NHL. Today is one of those times.

As reported by Sunaya Sapurji of Yahoo! Sports Canada, the OHL’s Kitchener Rangers filed a statement of claim in Ontario Superior Court against University of Michigan student paper, The Michigan Daily, and reporter Matt Slovin (collectively, “TMD”).  The claim alleges that TMD defamed the Rangers by allegedly publishing a story stating that the Rangers offered player Jacob Trouba $200,000 in lieu of an education package to turn his back on his commitment to the University of Michigan and play for the Rangers. Trouba, who was drafted 9^th overall in the 2012 NHL Entry Draft by the Winnipeg Jets, was drafted by the Rangers in the third round of the 2010 OHL Entry draft but has spent the past two years playing on the US National Development team and has committed to the University of Michigan in the fall. The payment of $200,000 would be in contravention of the OHL’s rules regarding impermissible benefits to players.  The suit seeks $500,000 in general damages and an additional $500,000 in punitive damages.

There are three prominent legal issues that this lawsuit presents.  The first is whether the Rangers have properly alleged a claim for defamation. The second is whether the Ontario Superior Court will have jurisdiction over TMD. The third is whether t

While the answers to these questions seem fairly clear to me based on New York, and probably the rest of the United States, law, this case was brought in Canada, specifically in the province of Ontario.  Therefore, an examination of Ontario law is necessary.  With the limited resources available to me on Ontario law (basically what I can find on Google), I believe I have come up with the correct answers to both of these questions.  Fortunately, the rules regarding defamation are fairly similar to those with which I am accustomed.  However, I was very surprised to see how long-arm jurisdiction would likely be applied by the Ontario courts in this matter.

Defamation

My Black's Law Dictionary is probably in the same box as my Land Use Controls book, but I believe I can define defamation without it.  Defamation is a tort that involves a person’s reputation being harmed by a false statement being made to a third party.  A defamatory statement is a false statement made to a third party that damages the reputation of the person about whom the statement is made. Defamatory statements can be written or spoken. A written defamatory statement constitutes libel.  An oral defamatory statement constitutes slander.

In Ontario, defamatory statements are governed by the Libel and Slander Act (“LSA”).[1]  According to Section 2 of the LSA, “defamatory words in a newspaper or in a broadcast shall be deemed to be published and to constitute libel.”  This is just a restatement of the common law rule that libel applies to defamatory statements that are written. By contrast, slander applies to defamatory statements that are oral.  Because the allegedly defamatory statement was written, we will ignore slander and just focus on libel.

Generally, in America, for a plaintiff to have a viable claim for libel, the defendant must make a defamatory statement that specifically identifies the plaintiff in a publication. A “publication” only requires that the defendant reveal it to one person other than the plaintiff. The statement needs to be of the sort that will affect the plaintiff’s reputation. For libel, you do not need to prove actual damages. Specific jurisdictions within America might have slightly different rules, but generally, these are the rules in the majority of states. Based upon the research that I have done, Ontario law functions the same way as well, but with one very important difference, which I will discuss below.

There are four affirmative defenses to libel. They are 1) Truth, 2) Consent, 3) Qualified Privileges, and 4) Absolute Privileges. Truth means that if the defamatory statement is true, then plaintiff does not have a claim for libel.  Consent means that if the plaintiff gave the defendant express or implied consent to make the defamatory statement, then the plaintiff does not have a claim for libel. Qualified Privileges are reserved for circumstances where there is a public interest in promoting candor, for instance, a letter of recommendation or credit reporting. There are two requirements: 1) defendant must have a reasonable belief that the information is accurate, and 2) defendant must limit herself to things that are relevant. Absolute Privileges are granted based on the status of the defendant, i.e., spouses talking to each other, government officers in the course of their official duties.  Based on the facts available to us, only truth would be available for TMD as a defense, if and only if the statement can be shown by a preponderance of the evidence to be true.

Let’s apply all of this to the facts known to us about the lawsuit.  The Rangers allege that TMD made a statement that it offered a payment to Jacob Trouba that would be in contravention of the OHL’s rules, a statement that would tend to damage the Rangers’ reputation.  Furthermore, the statement specifically identified the Kitchener Rangers.  Finally, was published on TMD’s website, which was made available and accessed by third-parties.  Therefore, the Rangers have alleged a prima facie case of libel against TMD.

Long-arm Jurisdiction

However, there remains a pretty large procedural hurdle in the way of the Rangers. Specifically, they have to obtain jurisdiction over TMD in the Ontario court.  Because TMD resides outside of the province, they would have to be subject to Ontario’s long arm jurisdiction for the case to proceed in Ontario. 

Generally, for a court to have authority to adjudicate a case, it must have personal jurisdiction over the parties and subject matter jurisdiction over the dispute.  Generally a court has personal jurisdiction over a defendant when the action is properly filed, the defendant is properly served, and there is a proper basis of jurisdiction over the person or property in dispute.  The proper basis of jurisdiction over the person or property in dispute can be determined by any number of factors depending on the location of the lawsuit, including, but not limited to, presence in the jurisdiction, doing business in the jurisdiction, domicile in the jurisdiction, consent, non-resident motorist jurisdiction, and finally long-arm jurisdiction.  Because long-arm jurisdiction refers to personal jurisdiction, I will ignore subject matter jurisdiction.[2]

From what I understand, Ontarian long-arm jurisdiction had been fairly nebulous until just recently, when the Supreme Court of Canada issued decisions on three cases to clarify the test for determining long-arm jurisdiction. The Supreme Court of Canada limited the test to the following factors:

(a) the defendant is domiciled or resident in the province; 

(b) the defendant carries on business in the province; 

(c) the tort was committed in the province; or 

(d) a contract connected to the dispute was made in the province.[3]

We can quickly eliminate two of these factors. TMD is not domiciled or a resident of Ontario and the dispute does not arise out of a contract that was made in the province. 

Without having more information about TMD’s activities within Ontario as far as business operations, I cannot say conclusively whether TMD would be subject to jurisdiction within Ontario.  However, I believe it is a very fair assumption that TMD does not carry on any business within Ontario.  Perhaps the University of Michigan does, but it would very unlikely that its student newspaper does, and even less likely that a single reporter would as well.  Furthermore, the accessibility of the website in Canada would not be enough to establish carrying on of business. The Supreme Court of Canada stated that “the fact that a Web site can be accessed from the jurisdiction would not suffice to establish that the defendant is carrying on business there.”[4] So we can ignore this factor as well.

What the exercise of jurisdiction by Ontario Superior Court over TMD will hinge upon is whether the defamation was committed in the province.  The argument that will be made by the Rangers is that the web page upon which the defamatory statement was published was accessed by Ontarians, and as such, the tort was committed in the province.  In America, this argument would likely be unsuccessful, as we have what is referred to as the “single publication rule,” meaning that a website is only one publication and only in one location, not multiple publications whenever or wherever the website is accessed.

However, Canada seems to reject this rule.  While that appears to create a slippery slope under which a defendant can open himself up to liability everywhere,[5] an Ontario court has recently decided that it could assume jurisdiction over the plaintiff’s actions in libel against the foreign defendants who issued certain press releases and posted them on the foreign defendant company’s website.[6] The plaintiff, a former director of the defendant company, alleged that the press releases contained defamatory statements that were downloaded, read and republished in Ontario.[7]  Accordingly, it is likely that the Ontario Superior Court will exercise jurisdiction over the Rangers’ claim of defamation over TMD.

Would a Judgment Be Enforceable in the US?

Suppose the Rangers are successful in their lawsuit and obtain a judgment against TMD for defamation in Ontario. Would that judgment be enforceable where TMD are domiciled, presumably only in Michigan?

Only a short while ago, the answer would have probably been in the affirmative. However, in 2010, the US Congress passed a bill that President Obama signed into law called the Securing the Protection of Our Enduring and Established Constitutional Heritiage ("SPEECH") Act. The act was passed to counter what is known as "libel tourism." Basically, writers in the US, who have a broader right of free speech than pretty much any where else on the planet, were being sued in foreign jurisdictions with more stringent restrictions on speech. The most common example was the United Kingdom, where a suit for defamation requires that the defendant prove the statement made to be true, as opposed to in the United States, where the plaintiff carries the burden of proving the statement to be one that causes the reader to think that the declarant has a factual basis for the statement to be true. The SPEECH Act was specifically inspired by the case of the writer and academic, Rachel Ehrenfeld, who was sued by Khalid Bin Mahfouz in the United Kingdom over statements made in her 2003 book, Funding Evil. 

Remember earlier how I said US and Ontarian defamation law differed in one very important way? That difference comes when the defamatory statement is made about matters of public concern. United States law draws a distinction for matters of public concern. Two new elements are added to the proof of the defamation claim. First, the plaintiff must prove that the statement is actually false. Second, the plaintiff must prove that the statement was made with fault. Where the plaintiff is a public figure, the plaintiff must show the statements were made intentionally or recklessly. Where the plaintiff is a private figure, the plaintiff must show that the statement was made negligently.  The Kitchener Rangers would qualify as what is known as a "limited-purpose public-figure" because they have injected themselves into a particular public controversy, and as such, they would be held to the actual malice standard.

A federal district court in Florida has already used the SPEECH Act to hold that an Ontarian judgment for defamation was not enforceable in the United States citing this exact distinction.  In Investorshub.com v. Mina Mar Group, Inc., the court found that Canadian law does not offer as much protection as the First Amendment. Specifically, the Court stated that 

For example, the First Amendment requires that a defamation plaintiff who is either a public official or public figure must prove that the defendant made the defamatory statement with actual malice, meaning that the defendant either knew the statement was false or acted with reckless disregard to the statement’s truth or falsity. See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 111 L. Ed. 2d 686 (1964); Curtis Publ’g Co. v. Butts, 388 U.S. 130, 87 S. Ct 1975, 18 L. Ed. 2d 1094 (1967). The Canadian Supreme Court has specifically refused to adopt the Sullivan actual malice standards for Canadian defamation actions. See Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 (Can.) (stating that Court will not adopt Sullivan standard in Canada).

Therefore, absent a specific finding by the Ontarian Court that the statement was made with actual knowledge of falsity or with reckless disregard to the statement's truth or falsity, the judgment would not be enforceable in the United States.  Such a specific finding would be unlikely by the Ontarian court because it would be unnecessary for the purposes of reaching a verdict.  Finally, even if such a specific finding were made, it is unclear that the courts in the United States would still not recognize the judgment based upon the SPEECH Act.

The Verdict: The Kitchener Rangers may very well win their case in Ontario.  The problem is they probably won't have any remedy available to enforce the damage award in the United States. So unless The Michigan Daily or Matt Slovin have some property or assets in Canada, it will just be a Pyrrhic victory. The Kitchener Rangers, if they actually intended to recover money, should have filed suit in the United States.

So what do you think about all of this? What do you think about jurisdictional issues for defamation law. What do you think about the SPEECH Act? Do you think the Kitchener Rangers actually intended to collect any damages in their suit, and if not, what was their purpose for filing?

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[1] R.S.O. 1990, c. L.12. I apologize if my Canadian citation is incorrect, but I can only offer what I have found through my limited research. Speaking of which, most of the information I have found on the subjects of Ontarian defamation and long arm jurisdiction can be found at
Susan E. White, A Primer on the Law of Defamation in Ontario, 2007, Charity Law Bulletin No. 125, Carters Professional Corporation, http://www.carters.ca/pub/bulletin/charity/2007/chylb125.htm#end; and
Laura Stefan & Robert Wisner, Restraining the Long Arm of Ontario Courts: Supreme Court of Canada Clarifies Private International Law, 2012, http://www.mcmillan.ca/restraining-the-long-arm-of-Ontario-courts-Supreme-Court-of-Canada-clarifies-private-international-law.
[2] Without confirming by looking at Ontario court rules, I am fairly confident in saying that Ontario Superior Court has subject matter jurisdiction over this claim
[3] Club Resorts Ltd. v. Van Breda, 2012 SCC 17 (2012).
[4] Id.

[5] Perhaps it’s just my bias as an American, but I don’t like the Canadian rule.

[6] Black v. Breeden, 2010 ONCA 547 (2009).

[7] Id.