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.