Saturday, July 14, 2012

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?

[1] Hereinafter, “CBSA”
[3] See the Canadian criminal code, sec. 296-300:
[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
[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.


  1. From what I have read here I would have to believe that Ontario will use their long-arm jurisdiction.

  2. Why hire Fink as counsel or have him speak on their behalf? He doesn't know Ontario law and likely can't appear in that jurisdiction. If TMD wants to have early credibility in this matter they need to have or be seen to have prominent Ontario counsel speaking or advising on their behalf. Otherwise, they are left with a "student reorter" who made allegations based on "undisclosed sources" who is now being defended,at least in the press, by a lawyer who has no expertise in the laws of the jurisdiction in which the claim was filed. Starting to look like a bit of a gong show...

    1. Fink's bio suggests that he has already appeared in Ontario on a few occasions. As for who TMD hired, it makes more sense that they hire US counsel because as I said, there probably isn't any detrimental affect to a judgment in Ontario. Fink is just saying some stuff in the press to make the Rangers look bad. I don't know if I would take that same approach, but that's the way he operates and he appears to have had great success in his career.

    2. Is it possible that the Ontario court might see TMD hiring an Ontario lawyer as an admission by the paper that Ontario has jurisdiction?

    3. No, I don't think so. They are just retaining an attorney to help advise them of their legal rights and obligations. It is by no means an admission of jurisdiction. In fact, if TMD does make an appearance in the action, I would expect them to either file a preanswer motion to dismiss for lack of jurisdiction or at the very least to list lack of personal jurisdiction as an affirmative defense in their answer.

  3. Whether or not Mr. Slovin would be able to enter Canada, even if it was decided he was a member of an "inadmissible" class would largely be based on luck. Although a passport is now required at land crossings, it's been my experience that not everyone is checked thoroughly. I believe those checked are run through the usual law enforcement databases. I've been pulled over as part of a group on three separate occasions. On all of them, CBSA looked through the car for drugs (and didn't find anything because there was nothing to find) and then ran our drivers' licenses. On one of those occasions, a member of the group who had a DWI conviction a couple of years earlier was denied entry. They wrote up a bunch of paperwork and gave it to him, we turned around and showed the paperwork to US immigration services and went home. I'm pretty sure he went into Canada a couple of years later through a different crossing and they never looked up his record.

    Without knowing how the processing is working these days, I can say that there's a good chance that even if he fit the CIC criteria for inadmissibility, there's a really good chance that he's not going to come up as inadmissible at the border, even if they do more than a cursory check, which is again, not certain.

    Whether he should be inadmissible is another matter entirely. I can say that Canada seems insanely strict regarding who is allowed to enter the country, so it wouldn't surprise me if technically he should be inadmissible, even if in practice it's unlikely he'd be stopped at the border.

    1. I think the concern is whether or not he would be deemed within an inadmissible class. While it's true that somewhere along the way he could probably get in due to a lack of diligence on the part of CBSA, wouldn't it be bad enough to have that concern hanging over his head?

      I'm not entirely convinced he ends up in that inadmissible class, even though by the letter of the law, it appears he could.

  4. I was thinking the same thing Johhny