Thursday, July 12, 2012

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 9th 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.


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 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?

[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,; and
Laura Stefan & Robert Wisner, Restraining the Long Arm of Ontario Courts: Supreme Court of Canada Clarifies Private International Law, 2012,
[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. Breeden2010 ONCA 547 (2009).
[7] Id.


  1. Very nice post explaining the differences in the law of the two nations. It surprises me that they can assert personal jurisdiction in Ontario; but it makes sense that the SPEECH Act is intended to protect against those kinds of long-arm libel cases.

    Would you say that the Rangers need to prove actual harm, or merely that the statement is 'defamatory in nature' (it would tend to cause harm, but they don't need to put witnesses on the stand who say it made them think less of the team). I would expect the extent of the actual harm suffered would be an important consideration in assessing damages (outside of punitive damages).

  2. They don't have to prove actual harm in order to get a judgment in their favor, but the amount of harm will affect the amount of the award.

    In situations where there is no actual harm, I've seen courts award what are called "nominal damages," such as one dollar, or a loonie, for my Canadian friends.

    Also, don't be afraid to post with a name. I hope we can establish a community here and it's more difficult when people post anonymously.

  3. I find it very hard to believe that the CHL isn't paying these top players and it's against their interest to root out the problem. Though, based on a recent decision of out of Idaho and the CHL's apparent zest for law suits, I should be careful of what I say before I get sued for defamation myself.

    1. What decision are you referring to? I'd like to read it.

    2. LDvS: Are you saying Trouba and his family are not being honest when they made a statement saying the Rangers did not offer any compensation? Not much reason for them to say that if it wasn't the case, as he's decided to go to Michigan.


    4. Well I meant that the CHL would have no problem in rooting out a problem like that if it in fact exists.

      And even if he is going to Michigan I think he would have plenty of reason not to be truthful if he was offered compensation. Would he really want to become an enemy of the CHL, especially considering such a statement by him might lead to a lot of upheaval.

    5. *Correction, not "no problem in rooting out a problem like that" but "no incentive."

    6. I don't think that Idaho decision is anything to worry about. It is summary judgment granted on default for a lawsuit brought in the US under US law. Furthermore, the judge was so hesitant to grant it that he said that he would revisit the facts if the anonymous poster appeared to challenge the judgment. All that was established in that case is that the plaintiff had a prima facie case under US law, and since there was no opposition, the plaintiff's motion for summary judgment was granted.

      That is distinguishable from someone obtaining judgment in Canada and then seeking to enforce that judgment in the US. I think that because Kitchener Rangers didn't try and sue in the US, it shows that they don't have the appetite for extended and costly litigation. I expect them to obtain a default judgment in Canada and then hold that judgment out as vindication from the allegations contained in TMD's report.

      Check back tomorrow for my analysis on further developments on this matter.

    7. Well my comment about being sued myself was, at least mostly, tongue-in-cheek. That being said, as you pointed out, the judge wouldn't grant the subpoena only if the anonymous poster defended himself in court. That would require the hiring of an attorney and relinquishing of anonymity. Is that not a victory for the plaintiff?

      I can see this case having a chilling effect on internet postings and discussion.

  4. Great read, I was curious about the personal jurisdiction issue. If the paper doesn't solicit advertisements or have any circulation in ONT, I am not even sure they could establish personal jurisdiction under US minimum contacts analysis. I appreciate The SPEECH Act, and this case is a prime example of its value. But for the Act, American journalists and papers would have the same free speech rights as North Korean journalists and papers on account of the internet age.

    I think Kitchner knows all of this and are trying to deter similar future behavior. It is a strong, symbolic action on their part. If anything, I consider it a smart, strategic move on their part. If they had a really strong case, they would have filed suit in Michigan court. With respect to the culpability standard, I would expect U of M to call Trouba and his family to testify, which could open an entire line of questioning, under oath mind you, that could get ugly for the CHL. People should carefully read the Trouba press release. It makes no mention of people affiliated with the Kitchner Rangers. Just like SEC football, I wouldn't expect payments to be made directly from the organization. They would certainly be moved through a straw person.

    Here is a question for you: given the SPEECH Act and Investorhub, should U of M even respond to Kitchner's petition?

  5. Let me answer your question first because I think it frames the rest of my response.

    No, TMD and Slovin should not even respond to the Rangers' petition. Any judgment obtained in the Ontarian lawsuit would likely be unenforceable in US Courts.

    I think the Kitchener Rangers knew that, or certainly were advised of that by their counsel. However, I believe that once they obtain the judgment in Ontario, they will hold it out as a vindication of the allegations contained in the TMD report. If the Rangers were actually interested in damages, they would have brought suit in Michigan. However, they chose not to, for any number of reasons, including, but not limited to, the cost, the difficulty, or if the information alleged was actually true.

    I wouldn't speculate about calling Trouba to testify. If in fact no offer was made to Trouba then it would go to proving the falsity of the claim made by the TMD report. I can't speculate on why the Kitchener Rangers' decided not to pursue legal recourse in Michigan. As I said it may be just because they didn't feel it was cost-effective to do so. It is is no way any acknowledgement of guilt.

    1. I think the differences in burden of proof and the culpability requirement under US law are keeping Kitchner out of US court. Even if the Trouba statement is correct, the paper may not have acted negligently or recklessly in publishing the article. Southeastern Michigan has a large hockey community and Trouba has already played several seasons in Ann Arbor. This information could have been relayed by other credible sources.

      Anyways, this lawsuit is a purely symbolic gesture on the part of Kitchner intended to stifle similar future comments and to save face. Default judgment here we come.

    2. Like I said, that all may be true, but without more information it's just speculation.

      I do agree though that the Canadian case will likely end in a default judgment. The statement released today by TMD has done little to change my opinion of that.

  6. Great Read and insight Puck Gavel!

    As I have read in other site, I was wondering if you might comment on what ramifications there will be to TMD or Slovin if a decision in favor of the Rangers is made in Ontario Court? I understand financial awards would not be collected, I am more interested in other comments made elsewhere about Slovin's ability to visit Canada at a later date etc. if found guilty.

    Personally, I see it the way you have mentioned before as well, default judgement.

    1. I intend on making a full post on that issue tomorrow. Please check back!

  7. Hi there, posted as anonymous earlier because I hadn't found a way to put a screen name in there. I'm a Georgetown Law student, so it is nice to see the law applied to the sport I love and to get out from reading cases all the time, so thanks for starting this blog!

    In true law school spirit, a hypo:

    Assuming there is a default judgment against TMD (included the reporter as an individual defendant), would that affect his ability to visit Canada/Ontario? I imagine a Michigan student might want to go on vacation to Canada some day, but if there were an outstanding judgment wouldn't he be subject to arrest or immigration issues? They can't come into the US to enforce the judgment, but if he conveniently enters their jurisdiction, they can enforce the judgment if he is there personally, from what I can tell.

    1. I intend on making a full post on that issue tomorrow. Please check back!

  8. A few items of speculation...

    1. If I wanted to collect actual damages, I'd sue for a large amount in the country where I may actually collect. If I just wanted to prove my point, I'd sue for a nominal amount ($1.00) in either country. If I just wanted to intimidate somebody into a retraction, I'd sue for a large amount in a country with low burden of proof where my opponent is not likely to defend themselves.

    To me, this reeks of pure intimidation.

    2. The Trouba's and Slovin's source can both be telling the truth in two different ways. a)The offer was made to the 'family advisor', who didn't relay the offer to the Trouba's. b)The offer was made to the 'family advisor', who told the Trouba's, which technically means that Kitchner didn't offer the Trouba's directly.

    Answer a) seems like the more legitimate possibility if both parties are being truthful. The final, unlikely possibility is that Slovin himself completely fabricated the story.

    1. I don't see how suing in a jurisdiction that cannot enforce a judgment, regardless of the amount, would qualify as intimidation.

      As for your second suggestion, I can't speculate on what the truth of what really happened is.

    2. I should have spelled that out more clearly. The bulk of the intimidation is directed towards Matt Slovin rather than the university. If the Canadian courts find in favor of Kitchener, Slovin may be barred from entering Canada, which is a scary prospect for any journalist who writes about hockey.

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