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
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 Ontario Ontario Ontario
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
Generally, in America America Ontario
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 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
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 Ontario University
of Michigan Canada
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
However, Canada Ontario Ontario 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?
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.
[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.
