[UPDATED] Michigan Daily Officially Served Libel Notice, What’s Next?

The ongoing saga that is the Kitchener Rangers lawsuit against The Michigan Daily, student reporter Matt Slovin and his anonymous source took a more official turn today as the student paper and reporter were officially served with a libel notice today, according to Sunaya Sapurji.

Now that the the defendants have been served, it looks like there’s a good chance this is going to court.

Herschel Fink, attorney for the Daily and Slovin, contested Friday that the Ontario court should toss the case for lack of jurisdiction over the Michigan-based paper, telling Matt Brown of SN590:

I must tell you the Free Speech laws and protections for the media in Canada are nowhere near what they are in the United States and of course the Rangers are aware of that.

That’s why they’re filing whatever it is they’re filing or threatening to file a lawsuit in Canada, where they know The Michigan Daily would not have the same kinds of protections and that’s what I call bullying and in fact there’s a name for it. The courts in the United States call it “libel tourism.”

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.

The Puck & Gavel Blog shared a differing opinion in an intriguing post.

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.[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]

I also got another opinion from a California-based attorney, who shared his thoughts on the matter in an email.

You’ve heard the accusations of libel tourism & forum shopping.  The Kitchener Rangers’ motivation may not be nearly as nefarious as it may appear:  The suit may have been filed in Kitchener for the simplest reason:  The Rangers attorneys work and practice there.  Filing suit in Michigan would require having a lawyer in Michigan to file the suit.  Given the probable unfamiliarity of the lawyers with Michigan law, counsel in Michigan would likely have to be more than a figurehead willing to sign the documents.  So, there are understandable financial reasons to file in Kitchener.  Plus, the time it would take to line up counsel in Michigan would likely delay the filing, which would detract from the PR the Rangers were seeking.

The Ontario court exercising personal jurisdiction over The Michigan Daily would not, in my opinion, be outrageous.  The subject of the article was an Ontario business negotiating a contract for employment in Ontario and most of the alleged reputational harm would occur in Ontario.  Another thing is that the Daily might do more business in Ontario than Fink acknowledges.  Have reporters never crossed the border into Ontario to do a story?  Is none of the core audience (alums & students on break) in Ontario? Maybe Fink is right about Ontario having no basis for exercising jurisdiction over The Michigan Daily, but this may not be so clear cut.

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.

UPDATED (7/17, 6:35 p.m. CDT): Sunaya Sapurji also filed this terrific report in which both sides state reasons for why the Ontario courts should or shouldn’t have jurisdiction:

“They clearly know where Detroit is and they clearly know the road,” said Fink. “They do business here. There are a lot of interesting possibilities, but I don’t know how far they want to take it.”

But as far as Ryder Gilliland, the lawyer representing the Rangers, is concerned – he believes they’re right to have their case heard in Kitchener.

“We are quite confident that the Ontario court does have jurisdiction given that the subject matter of the article is the Kitchener Rangers,” said Gilliland in an interview last week. “The story even quotes an OHL source, so it’s clearly dealing with Ontario matters and it clearly affects the Kitchener Rangers which are Ontario based.”

So there are a few differing opinions on the matter, only illustrating just how complicated the next steps are going to be. With the various ways laws can be interpreted on either side of the border, this can really go in several different directions.

The big thing now is that we know the suit has been filed and the known defendants have been served (can’t serve an anonymous source when you don’t know who he is).

There are several key factors to keep in mind as this continues to develop.

Kitchener has interest in restoring its reputation it feels The Michigan Daily damaged with its report. The Rangers have also shown desire in finding out who the anonymous source is. The lengths at which Kitchener will go in pursuit of both is still unclear, but the junior club has obviously taken significant steps already.

It’s been determined that the SPEECH Act is likely to protect Slovin and the Daily from the enforcement of the foreign judgment should it go in favor of Kitchener. Based on what is known about the allegations and U.S. libel/First Amendment laws, it is not a case the Rangers likely could win if tried in Michigan courts.

So the complications will not end in the Ontario courtroom, one would expect.

Regardless of what happens next, this case will have significant implications for both the NCAA-CHL recruiting battle and journalism as a whole.

This case could potentially air a lot of dirty laundry in what has been an increasingly ugly battle between American college hockey programs and Canadian major junior clubs, depending on how far it gets taken.

UPDATED: Fink told Sapurji that he felt the feud between the NCAA and CHL is driving Kitchener’s legal pursuit.

“I think that The Daily and (Slovin) its columnist appear to be really pawns in some ongoing feud … between the Canadian Hockey League and the NCAA,” said Fink. “It’s really, as it occurs to me, nothing more than a PR battle, because I don’t see that the Rangers have anything to gain by proceeding in this case.”

Journalists, academics and law professionals will take interest in the multiple levels of this libel case. The use and protection of anonymous sources, the role and significance of student journalism and the notion of “libel tourism” will all be on trial here essentially.

With much at stake for the parties involved and an increased interest from those who may be affected by any ruling or information that may come out, this will remain an important case to follow start to wherever it might finish.

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About Chris Peters

Editor of The United States of Hockey. Contributor to CBSSports.com, USA Hockey Magazine and more. Former USA Hockey PR guy. Current Iowan.
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10 Responses to [UPDATED] Michigan Daily Officially Served Libel Notice, What’s Next?

  1. Keith says:

    I think you touch on the key point of this kerfuffle: the battle between the NCAA and the OHL for talent. (I say OHL, because while the WHL and QMJHL have taken players themselves, it seems to be the OHL as the major point of concern). In this case, I think both TMD and the Rangers are acting as proxies for their larger organizations. The NCAA has floated the argument that OHL teams are making big payments to kids who just so happen to leave their schools for OHL teams to fast track to the NHL. Patrick Kane was another high profile example. While I have no inside information on this matter, I personally believe that the Jacob Trouba story originated somewhere within the NCAA as such accusations (without proof) are a known strategy of theirs. Perhaps having it originate from a supposedly outside source probably seemed like a good idea at the time.

    From Kitchener’s standpoint, they are proxying for the OHL. It was London, I believe, who faced the Kane accusations, and I doubt that the league is interested in putting up with these periodic slams against their league’s integrity. I think they want to put a stop to it now, and that is why we are where we are.

    I am curious to see how things shake out. One could speculate of the OHL that “where there is smoke, there is fire”, and the fallout of TMD’s lawyer’s not-so-thinly-veiled threat on that front could prove interesting. On the other hand, the NCAA itself has a long and ignominious history of its schools doing these very same things. Even if they are right, the NCAA cannot possibly appear anything but hypocritical. Of course, the easy solution for the NCAA is to alter its draconian eligibility rules to allow CHL players to jump to the NCAA if they so choose. But that opens up a host of problems for the organization. They can control basketball and football players because they are the only path to the pros. Hockey players have options and the NCAA can’t adapt to that without affecting their other monopolies.

    • Keith the problem is that there are NCAA hockey coaches that have said they have lost recruits to the CHL because their players were given money to come play for them. Also your comment – “On the other hand, the NCAA itself has a long and ignominious history of its schools doing these very same things.” – that statement doesn’t apply to college hockey.

      • Keith says:

        Yes, I am aware of that. Red Berenson, of course, being a big accuser. And yet, no proof of any kind brought forth. Lets be honest here, the NCAA is likely no more innocent or guilty of paying under the table for hockey players than the OHL is.

        But more to the point, the $200,000 bribe allegation is silly when you look at it financially. The Kitchener Rangers have capped season ticket sales for the past several years due to demand, they sell out their arena every night, consistently rank top ten in the CHL in attendance, reached the third round of the playoffs and their entire profit last season was $324,000. It is nonsensical to believe they would blow nearly two-thirds of their profits on a player who, frankly, could never hope to give back to the team what they were supposedly prepared to pay.

        On the face of it, I could suggest this may have been a smear job designed to scare Trouba into sticking with Michigan or risk damage to his reputation. Seems the paper and whoever put them up up to it got more than they bargained for. Now we wait for the fallout.

      • Keith says:

        Ahh, crap. Didn’t check the date on the article on Kitchener’s finances. That profit was for 2009-10. I would expect it would have been a little higher last season. Overall point stands, however.

  2. fetch says:

    as an enterprising lawyer (vomit), what little I know about forum is that it is possible that the case could be heard in Ontario, but would be using U.S. First Amendment law. But yeah there’s no way they could collect in Ontario and no way they’d win in Michigan, so while it’s great for their PR to “win” a symbolic case over the Daily, it also opens them up to discovery. They must be pretty confident in their ability to hide 200k (or other sums they’ve paid other players)

    • James says:

      They only have to hide the 200K well enough, not make it disappear completely. Given the Rangers choice of opponent (TDM et al.) and their bit of forum-shopping discovery may not be too intensive in this case. The Daily may not have the will or financial resources to fully pursue discovery and hire the forensic accountants necessary to deconstruct the teams finances. This assumes that the payments were coming directly from the Rangers team rather than a rich support, which is something we see in the NCAA all the time.

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