mudcrutch79 said:
Our jurisdictions for these sorts of things are provincial. I don't know what US law is on this, but in Canada you don't have to show injury to make out libel. So it's kind of funny that he'd be making his decision based on where the injury occurred. More to the point, although it's completely irrelevant because injury doesn't matter, I imagine what he'd be most concerned about is this article hurting his ability to gain employment in the NHL again. I can assure you that it had no impact on whether or not an NHL franchise located in BC will employ him.
Am I correct in thinking that he'd have a tough time in the US with a libel suit on this? I took a US Const course this year, and vaguely remember a case where the USSC made it difficult to sue newspapers for libel if you're a public figure. We have no such protections in Canada for the press. I'm almost certain that this is a pure example of forum shopping, as he's picking the forum where he has the greatest chance of winning. Nothing at all to do with the injury, in my opinion.
I find it quite humourous that Burkie of all people would sue given his often immoderate language and comments about others over the airwaves and in print. Brooks may have sufficient material for a counter-suit.
The other interesting thing is that Burke chose to file suit here in BC rather than in New York where the alleged defamation was published.
As a general rule it is much more difficult to succeed on a defamation suit in the US than in Canada (or other Commonwealth countries) because there are broader defences available there. I would anticipate that the the NY Post and Brooks will contest the jurisdiction of the BC courts to hear this matter.
Also there is a reverse onus (i.e certain presumptions) in favour of plaintiffs in Canada once publication has been proven as I have highlighted below that do not apply in the US where the plaintiff bears the burden of proof throughout.
Burke would be unlikely to succeed on his action in the US because of the First Amendment protection and the public figure defence available in the USA. Also he would not benefit from the reverse onus presumptions available in Canada.
Basic law on defamation in Canada:
Actions in Defamation:
a) The elements of a defamation action are as follows:
i) The plaintiff must prove publication of the defamatory statement. Publication means the making known of the defamatory statement, after it has been written or spoken, to some person other than the person of whom it is written or spoken;
ii) The plaintiff must prove that the defamation refers to the plaintiff; and
iii) The plaintiff must prove that the statement is defamatory. Simply put, a defamatory statement is "a false statement to a person's discredit".
b) Upon proof of publication, (Canadian) law makes several presumptions in favour of the plaintiff:
i) That the statement is false;
ii) That it was published with malice; and
iii) In the case of libel or slander per se, the plaintiff has suffered damage.
c) Defences:
i) Truth.
ii) Fair comment: The defendant is allowed to comment on facts truly stated, as long as the comment is fair and the defendant is not motivated by actual malice.
iii) Privilege: On certain occasions, the courts have held that policy and convenience require that a person should be free from responsibility for the publication of defamatory words. These occasions are constitute privileges.
http://www.cyberlibel.com/defences.html
I would anticipate that the defences would be that the matters published were true and/or that they constituted fair comment if it were to be heard in BC.
Another possibility is the defendants could argue that although the case is filed in BC and that BC procedural law is to be followed, the proper substanative law to be considered should be US (i.e New York) civil law. This involves an incredibly complex area referred to as "Conflict of Laws". In this case the defendants would argue that US law including US defences should be applied to the facts of the case. As I said this is incredibly complex and Conflicts of Law problems make my head hurt.
If the defendants do argue that a foreign system of substantive law should be applied, the court will determine which system ought to be applied and, if it is decided that a foreign system of substantive law “has a real and substantial connection to the tortâ€, then the dictates of that law must be proved as a fact (usually through testimony of an expert licensed practitioner (a lawyer) from that jurisdiction, although, in some instances, a Canadian judge in one province or a US judge in one state or district will interpret the dictates of another province’s or state’s legislation without the need of an expert).
Another issue would be enforcing any award of a BC court for defamation in the US. Despite legislation allowing reciprocal enforcement of civil judgments, courts in the United States are generally unwilling to enforce defamation judgments from other jurisdictions such as Canada and Britain because of First Amendment protection of freedom of expression. So Burke could win a "dry" judgment.
Clear as mud?????????????