Missouri Appeals Court reverses registration of Ontario libel judgment

The River Front Times reports today on a Missouri Appeals Court judgment, reversing a lower court decision registering an Ontario libel judgment. A pdf link to the Missouri Appeals Court decision is available here.

The parties are first cousins.  The plaintiff/respondent, Ms. Sanchez-Pontigon and her husband, both Ontario residents, sued the defendant/appellant, Ms. Manalansand-Lord and her American publisher for libel arising from statements made in Ms. Manalansand-Lord’s self-published autobiography entitled, “From Fieldhand to Ph.D., Ms. Asia International Motivation for Success and Happiness”, the first chapter of which was posted on the Internet.

No one had appeared on behalf of the Defendants at trial, despite having been given notice by the trial coordinator through email and fax and by plaintiffs’ counsel via email.   In reported reasons: Sanchez-Pontigon v. Manalansand-Lord 2009 CanLII 28216 (ON S.C.), [2009] O.J. No. 2293 (S.C.J.), Quinlan, J. of the Ontario Superior Court of Justice awarded Sanchez-Pontigon $25,000 in general damages and $12,500 as aggravated damages for defamation relating to accusations that the plaintiff was involved in criminal activity, including kidnapping and fraud. The Ontario court also awarded $13,716 in costs.

According to the  Missouri Court of Appeals:

“This “judgment” was filed in St. Charles County, Missouri – Ms. Lord was given notice – and after hearing the Circuit Court granted the registration, from which a garnishment issued.”

Note the quotation marks around the word “judgment”.

Relying on the recently enacted SPEECH Act (see my recent post: UK Libel Reform and the US SPEECH Act: A View from Canada),  the Missouri Appeals Court reversed, and the underlying registration was set aside and the garnishment quashed. The Missouri Appeals Court held that the Circuit Court failed to analyze whether the Ontario judgment met U.S. First Amendment standards of free speech and freedom of the press protection. The Missouri appeals court also refused to give the Ontario judgment “full faith and credit” on the grounds that:

This record does not contain a certified and authenticated copy of the Canadian “judgment” by the Canadian court and thus fails to comply with the full faith and credit clause of the U.S. Constitution. Art. IV § 1, U.S. Constitution. There is simply not enough here to show that this “judgment” is entitled to full faith and credit in a Missouri court. As such, the Circuit Court should not have proceeded to hearing, judgment and execution.

Consequently, the plaintiff was ordered to file a certified and authenticated Canadian judgment in accordance with Missouri procedural law and the Circuit Court’s decision was reversed and remanded for further hearing.

Does this decision portend a retreat from an era of judicial comity into a cross-border “war of the words”? Will Canadian judges take umbrage with their American counterparts refusing to enforce Canadian libel judgments unless they meet American First Amendment standards? Is this another example of American exceptionalism?

8 Responses to “Missouri Appeals Court reverses registration of Ontario libel judgment”

  1. George Wallace Says:

    An interesting decision. From the sound of it, the Appeals Court could have vacated the registration of this judgment on purely procedural grounds, declaring that whatever paperwork was submitted by the plaintiff to authenticate the existence and terms of the Canadian court’s judgment was simply not in proper form (“certified and authenticated”) and that it had been clerical error for the Circuit Court to have accepted it. With that ground available, it seems almost gratuitous for the appellate court to embark as well on the substantive discussion of the SPEECH Act. (The apparent lack of acceptable authentication of the judgment most likely accounts for the court’s use of quotation marks around the word “judgment” throughout the decision.)

    I know even less of Canadian law than I do of Missouri law, so I am curious about the procedure followed in obtaining jurisdiction over the defendant in the first place. Under U.S. procedure, few jurisdictions would permit service of initial pleadings and process (summons or equivalent) by “fax [or] email”, as apparently occurred here. While many states (California among them) do allow service of process on out-of-state defendants by mail, they at least require a form of mailing that ensures a receipt to confirm actual delivery. Does Canadian/Ontario procedure allow service on foreign defendants by methods so informal (and potentially dodgy) as fax and email? I assume it must, given that the Ontario court was apparently satisfied that it had acquired the necessary jurisdiction and authority to act against the defendant.

    The SPEECH Act was meant by the U.S. Congress to tamp down “libel tourism,” particularly the use of British courts to obtain large defamation judgments under rules of law that are very much at odds with U.S. practice in terms of presumptions, burdens of proof, and such. Some notably disreputable characters have attempted to use the plaintiff-favoring British libel rules to stymie legitimate criticism published in the U.S. As a First Amendment partisan, I am generally supportive of the principles the SPEECH Act intends to advance. It does however, as you say, raise significant comity issues and particularly the question of whether U.S. judges should so blithely thumb their noses at reasoned decisions of non-U.S. tribunals. I suspect that the fact that this particular judgment was obtained against the defendant in absentia (by default, as it were) played a part in the appellate judges’ reluctance to enforce it.

  2. Antonin I. Pribetic Says:

    Thanks, George, for your thoughtful comment.

    I agree that the Missouri Court of Appeals may have reversed simply on procedural grounds in failing to file a “certified and authenticated” copy of the Ontario judgment, which, as you know, is a general requirement in most jurisdictions, and also applicable for homologating foreign arbitral awards under the New York Convention and Model Law.

    As far as jurisdiction is concerned, I believe that the Ontario court judgment refers only to notice of the trial itself, not notice of the originating process (ie. service of the Statement of Claim). Service ex juris of the originating process under Ontario Rules of Civil Procedure requires personal service or an alternative to personal service (e.g. acceptance by lawyer of record or an order for substituted service). Service under the Hague Service Convention is also available between Ontario and Missouri presumably. Given that a pretrial was scheduled, albeit the defendant failed to attend, one may presume that the defendant likely attorned and delivered a statement of defence, otherwise the plaintiff would have obtained default judgment without any intervening procedural steps. The trial judgment is more in the form of a summary judgment in absentia, although ostensibly it resulted in a default judgment.

    The American response to UK libel tourism that underpins the SPEECH Act may well follow the Law of Unintended Consequences, since, arguably, no other country has the functional equivalence akin to US First Amendment protections. I would argue, however, that the Canadian Charter of Rights and Freedoms and the European Convention on Human Rights are as robust in the protection of individual rights, as the US Bill of Rights. The interpretive devil is in textual details.

  3. Ted Folkman Says:

    Antonin, thanks for the clarification on the likely procedural posture in the Ontario case. The Missouri decision says that the American defendant “did not make a personal appearance in Canada” and noted that she had been served only by email and fax, all of which suggested that perhaps there was a judgment by default. If in fact the judgment was a default judgment, and assuming as I do that Missouri does not generally permit service by email or fax, the judgment should not have entered under Article 15 of the Hague Service Convention.

    I will have a post on this case tomorrow at Letters Blogatory. I don’t think this case should be troubling from the Canadian perspective, for two reasons:

    First, the appellate court did not reverse the judgment; it simply vacated and remanded for further proceedings that complied with the SPEECH Act. From the brief description of the facts in the opinion, this seems like the kind of defamation case that a plaintiff could actually win, even taking the First Amendment into account: the statements, if true, appear plainly defamatory, the Canadian plaintiff was not (as far as I know) a public figure, and the incident related was not a matter of public concern. On the other hand, if the Missouri defendant had no real connection with Canada, then the SPEECH Act’s requirement taht the Canadian court’s exercise of personal jurisdiction should be consistent with American notions of due process of law may be a stumbling block for the plaintiff.

    Second, even before the SPEECH Act, it was very difficult recognition of foreign libel judgments in American courts. Even without the statute, courts often refused to enforce such judgments on public policy grounds. So I don’t think that this case, or the SPEECH Act, signals a new direction in the law.

  4. Antonin I. Pribetic Says:

    Thanks Ted for your comment. I wrote about the lack of comity in a previous post referencing Bangoura v. Washington Post:Sticks and Stones: Libel Tourism and Free Speech
    My point was that the SPEECH Act may well signal a new direction in the law from a Canadian judicial perspective. Comity is a two-way street.

  5. Case of the Day: Sanchez v. Lord « Letters Blogatory Says:

    […] to Antonin I. Pribetic for his post on the case of the day, Sanchez v. Lord (Mo. Ct. App. 2011), the first case of the day applying the […]

  6. US Freedom of Expression and Media Law Round Up – 30 April 2011 « Inforrm's Blog Says:

    […] is a post about the case on the Volokh Conspiracy Blog and, from a Canadian perspective, on the Trial Warrior Blog.  There is a also a news piece on the case […]

  7. Craig Hubley Says:

    Whether this particular case was decided on procedural grounds or not, the Missouri court clearly asserted the requirement and intent of the US SPEECH Act to require of Canadian courts that their entire rationale be subject to examination in the US court convenient to the defendant.

    The term “judgment” is interesting with scare quotes around it. It is isn’t clear what this is meant to imply, but “the full faith and credit clause of the U.S. Constitution. Art. IV.” clearly includes more requirements than simply the registration of oh say a witchcraft “judgment” from Uganda, a homosexuality “judgment” from Iran, a treason “judgment” from Burma, a SLAPP “judgment” from the Prime Minister of Canada, or any other basis for a civil or criminal claim that might be presented from such known human rights abusers, international criminals, perjurers, bribe and fraud artists.

    It would be quite simple to defend against such garnishment on the grounds that Canadian civil courts are hopelessly corrupt with respect to libel suits by powerful individuals, and that no equity of arms whatsoever (no anti-SLAPP law, no access to federal funds for Charter cases, few nonprofit pro bono resources, no legal aid for civil suits) is available when the poor in Canada are defendants.

    To be “entitled to full faith and credit in a Missouri court” and thus to “hearing, judgment and execution” seems to at least require the “judgment” be reviewed with respect to the First Amendment w.r.t. speech and the other amendments with respect to other civil claims based on “judgments” against persons who have the rights to do what they did had it been done within the USA. It will be interesting to see how well argued this case is, but there’s no way that comity should be assumed for public issue reporting or public figures being criticized under the US SPEECH Act, which was deliberately crafted to extinguish the English/Canadian common law of libel and ensure that no American ever heard of it again.

    The US dealt with this problem decisively in Sullivan in 1964 and other Commonwealth countries have also dealt with it since then by establishing broad exemptions for anything even remotely associated with the public interest or right to know. Canada has presented an unfair tangle of abusive nonsense and called it “law” for decades now, and it’s long past time for a reckoning on that, whether it’s this case or not.

    The NY state law called this phenomena “libel terrorism” not “libel tourism”, and this may be an area where the majority of terrorists really DO come from Canada.

  8. Antonin I. Pribetic Says:

    tl;dr. I will disregard the fact that you’re not a lawyer and that you’re a defendant in one of the Wayne Crookes libel actions. I will also disregard the hyperbolic language. What I will not disregard is your veiled contempt for the Canadian legal system and utter lack of understanding that freedom of expression is not absolute. It is one of a number of enumerated personal rights under section 2 of the Charter, which must be balanced with the right of the individual’s personal integrity and reputation. Since you’ve likely read the Supreme Court of Canada’s views on hyperlinking in Crookes v. Newton, you’ll hopefully appreciate that although I have allowed your comment to be published, it does not in any way constitute approval, endorsement or acquiescence to the content of your comment. The fervent hope is that other readers will appreciate that just.because one has a right to free speech, one also has a corresponding duty to read the subject-matter and court decision to leave an informed comment, rather than treating this blog as one’s personal soapbox.

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