The Supreme Court of Canada, in Office of the Children’s Lawyer v Balev (available here), has evolved the law in Canada on the meaning of a child’s habitual residence under Article 3 of the Hague Convention. The Convention deals with the return of children wrongfully removed from the jurisdiction of their habitual residence.
Shortly before Christmas the UKSC released its decision on jurisdiction in Brownlie v Four Seasons Holdings Incorporated (available here). Almost all the legal analysis is obiter dicta because, on the facts, it emerges that no claim against the British Columbia-based holding corporation could succeed (para 15) and the appeal is allowed on that basis. I suppose there is a back story as to why it took a trip to the UKSC and an extraordinary step by that court (para 14) for the defendant to make those facts clear, but I don’t know what it is. On the facts there are other potential defendants to the plaintiffs’ claim and time will tell whether jurisdictional issues arise for them.
In Beaver v Hill, 2017 ONSC 7245 (available here) the applicant sought custody, spousal support and child support. All relevant facts happened in Ontario.
Readers of this blog might be interested in Roxana Banu, “A Relational Feminist Approach to Conflict of Laws” (2017) 24 Mich. J. Gender & L. 1. It can be accessed through SSRN at this location.
The Supreme Court of Canada has upheld, by a 7-2 decision, an injunction issued by lower courts in British Columbia requiring Google, a non-party to the litigation, to globally remove or “de-index” the websites of the defendant so that they do not appear in any search results. This is the first such decision by Canada’s highest court.
In 2011 Facebook, Inc. used the name and picture of certain Facebook.com members as part of an advertising product. In response, a class action was started in British Columbia on behalf of roughly 1.8 million British Columbia residents whose name and picture had been used. The claim was based on section 3(2) of the province’s Privacy Act. In response, Facebook, Inc. sought a stay of proceedings based on an exclusive jurisdiction clause in favour of California contained in the contracts of use for all Facebook.com members.
In Re Walter Energy Canada Holdings, Inc, 2017 BCSC 709 (available here) the British Columbia Supreme Court had to consider the validity of a large claim (over $1 billion) filed in restructuring proceedings underway in the province under federal legislation. The claim was for unfunded pension liabilities and was based on an American statute, the Employee Retirement and Income Security Act of 1974, 29 U.S.C. § 1001. So the court had to consider whether that statute could apply to a claim in British Columbia against entities organized in Canada (mostly in British Columbia).
Ontario has enacted and brought into force the International Commercial Arbitration Act, 2017, SO 2017, c 2, Sched 5 (available here) to replace its previous statute on international commercial arbitration. The central feature of the new statute is that it provides that BOTH the 1958 New York Convention and the 1985 Model Law have the force of law in Ontario. Previously, when Ontario had given the Model Law the force of law in Ontario it had repealed its statute that had given the New York Convention the force of law in Ontario. This made Ontario an outlier within Canada since the New York Convention has the force of law in all other provinces (as does the Model Law).
Halsbury’s Laws of Canada (first edition) has published a reissue (September 2016) of its volume on Conflict of Laws. It is written by Professor Janet Walker, the author of the leading Canadian textbook in the field. The reissue is highly detailed with over 260 pages of tables (cases, conventions, legislation), an index and a glossary. The substantive content runs to over 600 pages including lengthy footnotes. The reissue can be purchased as a stand-alone reference (without buying the entire Halsbury’s collection) for conflict of laws in Canada (publisher information available here).
In Endean v British Columbia, 2016 SCC 42 (available here) the Supreme Court of Canada has held that “In pan-national class action proceedings over which the superior court has subject-matter and personal jurisdiction, a judge of that court has the discretion to hold a hearing outside his or her territory in conjunction with other judges managing related class actions, provided that the judge will not have to resort to the court’s coercive powers in order to convene or conduct the hearing and the hearing is not contrary to the law of the place in which it will be held” (quotation from the court’s summary/headnote).