Conflict of Laws header image

Archive

Stephen Pitel

One of the points of interest in the Supreme Court of Canada’s recent decision in Haaretz.com v Goldhar (available here) concerns the appropriateness of the plaintiff’s undertaking to pay the travel and accommodation costs of the defendant’s witnesses, located in Israel, to come to the trial in Ontario.  The defendant had raised the issue of the residence of its witnesses as a factor pointing to Israel being the more appropriate forum.  The plaintiff, one presumes, made a strategic decision to counter this factor by giving the undertaking.

The decision to stay proceedings under the doctrine of forum non conveniens is discretionary, which in part means that appeal courts should be reluctant to reverse the decisions of motions judges on the issue.  It comes as some surprise, therefore, that the Supreme Court of Canada has disagreed with not only the motions judge but also the Court of Appeal for Ontario and overturned two earlier decisions denying a stay.  In Haaretz.com v Goldhar (available here) the court held (in a 6-3 decision) that the plaintiff’s libel proceedings in Ontario should be stayed because Israel is the clearly more appropriate forum.

The most recent issue of the Osgoode Hall Law Journal (available here) is a special issue, guest edited by Janet Walker, Gerard Kennedy and Sagi Peari, considering the Court Jurisdiction and Proceedings Transfer Act.  This statute governs the taking of jurisdiction and both staying and transferring proceedings in civil and commercial matters in three Canadian provinces: British Columbia, Nova Scotia and Saskatchewan.

New Article: Jurisdiction Clauses in Canada

Tanya Monestier (Roger Williams University School of Law) has published an article (available here) addressing the Supreme Court of Canada’s decision in Douez v Facebook, Inc. (available here).

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.

A majority of the court identifies [paras 4 and 39ff] three possible approaches to habitual residence: the parental intention approach, the child-centred approach, and the hybrid approach.  The parental intention approach determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives.  This approach has been the dominant one in Canada.  In contrast, the hybrid approach, instead of focusing primarily on either parental intention or the child’s acclimatization, looks to all relevant considerations arising from the facts of the case.  A majority of the court, led by the (now retired) Chief Justice, holds that the law in Canada should be the hybrid approach [paras 5 and 48].  One of the main reasons for the change is that the hybrid approach is used in many other Hague Convention countries [paras 49-50].

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.

New Article: Conflict of Laws and Relational Feminism

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 specific context is transnational surrogacy arrangements, but much of the article goes beyond that to other areas of the field more generally.  The article engages with work by several other scholars who write about theories or philosophies of private international law.

The Abstract is below.

Worldwide Removal Order Upheld Against Google

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.

Law on Jurisdiction Clauses Changes in Canada

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.