Article Challenges Canadian Approach to Jurisdiction

Professor Tanya Monestier of Queen’s University has published an article challenging the approach in some of the leading cases, including Muscutt v. Courcelles, to the taking of jurisdiction over defendants outside the forum: see Tanya J. Monestier, “A ‘Real and Substantial’ Mess: The Law of Jurisdiction in Canada” (2007) 33 Queen’s L.J. 179 (available to those with access to a database containing this journal).

Professor Monestier argues that “By superimposing onto the jurisdictional framework a multiplicity of considerations that are unrelated to the connection between the forum and the action, Muscutt has essentially transformed the question of whether a court can hear a case (jurisdiction simpliciter) into the question of whether a court should hear a case (forum non conveniens).”

In her conclusions Professor Monestier stresses the importance of certainty in the jurisdictional inquiry and argues, in the (in)famous language of Tolofson v. Jensen, for “order” over “fairness”.