Tag Archive for: article

Recent Canadian Conflicts Scholarship

The following articles about conflict of laws in Canada were published over the past year or so:

Brandon Kain, “Solicitor-Client Privilege and the Conflict of Laws” (2012) 90 Can Bar Rev 243-99

Christina Porretta, “Assessing Tort Damages in the Conflict of Laws: Loci, Fori, Illogical” (2012) 91 Can Bar Rev 97-134

Matthew E Castel, “Anti-Foreign Suit Injunctions in Common Law Canada and Quebec Revisited” (2012) 40 Adv Q 195-212

Nicholas Pengelley, “‘We all have too much Invested to Stop’: Enforcing Chevron in Canada” (2012) 40 Adv Q 213-32

These are in addition to the several articles, mentioned in an earlier post, about the Supreme Court of Canada’s decision in Club Resorts.

Electronic access to these articles depends on the nature of the subscriptions.  Some journals are available immediately through aggregate providers like HeinOnline while others delay access for a period of months or years.


Articles on the SCC’s Van Breda v Club Resorts

Things have been pretty quiet on the conflict of laws front in Canada over the past several months.  But lower courts and academics have been working to understand the new framework for taking jurisdiction set out in April 2012 by the Supreme Court of Canada in Van Breda v Club Resorts (available here).

Several useful articles have now been written about this decision:

Tanya Monestier, “(Still) a ‘Real and Substantial’ Mess: The Law of Jurisdiction in Canada” (2013) 36 Fordham International Law Journal 396

Vaughan Black, “Simplifying Court Jurisdiction in Canada” (2012) 8 Journal of Private International Law 411

Joost Blom, “New Ground Rules for Jurisdictional Disputes: The Van Breda Quartet” (2012) 53 Canadian Business Law Journal 1

Brandon Kain, Elder Marques & Byron Shaw, “Developments in Private International Law: The 2011-12 Term – The Unfinished Project of the Van Breda Trilogy” (2012) 59 Supreme Court Law Review (2d) 277

In addition, two reference works contain discussion and analysis of the case: Walker, Castel & Walker: Canadian Conflict of Laws, 6th ed looseleaf (Markham, ON: LexisNexis Butterworths, 2005–) and Black, Pitel & Sobkin, Statutory Jurisdiction: An Analysis of the Court Jurisdiction and Proceedings Transfer Act.  The former is a looseleaf and the most recent releases discuss the case in detail.  The latter is a text which was published after the case was decided.

Recent Canadian Conflicts Articles

The following articles about conflict of laws in Canada were published over the past year or so:

Elizabeth Edinger, “Is Duke v Andler Still Good Law in Common Law Canada?” (2011) 51 Can Bus LJ 52-75

Matthew E Castel, “The Impact of the Canadian Apology Legislation when Determining Civil Liability in Canadian Private International Law” (2012) 39 Adv Q 440-451

Nicholas Pengelley, “This Pig Won’t Fly: Death Threats as Grounds for Refusing Enforcement of an Arbitral Award” (2010) 37 Adv Q 386-402

Tanya Monestier, “Is Canada the New ‘Shangri-La’ of Global Securities Class Actions?” (2012) 32 Northwestern Journal of International Law and Business _.

Electronic access to these articles depends on the nature of the subscriptions.  Some journals are available immediately through aggregate providers like HeinOnline while others delay access for a period of months or years.

Article on Global Class Actions in Canada

Associate Professor Tanya Monestier of the Roger Williams University School of Law has written an article on the willingness of Canadian courts to hear class actions involving a global plaintiff class. It is entitled “Is Canada the New ‘Shangri-La’ of Global Securities Class Actions?” and is forthcoming in 2012 in the Northwestern Journal of International Law and Business. The article is available here from SSRN.

The abstract reads:

There has been significant academic buzz about Silver v. Imax, an Ontario case certifying a global class of shareholders alleging statutory and common law misrepresentation in connection with a secondary market distribution of shares. Although global class actions on a more limited scale have been certified in Canada prior to Imax, it can now be said that global classes have “officially” arrived in Canada. Many predict that the Imax decision means that Ontario will become the new center for the resolution of global securities disputes. This is particularly so after the United States largely relinquished this role last year in Morrison v. National Australia Bank.

Whether Imax proves to be a meaningful precedent or simply an aberration will largely depend on whether the court dealt appropriately with the conflict of laws issues at the heart of the case. No author has yet addressed the conflict of laws complications posed by the certification of global class actions in Canada; this Article seeks to fill that void. In particular, I use the Imax case as a lens through which to canvass the conflict of laws issues raised by the certification of global classes. I look at the difficult questions of jurisdiction simpliciter, recognition of judgments, choice of law, parallel proceedings, and notice/procedural rights that need to be addressed now that global classes have come to Canada.

Looking Back and Looking Forward at Canadian Private International Law

At the recent 40th Annual Workshop on Commercial and Consumer Law at the University of Toronto, three leading Canadian conflict of laws scholars – Vaughan Black of the Schulich School of Law, Joost Blom of the University of British Columbia and Janet Walker of Osgoode Hall Law School – presented a paper looking back at the last forty years in private international law and offering thoughts on what lies ahead.  Each author picked out a particular theme: a judicial trend toward uniformity between provincial conflicts rules, the impact of Morguard on the structure of conflicts rules, and how the profile of the field has changed over time.  The paper is not currently available on the web but will be published in an upcoming issue of the Canadian Business Law Journal.

The paper was supplemented at the Workshop by Genevieve Saumier of McGill University’s oral comments on trends in Quebec’s private international law.  The session was chaired by Elizabeth Edinger of the University of British Columbia.

A Network for Legislative Cooperation

A Resolution of the Council and of the Representatives of the Governments of the Member States, on the establishment of a Network for legislative cooperation between the Ministries of Justice of the European Union has been published in OJ C 326, 20.12.2008. The Resolution acknowledges that obtaining information about foreign law may prove unpredictable and complicated; therefore, a network for legislative cooperation should be set up to give effective access to the national legislation of other Member States. Unfortunately, although the Council’s Resolution bears in mind the “objective of providing [European] citizens with an area of freedom, security and justice”, she addresses the problem mainly regarding Ministries of Justice concerns (first Whereas: “Knowledge of the legislation of other Member States or even of certain third countries is an essential tool for the Ministries of Justice of the Member States of the European Union, in particular for drafting legislation and for transposing lawof the European Union”). They (the Ministries of  Justice) will be the senders and addresses of the requests for information.

To build the net, each Member State should designate a correspondent -or a limited number of other correspondents if this were considered necessary because of the existence of separate legal systems or the domestic distribution of competences. The Network should in particular provide its members with coherent and up-to-date information on legislation, and with case-law on selected  subjects; make accessible the results of comparative law research carried out by or for the Ministries of Justice of each State in fields of law falling within the sphere of competence of those Ministries, including in the context of reforms carried out by the Member States or of transposition of law of the European Union; and be aware of major legal reform projects.

The Resolution does note indicate any closing date (not even an approximated one) for the creation of the network.