Tag Archive for: Canada

Not So Fast: Canadian Courts Cannot Sit Everywhere

/in /by

In an earlier post I discussed three first-instance decisions of Canadian courts, one from each of Ontario, British Columbia and Quebec, holding that the court could, at its discretion, sit outside the province.

Two of those decisions were appealed and one appeal has now been decided.  In Endean v British Columbia, 2014 BCCA 61 (available here) the Court of Appeal has reversed the lower court’s decision in British Columbia and called into question the other two lower court decisions.

The court held (at para 82) that “British Columbia judges cannot conduct hearings that take place outside the province. Such a major law reform is for the legislature to determine.”  The court did note that “There is, however, no objection to a judge who is not personally present in the province conducting a hearing that takes place in a British Columbia courtroom by telephone, video conference or other communication medium”.

The reasoning of the Court of Appeal echoes that in a comment written about the three first-instance decisions by Vaughan Black and Stephen G.A. Pitel entitled “Out of Bounds: Can a Court Sit Outside its Home Jurisdiction?” (currently available only through access to (2013) 41 Advocates’ Quarterly 503).

 

Canadian Conferences with Conflicts Components

/in /by

Two Canadian conferences upcoming this autumn have sessions devoted to the conflict of laws.

The University of Windsor is hosting “Justice Beyond the State: Transnationalism and Law”  on September 20-21, 2013.   One session is entitled “Private International Law, Comity, Judicial Co-ordination” and another is entitled “Private International Law, the Foreign within the Domestic”.  Additional information is available here.

McGill University is hosting the 43rd Annual Workshop on Commercial and Consumer Law on October 11-12, 2013.  The closing session is entitled “International Jurisdiction after Club Resorts v. Van Breda“.  Additional information is available here.

Can a Court Sit Outside its Territorial Jurisdiction?

/2 Comments/in /by

In Parsons v The Canadian Red Cross Society, 2013 ONSC 3053 (available here), Winkler CJ (of the Court of Appeal, here sitting down in the Superior Court of Justice) has held that a judge of the SCJ can sit as such outside Ontario.  No authority, it seems, requires the SCJ to sit only in Ontario.

The decision seems to me, at least on an initial reading, largely based on pragmatism.  It seems efficient to so allow and so the court does.  But I have some preliminary sense that there are some larger concerns here that are not being fully thought through.  The place where a court sits seems awfully fundamental to its existence and authority as a court.  In addition, the brushing aside of concerns about the open court principle (see paras 48-50) seems too minimal.

Part of the decision is based on Morguard and the federal nature of Canada (see para 25), so maybe the judge could not so sit outside Canada?

For news coverage of the decision, see this story.

Could this idea get pushed beyond the fairly narrow bounds of this case?  Say a case is started in Ontario and the defendant seeks a stay in favour of Alberta because of all the factual connections to that province.  Could the plaintiff, if otherwise likely to see the proceedings in Ontario get stayed, ask the court to have one of its judges hear the case in Alberta, sitting as a judge of the Ontario court?  That way the plaintiff gets an Ontario judgment and the defendant gets the case heard in Alberta…

Recent Canadian Conflicts Scholarship

/in /by

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.

 

Ontario Court Refuses to Hear Chevron/Ecuador Enforcement Action

/in /by

As many of you know, in 2011 several residents of Ecuador won a judgment in the courts of that country against Chevron Corporation for some $18 billion.  In 2012 the successful plaintiffs sued Chevron Corporation and Chevron Canada Ltd. in Ontario, seeking to have the Ecuadorian judgment enforced there.  The defendants brought a motion challenging the Ontario court’s jurisdiction to hear the action.  The Ontario Superior Court of Justice has now released its decision, siding with the defendants.  The decision has not yet been posted on CanLII but is available here.  The plaintiffs’ lawyer has publicly indicated that his clients will appeal.

Key aspects of the decision have been summarized by Roger Alford on the Opinio Juris website (here).

 

Articles on the SCC’s Van Breda v Club Resorts

/in /by

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

/in /by

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.

New Book on Court Jurisdiction and Proceedings Transfer Act

/in /by
Thomson Reuters Carswell has just published Statutory Jurisdiction: An Analysis of the Court Jurisdiction and Proceedings Transfer Act by Vaughan Black, Stephen G.A. Pitel and Michael Sobkin.  More information is available here.
 
The Court Jurisdiction and Proceedings Transfer Act puts the important topic of the jurisdiction of Canadian provincial courts in civil and commercial cases on a clearer statutory footing.  It is in force in British Columbia, Saskatchewan and Nova Scotia.  The approach to jurisdiction adopted under the CJPTA is different in several respects from the common law approach, and so provinces that have adopted it are undergoing a period of transition.  One of the key issues for courts in applying the CJPTA is interpreting its provisions and explaining how they operate.  Statutory Jurisdiction: An Analysis of the Court Jurisdiction and Proceedings Transfer Act examines the growing body of cases and provides a comprehensive account of how the CJPTA is being interpreted and applied by the courts. 
 
The Supreme Court of Canada has, in its April 2012 decisions on jurisdiction, indicated a willingness to develop the common law in a way that is highly mindful of the approach taken under the CJPTA.  As a result, the analysis of the CJPTA will also be of use to those in Canadian common law provinces and territories that have not enacted the CJPTA. 
 
The book may also appeal as a comparative law resource on conflict of laws, especially to those interested in how traditional rules can be affected, directly and indirectly, by statutory reform.

 

New Canadian Framework for Assumption of Jurisdiction

/in /by

After 13 months the Supreme Court of Canada has finally released its decisions in four appeals on the issue of the taking and exercising of jurisdiction.  The main decision is in Club Resorts Ltd v Van Breda (available here) which deals with two of the appeals.  The other two decisions are Breeden v Black (here) and Editions Ecosociete Inc v Banro Corp (here).

The result is perhaps reasonably straightforward: in all four cases the court upholds the decisions of both the motions judges and the Court of Appeal for Ontario.  All courts throughout held that Ontario had jurisdiction in these cases and that Ontario was not a forum non conveniens.

The reasoning is more challenging, and it will take some time for academics, lawyers and lower courts to work out the full impact of these decisions.  The court’s reasoning differs in several respects from that of the courts below.

The court notes that a clear distinction needs to be drawn between the constitutional and private international law dimensions of the real and substantial connection test.  This is an interesting observation, particularly in light of the fact that the court’s own decision is not as clear on this distinction as it could be.  I expect that going forward there will be different interpretations of what the court is truly saying on this issue.

The court is reasonably clear that the real and substantial connection test should not be used as a conflicts rule in itself.  It is not a rule of direct application.  Rather, it is a principle that informs more specific private international law rules governing the taking of jurisdiction.  This is a change from the approach used by provincial appellate courts, especially the Court of Appeal for Ontario, which arguably had been using the real and substantial connection test as its rule, at least in part, for establishing jurisdiction in service ex juris cases.

The court states that it is establishing the framework for the analysis of jurisdiction.  Going forward, a real and substantial connection must be found through a “presumptive connecting factor” which is a factor that triggers a presumption of such a connection.  The presumption can be rebutted.  If the plaintiff cannot establish such a presumption, the court cannot take jurisdiction.  This last point is perhaps the largest change made to the law.  On the law as it stood, the plaintiff could establish jurisdiction through a variety of non-presumptive factual connections that collectively amounted to a real and substantial connection to the forum.  That approach is rejected by the Supreme Court of Canada.

The court does not purport to set out a complete list of presumptive connections.  It confines itself to identifying some such connections that could apply in tort cases, namely that (a) the defendant is domiciled or resident in the forum, (b) the defendant carries on business in the forum, (c) the tort was committed in the forum, and (d) a contract connected with the dispute was made in the forum.  It is quite open, on the language in the decisions, as to what other presumptive connections lower courts will need to be finding in other cases.  One possible solution is that lower courts will largely continue to follow the recent approach of the Court of Appeal for Ontario that the enumerated bases for service ex juris, subject to some exceptions, amount to such presumptive connections.

The decisions also address the test for the doctrine of forum non conveniens.   Three points can be made about that analysis.  First, the language suggests the burden is always on the defendant/moving party.  Second, emphasis is placed on “clearly” in “clearly more appropriate”, suggesting that it will be harder to displace the plaintiff’s choice of forum.  Third, the court cautions against giving too much weight to juridical advantage factors.  Judges should avoid invidious comparisons across forums and refrain from “leaning too instinctively” in favour of the judge’s own forum.

The decisions are not a radical break with the earlier cases but they do change the law on taking jurisdiction in several respects.  In addition, the court makes several points along the way, as asides, that will impact other aspects of the conflict of laws.  For example, the court confirms the propriety of taking jurisdiction based on the defendant’s presence in the forum.

Supreme Court of Canada Affirms Importance of Jurisdiction Agreements

/in /by

In Momentous.ca Corp v Canadian American Assn of Professional Baseball Ltd, 2012 SCC 9 (available here) the court has affirmed its willingness to give effect to exclusive jurisdiction agreements in favour of a foreign forum. 

The decision is brief (12 paragraphs) and was released only just over a month after the case was argued.  It is a unanimous decision by the seven judges. 

Academic commentary about the decision has been quite mixed.  I am not aware that anyone thinks the decision is wrong.  There is much consensus that the court reached the correct result: the defendant should have been able to rely on the jurisdiction agreement in favour of North Carolina to resist proceedings in Ontario.  But there is much disagreement about the quality of the brief reasons.

One problem I have with the reasons is that I think the court confuses a dismissal of proceedings based on a lack of jurisdiction with a stay of proceedings.  Despite the words used, my sense is that what the defendants were seeking was a stay, not a dismissal.  The court’s repeated references to discretion (paras 9 and 10) are because what the court is really considering is a stay.  There is no discretion in the assessment of jurisdiction: the court either has it or does not have it as a matter of law.  Yet the court repeatedly refers to the remedy as a dismissal rather than a stay.  This is a mixing of two fundamentally different concepts.  If we take the court at its word, there is now the discretion to hold a court lacks jurisdiction.

The court relies on Rule 21.01(3)(a) which deals with challenges based on the court’s lack of subject matter jurisdiction.  In my view, that is not the basis for motions seeking to enforce jurisdiction clauses.  Such clauses do not deprive a court of jurisdiction over subject matter.  Absent the clause the court clearly had jurisdiction over the subject matter of the dispute.  If no one had invoked the clause the litigation would have carried on in Ontario.  And is there any doubt that a jurisdiction clause in favour of Ontario, rather than a foreign forum, is a matter of territorial jurisdiction and not subject matter jurisdiction?  Parties cannot confer subject matter jurisdiction on a court by contract.  Yet in the wake of this decision, we now have to grapple with the notion that jurisdiction clauses are about subject matter jurisdiction, not territorial jurisdiction.

There are many other interesting issues left unresolved by the court, so the brevity of the decision is a disappointment.