Tag Archive for: jurisdiction

No Independent Jurisdiction Requirement for Proceeding to Enforce a Foreign Judgment in Canada

/in /by

The Supreme Court of Canada has released its decision in Chevron Corp v Yaiguaje (available here).  The issue before the court was whether the Ontario courts have jurisdiction to recognize and enforce an Ecuadorian judgment (for over $US 18 billion) where the foreign judgment debtor Chevron Corporation (“Chevron”) claims to have no connection with the province, whether through assets or otherwise.  On one view, because the process for enforcing a foreign judgment is to commence a new domestic proceeding and thereby sue on the foreign judgment, the enforcement proceeding must have its own independent analysis of jurisdiction.  Put another way, there cannot be a proceeding in respect of which the court does not have to have jurisdiction.  On a different view, because the analysis of the claim on the foreign judgment considers, among other things, the sufficiency of the rendering court’s jurisdiction (Chevron defended on the merits in Ecuador), that is the only required analysis of jurisdiction and there is no need for a separate consideration of the enforcing court’s jurisdiction.  The Supreme Court of Canada, agreeing with the Court of Appeal for Ontario, has held that the latter view is correct.

In summarizing its conclusion (para 3) the court stated “In an action to recognize and enforce a foreign judgment where the foreign court validly assumed jurisdiction, there is no need to prove that a real and substantial connection exists between the enforcing forum and either the judgment debtor or the dispute.  It makes little sense to compel such a connection when, owing to the nature of the action itself, it will frequently be lacking. Nor is it necessary, in order for the action to proceed, that the foreign debtor contemporaneously possess assets in the enforcing forum.  Jurisdiction to recognize and enforce a foreign judgment within Ontario exists by virtue of the debtor being served on the basis of the outstanding debt resulting from the judgment.”

While the court does not say that NO jurisdictional basis is required, it states that the basis is found simply and wholly in the defendant being served with process (see para 27).  This runs counter to the court’s foundational decision in Morguard Investments Ltd v De Savoye, [1990] 3 SCR 1077 which separated the issue of service of process – a pure procedural requirement – from the issue of jurisdiction.  To say the service itself founds jurisdiction is arguably to have no jurisdictional requirement at all.

Interestingly, a recent paper (subsequent to the argument before the court) by Professor Linda Silberman and Research Fellow Aaron Simowitz of New York University (available here) considers the same issue in American law and concludes that the dominant view of courts there remains that an action to enforce a foreign judgment requires a “jurisdictional nexus” with the enforcing forum.  They note that only a minority of countries allow enforcement of a foreign judgment without any jurisdictional threshold for the enforcement proceedings.  They argue that the New York decisions which subsequently are relied on by the Supreme Court of Canada (para 61) are the outliers.

Had the Supreme Court of Canada required a showing of jurisdiction in respect of the enforcement proceeding, it would have had to address how that requirement would be met.  Of course, in most cases it would be easily met by the defendant having assets in the jurisdiction.  The plaintiff would not have to prove that such assets were present: a good arguable case to that effect would ground jurisdiction.  Evidence that assets might, in the future, be brought into the jurisdiction could also suffice.

While the court is correct to note that the considerations in defending the underlying substantive claims are different from those involved in defending enforcement proceedings (para 48), the latter nonetheless allow reasonable scope for defences to be raised, such as fraud, denial of natural justice or contravention of public policy.  With no threshold jurisdiction requirement, judgment debtor defendants will now be required to advance and establish those defences in a forum that may have no connection at all with them or the judgment.

The enforcement proceedings were also brought against Chevron Canada, an indirect subsidiary of Chevron that does have a presence in Ontario, although it is not a named defendant in the Ecuadorian judgment.  The Supreme Court of Canada held that the Ontario court had jurisdiction over Chevron Canada based on its presence, with no need to consider any other possible basis for jurisdiction.  The decision is thus important for confirming the ongoing validity of presence-based jurisdiction (see paras 81-87).

On a pragmatic level, eliminating an analysis of the enforcing court’s jurisdiction may simplify the overall analysis, but hardly by much.  The court notes (para 77) that ” Establishing jurisdiction merely means that the alleged debt merits the assistance and attention of the Ontario courts.  Once the parties move past the jurisdictional phase, it may still be open to the defendant to argue any or all of the following, whether by way of preliminary motions or at trial: that the proper use of Ontario judicial resources justifies a stay under the circumstances; that the Ontario courts should decline to exercise jurisdiction on the basis of forum non conveniens; that any one of the available defences to recognition and enforcement (i.e. fraud, denial of natural justice, or public policy) should be accepted in the circumstances; or that a motion under either Rule 20 (summary judgment) or Rule 21 (determination of an issue before trial) of the Rules should be granted.”  And in respect of Chevron Canada (para 95), the “conclusion that the Ontario courts have jurisdiction in this case should not be understood to prejudice future arguments with respect to the distinct corporate personalities of Chevron and Chevron Canada.  [We] take no position on whether Chevron Canada can properly be considered a judgment-debtor to the Ecuadorian judgment.  Similarly, should the judgment be recognized and enforced against Chevron, it does not automatically follow that Chevron Canada’s shares or assets will be available to satisfy Chevron’s debt.”

Interlocutory Injunction Upheld Against Non-Party (Google Inc.)

/in /by

The British Columbia Court of Appeal has upheld an interlocutory injunction made against Google Inc., a non-party, in litigation between Equustek Solutions Inc. and Datalink Technologies Gateways Inc.  The decision is available here.

The plaintiffs alleged that the defendants had counterfeited their product.  In an effort to prevent the defendants from selling the counterfeit product, which was being done over the internet, the plaintiffs sought and obtained an interlocutory injunction against Google Inc., a Delaware corporation based in California, ordering it to exclude a list of certain web sites from search results.  The aim was to stop customers from finding the defendants.  Google Inc. appealed the injunction on several grounds.

The court concluded that it had in personam jurisdiction over Google Inc. because it conducted business in the province: it advertised to residents of British Columbia and it actively obtained data for use in its search engines in British Columbia.  It held that the fact that Google Inc. was a non-party did not prevent the making of the injunction as against it.  It also held that the fact that the injunction had extraterritorial effects, requiring Google Inc. to take steps outside British Columbia, was not a valid objection.  On these issues the court reviewed several leading United Kingdom cases, including The Siskina, Channel Tunnel Group and South Carolina Insurance.  It also commented favourably on the recent decision in Cartier International AG v British Sky Broadcasting Limited, [2014] EWHC 3354 (Ch.).  Key Canadian authorities relied on include MacMillan Bloedel, BMWE and Minera Aquiline Argentina.

The decision is likely to be important on the question of what it means to carry on business over the internet.

A Court’s Inherent Jurisdiction to Sit Outside its Home Territory

/1 Comment/in /by

Another step in the evolution of the common law on this issue has been taken by the Court of Appeal for Ontario in Parsons v Ontario, 2015 ONCA 158 (available here).  The court disagrees in some respects with the earlier decision, on the same issue, of the British Columbia Court of Appeal in Endean v British Columbia, 2014 BCCA 61 (available here) (discussed by me over a year ago here).  It may be that in light of this conflict the Supreme Court of Canada will end up hearing appeals of either or both decisions.

People infected with the Hepatitis C virus by the Canadian blood supply between 1986 and 1990 initiated class actions in each of Ontario, Quebec and British Columbia.  These actions were settled under an agreement which provided for ongoing administration of the compensation process by a designated judge in each of the three provinces.  In 2012 the issue arose as to whether the period for advancing a claim to compensation could be extended.  Rather than having three separate motions in each of the provinces before each judge to address that issue, counsel for the class proposed a single hearing before the three judges, to take place in Alberta where all of them would happen to be on other judicial business.  In the face of objections to that process, motions were brought in each province to determine whether such an approach was possible.  The initial decision in each province was that a court could sit outside its home province.  The Quebec decision was not appealed but the other two were.

The Court of Appeal for Ontario has now released its decision on the appeal, and the three judges are quite divided.  They divide even over a preliminary issue, namely whether the order made below is “final” or “interlocutory” for purposes of the appeal route.  If it is the former, the appeal is properly brought to the Court of Appeal, but not if it is the latter (in which case the appeal would be to the Divisional Court).  The judges split 2-1 in deciding the order is final.

Turning to the merits, the judges remain divided.  Justice LaForme upholds the order below.  He concludes the court has the inherent jurisdiction to sit outside Ontario and that it can do so without violating the open court principle, even in the absence of a video link to an Ontario courtroom (for spectators and perhaps some lawyers).  Justice Lauwers agrees that the court has the inherent jurisdiction to sit outside Ontario, but that doing so without a video link back to Ontario would be a violation of the open court principle.  He reverses the order below, but only to the extent that he insists on such a link.  Justice Juriansz agrees with the result reached by Justice Lauwers but his reasoning is quite different.  He relies on Ontario’s Rules of Civil Procedure which allow for a motion to be heard by video-conference.  In his view, the proposed hearing outside of Ontario falls within these rules if there is a video link back to an Ontario courtroom.  No resort to inherent jurisdiction is required and the open court principle is not impaired.

I remain somewhat skeptical that the court has the jurisdiction to sit outside the province.  I would rather see such a process addressed by statute rather than through invocation of the court’s inherent powers.  I am also concerned that Justice Juriansz’s approach is something of a fiction, using the video-conference rules to in essence pretend that the hearing is actually being held in the courtroom to which the video feed is transmitted.  I consider such a video link essential, but for me it goes to the question of the open court principle and not to jurisdiction.

A side note: this is my first post in many months.  My sense, and that of many of my colleagues in Canada, is that we have had a dearth of interesting developments in private international law over the past year.

 

Article on special jurisdiction in IP matters, including a comment on Coty

/in /by

DavidoffThe previously reported CJEU decision in Coty Germany GmbH v. First Note Perfumes NV, concerning the infringement of the rights in the 3D Community trade mark, unlawful comparative advertising and unfair imitation, is the subject of a comment by Prof. Annette Kur, in her article Durchsetzung gemeinschaftsweiter Schutz-rechte: Internationale Zuständigkeit und an-wendbares Recht, fortcomming in GRUR Int., Issue 7/8, 2014.

Her criticism is primarily addressing the answer to the first question in which the CJEU reiterated that jurisdiction under Article 93(5) of CTM Regulation may be established solely in favour of CTM courts in the MS in which the defendant committed the alleged unlawful act. This is because she finds an interpretation of the provision contrary to the principle of territoriality of intellectual property rights, both national and unitary. She explains that the effect of this principle is absence of any possibility that there might be a single infringement of an intellectual property right with the event causing damage in one country, and the damage occurring in another. In such a situation there would be two distinct acts of infringement, one in each of the countries. Kur qualifies the CJEU reasoning as a fundamental misunderstanding of the structural features of the intellectual property law that distinguish it from other areas of tort law.

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).

 

Milan Conference on the Reform of the Brussels I Regime (13 December 2013)

/in /by

The University “Luigi Bocconi” of Milan will host on Friday 13 December (9h30 – 13h00) a conference on the recast of the Brussels I reg., organized in collaboration with the International Law Association: “The Reform of the ‘Brussels I’ Regime – The Recast Regulation (EU) No 1215/2012”. A substantial part of the colloquium will be held in English. Here’s the programme (available as a .pdf file):

Welcome Address: Giorgio Sacerdoti (Università Bocconi)

Opening Remarks: Alberto Malatesta (Secretary, ILA-Italy)

Chair: Fausto Pocar (Università degli Studi di Milano)

  • The Revised Brussels I Regulation – A general outlook: The Rt. Hon. Lord Jonathan Mance (Judge, Supreme Court of the UK and Chair, Executive Council, ILA);
  • Does the Recast Regulation Make Choice-of-Court Agreements More Effective?: Gianluca Contaldi (Università di Macerata);
  • The New Rules on Parallel Proceedings with Particular Regard to Relations with Third States: Pietro Franzina (Università degli Studi di Ferrara);
  • The Abolition of Exequatur and the New Rules on the Free Movement of Judgments: Paola Mariani (Università Bocconi).

– – – –

Roundtable (held in Italian): “Il ruolo di Bruxelles I nel contesto globale: quale ruolo per le norme UE?”

Chair: Riccardo Luzzatto (Università degli Studi di Milano)

Speakers:

  • Luigi Fumagalli (Università degli Studi di Milano);
  • Alberto Malatesta (LIUC Università Carlo Cattaneo);
  • Gian Battista Origoni della Croce (Attorney at Law, Milan);
  • Fausto Pocar (Università degli Studi di Milano).

Further information and the registration form are available on the conference’s webpage.

Private International Law in Commonwealth Africa

/in /by

Published this week is Private International Law in Commonwealth Africa (Cambridge University Press, 2013) by Prof. Richard Oppong of Thompson Rivers University. 

From the book’s website:

The book won the 2013 American Society of International Law prize in Private International Law.  The prize ‘recognizes exceptional work in private international law’.  The Secretary General of the Hague Conference on Private International Law, Dr. Christophe Bernasconi, observes in his foreword to the book that: ‘The publication of Private International Law in Commonwealth Africa marks a significant milestone in the history and development of private international law in Africa.  Its encyclopaedic analysis of fifteen national legal systems – which account for over 40 per cent of the continent’s population yet over 70 per cent of its economic output – will go a long way to filling a gap in knowledge in respect of this important region of the world’.

The book offers an unrivalled breadth of coverage in its comparative examination of the laws in Botswana, the Gambia, Ghana, Kenya, Lesotho, Malawi, Namibia, Nigeria, Sierra Leone, South Africa, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.  The book draws on nearly 1500 cases decided by courts in these countries (the majority of which have never been cited in any academic work) and numerous national statutes.  It covers the areas of jurisdiction, choice of law, foreign judgments and arbitral awards enforcement, and international civil procedure.  It also provides an extensive bibliography of the literature on African private international law. 

Copies of the book may be obtained from many sources including the Cambridge UK and Amazon websites (link 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…

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.