Tag Archive for: jurisdiction

Not So Fast: Canadian Courts Cannot Sit Everywhere

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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)

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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

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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?

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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

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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

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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.

New Book on Court Jurisdiction and Proceedings Transfer Act

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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.

 

Book: Pocar – Viarengo – Villata (Eds.), Recasting Brussels I

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The Italian publishing house CEDAM has published a new volume on the review of the Brussels I regulation: “Recasting Brussels I“. The book, edited by Fausto Pocar, Ilaria Viarengo and Francesca Clara Villata (all from the Univ. of Milan) includes twenty-five papers divided into five parts, devoted to the scope of application (I), rules on jurisdiction (II), choice-of-court agreements (III), coordination of proceedings (IV) and recognition and enforcement of judgments (V).

Here’s the table of contents (.pdf file):

PART I – SCOPE OF APPLICATION

  • Rainer Hausmann, The Scope of Application of the Brussels I Regulation;
  • Ilaria Viarengo, The Removal of Maintenance Obligations from the Scope of Brussels I;
  • Claudio Consolo – Marcello Stella, Brussels I Regulation Amendment Proposals and Arbitration;
  • Peter Kindler, Torpedo Actions and the Interface between Brussels I and International Commercial Arbitration;
  • Stefano Azzali – Michela De Santis, Impact of the Commission’s Proposal to Revise Brussels I Regulation on Arbitration Proceedings Administered by the Chamber of Arbitration of Milan.

PART II – RULES ON JURISDICTION

  • Burkhard Hess, The Proposed Recast of the Brussels I Regulation: Rules on Jurisdiction;
  • Riccardo Luzzatto, On the Proposed Application of Jurisdictional Criteria of Brussels I Regulation to Non-Domiciled Defendants;
  • Fausto Pocar, A Partial Recast: Has the Lugano Convention Been Forgotten?;
  • Alexander R. Markus, Harmonisation of the EU Rules of Jurisdiction Regarding Defendants Outside the EU. What About the Lugano Countries?;
  • Ruggiero Cafari Panico, Forum necessitatis. Judicial Discretion in the Exercise of Jurisdiction;
  • Marco Ricolfi, The Recasting of Brussels I Regulation from an Intellectual Property Lawyer’s Perspective;
  • Eva Lein, Jurisdiction and Applicable Law in Cross-Border Mass Litigation;
  • Zeno Crespi Reghizzi, A New Special Forum for Disputes Concerning Rights in Rem over Movable Assets: Some Remarks on Article 5(3) of the Commission’s Proposal.

PART III – CHOICE-OF-COURT AGREEMENTS

  • Ilaria Queirolo, Prorogation of Jurisdiction in the Proposal for a Recast of the Brussels I Regulation;
  • Christian Kohler, Agreements Conferring Jurisdiction on Courts of Third States;
  • Francesca C. Villata, Choice-of-Court Agreements in Favour of Third States’ Jurisdiction in Light of the Suggestions by Members of the European Parliament.

PART IV – COORDINATION OF PROCEEDINGS

  • Luigi Fumagalli, Lis Alibi Pendens. The Rules on Parallel Proceedings in the Reform of the Brussels I Regulation;
  • Pietro Franzina, Successive Proceedings over the Same Cause of Action: A Plea for a New Rule on Dismissals for Lack of Jurisdiction;
  • Lidia Sandrini, Coordination of Substantive and Interim Proceedings;
  • Cristina M. Mariottini, The Proposed Recast of the Brussels I Regulation and Forum Non Conveniens in the European Union Judicial Area.

PART V – RECOGNITION AND ENFORCEMENT OF JUDGMENTS

  • Sergio M. Carbone, What About the Recognition of Third States’ Foreign Judgments?;
  • Thomas Pfeiffer, Recast of the Brussels I Regulation: The abolition of Exequatur;
  • Stefania Bariatti, Recognition and Enforcement in the EU of Judicial Decisions Rendered upon Class Actions: The Case of U.S. and Dutch Judgments and Settlements;
  • Manlio Frigo, Recognition and Enforcement of Judgments on Matters Relating to Personality Rights and the Recast Proposal of the Brussels I Regulation;
  • Marco De Cristofaro, The Abolition of Exequatur Proceedings: Speeding up the Free Movement of Judgments while Preserving the Rights of the Defense.

– – –

Title: Recasting Brussels I, edited by F. Pocar, I. Viarengo and F.C. Villata, CEDAM (Series: Studi e pubblicazioni della Rivista di diritto internazionale privato e processuale – Volume 76), Padova, 2012, XXIV – 382 pages.

ISBN 9788813314699. Price: EUR 32,50. Available at CEDAM.

(Many thanks to Prof. Francesca Villata for the tip-off)

New Canadian Framework for Assumption of Jurisdiction

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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

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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.