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Approach to Jurisdiction under the CJPTA

The British Columbia Court of Appeal’s decision in Stanway v. Wyeth Pharmaceuticals Inc., 2009 BCCA 592 (available here) is an important contribution to the developing Canadian jurisprudence on the Civil Jurisdiction and Proceedings Transfer Act, a statute governing the taking of jurisdiction that has been adopted in several provinces.

A leading common law approach to the question of whether there is a real and substantial connection between a dispute and the forum (the test for jurisdiction) is that outlined in the Court of Appeal for Ontario’s decision in Muscutt v. Courcelles (available here).  There is an ongoing controversy about the extent to which that approach has any relevance after a province has adopted the CJPTA.  This is because the statute sets out an open-ended list of situations in which a real and substantial connection is presumed to exist (s. 10).  However, it remains open to a plaintiff (under s. 3) to otherwise establish such a connection, and on one view the approach in Muscutt is relevant to that analysis.  See in Nova Scotia the decision in Bouch v. Penny (available here).

In Stanway the court expresses considerable hostility towards the Muscutt approach.  It references academic and judicial criticism of the decision, while selectively omitting any reference to the competing academic and judicial support for it.  It makes clear that it has no application in cases that are caught by s. 10.  It does not indicate what should happen in cases outside that section, but the overall tone suggests that it would not welcome using Muscutt in such cases.

Swiss Institute of Comparative Law: Conference on the EU’s Proposal on Succession

ISDC_logo_bmpOn Friday, 19th March 2010, the 22nd Journée de droit international privé, organised by the Swiss Institute of Comparative Law (ISDC) and the University of Lausanne (Center of Comparative Law, European Law and Foreign Legislations), will analyse the Commission’s Proposal on Succession: “Droit international privé des successions – quel futur en Europe et en Suisse?”.

The list of confirmed speakers includes Prof. Andrea Bonomi (Univ. of Lausanne), Prof. Paul Lagarde (Univ. of Paris I – Sorbonne ) and Prof. Oliver Remien (Univ. of Würzburg). A detailed programme and further information will be posted as soon as available.

Text of the Commission’s Proposal on Succession and Wills Finally Available

Following our previous post on the presentation by the Commission of the Proposal for a regulation on succession and wills (COM(2009) 154 fin. of 14 October 2009), the text of the Proposal has been made available on the PreLex website, where the codecision procedure has been filed under no. 2009/0157/COD. Only the English, French and German versions are currently accessible.

The proposal is accompanied by two Commission Staff working documents (in English):

  • doc. n. SEC(2009)410 of 14 October 2009, Impact Assessment;
  • doc. n. SEC(2009)411 of 14 October 2009, Summary of the Impact Assessment.

Direct linking to these supplements does not currently work: to download them, use the search form at the bottom of this page.

European Commission Presents Proposal on Succession and Wills

According to a press release by the DG Freedom, Security and Justice (IP/09/1508), the long-awaited Proposal for a Regulation on succession and wills, whose presentation, initially expected in last March, had been significantly delayed, was finally released on 14 October 2009 by the European Commission.

The official reference should be the following: Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession, COM(2009)154 fin. of 14 October 2009.

The text of the proposed regulation, along with the Commission’s explanatory memorandum, is not yet available on the institutional websites. Interested readers may have a look at the press release and at a basic set of Q&A (MEMO/09/447) prepared by the Commission. References to the preparatory studies, the 2005 Green Paper and the subsequent public consultation can be found in our previous post here.

Manitoba Law Reform Commission Releases Report on Private International Law

The province of Manitoba’s Law Reform Commission has released a report on Private International Law (available here).  It considers three central issues:

1.  Should legislation be adopted to modify the common law choice of law rule for torts as formulated in Tolofson v. Jensen?

2.  Should legislation be adopted regarding the characterization of limitation periods?

3.  Should Manitoba adopt the Uniform Law Conference of Canada’s model Court Jurisdiction and Proceedings Transfer Act?

A secondary question under the first issue is how similar the legislation should be to the English PIL(MP)Act 1995.

Consultation Paper on Jurisdiction

The Law Commission of Ontario has released a consultation paper written by Professor Janet Walker (Osgoode Hall Law School, York University).  The paper (available here) proposes that Ontario’s current law on the taking and retaining of jurisdiction in civil matters is in need of reform.  It offers a proposed statute which would reform the law in this area.  The proposals have some common elements with the Uniform Law Conference of Canada’s model statute, the Court Jurisdiction and Proceedings Transfer Act (available here), but also some important differences.

The Law Commission welcomes comments on the paper, and the process for commenting is explained in the paper.  Beyond this, those generally interested in how countries resolve issues of jurisdiction in civil matters should find the points raised in the paper of interest.

To date three Canadian provinces have moved away from the traditional approach, which is based on a combination of common law and rules of civil procedure, and have brought into force the Court Jurisdiction and Proceedings Transfer Act (British Columbia, Saskatchewan and Nova Scotia).  Some other provinces have enacted the statute but not yet brought it into force, and some other provinces are considering adopting it.