Archive for the ‘Adjudicative Jurisdiction’ Category
May 10, 2013
Tanya J. Monestier (Roger Williams University School of Law) has published “(Still) a ‘Real and Substantial’ Mess: The Law of Jurisdiction in Canada”, Fordham International Law Journal, Vol. 36, p. 397, 2013/Roger Williams Univ. Legal Studies Paper No. 136. The abstract reads:
In April 2012, the Supreme Court of Canada released the most important decision on personal jurisdiction in over twenty years. The Van Breda decision was intended to clarify, once and for all, the application of the “real and substantial connection” test to ex juris defendants. The Supreme Court in Van Breda adopted an approach to the real and substantial connection test that relied on the plaintiff fitting himself within one of four presumptive factors in order to establish jurisdiction: (a) The defendant is domiciled or resident in the province; (b) The defendant carries on business in the province; (c) The tort was committed in the province; (d) A contract connected with the dispute was made in the province. The Court also left open the possibility of creating additional presumptive factors in the future. The presumptive factors approach was intended to re-orient the jurisdictional test toward objective factual connections between the forum and the cause of action and to establish a simple and predictable framework for courts to use in making jurisdictional determinations. In this Article, I comprehensively examine the new presumptive factors approach to jurisdiction adopted by the Supreme Court in Van Breda with a view to exposing its shortcomings. I argue that this approach to jurisdiction – while simple and predictable on its face – will actually complicate jurisdictional determinations for the foreseeable future. Litigants will try to find creative ways to fit themselves within one of these four factors. And courts will spend years unpacking and defining the contours of the four presumptive factors. I also argue that the Court in Van Breda failed to provide meaningful guidance on how all pieces of the jurisdictional puzzle fit together. Among the outstanding questions: How does the real and substantial connection test work in non-tort cases? How do the traditional jurisdictional bases of consent and presence fit into the jurisdictional mix? Can the forum of necessity doctrine be reconciled with the real and substantial connection test? How does the test apply to the enforcement of foreign judgments? The Court simply left these hard questions until later. In short, while the Court in Van Breda was on the right track, it got derailed – which may ultimately mean another twenty years until the outstanding jurisdictional issues are sorted out.
Download a copy of the article at SSRN here.
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Tags:Fordham International Law Journal, Jurisdiction, Lawsuit, Supreme Court
Posted in Adjudicative Jurisdiction, assumed jurisdiction, Charron Estate, civil jurisdiction, Civil Litigation, civil procedure, forum non conveniens, International, international commercial litigation, international dispute resolution, international law, international litigation, jurisdiction, jurisdiction simpliciter, personal jurisdiction, subject-matter jurisdiction, Supreme Court of Canada, Tanya J. Monestier, Territorial Jurisdiction, Van Breda, Van Breda v. Village Resorts Ltd. | Leave a Comment »
December 14, 2012
What do the recently foiled castration and murder-for-hire plot against Justin Beiber and the Catholic Church have in common? More than meets the eye.
William A. Frosch, in an article entitled “The sopranos: post-op virtuosi”, April 2006 The FASEB Journal vol. 20 no. 6 595-597 provides some historical context on castration: (more…)
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Tags:Bridge-Builder, Catholic Church, Pope, Pope Benedict, Pope Benedict XVI, Twitter, Vatican
Posted in castration, Catholic Church, Justin Bieber, Pope Benedict XVI | 1 Comment »
June 23, 2011
In Viroforce Systems Inc. v. R&D Capital Inc., 2011 BCCA 260 (CanLII), the British Columbia Court of Appeal has expressly endorsed Justice Laskin’s analytical approach to consent-based jurisdiction in Momentus.ca Corp. v. Canadian American Assn. of Professional Baseball Ltd., 2010 ONCA 722 (CanLII),2010 ONCA 722 at paras. 35 to 39, 325 D.L.R. (4th) 685, leave to appeal granted [2010] S.C.C.A. No. 473. (more…)
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Tags:British Columbia Court of Appeal, BritishColumbia, Forum selection clause, Supreme Court of British Columbia
Posted in "strong cause" test, Adjudicative Jurisdiction, CJPTA, conflict of laws, consent-based jurisdiction, Court Jurisdiction and Proceedings Transfer Act, exclusive jurisdiction clause, forum selection, forum selection clause, international commercial litigation, international litigation, jurisdiction, jurisdiction simpliciter, private international law, Territorial Jurisdiction, The Eleftheria, Z.I. Pompey | Leave a Comment »
June 23, 2011
Susan Brown of Fraser Milner Casgrain LLP provides a thorough analysis of the current state of the law of jurisdiction in Ontario in “Governing Law Clauses: Jurisdiction, An Evolving Area of Law in Ontario (2011 Update)“.
The updated paper (originally presented at the 2010 CCLA Solicitors Conference) discusses, inter alia, the Court of Appeal for Ontario decisions in Van Breda v. Village Resorts Limited, 2010 ONCA 84 and Momentous.ca Corporation v. Canadian American Association of Professional Baseball Ltd., 2010 ONCA 722 (CanLII), 2010 ONCA 722, 103 O.R. (3d) 467, both of which have wended their way to the Supreme Court of Canada.
I commend Brown’s article to civil and commercial litigators,corporate counsel, legal academics and law students.
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Tags:Ontario, Law, Supreme Court of Canada, Canadian American Association of Professional Baseball
Posted in international litigation, private international law, transnational litigation, conflict of laws, forum non conveniens, jurisdiction, litigation, forum selection clause, forum of necessity, jurisdiction simpliciter, real and substantial connection, service ex juris, exclusive jurisdiction clause, The Eleftheria, forum selection, Van Breda, assumed jurisdiction, Adjudicative Jurisdiction, Territorial Jurisdiction, consent-based jurisdiction, Z.I. Pompey, presence-based jurisdiction, Van Breda v. Village Resorts Ltd., attornment, "strong cause" test | Leave a Comment »
June 2, 2011
Following in the wake of the Ontario Court of Appeal’s decision in Momentous.ca Corporation v. Canadian American Association of Professional Baseball Ltd., 2010 ONCA 722 (CanLII), 2010 ONCA 722, 103 O.R. (3d) 467 (see my backgrounder here and here), the recent Ontario Superior Court of Justice decision in Harster Greenhouses v. Visser International, 2011 ONSC 2608 (CanLII) (“Harster”) further blurs the conceptual distinction between attornment and submission under consent-based jurisdiction. In doing so, it unnecessarily imputes the “strong cause” test into the jurisdictional equation. (more…)
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Tags:Civil procedure, Court of Appeal for Ontario, Ontario Court of Appeal, Ontario Superior Court of Justice
Posted in Adjudicative Jurisdiction, Amchem, conflict of laws, consent-based jurisdiction | Leave a Comment »
Antonin I. Pribetic
