Archive for the ‘Adjudicative Jurisdiction’ Category

Tanya J. Monestier, “(Still) a ‘Real and Substantial’ Mess: The Law of Jurisdiction in Canada”

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.

Sorry, Pope: I’m Neither a Belieber Nor a Believer

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…)

Viroforce Systems Inc. v. R&D Capital Inc.: Is the “strong cause” test discretionary?

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…)

Susan Brown on “Governing Law Clauses: Jurisdiction, An Evolving Area of Law in Ontario (2011 Update)”

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.

Related articles

Consent Must Have Consequences: Harster Greenhouses v. Visser International

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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