The first decision is from the Court of Appeal for Ontario in Van Damme v. Gelber, 2013 ONCA 388 (Ont. C.A.) per Doherty, J.A. (Cronk and Lauwers JJ.A. concurring). In Van Damme, the plaintiff, a successful businessman and philanthropist obtained judgment in the Supreme Court of New York against the defendant, Nahum Gelber (“Gelber”), relating to Van Damme’s purchase of a painting from Gelber. The painting was being held in Ontario pursuant to an Ontario court order. Van Damme successfully moved in the Ontario proceeding for an order of recognition and enforcement New York judgment in Ontario and a variation of the earlier Ontario order directing that the painting be released to him, with costs on a substantial indemnity basis. (more…)
Archive for the ‘civil jurisdiction’ Category
Newbould J. in Stetson Oil & Gas Ltd. v. Stifel Nicolaus Canada Inc , 2013 ONSC 5213 has done many Ontario litigators a great service by making the calculation of costs less of an art and more of a science.
Rule 57.01(1) of the Rules of Civil Procedure, RRO 1990, Reg 194, (as am.) [the "RCP"] sets out the general principles and factors for the court to consider when exercising its discretion to award costs under section 131 of the Courts of Justice Act.
Sub-rule 57.01(5) of the RCP requires a party who is awarded costs to serve a bill of costs (Form 57A) on the other parties and file it with proof of service.
Pursuant to sub-rule 57.01(6) of the RCP, unless there is prior agreement on costs, each party intending to seek costs for any step in the proceeding must bring to the hearing a costs outline (Form 57B) not exceeding three pages.
The common approach is to set out the lawyer’s name, year of call and hourly rate and provide a table with three columns: Actual Rate, Partial Indemnity Rate and Substantial Indemnity Rate. The degree of variation of what comprises the partial indemnity or substantial indemnity rate is well-known. Some lawyers specify 50% for partial indemnity, while others set out 60%, or more. As far as substantial indemnity rates are concerned, I have seen some lawyers claim between 75% to over 90%, approaching Full Indemnity Rate.
Fortunately, Justice Newbould has provided a straightforward calculation as follows:
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.
Chilenye Nwapi (D. Phil. Candidate, University of British Columbia, Faculty of Graduate Studies (Law)) has published a doctoral thesis entitled: Litigating extraterritorial corporate crimes in Canadian courts [PDF] (September 2012). The abstract reads:
This study investigates whether and how Canadian courts may assume jurisdiction (both criminal and civil) over extraterritorial crimes/wrongs committed by Canadian corporations operating overseas. It examines the current state of international law to see whether there is any international legal rule prohibiting a state from assuming jurisdiction over conduct occurring outside its territory. It finds that no such positive rule is in existence, whether in customary international law or in treaty law, and that the only concern is the likelihood of diplomatic protests by states which believe that the jurisdiction sought to be assumed is a threat to their territorial integrity. It argues that although the type of jurisdiction envisaged in this study is not widespread among states, the absence of widespread state practice is not tantamount to prohibition, at least in principle. The study then looks at the Canadian domestic jurisdictional bases, both criminal and civil. On the criminal front, it finds that the real and substantial link test has enough flexibility to reach the extraterritorial conduct of Canadian corporations and that the expansion of the substantive bases of corporate criminal liability that occurred in Canada in 2003 bolstered the criminal jurisdiction of Canadian courts over extraterritorial corporate crimes. On the civil front, it finds that Canadian courts may assume extraterritorial jurisdiction under three distinct theories: the real and substantial connection test, necessity jurisdiction and the recently enacted Torture Victims Protection Act. It examines the bases for declining jurisdiction under the doctrine of forum non conveniens and calls for a reformulation of the doctrine to require a Canadian court to decline jurisdiction only when it finds that it is a “clearly inappropriate” forum, in contrast to the current rule that requires the existence of a “clearly more appropriate alternative” forum. The question of choosing the applicable law in tort cases is also interrogated. A call is made for the adoption of a rule that considers the nature of the conduct in litigation as an important element in the determination of the applicable law. On the whole, this study concludes that Canada holds prospects for transnational litigation.