Archive for the ‘Civil Litigation’ 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 »
March 11, 2013
Balancing a guitar & hula hoop at the Pike Place market in Seattle (Photo credit: Wikipedia)
The recent BC Supreme Court decision in Ruloff Capital Corporation v. Hula, 2013 BCSC 322 (CanLII) poses the following question on forum non conveniens and parallel proceedings:
[65] Does a finding that one party can acquire representation in another jurisdiction, coupled with the fact that the other jurisdiction, for reasons not articulated, has accepted jurisdiction over the parties, trump the objective in Teck to ensure the action is tried in the jurisdiction that has the closest connection to it? (more…)
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Tags:California, California Superior Court, CanLII, Fasken Martineau, Hulavision, NBCUniversal, Supreme Court, Supreme Court of Canada
Posted in British Columbia Supreme Court, Burden of Proof, Civil Litigation, civil procedure, CJPTA, Court Jurisdiction and Proceedings Transfer Act, forum non conveniens, jurisdiction, jurisdiction simpliciter | Leave a Comment »
February 1, 2013
[38] I have no hesitation in concluding that an award of full indemnity costs is required in the circumstances of this case. I find that the plaintiffs’ conduct, in faking a judgment of this court, constitutes a scurrilous and fraudulent attack on the administration of justice. The plaintiffs’ actions amount to a contemptuous and reckless disregard for the judicial process and were calculated to obstruct or interfere with the due course of justice in these proceedings. The plaintiffs’ behaviour was “reprehensible, scandalous and outrageous.” Such reckless attacks on the administration of justice clearly constitute conduct requiring chastisement and deterrence.
[39] I find that the defendants are entitled to full indemnity costs, payable by the plaintiffs D’Souza and D’Gama forthwith. Costs are awarded as follows:
Woldanskas $14,974.60
Linton/Jagielski $10,659.35
Gills $14, 617.97
inclusive of disbursements and HST.
[40] The plaintiffs are prohibited from taking any fresh step in these proceedings until these costs have been paid in full.
Master Dash Order
[41] There is a subsidiary issue involving an order of Master Dash on April 26, 2011, obtained without notice, granting leave to the plaintiffs to register a certificate of pending litigation against the Property (the CPL order). No CPL has been registered as yet.
[42] The plaintiffs have refused or been unable to produce the original of Master Dash’s order. The court record apparently contains no original order or endorsed motion record.
[43] It appears that the CPL order of Master Dash may also be a fake.
[44] In any event, it was obtained without notice. The noting in default of the Gills was improper and constituted sharp practice.
[45] In the circumstances, my order shall issue setting aside the CPL order of Master Dash dated April 26, 2011.
Read the decision of Penny J. in John Joseph AKA John D’Souza and Peter D’Gama v. Ritchie James Linton, et al. 2013 ONSC 70 here.
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Tags:Defendant, Law, Lawsuit, Plaintiff
Posted in Civil Litigation, civil procedure, fair trial, fraud, fundamental justice, Judge, judging, judgments, Ontario, Ontario Rules of Civil Procedure, paralegal | 2 Comments »
January 10, 2013
Elizabeth F. Judge (University of Ottawa – Faculty of Law (Common Law)) has posted “Curious Judge: Judicial Notice of Facts, Independent Judicial Research, and the Impact of the Internet”, Annual Review of Civil Litigation, pp. 325-350, Honourable Mr. Justice Todd L. Archibald Superior Court of Justice (Ontario) and the Late Honourable Mr. Justice Randall Scott Echlin, eds., 2012. The abstract reads:
Judicial notice allows uncontroversial facts to be established without evidentiary proof. The facts must either themselves be beyond dispute because they are “notorious” (that is, generally known within the community) or they must be able to be referenced in easily accessed sources whose accuracy is beyond dispute. Judicial notice is an especially vexing topic because it goes to the heart of the epistemological inquiry of the adversarial process and the nature of the judicial function. Judicial notice implicates the allocation of responsibilities for fact finding between the parties and the court, between the judge and the jury, between the court of first instance and the appellate bodies, and between the courts and the legislature; how fact finders engage in ordinary reasoning processes to decide what a fact is; the distinction between adjudicative and legislative facts and their respective roles; and due process concerns for one or both parties. The rules governing judicially noticed facts are especially sensitive because whenever a fact is judicially noticed it is not subject to the ordinary processes for testing evidence, such as oaths and cross examination, and thus the rules implicate concerns about fairness to the parties and accuracy. For a common law precedential system, these concerns are particularly acute.
Drawing on American and Commonwealth commentators, this article provides a detailed analysis of the general theory and policy of judicial notice and the role of judicial notice in the adversarial system. The article then turns to a discussion of the practice of independent judicial research and an examination of the impact of the internet on judicial notice. The article analyses the laws and policies governing judicial notice of facts and independent judicial research in Canada and the Supreme Court of Canada’s legal framework. It examines independent judicial research and, most pertinently for modern practices of judicial notice, appropriate uses of internet search tools and online sources in the context of judicial notice. It considers how the internet is affecting key aspects pertaining to the judicial notice of facts: first, what “notoriety” and “community” mean; and second, what counts as an authoritative reference. The paper concludes by addressing how the internet, including search engines and online content, may affect the traditional framework for judicial notice of facts.
A copy of the paper is available for download via SSRN here.
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Tags:Canada, Civil procedure, Internet, Judges, Judicial Notice, Jurisdiction, Law, Social media
Posted in Civil Litigation, courts, Courts of Justice Act, evidence, internet, internet law, Judge, judging, judgments, judicial decision-making, judicial discretion, judicial notice, procedural rights, procedure, Procedure vs. Substance, social media | Leave a Comment »
January 8, 2013
Costs Stack Up (Image via Forbes.com)
[113] Based on anecdotal evidence available to me as a class actions judge, it is my opinion that the large costs awards that have been awarded in recent years are having adverse consequences. One apparent adverse consequence of the potential for these large costs awards is that many parties to class actions through their lawyers show no restraint in their approach to prosecuting or defending the certification motion. The parties roll the dice that they will be the successful party, show no restraint in running up costs, but hope to recover an enormous award of costs. Another consequence of the potential for these large costs awards is that in order to avoid the sting of the enormous adverse costs awards, the unsuccessful parties make disingenuous or ironical arguments that their claim or defence raised a novel issue or was in the public interest. Another adverse consequence is that the court’s response to arguments about costs has been inconsistent, and the outcome of costs determinations is uncertain and unpredictable. Another very serious consequence is that the number of new class actions appears to be declining, and small but possibly meritorious class actions are disappearing as class counsel warily select the cases that they will prosecute. The risk of grotesque adverse costs awards is a serious disincentive to law firms being prepared to take on class actions and serve the public’s demand for access to justice.
McCracken v. Canadian National Railway Company, 2012 ONSC 6838 (Ont SCJ)- Costs Endorsement per Perell J.
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Tags:Class action
Posted in civil justice reform, Civil Litigation, civil procedure, class action, class actions, costs, Rules of Civil Procedure | Leave a Comment »
Antonin I. Pribetic
