Archive for the ‘Civil Litigation’ Category
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.
The Supreme Court of Canada today has granted leave to appeal in Robert Hryniak v. Fred Mauldin et al. (Ont.) (Civil) (By Leave) (34641). The Supreme Court of Canada will consider the Court of Appeal for Ontario decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 ["Flesch"], which created a new judicial test for summary judgment: the “full appreciation” test, upholding a lower court finding of civil fraud against Toronto businessman Robert Hryniak. See my backgrounder here.
The appeal is to be heard with Bruno Appliance and Furniture, Inc. v. Robert Hryniak (34645). Coram: McLachlin / Rothstein / Moldaver.
Good News/Bad News: Conrad Black Released from Florida Prison; Denied Leave to Appeal Settlement Privilege DecisionMay 4, 2012
Conrad Black has a few options to ponder following his release from a Florida prison today. After recently being granted a temporary resident permit by the Harper government, he may still be deported to the U.K., having renounced his Canadian citizenship more than a decade ago to become a British citizen and accepting a Peerage with the House of Lords. (more…)
Emir Crowne et al. “‘Fully Appreciating’ the Ontario Court of Appeal’s Views on the Summary Judgment Rule”April 13, 2012
Emir Crowne (University of Windsor – Faculty of Law), Varoujan Arman (Blaney McMurtry LLP) and Terry Reid (Gardiner Roberts LLP) have posted “‘Fully Appreciating’ the Ontario Court of Appeal’s Views on the Summary Judgment Rule”, Advocates’ Quarterly, Vol. 39, No. 3, February 2012. The article analyzes the five combined appeals heard by the Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, which issued guidelines to first instance judges when faced with motions for summary judgment.
Download a pdf copy of the article from SSRN here.
See also my previous post: “Ontario Court of Appeal Introduces New “Full Appreciation” Test for Summary Judgment”