Archive for the ‘jurisdiction simpliciter’ 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 27, 2013
All PIA flights are Non-smoking. (Photo credit: Wikipedia)
In Kazi v. Qatar Airlines, 2013 ONSC 1370 (CanLII), the plaintiff boarded Air Canada flight 856 travelling from Toronto Pearson Airport to London Heathrow, and thereafter boarding a connecting flight to Doha, Qatar on Qatar Airlines, with an ultimate destination of Dhaka, Bangladesh.
The trip was, to put it mildly, an eventful ride. (more…)
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Tags:Canada, Dhaka, Doha, London, Montreal Convention, Ontario, Qatar, Qatar Airlines, Qatar Airways
Posted in Club Resorts Ltd. v. Van Breda, forum non conveniens, jurisdiction, jurisdiction simpliciter, Muscutt factors, 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 »
March 6, 2013
Tags:Ontario, Court of Appeal for Ontario, Canada, Real and substantial connection, Court of Appeal, Divorce Act, China
Posted in private international law, conflict of laws, jurisdiction, jurisdiction simpliciter, Van Breda, assumed jurisdiction, presence-based jurisdiction, Van Breda v. Village Resorts Ltd., Club Resorts Ltd. v. Van Breda, family law | Leave a Comment »
February 26, 2013
Court of Appeal window (Photo credit: lancea)
The Court of Appeal for Ontario in Zhang v. Hua Hai Li Steel Pipe Co. Ltd., 2013 ONCA 103 (CanLII), has reaffirmed that jurisdiction simpliciter is established by presence-based jurisdiction and consent-based jurisdiction (delivery of a Statement of Defence and other merit-based steps constitute attornment):
[5] In our view, the appeal should be dismissed but for reasons different from those given by the motion judge.
[6] This is not a jurisdictional case. The respondents live and were served in Ontario and the Ontario courts accordingly have jurisdiction. It is also significant that before the respondents brought the motion challenging the jurisdiction of the court, the appellants filed a statement of defence and took other steps in connection with the action. Even if the appellants had not been served within Ontario, they have attorned to the jurisdiction.
[7] The forum non conveniens issue is not relevant.
[8] We see no merit in this appeal and it is therefore dismissed.
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Tags:Jurisdiction, Ontario, Appeal, Court of Appeal for Ontario, Canada, Court of Appeal
Posted in jurisdiction, International, international debt recovery, jurisdiction simpliciter, Rules of Civil Procedure, international law, international dispute resolution, consent-based jurisdiction, presence-based jurisdiction, international commercial litigation, attornment | Leave a Comment »
Antonin I. Pribetic
