Archive for the ‘jurisdiction simpliciter’ Category

Tanya J. Monestier, “Jurisdiction and the Enforcement of Foreign Judgments”

January 16, 2014

Tanya J. Monestier (Roger Williams University School of Law) has published “Jurisdiction and the Enforcement of Foreign Judgments”, The Advocates’ Quarterly, Vol. 42, p. 107, 2013/ Roger Williams Univ. Legal Studies Paper No. 143. Here’s the abstract:

In April 2012, the Supreme Court of Canada released its decision in what has become the pivotal case on personal jurisdiction in Canada, Van Breda v. Club Resorts Ltd. In Van Breda, the Court laid out a new framework for, and defined more precisely the content of, the “real and substantial connection” test that governs the assertion of jurisdiction over ex juris defendants. Specifically, the Court created four presumptive connecting factors that courts are to use in jurisdictional determinations. The presumptive connecting factors approach to jurisdiction was intended to increase certainty and predictability in jurisdictional determinations.

One issue that was alluded to, but ultimately left unanswered, by the Supreme Court in Van Breda was what effect the new presumptive factors framework for the real and substantial connection test had on the enforcement of judgments. Since the Supreme Court’s seminal decision in Morguard Investments Ltd. v. De Savoye in 1990, it is well established law that the real and substantial connection test for jurisdiction simpliciter is intended to be “correlated” with the real and substantial connection test used as a predicate for enforcing foreign judgments. Does this mean that courts are now supposed to use the new Van Breda framework for jurisdiction simpliciter in the judgment enforcement context? This article argues that the real and substantial connection framework established by the Court in Van Breda for jurisdiction simpliciter should not be exported outside of the particular context in which it was developed. The Van Breda approach to jurisdiction simpliciter, although seemingly straightforward, is actually a blunt tool for assessing jurisdiction – and any concerns with its application would only be magnified if applied to the enforcement of foreign judgments.

A copy of the article is available at SSRN here.

Why Lawyers Should Always Read the Footnotes in Judgments

June 12, 2013

The decision of Justice Newbould in Re Ghana Gold Corporation2013 ONSC 3284 (Ont. SCJ) ["Ghana Gold"] is an important reminder to always the read the footnotes in judgments. (more…)

The Perils of Drafting Ineffective Forum Selection Clauses

May 31, 2013

Today’s decision of the Court of Appeal for Ontario in 2249659 Ontario Ltd. v. Sparkasse Siegen, 2013 ONCA 354 addresses issues pertaining to jurisdiction simpliciter, the effect of forum selection clauses and forum non conveniens. (more…)

Assuming Jurisdiction in Tort Cases Over Non-Contracting Parties

May 27, 2013

Trillium v. General Motors of Canada et al, 2013 ONSC 2289 (CanLII) ["Trillium"] attempts to answer the lingering question of how and when will a court assume jurisdiction in a tort case over contractual non-parties. (more…)

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.


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