Archive for the ‘lis pendens’ Category

Supreme Court of Canada Denies Leave in Domain Name Dispute Case

May 24, 2012

Today, the Supreme Court of Canada denied application for leave to appeal in Lojas Renner S.A. v. Tucows.Com Co. (Ont.) (Civil) (By Leave) (34481) Coram: Deschamps / Fish / Karakatsanis.

The dispute was over the right to the internet domain name “renner.com”. The applicant, Lojas Renner S.A., operates a number of retail department stores in Brazil and owns the registered trademark “Renner”, while the respondent, Tucows.com, is a Canadian domain name registrar which purchased the domain name “renner.com” in 2006 and is the registrant of that domain name with the internationally-recognized non-profit organization, the Internet Corporation for Assigned Names and Numbers (“ICANN”).   Lojas Renner S.A.’s motion to set aside service ex juris of  Tucows.com statement of claim and to stay the action for want of jurisdiction was granted. The Ontario Court of Appeal unanimously allowed Tucows.com’s appeal. The Court of Appeal for Ontario held that Ontario had jurisdiction over the dispute, finding that a domain name is personal property and that presence-based jurisdiction is established if the plaintiff’s servers are physically located in Ontario.

Lojas Renner S.A. unsuccessfully sought leave to appeal on the following issues:

  • Whether the Court of Appeal erred in stating that the policy of the UDRP is to “refer” legitimate disputes to the Court?
  • Whether the Court of Appeal erred in holding that the Superior Court of Ontario’s jurisdiction was “unlimited and unrestricted”?
  • Whether the Court of Appeal erred in making no assessment of whether the claim before it was justiciable?
  • Whether the Court of Appeal erred in determining in the abstract that a domain name was “personal property in Ontario”?
  • Whether the Court of Appeal erred in failing to consider whether it accords with principles of order, fairness and comity to read “intangible” into Rule 17.02 – Rules of Civil Procedure, R.S.O. 1990, Reg. 194, Rules 17.02(a), 17.06(1).

I previously wrote a case comment about this important internet jurisdiction case: “The Internet as Property: The Implications of Tucows.Com Co. v. Lojas Renner S.A., and SOPA”, The Globetrotter, OBA International Law Section Newsletter, Volume 16, No. 1 – December 2011 [pdf].

Emir Aly Crowne (né Mohammed), “Greener Pastures for Tucows”: A Reply

October 25, 2011

Emir Aly Crowne (né Mohammed) (University of Windsor – Faculty of Law) has posted a case comment on the recent Ontario Court of Appeal decision in Tucows.Com Co. v. Lojas Renner S.A., 2011 ONCA 548 entitled “Greener Pastures for Tucows (via SSRN), Journal of Intellectual Property Law & Practice (Oxford), October 12, 2011.  See also my previous post here.

 Professor Crowne argues that it is debatable that domain names can or should be considered property.

I find this argument intriguing; particularly, since domain names are a form of intangibles that may be part of a bundle of rights that are enforceable, either in personam or in rem, depending on the characteristics of the intellectual property itself. (more…)

My article published in Transnational Dispute Management (TDM), Vol. 7, No. 1 (April 2010)

April 19, 2010
My article “Recent Private International Law Developments Before the Supreme Court of Canada ” has been published in Transnational Dispute Management (TDM), Vol. 7, No. 1 (April 2010).  The TDM issue table of contents is available here (subscription required).

Here is the abstract:

A trilogy of interesting cases involving private international law recently wended their way to the Supreme Court of Canada: (1) King v. Drabinsky (an Ontario case addressing the applicability of the Charter in respect of the enforcement of a foreign judgment); (2) Teck Cominco Metals Ltd. v. Lloyd’s Underwriters (a British Columbia case involving declaratory relief in the context of parallel proceedings and forum non conveniens); and (3) Yugraneft v. Rexx Management Corporation (an Alberta case which affirmed that the two-year limitation period under s.3 of Alberta’s Limitations Act, governs when a party seeks the recognition and enforcement in Alberta of a foreign arbitral award).

The Teck Cominco v. Lloyd’s Underwriters decision – released by the Supreme Court of Canada on February 20, 2009 – provides clarity on the statutory codification of the forum non conveniens doctrine vis-a-vis parallel proceedings. However, it does so without reference to the alternative remedy of an anti-suit injunction, which the author considers by providing a comparative analysis of the differing jurisprudential approaches to jurisdiction and forum non conveniens following Morguard in Canada and Sinochem in the United States.

Although declining to hear the Drabinsky v. King appeal, the granting of leave in Yugraneft v. Rexx Management Corporation on February 26, 2009 offers cautious optimism for a definitive ruling by Canada’s highest court on the issue of the applicability of provincial limitation periods to the recognition and enforcement of foreign arbitral awards. Hopefully, the Supreme Court of Canada will address the vexing problem of the lack of harmonization or unification between federal and/or inter-provincial statutory regimes under the law of limitations respecting foreign judgments and foreign arbitral awards. Until then, a party seeking recognition and enforcement of a foreign arbitral award is cautioned to commence an application to enforce the final arbitral award within the applicable provincial limitation period.

Tanya J. Monestier on "Lepine v. Canada Post: Ironing Out the Wrinkles in the Inter-Provincial Enforcement of Class Judgments"

October 13, 2009
Tanya J. Monestier (Roger Williams University-School of Law) has posted an article  on SSRN addressing enforceability of national and multi-jurisdictional class judgments entitled: “Lepine v. Canada Post: Ironing Out the Wrinkles in the Inter-Provincial Enforcement of Class Judgments”, The Advocates’ Quarterly, Vol. 34, p. 499, 2008. Here is the abstract:
Later this year, the Supreme Court of Canada will hear argument in the case of Lépine v. Canada Post, on appeal from the Québec Court of Appeal. The case raises several pivotal issues surrounding the enforceability of national or multi-jurisdictional class judgments. First, on what basis can a court assert jurisdiction over a purported member of the plaintiff class who does not reside in the adjudicating forum? Second, how do the doctrines of lis pendens and forum non conveniens affect the recognition of class judgments? Finally, when can recognition of a judgment be refused on the basis that the plaintiff class has been denied natural justice or procedural fairness owing to inadequate notice? The Supreme Court will have the additional challenge of answering these questions within the framework of the Québec Civil Code (C.C.Q.), while appreciating that the decision will have implications for class action practice across the country. This comment does not aim to provide a thorough academic discussion of the intricate issues of the case, but rather to highlight the relevant considerations that may inform the Court’s thinking. The issue of the interprovincial enforceability of class judgments is of critical significance to litigants. It is hoped that the Supreme Court uses Lépine as an opportunity to sort out some of the vexing questions posed by the existence of multi-jurisdictional classes.

Recent Private International Law Developments Before the Supreme Court of Canada

August 11, 2009
Not all interesting or important private international law cases make it all the way to the Supreme Court of Canada. However, in my recent article, “Recent Private International Law Developments Before the Supreme Court of Canada”, The Globetrotter, Ontario Bar Association-International Law Section Newsletter, Vol. 13, No. 2, 2009, (available http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1342413 I discuss three cases involving conflict of laws issues; two of which Canada’s highest court found to be of sufficient national importance to grant leave.

Here is the abstract:

A trilogy of interesting cases involving private international law recently wended their way to the Supreme Court of Canada: (1) King v. Drabinsky (an Ontario case addressing the applicability of the Charter in respect of the enforcement of a foreign judgment); (2) Teck Cominco Metals Ltd. v. Lloyd’s Underwriters (a British Columbia case involving declaratory relief in the context of parallel proceedings and forum non conveniens); and (3) Yugraneft v. Rexx Management Corporation (an Alberta case which affirmed that the two-year limitation period under s.3 of Alberta’s Limitations Act, governs when a party seeks the recognition and enforcement in Alberta of a foreign arbitral award).

The Teck Cominco v. Lloyd’s Underwriters decision—released by the Supreme Court of Canada on February 20, 2009—provides clarity on the statutory codification of the forum non conveniens doctrine vis-à-vis parallel proceedings. However, it does so without reference to the alternative remedy of an anti-suit injunction, which the author considers by providing a comparative analysis of the differing jurisprudential approaches to jurisdiction and forum non conveniens following Morguard in Canada and Sinochem in the United States.

Although declining to hear the King v. Drabinsky appeal, there remains cautious optimism that the Supreme Court of Canada will grant leave in Yugraneft v. Rexx Management Corporation. If leave is not granted and unless there is federal and/or inter-provincial legislative reform to harmonize or unify the law of limitations for foreign judgments and foreign arbitral awards, a party seeking recognition and enforcement of a foreign arbitral award is cautioned to commence an application to enforce the final arbitral award within the applicable provincial limitation period.


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