Archive for the ‘Nicholas S. Rafferty’ Category

Stay or Dismissal?

September 14, 2011

What is the appropriate remedy when a Canadian court determines it lacks jurisdiction simpliciter? Should the court issue a stay or dismiss the plaintiff’s action?

The Alberta Queen’s Bench decision in Ayles v. Arsenault, 2011 ABQB 493 (CanLII) offers the answer:

[80]           The importance first placed on the distinction between the real and substantial connection test and the forum of convenience analysis by the Ontario Court of Appeal in Muscutt applies when considering the appropriate remedy. The statement made by Stephen G.A. Pitel and Nicholas S. Rafferty, in Essentials of Canadian Law: Conflict of Laws (Toronto: Irwin Law, 2010) at 122 is illustrative:

This separation of analysis also needs to be maintained on the question of the appropriate remedy. If the Court lacks jurisdiction, the proceeding should be dismissed. In contrast, if the Court has jurisdiction but there is a more convenient forum elsewhere, the proceeding should be stayed. This distinction between a stay and a dismissal needs to be observed. One aspect of this is that courts should not be encouraged to avoid reaching a conclusion on the issue of jurisdiction by holding that, in any case, the forum is not the convenient forum and so stay the proceedings. This might seem convenient where the jurisdiction issue is complex but the circumstances point quite clearly to another forum as the forum conveniens. This nonetheless amounts to having accepted jurisdiction without truly resolving that issue, since the Court must have jurisdiction to order a stay.

[81]           Having determined that there is no real and substantial connection between this action and Alberta, I find that the Alberta Courts lack jurisdiction over this matter. The issue of forum of convenience does not, therefore, arise. Given the absence of jurisdiction, the Alberta action is dismissed as against all the Defendants.


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