Archive for the ‘Supreme Court of Canada’ 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.

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.

Thomson and Van Exan on “Unpacking Pandora’s Box: Consumer Arbitration Law after Seidel”

April 18, 2013

Kent E. Thomson and Nicholas Van Exan (Davies Ward Phillips & Vineberg LLP) have posted a working paper entitled: “Unpacking Pandora’s Box: Consumer Arbitration Law after Seidel”. The abstract reads:

Until a few years ago, scholars and practitioners shared in the view that Canada was an “arbitration-friendly” jurisdiction. Canadian courts, and in particular the Supreme Court of Canada, earned this reputation through a series of important decisions in which arbitration clauses were enforced in the consumer protection law context. These decisions reflected an emerging consensus among jurists that arbitration was a system of equal importance and legitimacy to the judicial system policed by the courts. Or so it appeared.

In 2011, the Supreme Court of Canada released its decision in Seidel v. Telus Communications Inc., in which a narrow majority of the Court held that an arbitration clause contained in a standard consumer contract was void in respect of certain provisions of the British Columbia Business Practices and Consumer Protection Act. Superficially, Seidel signaled a small but innocuous change to the Supreme Court’s approach to adjudicating statutory rights. The implications of the Court’s decision, however, are potentially far-reaching. In Seidel, the Supreme Court re-ignited a longstanding debate over the legitimacy of arbitration as a means of resolving consumer-related disputes.

This paper explores the law of consumer arbitration both before and after the Supreme Court of Canada’s landmark decision in Seidel. The authors find that Seidel re-opened what appeared in Canada to be a firmly closed Pandora’s Box. Whereas before Seidel courts would not interfere with arbitration agreements absent clear and express legislative language to the contrary, today no such certainty prevails. Contrary to the direction recently taken by U.S. courts, Seidel permits Canadian courts to rule against the arbitration of consumer claims on the basis of implied legislative intent and even at the expense of the arbitrator’s jurisdiction. The resulting uncertainty created by this approach means that counsel should, now more than ever, draft arbitration agreements with a view to their eventual litigation.

Download a pdf copy of the paper via SSRN here.

Issue Estoppel and Police Disciplinary Proceedings: Penner v. Niagara (Regional Police Services Board) (SCC)

April 5, 2013

The Supreme Court of Canada has just released a significant decision on issue estoppel and police disciplinary proceedings in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (SCC). (more…)

Supreme Court of Canada grants leave to appeal in Kazemi v. Rep. of Iran torture case

March 7, 2013

Zahra Kazemi shown before her arrest.

The Supreme Court of Canada today granted leave to appeal in Estate of the Late Zahra (Ziba) Kazemi et al. v. Islamic Replubic of Iran et al. (Que.) (Civil) (By Leave) (35034) Coram: McLachlin / Abella / Cromwell.

Here is the SCC summary:

Canadian Charter of Rights and Freedoms – Public International Law – Jurisdictional immunity – Applicants beginning legal proceedings in Quebec against Iran, Iranian Head of State and other state officials in relation to alleged detention, torture and death of Canadian citizen in Iran – Defendants bringing motion to dismiss action as barred by State Immunity Act – Whether State Immunity Act bars civil actions initiated in Canada against a foreign State for acts of torture – Whether Canada’s obligation under United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment requires it to provide civil remedy to victims of torture occurring in foreign state – Whether s. 3(1) of State Immunity Act infringes s. 2(e) of Bill of Rights or s. 7 of the Charter by barring proceedings filed by Applicants – Whether the psychological harm caused to a victim of torture by inability to seek redress is sufficient to attract protection of s. 7 of Charter – Whether jurisdictional bar created by s. 3(1) of State Immunity Act is compatible with principles of fundamental justice enshrined in Bill of Rights and Charter – Whether the Court of Appeal erred in determining that state immunity applies to lower level state officials allegedly responsible for acts of torture – Canadian Bill of Rights, S.C. 1960, c. 44, ss. 2(e) – State Immunity Act, R.S.C., 1985, c. S-18, ss. 3 and 6 – Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85

In 2003, Zahra Kazemi, a Canadian citizen, was allegedly arrested, detained, tortured and killed by State authorities in Iran. Against the wishes of her family and of Canadian authorities, her remains were buried in Iran.

Her son, Stephan Hashemi, acting in his capacity as liquidator of his mother’s estate as well as in his personal capacity subsequently filed a civil liability claim in Quebec against Iran, the Head of State, the Chief Public Prosecutor as well as the former Deputy Chief of Intelligence for the prison in which Mrs. Kazemi was held. The claims of the Estate were for damages for the pain and suffering of Mrs. Kazemi in relation to her abuse, sexual assault, torture and death. The claim filed by Mr. Hashemi in his personal capacity sought damages for his pain and suffering provoked by the arrest, torture and death of his mother. Exemplary and punitive damages were also sought by the Estate and by Mr. Hashemi for the alleged unlawful and intentional interference with the rights and freedoms of both Mrs. Kazemi and her son. Lastly, the action sought an order that the respondents be required to disinter and release Mrs. Kazami’s remains so that they may be returned to Canada for an autopsy and burial.

The respondents brought a motion to dismiss the action on the ground that the suit was unfounded in law, alleging that the action was barred due to the application of s. 3 of the State Immunity Act of Canada, R.S.C. 1985 c. S-18 (“SIA”) which, as a general principle, prohibits lawsuits against foreign States before Canadian courts. Mr. Hashemi and the Estate countered with a constitutional challenge alleging that, if the State Immunity Act barred their claims, that Act was contrary to s. 2(e) of the Canadian Bill of Rights as well as s. 7 of the Charter insofar as it would deprive them of the right to seek a civil remedy against Iran in Canada.

For an analysis of the Quebec Court of Appeal decision in Kazemi, see my previous post: Quebec Court of Appeal Upholds State Immunity for Torture.

Stay tuned.


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