Archive for the ‘Van Breda’ 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.

Ontario Court Assumes Jurisdiction Over Foreign Issuer in Securities Class Action

October 24, 2013

In Kaynes v. BP, 2013 ONSC 5802 (CanLII), (“Kaynes“), Mr. Kaynes, the plaintiff, commenced a proposed class action against BP, the well-known multinational oil and gas company, headquartered in the United Kingdom and registered on the London, New York and Toronto Stock Exchanges.  Kaynes alleged that BP made various misrepresentations in its investor documents before and after the Deepwater Horizon oil spill in the Gulf of Mexico in April 2010 (the “Oil Spill”).  He sought leave to bring a statutory action for secondary market misrepresentation under Part XXIII.I of the Securities Act, R.S.O. 1990, c. S.5, and an alternative claim for common law negligent misrepresentation.

 A parallel class action was commenced in the United States (In BP plc Securities Litigation,  United States District Court for the Southern District of Texas, Case No. 4:10-md-02185) brought on behalf of a proposed class consisting of all purchasers of ADS over the NYSE between November 8, 2007 and May 28, 2010. Kaynes seeks to represent a class of Canadian residents who purchased BP shares between May 9, 2007 and May 28, 2010 and includes all Canadians who purchased common shares and ADS, whether on the TSX, NYSE or European exchanges;  excluding any Canadian residents who purchased BP shares over the NYSE and who do not opt-out of the U.S. Proceeding.

BP brought a jurisdiction motion in advance of the leave and certification motions, seeking an order staying this proceeding (in part) based on lack of subject-matter jurisdiction, or, alternatively, on the basis of forum non conveniens.
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Ontario plaintiff’s claim against Mexican hotel for ATV accident stayed for lack of jurisdiction

October 24, 2013
Image via Daryl Cagle's The Cagle Post, Cartoons and Commentary

Image via Daryl Cagle’s The Cagle Post, Cartoons and Commentary

In Haufler v. Hotel Riu Palace Cabo San Lucas, 2013 ONSC 6044 (CanLII),  the Plaintiff was injured while riding an all-terrain vehicle (ATV) . She was immediately flown back to Canada for treatment.  The Plaintiff then sued the ATV excursion operator in negligence, but the company is bankrupt. The Plaintiff also sued the Hotel Riu Palace Cabo San Luca [the "Hotel Riu"] where the Plaintiff and the other vacationers stayed during the tragic Mexican vacation. The Hotel Riu then moved for a stay of the action based upon lack of jurisdiction simpliciter, or, alternatively, Ontario was forum non conveniens.

The case is unremarkable, except for the fact that it languished for seven years, while the parties awaited the Supreme Court of Canada’s decision in Club Resorts Limited v. Van Breda.[1], which established a refined test for the assumption of jurisdiction based on a “real and substantial” connection between the foreign defendant and the forum asserting jurisdiction., requiring the plaintiff to demonstrate the existence of one of four rebuttable presumptive connecting factors before a Canadian court will assume jurisdiction over an action involving a foreign defendant.

Quigley J. rejected  the Plaintiff’s claim that the Hotel carried on business in Canada, either on its own, or through agency relationships, noting that even if the Hotel: “…engaged in a considerable amount of business with Ontarians, the existing legal relationships between the Hotel, the owner of the Hotel,  and Sunquest Tours at the end of the line in Canada are not sufficient to establish that the Hotel carries on business in Ontario.” (at para. 7).

The Plaintiff’s arguments to establish a virtual connection to Ontario based upon advertising brochures, physical presence of some Hotel Riu representatives in Ontario, or website advertising also failed.

Quigley J. concludes:

[76]         In conclusion, on this aspect of the motion, I agree with the moving party, the Hotel, that there is virtually no connection to Ontario in this case. The tort action itself involves the alleged negligent operation of an ATV excursion in Mexico by a Mexican entity that offered the excursion in Mexico, Rancho Tours. In its action, the plaintiffs seek to attach legal responsibility for those events to this foreign defendant, the Hotel. Plainly the tort did not take place in Ontario, and the Hotel is a resident and domiciliary of Mexico. As such, Ontario could only assume jurisdiction over this litigation under the test established in Van Breda provided one of the two remaining connecting factors applied. In order for either of those two factors to apply, a contract entered into in Ontario regarding the subject matter of this litigation would have to exist, or there would need to be evidence that the Hotel was carrying on business in Ontario.

[77]         However, as the foregoing analysis shows, the only contracts of relevance here were made in Mexico. There was no contract concluded in Ontario between the Hotel and these plaintiffs. Their contract was with an independent third-party, Thomas Cook or its Sunquest Vacations alter ego. Further to this, the plaintiffs have failed to discharge the burden that rests upon them alone to show on the evidence that the Hotel carries on business in Ontario. At most, as the defendants argued, a separate company which markets the Riu trademark does occasional business with the Canadian business, Thomas Cook. But even this cannot provide the necessary connection as any existing connection is unrelated to the subject matter of the litigation. Given the absence of any of the four connecting factors required by Van Breda, Ontario cannot assume jurisdiction over this litigation and the motion to stay this action is therefore granted.

Two Important Ontario Attornment Decisions

September 16, 2013

The first decision is from the Court of Appeal for Ontario in Van Damme v. Gelber2013 ONCA 388  (Ont. C.A.) per  Doherty, J.A. (Cronk and Lauwers JJ.A. concurring). In Van Damme, the plaintiff, a successful businessman and philanthropist obtained judgment in the Supreme Court of New York against the defendant, Nahum Gelber (“Gelber”), relating to Van Damme’s purchase of a painting from Gelber. The painting was being held in Ontario pursuant to an Ontario court order.  Van Damme successfully moved in the Ontario proceeding for an order of recognition and enforcement New York judgment in Ontario and a variation of the earlier Ontario order directing that the painting be released to him, with costs on a substantial indemnity basis. (more…)

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…)


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