Archive for the ‘Club Resorts Ltd. v. Van Breda’ Category

Two-Year Limitation Period Applies to Enforcement of Foreign Judgments in Ontario

January 19, 2017

The Court of Appeal for Ontario has confirmed that the 2-year limitation period under the Limitations Act, 2002 applies to enforcement of foreign judgments. The limitation period begins to run the earlier of when the time to appeal the foreign judgment has expired or, if an appeal is taken, the date of the appeal decision, rendering the decision as final. The limitation period may be longer if the claim was not “discovered” within the meaning of s. 5 of the Limitations Act, 2002, after the date of the appeal decision: Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44 (CanLII), http://canlii.ca/t/gwxmx

I have previously argued that no limitation period should apply where the defendant judgment debtor was not resident in Ontario when the original action was commenced in the foreign jurisdiction, even if moving or returning to Ontario in this paper: Recognition and Enforcement of Foreign Judgments in Canada (January 15, 2014). Ontario Bar Association Institute 2014, ‘Internationalizing Commercial Contracts’. Available at SSRN: https://ssrn.com/abstract=2379721

Smoke Gets In Your Eyes (and 40 Lashes and a Fine)

March 27, 2013
All PIA flights are Non-smoking.

All PIA flights are Non-smoking. (Photo credit: Wikipedia)

In Kazi v. Qatar Airlines, 2013 ONSC 1370 (CanLII), the plaintiff boarded Air Canada flight 856 travelling from Toronto Pearson Airport to London Heathrow, and thereafter boarding a connecting flight to Doha, Qatar on Qatar Airlines, with an ultimate destination of Dhaka, Bangladesh.

The trip was, to put it mildly, an eventful ride. (more…)

The Lawyers Weekly article discusses Ont. C.A. decision in Wang v. Lin

March 6, 2013

As a follow-up to my recent post on the Court of Appeal for Ontario decision in Wang v. Lin, I’m quoted in an article by Christopher Guly in the The Lawyers Weekly March 8-13 issue: “When family breakdown spans the globe, from China to Canada“.

“Ordinary Residence” and “Habitual Residence” are the applicable jurisdictional tests in family law disputes, Ontario appeal court rules

January 24, 2013

The Court of Appeal for Ontario in Wang v. Lin, 2013 ONCA 33 (CanLII) has held that the presumptive factors in  Club Resorts Ltd. v. Van Breda2012 SCC 17 (CanLII), 2012 SCC 17, [2012] 1 S.C.R. 572 (S.C.C.) do not fit within the established statutory scheme for asserting jurisdiction in family law matters under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.); the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”); and the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”). Rather, “ordinary residence” and “habitual residence” (arguably, “presence-based jurisdiction”) are the applicable jurisdictional tests under the Divorce Act and the CLRA,respectively:

[46] Turning to whether Ontario has jurisdiction under the common law test that requires a real and substantial connection, I agree with the parties that, in the context of marriage breakdown, the presumptive connecting factors are necessarily different from those identified by the Supreme Court in Van Breda in the context of a tort case. The Supreme Court in Van Breda was clear that the list of presumptive factors it identified related to tort claims and issues associated with those claims, and that the list of presumptive connecting factors is not closed. At para. 91, the court directed that:

In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the listed factors. Relevant considerations include:

(a) Similarity of the connecting factor with the recognized connecting factors;

(b) Treatment of the connecting factor in the case law;

(c) Treatment of the connecting factor in statute law; and

(d) Treatment of the connecting factor in the private international law of other legal systems with shared commitment to order, fairness and comity.

[47] While they differ in their view as to where, in this case, the “real home” or ordinary residence of the mother is, both parties submit that the location of the “real home” or “ordinary residence” should be a presumptive connecting factor. This in my view makes eminently good sense. Ordinary residence and habitual residence are the jurisdictional tests under the Divorce Act and the CLRA, respectively. Accepting the “real home” or “ordinary residence” as a presumptive connecting factor, and having concluded that the motion judge did not err in finding that the mother was not ordinarily resident in Ontario, I agree with the motion judge that “[t]he facts of this case do not support the existence of a presumptive connecting factor that would entitle this court to presume jurisdiction.” The mother therefore did not satisfy the “real and substantial connection test”, and the courts of Ontario do not have jurisdiction over the mother’s corollary claims under the FLA. Given this, it is not necessary to address the parties’ arguments on the issue of forum non conveniens.

 


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