Archive for the ‘consent-based jurisdiction’ Category

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…)

Ontario Court: “fax transmission” rule applies to email contract formation

September 16, 2013


[25] The general rule of contract law is that a contract is made in the place that the offeror receives notice of the acceptance of the offer from the offeree. See Eastern Power Ltd. v. Azienda Communale Energia and Ambiente 1999 CanLII 3785 (ON CA), (1999), 50 B.L.R. (2d) 33 (Ont. C.A.) at para 22. In that case it was held that the place of acceptance of an offer by return fax was the place where the offeror received notice of the acceptance. For our purposes, an e-mail is no different than a fax. Both are instantaneous communications.Inukshuk Wireless Partnership v. NextWave Holdco LLC et al,2013 ONSC 5631 (CanLII), (Ont. S.C.J.) per Newbould J.  [emphasis added]

The court’s adoption of the “functional equivalence” approach reflects  The UNCITRAL Model Law on Electronic Commerce, 1996 (with additional article 5 bis as adopted in 1998)Resolution adopted by the General Assembly [on the report of the Sixth Committee (A/51/628)] 51/162 Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law. [“Model Law”] (see Guide to Enactment, Articles 15-18).

It would have been useful for the court to have mentioned the Electronic Commerce Act, 2000, SO 2000, c 17, which adopts the Model Law in Ontario, and, in particular, the applicable contract formation provisions as follows:

Electronic Transactions and Electronic Agents

Formation and operation of electronic contracts

19. (1) An offer, the acceptance of an offer or any other matter that is material to the formation or operation of a contract may be expressed,

(a) by means of electronic information or an electronic document; or

(b) by an act that is intended to result in electronic communication, such as,

(i) touching or clicking on an appropriate icon or other place on a computer screen, or

(ii) speaking. 2000, c. 17, s. 19 (1).

Contracting out

(2) Subsection (1) applies unless the parties agree otherwise. 2000, c. 17, s. 19 (2).

Legal recognition of electronic contracts

(3) A contract is not invalid or unenforceable by reason only of being in electronic form. 2000, c. 17, s. 19 (3).

Involvement of electronic agents

20. A contract may be formed by the interaction of an electronic agent and an individual or by the interaction of electronic agents. 2000, c. 17, s. 20.

Errors, transactions with electronic agents

21. An electronic transaction between an individual and another person’s electronic agent is not enforceable by the other person if,

(a) the individual makes a material error in electronic information or an electronic document used in the transaction;

(b) the electronic agent does not give the individual an opportunity to prevent or correct the error;

(c) on becoming aware of the error, the individual promptly notifies the other person; and

(d) in a case where consideration is received as a result of the error, the individual,

(i) returns or destroys the consideration in accordance with the other person’s instructions or, if there are no instructions, deals with the consideration in a reasonable manner, and

(ii) does not benefit materially by receiving the consideration. 2000, c. 17, s. 21.

Time of sending of electronic information or document

22. (1) Electronic information or an electronic document is sent when it enters an information system outside the sender’s control or, if the sender and the addressee use the same information system, when it becomes capable of being retrieved and processed by the addressee. 2000, c. 17, s. 22 (1).

Contracting out

(2) Subsection (1) applies unless the parties agree otherwise. 2000, c. 17, s. 22 (2).

Presumption, time of receipt

(3) Electronic information or an electronic document is presumed to be received by the addressee,

(a) if the addressee has designated or uses an information system for the purpose of receiving information or documents of the type sent, when it enters that information system and becomes capable of being retrieved and processed by the addressee; or

(b) if the addressee has not designated or does not use an information system for the purpose of receiving information or documents of the type sent, when the addressee becomes aware of the information or document in the addressee’s information system and it becomes capable of being retrieved and processed by the addressee. 2000, c. 17, s. 22 (3).

Places of sending and receipt

(4) Electronic information or an electronic document is deemed to be sent from the sender’s place of business and received at the addressee’s place of business. 2000, c. 17, s. 22 (4).

Contracting out

(5) Subsection (4) applies unless the parties agree otherwise. 2000, c. 17, s. 22 (5).

Place of business

(6) If the sender or the addressee has more than one place of business, the place of business for the purposes of subsection (4) is the one with the closest relationship to the underlying transaction to which the electronic information or document relates or, if there is no underlying transaction, the person’s principal place of business. 2000, c. 17, s. 22 (6).

Habitual residence

(7) If the sender or the addressee does not have a place of business, the person’s place of habitual residence is deemed to be the place of business for the purposes of subsection (4). 2000, c. 17, s. 22 (7).


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…)

Ontario Court of Appeal: Jurisdiction Simpliciter Established by Defendant’s Residence in Ontario and Attornment

February 26, 2013
Court of Appeal window

Court of Appeal window (Photo credit: lancea)

The Court of Appeal for Ontario in Zhang v. Hua Hai Li Steel Pipe Co. Ltd., 2013 ONCA 103 (CanLII), has reaffirmed that jurisdiction simpliciter is established by presence-based jurisdiction and consent-based jurisdiction (delivery of a Statement of Defence and other merit-based steps constitute attornment):

[5]         In our view, the appeal should be dismissed but for reasons different from those given by the motion judge.

[6]         This is not a jurisdictional case.  The respondents live and were served in Ontario and the Ontario courts accordingly have jurisdiction.  It is also significant that before the respondents brought the motion challenging the jurisdiction of the court, the appellants filed a statement of defence and took other steps in connection with the action.  Even if the appellants had not been served within Ontario, they have attorned to the jurisdiction.

[7]         The forum non conveniens issue is not relevant.

[8]         We see no merit in this appeal and it is therefore dismissed.

UK Supreme Court Rejects Supreme Court of Canada’s Jurisdictional Test for Enforcing Foreign Judgments

October 30, 2012

The UK Supreme Court has rejected outright the Supreme Court of Canada’s “real and substantial connection” test for recognition and enforcement of foreign default judgments.

The UK decision in Rubin v. Eurofinance [2012] UKSC 46 arises from two appeals:  Rubin v Eurofinance SA (“Rubin”) and New Cap Reinsurance Corpn Ltd v Grant (“New Cap”), both dealing with the issue of whether an order or judgment of a foreign court (on these appeals the United States Bankruptcy Court for the Southern District of New York, and the New South Wales Supreme Court) in proceedings to adjust or set aside prior transactions, e.g, preferences or transactions at an undervalue (“avoidance proceedings”), will be recognised and enforced in England.

The appeals also address whether enforcement may be effected through the international assistance provisions of the UNCITRAL Model Law (implemented by the CrossBorder Insolvency Regulations 2006 (SI 2006/1030)  (“CBIR”)), which applies generally, or the assistance provisions of section 426 of the Insolvency Act 1986, which applies to a limited number of countries, including Australia.  (more…)

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