Archive for the ‘Territorial Jurisdiction’ 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

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.

Supreme Court of Canada Denies U.S. Government Leave to Appeal in Abdullah Khadr Extradition

November 3, 2011
Abdullah Khadr

Abdullah Khadr (Colin Perkel / THE CANADIAN PRESS via ctv.ca)

The Supreme Court of Canada  today denied the  U.S. Government’s application for leave to appeal in Attorney General of Canada on behalf of the United States of America v. Abdullah Khadr (Ont.) (Criminal) (By Leave) (34357) Coram: Binnie / Deschamps / Rothstein (without costs).

For a backgrounder, see my earlier post: Ontario C.A. upholds stay of U.S.A.’s extradition request for Abdullah Khadr.

Virgin Islands Lawyer Sues U.S. Government Over Right to Vote

October 7, 2011
Seal of the American Virgin Islands

Image via Wikipedia

I received the following email from St. Thomas, Virgin Islands lawyer, J. Russell Pate of the Pate Law Firm via the ABA International Litigation Committee Listerv:

Dear International Litigation Member,

For your information, please find attached a Complaint [ pdf copy of Second Amended Complaint] regarding the right to vote for Congressional representatives and U.S. President for the United States Virgin Islands.  The United Nations has noted that the islands are a non-self governing territory without the ability to participate in every level of government which has control over them.

www.un.org/en/events/nonselfgovernin/nonselfgoverning.shtml

The Complaint is a strait-forward historical expose of racial discrimination in the U.S. Congress which resulted in the denial of the Virgin Islands (a majority non-white jurisdiction) to be deprived of the right to participate in federal elections.

Sincerely,

Russell

J. Russell Pate, Esq.

The Pate Law FirmRoyal Dane Mall,

2nd Fl.P.O. Box 890St. Thomas , VI 00804

jrbpate@yahoo.com340.777-5270

Office 340.777-5266

Fax 340.227-5299 Cell

www.SunLawVI.com

“Without the jury, there is no justice.”

The pleading makes for very interesting and informative reading. I invite knowledgeable comments from those with experience in U.S. constitutional law on whether the action meets the plausibility standard under the Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)  and Ashcroft v. Iqbal 556 U.S. ___, 129 S.Ct. 1937 (2009).

Viroforce Systems Inc. v. R&D Capital Inc.: Is the “strong cause” test discretionary?

June 23, 2011

In Viroforce Systems Inc. v. R&D Capital Inc., 2011 BCCA 260 (CanLII), the British Columbia Court of Appeal has expressly endorsed Justice Laskin’s analytical approach to consent-based jurisdiction in Momentus.ca Corp. v. Canadian American Assn. of Professional Baseball Ltd., 2010 ONCA 722 (CanLII),2010 ONCA 722 at paras. 35 to 39, 325 D.L.R. (4th) 685, leave to appeal granted [2010] S.C.C.A. No. 473. (more…)


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