The decision of the Nova Scotia Court of Appeal in Quigley v. Willmore provides a useful restatement of the concept of ordinary residence, at least for the purpose of a provincial court assuming jurisdiction over divorce proceedings under s. 3(1) of the Divorce Act. The decision considers a number of relevant authorities and summarizes them into 6 relatively clear guidelines to be used in determining ordinary jurisdiction of a party.
Archive for April, 2008
Posted by Seva on April 24, 2008
Posted by Seva on April 22, 2008
Quick note about a decision of the Ontario Superior Court of Justice in Visram v. Chandarana. This was an appeal from a Master’s order dismissing a motion to stay the action on the ground that Ontario is forum non conveniens. Molloy J., after engaging in a principled analysis, concluded that decisions of Masters on jurisdictional questions deserve the same deference as those made by judges, and are subject to the same standard of review, imported from Equity Waste Management of Canada Corp v. Panorama Investment Group Ltd.:
What is important for this appeal is the kind of error that justifies intervention by an appellate court. An error of law obviously justifies intervention. An appellate court may interfere with a finding of fact if the trial judge or motion judge disregarded, misapprehended, or failed to appreciate relevant evidence, made a finding not reasonably supported by the evidence, or drew an unreasonable inference from the evidence.
The rest of the decision is not particularly eventful as Malloy J. confirmed that the Master correctly concluded that the defendants attorned to the court’s jurisdiction by filing a statement of defence, and that he also correctly considered the real and substantial connection test (based on Muscutt) and the forum non conveniens factors (based on Amchem).
Update: As Mr. Antonin Pribetic has very insightfully pointed out, this decision is also interesting because it affirms that attornment to the court’s jurisdiction eliminates the need to establish RaSC, thus making the court’s subsequent analysis effectively obiter. While this may be technically correct, the future persuasiveness of this decision may have been enhanced if the court considered the attornment-based jurisdiction and the Muscutt factors-based jurisdiction in the alternative, finding that in this case jurisdiction simpliciter could be established in either way.
Posted by Seva on April 18, 2008
As the title says, the recent decision of BCSC in Rakunas v. SAL, 2008 BCSC 444, briefly addresses both of the above issues. The case concerned an alleged trust, in which the defendant British Virgin Islands corporation, extra-provincially registered in BC, was alleged to be a bare trustee holding a property in Whistler in trust for its shareholders, the plaintiff, and the personal defendant Murphy, neither of whom were resident in BC Rakunas and Murphy were the sole and equal shareholders in SAL, as well as its officers and directors. Rakunas launched the action in 2005, seeking to wind up the alleged trust and sell of the property. Murphy argued that the court lacked jurisdiction simpliciter and that BC was forum non conveniens because the dispute was ultimately a shareholder dispute within a BVI corporation and had nothing to do with BC. SAL entered a response, but did not file any pleadings.
Posted in forum non conveniens, forum selection, jurisdiction simpliciter | Tagged: exclusive jurisdiction, forum non conveniens, forum selection clause, interjurisdictional trusts, jurisdiction simpliciter | Leave a Comment »
Posted by Seva on April 17, 2008
On the heals of the yesterday’s post about a recent B.C. case on cross-border defamation, my daily BNA Internet Law News report brought word of a Florida case, Internet Solution Corporation v. Marshall, in which the court found that it had no jurisdiction over an out-of-state blogger whose posts allegedly defamed the plaintiff, a corporation operating in Florida. Although it found that damage may have been suffered in Florida, it held that the blogger’s contact to the state was not sufficient to satisfy the Due Process Clause of the U.S. Constitution.
Posted by Seva on April 16, 2008
A very quick note today about TimberWest Forest Corp. v. United Steel Workers, decided this week by Mr. Justice Bracket of the B.C. Supreme Court. The plaintiff sued a number of defendants, including a union and four individuals, for defamation based on news conferences held by the defendants in the U.S. and Canada where they alleged that the plaintiff illegally dumped debris into a lake in B.C. Two of the defendants who were not B.C. residents brought an application to dismiss for lack of jurisdiction simpliciter in B.C. courts or because B.C. is a forum non conveniens.
There was nothing particularly new about either of the arguments, but is it useful to note that the court once again confirmed that “defamation is to be located where the damage to reputation occurs”, which in this case was British Columbia. For the jurisdictional question, it does not matter where the defamatory materials were designed or printed:
Posted by Seva on April 14, 2008
One side-effect of conflict of laws being a rather esoteric area of law is that only a few people regularly practice in this area and, outside of the well known voices, it is relatively hard to identify these practitioners. So, within the confines of advertising limits established by the provincial Legal Profession Acts, I was thinking that it may be a good idea to create a list of lawyers (name, firm, phone number, email, practice keywords, link to profile) who practice in this area, sorted by subject and location. Although this blawg is Canadian-based, there is no specific reason why the directory would need to be limited to Canadian lawyers.
Tentatively, I thought that such a directory would include:
(1) litigators – enforcement of foreign judgments, international public and private law, jurisdiction arguments, etc., as well as experts in foreign law.
(2) solicitors – structuring multi-jurisdiction transactions, jurisdiction and a choice of law clauses, etc.
(3) professors teaching relevant subjects.
There are two ways that such a directory could be created.
The first way, it would be a static page on this blawg. People would send me information (about themselves or someone they know) and I would integrate it into the page. The main advantage of this method is certain level of pre-approval, hopefully filtering out spam.
The second way, which I prefer, is to have this list created and maintained using a WiKi model, where everyone would be able to contribute to and edit the list. The main advantages of the second model is that it would collectively “owned” and would not depend on any one person maintaining it.
I welcome everyone’s feedback and hope this idea will meet with some interest.
Posted by Seva on April 14, 2008
I thank Mr. Pribetic for bringing two Ontario conflict of laws decisions to my attention. These will form the subject of this and the following posts.
The first case is the decision of the Ontario Superior Court of Justice in IGM U.S.A. Inc. (Bucci Industries U.S.A. Inc.) v. Linamar Holdings Inc., recently affirmed by the Ontario Court of Appeal.
The case involved a contractual dispute between the plaintiff owners and operators of a factory in Ontario and the Italian defendants who supplied to the plaintiffs a multi-million dollar machine, which allegedly did not work as required. The defendants argued that the Ontario court had no jurisdiction simpliciter over the dispute or that Ontario is forum non conveniens because inter alia the parties have agreed that Italian courts would have exclusive jurisdiction.
Posted by Seva on April 11, 2008
Hello, my faithful readers. I apologize for the temporary silence, it was not for lack of desire but rather for lack of information. As it appears, this week has been quite dry for conflict of laws topics to write about.
So, if you anyone has any interesting conflict of laws issues or topics topics that they would like to see discussed, please send them on to email@example.com and I will do my best to oblige.