Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Archive for May, 2008

Crookes on Presumed Publication

Posted by Seva on May 29, 2008

In a several previous posts I discussed recent Canadian and U.S. cases dealing with cross-jurisdictional defamation suits (Canadian, US). In particular, a US court confirmed that mere accessibility of a statement via the Internet is not sufficient to assume jurisdiction absent proof of minimum connection to the state, such as proof of some kind of specific targeting of readers in the state. A single contact with the state (a single reader) was not sufficient.

In the light of that case, it is interesting to consider Crookes v. Yahoo, 2008 BCCA 165, where Lowry J.A. upheld dismissal of the defamation case against Yahoo! due to the plaintiff’s failure to plead publication in B.C. The case involved allegedly defamatory posts made on a private invitation-only Yahoo! message board. While acknowledging that publication must generally be pleaded, Mr. Crookes tried to rely on the “presumed publication” rule which applies to statements broadcast or transmitted to the general public (see Libel and Slander Act, s. 2). He relied on Wiebe v. Bouchard, where BCSC applied that rule to libellous statements posted on a Government of Canada website.

Acknowledging the presumed publication rule and Wiebe, Lowry J.A. distinguished them from “a website with the kind of restricted access there was in this case.” This restricted access did not support a presumption that the posts were read by anyone in B.C.

It’s difficult to argue with the court’s ultimate decision, particularly in the light of Mr. Crookes fame (see for example Wiki, Michael Geist, Slashdot). However, the case does leave open some important questions.

  1. What is the legal relationship, if any, between the presumed publication rule found in s. 2 of the Libel and Slander Act and the real and substantial connection required to establish jurisdiction simpliciter? Does this decision mean that the LSA, which deems a publicly broadcasted statement to be “published”, also deems the defamation tort to have been committed in B.C. within the meaning of s. 10(g) of the CJPTA? While the LSA does address some jurisdictional questions (s. 18 on “where an action must be tried”), it is difficult to fathom that the legislative intent behind s. 2 had anything to do with helping establish a court’s jurisdiction to try the matter in B.C.
  2. Even if it proven that a person has actually accessed the impugned post in B.C., is such singular access really sufficient to establish a real and substantial connection to B.C.? In particular, noting that s. 10 lists only presumptions of RaSC, could reasoning similar to that employed by the U.S. courts be also applicable here, requiring some kind of minimum targeting of the forum or proof of some regular or sustained access?

Perhaps next time!

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The Right – Left Hand Dichotomy and Economic Tort’s Lex Loci Delicti

Posted by Seva on May 27, 2008

Does territorial competence over a one branch of a company necessarily allow an action over employees of other branches? Does it matter, for the purpose of lex loci delicti, the type of damage was suffered by the plaintiff? Both of these rather novel questions are dealt with in the decision of Madam Justice Koenigsberg in England v. Research Capital Corporation, 2008 BCSC 580. As she explains, the jurisdiction over the right hand does not always translate into jurisdiction over the left hand, particularly in cases of purely economic loss.

Read the rest of this entry »

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Fair and Efficient Working of the Canadian Legal System and Juridical Advantage

Posted by Seva on May 23, 2008

Today’s note is about Gordon Estate v. Venables, 2008 BCSC 501, which deals with an application to stay a BC action in favour of Ontario on the ground of forum non conveniens. Aside from providing a convenient summary of case law dealing with post-CJaPTA forum non conveniens doctrine, I found the case to be notable for the following two points relating to juridical advantage.

The BC proceeding was a trustee’s petition for compensation. The Ontario proceeding was an action against the same trustee for passing of accounts and misadministration of the trust. The BC respondents requested a stay of proceedings arguing that the entire dispute should be resolved in the Ontario action. Metzger J. ultimately agreed and stayed the BC action.

The first interesting point was Metzger J.’s comment that fair and efficient working of the Canadian Legal System (s. 11(2)(f) CJaPTA) was a relevant consideration in this case because of the similar but different provincial Trustee Acts:

The sixth factor is the “the fair and efficient working of the Canadian legal system as a whole”. This factor is engaged in the case at bar by the difficulty in “meshing” the subtle differences in the two provincial statutory schemes regarding the calculation of trustee compensation. The fair and efficient working of the Canadian legal system as a whole is best served by having trustee compensation for the entire life of the Trust until today determined in one province. I consider this factor to favour Ontario.

The second interesting point was his comments on juridical advantage:

The most critical factor is that emphasized by the respondents, which is the simple fact that the Trust was administered in Ontario for over 30 years by an Ontario trust company under the delegation of a sole income beneficiary who still resides in Ontario. In Lloyd’s at para. 58, Newbury J.A. noted that in the context of juridical advantage, Sopinka J. at p. 919 of Amchem stressed the relevance of the reasonable expectations of the parties. In my view, everyone interested in the Trust had a reasonable expectation built up for over three decades that any litigation concerning the trust would take place in Ontario. Ontario clearly had the closest real and substantial connection to the Trust throughout that period. It would be a serious breach of the reasonable expectations of the parties for this court to find that British Columbia is the more appropriate forum for the disputes arising from the Trust. In my view, the extremely strong connection of the Trust to Ontario for approximately 95% of its lifetime is the strongest connection at play in this case, and strongly favours this court finding Ontario to be the appropriate forum.

There is no inherent conflict between these comments as both juridical advantage and working of the Canadian legal system are but non-determinative factors that must be considered on a forum non conveniens application. However, it is interesting to note that given the rationale behind these factors, they may in practice conflict, as the reasonably expected juridical advantage may in fact result in an application of diverging statutory schemes or common law authority and thus have a prima facie negative impact on the fair and efficient working of the Canadian legal system. In other words, the forum reasonably expected by the parties and the associated juridical advantages may be different from the forum adjudicating in which would be most advantageous from the standpoint of fairness and efficiency of the Canadian legal system as a whole. In such a case, it is unclear which of these two factors should take priority.

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Manitoba and Muscutt and Forum Selection Clauses

Posted by Seva on May 22, 2008

The first decision that came to my attention from the Manitoba Court of Queen’s Bench in Commonwealth Insurance Company v. American Home Assurance Company, 2008 MBQB 112. The case involved a primary liability insurer suing excess liability insurers for contribution to the legal costs incurred in defending an insured. Coromin, one of the defendant excess liability insurers disputed the Manitoba court’s jurisdiction to hear the case because of an existence of a forum selection clause, lack of jurisdiction simpliciter and forum non conveniens.

There are three somewhat interesting aspects of this decision.

First, relying on an earlier MBCA decision in Ward v. Canada (Attorney General), 2007 MBCA 123, this decision clearly shows that Manitoba courts have also adopted Muscutt v. Courcelles and the 8 factors enunciated therein as a standard for real and substantial connection. Thus, Manitoba joins the provinces that have not adopted the ULCC’s Court Jurisdiction and Proceedings Transfer and that prefer the broad Ontario approach to RaSC to the more narrow B.C. approach.

Second, I found quite interesting Scurfield J.’s remarks about forum selection clauses. In particular, it appears that his conclusion that a forum selection clause as a “threshold factor” to be considered under the heading of forum non conveniens contradicts the SCC’s conclusion in Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27, where Mr. Justice Bastarache, at ¶21, held that the issue of a forum selection clause and forum non conveniens warrant separate approaches:

21  There is a similarity between the factors which are to be taken into account when considering an application for a stay based on a forum selection clause and those factors which are weighed by a court considering whether to stay proceedings in “ordinary” cases applying the forum non conveniens doctrine: …. I am not convinced that a unified approach to forum non conveniens, where a choice of jurisdiction clause constitutes but one factor to be considered, is preferable.  As Peel, supra, notes, at p. 190, I fear that such an approach would not ensure that full weight is given to the jurisdiction clause since not only should the clause itself be taken into account, but also the effect which it has on the factors which are relevant to the determination of the natural forum.  Factors which may otherwise be decisive may be less so if one takes into account that the parties agreed in advance to a hearing in a particular forum and must be deemed to have done so fully aware of the consequences which that might have on, for example, the transportation of witnesses and evidence, or compliance with foreign procedure etc. In my view, a separate approach to applications for a stay of proceedings involving forum selection clauses in bills of lading ensures that these considerations are properly taken into account and that the parties’ agreement is given effect in all but exceptional circumstances.  …                             [Emphasis added]

Admittedly, the ultimate effect of Scurfield J.’s conclusion is likely negligeble as he acknowledged that because “such clauses are frequently dispositive of jurisdictional issues” they must be dealt with before the questions of jurisdiction simpliciter or forum non conveniens. Thus, for all practical purposes, a forum selection clause is still considered separately from the broader issue of forum non conveniens.

Finally, a third point which I found interesting albeit not very novel was Scurfield J.’s conclusion that a particular legal rule, which exists in only one of the argued jurisdictions, and which recognizes the plaintiff’s claim, constitutes a valid juridical advantage to be considered by the court in deciding whether that jurisdiction is forum conveniens:

113       Generally, a plaintiff is entitled to any juridical advantage that flows from a jurisdiction that is otherwise appropriately selected:  Ward.  In the result, the question of juridical advantage is one that either favours the plaintiff’s choice of forum or is neutral.

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Back in the Saddle

Posted by Seva on May 22, 2008

Hi Everyone

Sorry for the lengthy absence, it was unavoidable – a vacation was sorely needed. However, now that I am back from the various lands (cold and sunny alike), I am back to work and back to blawging, which includes going through a pile of new CoL decisions. Fortunately for my time management skills, it does not appear that anything incredibly important happened in this field over the past several weeks. Thus, I will do my best to quickly catch up and post on the latest developments.

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