Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Archive for September, 2008

An Alternative Form of Exclusive Jurisdiction Clause

Posted by Seva on September 15, 2008

Solicitors, rejoice! Following the decision of Madam Justice Peppal in Blue Note Mining Inc. v. CanZinco Ltd. (Ont. S.C.), you now have an additional type of exclusive jurisdiction clause at your disposal. This clause, rather than forcing a party into a particular jurisdiction, prohibits a party from disputing jurisdiction of a particular forum, even as forum non conveniens.

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Posted in forum non conveniens, forum selection | Tagged: , , | 1 Comment »

Minimal Evidentiary Burden on Defendants Disputing Jurisdiction

Posted by Seva on September 10, 2008

It is well-accepted, particularly in BC, that a plaintiff only needs to adduce affidavit evidence establishing an arguable case for jurisdiction simpliciter if the defendant first adduces evidence which contradicts the plaintiff’s jurisdictional assertions contained in the pleadings. As Blackedge Strategic Capital and Consulting Ltd., 2008 BCSC 1217, demonstrates, the defendant’s evidentiary burden is minimal.

In Blackedge, the plaintiff alleged, without any evidence, that a closing of an inter-provincial share sale contract was to occur in BC (i.e., arguing that the contract was made in BC), and that misinterpretations by telephone and email were also made in this province. In regards to the first assertion, Savage J. explained that to rebut this claim and place the burden on the plaintiff to adduce affidavit evidence, it was sufficient for the defendants to depose that the subject shares were to be delivered in another province and disclaim terms of the contract which implied a BC closing. In regards to the second assertion, Savage J. considered the terms of the contract and held that (effectively) the plaintiffs had not made out a prima facie case for the claimed misrepresentations. Because the plaintiffs had adduced no affidavit evidence, the defendants were successful in having the action dismissed for lack of jurisdiction simpliciter.

I think the point to be taken from all this is that if you find yourself on the defending side of a jurisdiction simpliciter assertion, keep in mind that the evidence required from your client to rebut the plaintiff’s assertions may be minimal. In fact, the Blackedge decision suggests that an affidavit from your client, essentially disagreeing with the jurisdictional facts alleged by the plaintiff, may be sufficient.

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LegalTree.Ca – Excellent Source of Canadian Legal Info

Posted by Seva on September 10, 2008

Finding Canadian legal information online has always been a hit and miss undertaking. On the one hand, given the relatively small size of our legal field, there were not many resources to be found, and after finding two or three textbooks and blawgs on a particular subject, I would be fairly sure that I’ve found everything there is. On the other hand, it would often be rather difficult to find these resources.

Fortunately, there is now LegalTree.ca, an ever-growing collaborative legal research website, providing a central repository of information about legal textbooks, commentaries, journals, and blawgs. Case in point, it even lists this blawg, as one of only two blawgs on the subject of conflict of laws. WIth resources organized by practice areas and a search engine, this site has as of late become one of my starting points for any legal research project. Thank you legaltree!

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Who am I? End of Anonimity

Posted by Seva on September 3, 2008

For better or for worse, the time has come to attribute the content on this blawg to an actual author.

As you can also find out on the updated “About this Blawg” page, My name is Seva Batkin, and I am currently an articling student at a Vancouver law firm Clark Wilson LLP. I will (hopefully) be called to the bar at the end of this year.

I am a (fairly recent) graduate of UBC Law, and in my previous career I was a telecommunications engineer at Nortel Networks. Partly because of my technological background, my areas of interest are conflict of laws (duh!), IP and technology law, and constitutional law.

Of course, the opinions on this blawg are purely my own and may not in any way reflect the opinions of Clark Wilson LLP or any of its lawyers. This and other disclaimers can be found here.

Thank you all for tuning in. Please comment away, and if you wish to contact me, send an email to info@renvoi.ca

Seva.

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Attornment, Forum Non Conveniens and Corrupt Courts

Posted by Seva on September 1, 2008

Once again, the life of a soon-to-be lawyer takes hold and I find myself with little time to post, either because I am too swamped or simply too tired. Fortunately, as I can gather from my daily Quicklaw alerts, there also haven’t been too many interesting conflicts decisions in the last couple of weeks.

Ever since the decision of the Supreme Court of Canada in Morguard, comity – the respect for “legislative, executive or judicial acts of another nation” – has been the driving force behind Canadian conflict of laws principles. Importantly, as the decision of Brooker J. in Norex Petroleum Limited v. Chubb Insurance Company of Canada, 2008 ABQB  442, illustrates, comity means neither blindness to the realities of corruption in many foreign judicial systems, nor an abdication of a responsibility to protect litigants from such corruption by finding such systems not to be forum conveniens. Furthermore, the decision also confirms that a voluntary attornment to the court’s jurisdiction does not preclude an FNC argument, which appeals to the court’s discretion rather than a specific legal threshold.

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Posted in forum non conveniens, jurisdiction simpliciter | Tagged: , , | Leave a Comment »

 
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