Real and substantial connection is an inherently imprecise concept; its existence determined based on the full factual matrix of a particular matter. While fine for regular litigation, where the judge has the inherent jurisdiction to make this determination, it appears somewhat deficient in administrative contexts, where the jurisdiction should be determined via a standard test capable of being applied by non-judicial personnel. It appears that the Copyright Board of Canada was up to this challenge, elucidating just such a test in its recent decision on webcasting tariffs (see also discussion of this decision on Michael Geist’s blog).
Archive for October, 2008
Posted by Seva on October 31, 2008
Posted by Seva on October 23, 2008
Brief, but to the point, comes the decision of Mr. Justice Hinkson in Williams v. TST Porter dba 6422217 Canada Inc., 2008 BCSC 1315. The BC plaintiff, involved in an MVA in Alberta, sued in BC the corporate owner of the vehicle (who had a registered office in BC), and the driver, who was employed by the corporate defendant and only occasionally travelled to BC on business. The corporate defendant conceded jurisdiction simpliciter (based on ss. 7(a) and 3(d) of the CJPTA), but argued that Alberta is the forum conveniens. The individual defendant argued that the court lacked jurisdiction simpliciter and repeated the FNC argument.
Hinkson J. rejected the plaintiff’s argument that jurisdiction over the defendant employer was sufficient to establish a real and substantial connection and thus jurisdiction over the employee. Rather, the facts concerning the employee had to independently disclose a real and substantial connection and thus meet the requirements of s. 3(e) of the CJPTA.
On the forum non conveniens argument, Hinkson J. rebuffed the attempts of both counsel to rely on the Muscutt FNC factors. Instead, he concluded that s. 11 of the CJPTA provided all of the relevant considerations:
… it is my view that the relevant considerations with respect to the matter of forum conveniens in British Columbia are found in s. 11 of the CJPTA.
Although Hinkson J. did not elaborate on his position, I note the contrast with Madam Justice Gropper’s position in Stanway v. Wyeth Canada Inc., 2008 BCSC 847, where she imported Muscutt‘s jurisdiction simpliciter factors into s. 10 RaSC analysis (see previous comment). Interestingly, whereas s. 2(2) of the CJPTA dictates that “territorial competence …is to be determined solely by reference to this”Act, thus contradicting Gropper J.’s position, the same is could not be said with respect to the court’s discretion to decline to exercise territorial competence under s. 11.
Posted by Seva on October 9, 2008
Once upon a time there lived a man (M) in Windsor and a woman in Michigan. They met, got engaged, M bought W a $15,000 ring, and they put a down-payment on a house in Michigan. Alas, this was not a “happily every after” story, and a dispute over title to the future matrimonial home led to a demise of this particular relationship. Lending credence to the old adage of hell and fury, the engagement ended with not one, but two legal action launched by W against M: one in Michigan, in relation to the now-sold matrimonial home, in which M countersued for the return of the ring and his portion of the down-payment; and one in Ontario, for a declaration that she is the lawful owner of the ring, and for payment of incurred wedding expenses. Faced with this barrage, M successfully moved to stay the Ontario action, arguing that Michigan, where most of the witnesses were located, was forum conveniens.
What it is interesting about the decision of Master Pope in Buxar v. Lukich is not just the (somewhat) droll subject matter, but the court’s recognition and disapproval of W’s actions, which effectively amounted to forum shopping. Specifically, the Master found that W’s action in Ontario was motivated by her desire to gain a juridical advantage, since Michigan law effectively precluded her claim for the engagement ring, deeming it to be a conditional gift to be completed upon marriage. Following the guidance of Amchem, which decried forum shopping, Master Pope weighed the forum shopping conclusion in favour of staying the action.
On the facts of the case, it is likely that the stay would have been granted anyways, since most of the Muscutt FNC factors clearly favoured Michigan. However, future litigants beware: a forum shopping litigant is not likely to find much love in Canadian courts.
Posted by Seva on October 8, 2008
Because of the vagaries of QuickLaw, the case of Pavacic v. Nicely Estate, on which I had previously commented, has been emailed to me as a recent development. Re-reading the case, I noticed another potentially interesting aspect, which I did not previously explore.
Specifically, I noticed that Gauthier J. concluded that financial burden of travelling to another jurisdiction does not necessarily translate into “unfairness” under the fourth Muscutt factor:
 I am not altogether persuaded, however, that such financial hurdles translate into “unfairness”. Unfairness connotes a situation which is unjustified or “unjust”. The fact of the Plaintiffs having to pursue a legal remedy in the place where the wrong occurred does not, on the facts before me, appear to be unfair.
In the light of previous case-law, I wonder about the accuracy of this conclusion. First, it seems to go against the well-accepted rule that the loci delicti (place where the wrong occurs) is the place where the damages have been suffered – which in this case was clearly Ontario. While under Ontario rules this is but a single factor taken into account in deciding whether RaSC exists, having to “pursue a legal remedy where in the place where the wrong occurred”, legally, points to Ontario rather than Georgia, and demonstrates the unfairness of not assuming jurisdiction.
Second, the conclusion appears to go against Muscutt, where the Ontario Court of Appeal affirmed Oakley v. Barry for the proposition that unfairness has to be considered from the point of view of the plaintiff, and described this factor as addressing the financial and practical inconvenience to the plaintiff in having to litigate in another forum. Notably, in Oakley, the unfairness factors considered by the court were the financial hurdles faced by the plaintiff in having to litigate in another forum.
Overall, I wonder if, taken literally, Gauthier J.’s conclusion to effectively exclude financial considerations from proof of unfairness of assuming jurisdiction will significantly restrict the scope of Ontario court’s jurisdiction in similar cases.