Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Archive for the ‘jurisdiction simpliciter’ Category

Be Careful Where You Send Things

Posted by Seva on July 3, 2008

The Alberta case of Warren v. ABC Wilderness Adventures Ltd., 2008 ABQB 258 confirms that mailing an offer or a prospectus to a different province may be sufficient for the courts of that province to allow ex juris service and possibly even to establish jurisdiction simpliciter.

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Damages (Contract or Tort) = Real and Substantial Connection

Posted by Seva on June 18, 2008

Irrespective of whether an action is in contract or in tort, damages suffered in the province prima facie indicate a real substantial connection between the province and the “facts on which a proceeding is based” (s. 10 of the ULCC’s CJPTA) This useful conclusion can be gathered from the decision of Mills J. of the SKQB in Big Sky Farms Inc. v. Agway Metals Inc., 2008 SKQB 53.

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A Multitude of Real and Substantial Connections

Posted by Seva on June 18, 2008

It’s not a novel point, but always nice to have an additional authority for the argument that jurisdiction simpliciter of a court does not necessarily exclude jurisdiction simpliciter of other courts. As Mr. Justice Ehrcke confirmedin Mountain West Studios Ltd. v. Dalderis, 2008 BCSC 697, “depending on the facts of a case, there may be a real and substantial connection with more than one jurisdiction.”

On the facts of the case before him, Ehrcke J. concluded that the fact that the defendant (resident of Alberta) worked for the plaintiff (resident of B.C.) in both B.C. and Alberta was sufficient to show a real and substantial connection to B.C. Although he did not expressly indicate if this fact pattern fell under one of the s. 10 CJPTA RaSC presumptions, it seems to be congruent with s. 10(e)(i): “the contractual obligations, to a substantial extent, were to be performed in British Columbia”.

Additionally, Ehrcke J. also relied on the recently discussed BCCA decision in Purple Echo for the proposition that the governing law and exclusive jurisdiction clauses pointing to B.C., although attacked by the defendant as being part of a superseded and thus unenforceable contract, “showed a good arguable case that [jurisdictional facts] can be established.”

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Can a Plaintiff Be Reasonably Expected to Know Conflicts Rules?

Posted by Seva on June 11, 2008

In the context of the “unfairness to the plaintiff” factor from the Muscutt test for real and substantial connection, does reasonable expectation of the plaintiff include knowledge of the conflict of laws rules? As the decision of the Ontario Superior Court of Justice in Pavacic v. Nicely Estate implicitly indicates, the answer to this question is no. Apparently, reasonable knowledge is limited to “common sense” rather than “legal” expectations. Does this conclusion make sense, and should this conclusion be part of the jurisdiction simpliciter question at all?

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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.

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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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Retroactive Jurisdictional Rules and Inter-jurisdictional Trusts

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.

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