Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

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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Charter and Defences to the Enforcement of Foreign Judgments

Posted by Seva on August 7, 2008

Enforcement of foreign judgments is prima facie concerned with foreign civil judgments. Enforceable foreign judgments, while no longer necessarily pecuniary, still exclude penal judgments and thus arise out of private disputes between parties. In this context, it is difficult to see how the Charter, imposing constraints on our government’s actions, particularly in criminal matters, would have any application. However, the duty of tenacious representation (and billable hours) relentlessly drives the lawyers’ search for loopholes. Thus, in King v. Drabinsky, 2008 ONCA 566, the defendants argued that the difference between the US and Canadian constitutional protections against self-incrimination, in the situation where the defendants were sued in a civil action in the US, and charged with a related criminal offence in Canada, resulted in a breach of natural justice and thus a defence to the recognition and enforcement of the judgment. Holding that s. 13 of the Charter “would likely protect” the defendants and prevent the use of the testimony from the US civil proceedings in a Canadian criminal trial, the court upheld the trial judge’s decision to recognize the foreign judgment.

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Puppy Law

Posted by Seva on August 5, 2008

Sorry for the prolonged absence, I’ve been busy with a couple projects and had no time (or more correctly energy) for blawg posts. I will try to catch up this week on several cases that I’ve wanted to mention.

Meanwhile, I want to answer an age-old question that no one asked: what do puppies and conflicts of laws have in common? The answer is: nothing! Well, except when a puppy is rge subject of an inter-provincial contract, as in Solylo v. Lamontagne (c.o.b. Star Magic) (Ont. S.C. – Small Claims) [no CanLii link yet].

The Ontario plaintiff mail-ordered a $3,000 pedigreed puppy from the Saskatchewan defendant, and apparently got the puppy less the pedigree paperwork and microchip. In response to the plaintiff’s small claims action in Kitchener court for $2,000 for breach of contract, the defendant hired an Ottawa lawyer and proceeded to vociferously argue lack of jurisdiction simpliciter, forum non conveniens, and other related issues.

Unsurprisingly, the defendant’s arguments were dismissed. The facts that the contract was formed in Ontario, the puppy was received in Ontario, the breach was discovered and the damages were thus also suffered in Ontario, were all sufficient to establish jurisdiction simplicter, albeit the court did not once refer to Muscutt. Moreover, the defendant did not show any viable reasons why Ontario was forum non conveniens and Saskatchewan was.

Alas, from the defendant’s perspective, the case went to the dogs.

OK, I promise, no more puns.

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“Cougar Ace” – Jurisdiction for Federal Matters

Posted by Seva on July 23, 2008

Thus far, posts on this blawg have only discussed conflicts decisions from provincial courts. In a change of pace, I want to bring to everyone’s attention a recent conflicts case from the Federal Court of Appeal: Mitsui O.S.K. Lines Ltd. v. Mazda Canada Inc., 2008 FCA 219. This case – a legal component of the well-publicized “Cougar Ace” drama – is interesting both for its extensive discussion and application of FNC principles, and for its somewhat questionable approach to jurisdiction simpliciter.

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Expert Evidence on Law of Other Provinces

Posted by Seva on July 21, 2008

The requirement for proving foreign law via expert evidence, and a presumption of similarity to lex fori in the absence of such evidence, has been trite law for some time. However, as the decision of Mr. Justice Matsuhara in Seidel v. Telus Communications Inc., 2008 BCSC 933 shows, at least part of this triteness is that no one has bothered to assail this proposition. In Seidel, the plaintiff, seeking the court’s conclusion that the law of Quebec on the subject of arbitration and certification of class action proceedings was substantially different from that of BC, argued that expert evidence on the law of Quebec is unnecessary and inadmissible. She argued that the court was qualified to consider Quebec law, particularly its statutory scheme, without additional help.

Unsurprisingly, the court disagreed with this assertion. Instead, it proceeded to analyze the question of admissibility via the principled approach to expert evidence from R. v. Mohan, focusing on necessity. The court took into account that foreign law has traditionally been proven by expert evidence, that Quebec law, under its civil tradition, is statutory; that under s. 24(2)(e) of the B.C. Evidence Act, the court must take judicial notice of statutes of other provinces; and that a judicially noticed fact is not open to rebuttal (R. v. Spence). The resolution of this dilemma lay in the conclusion that there is a difference between judicially noticing the existence of a foreign statute, and receiving expert evidence on its meaning and effect within that legal system. As Matsuhara J. concluded at para. 24:

It would be audacious of me to conclude that simply because I can read the translations of the provisions of the Civil Code I have the capacity to fully understand and interpret the meaning of such provisions. In other words, this is information that is “outside of the experience the trier of fact”, which makes expert evidence necessary.

As a not-so-long-ago law student, I find that it is always useful to find a case expounding on an otherwise trite principle of law and confirming its validity via principled analysis.

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