Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Posts Tagged ‘forum non conveniens’

Jurisdiction over Employers/Employees, and No to Muscutt FNC Factors in BC

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.

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Of Love and Forum Shopping

Posted by Seva on October 9, 2008

Once upon a time there lived a man (M) in Windsor and a woman (W) 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.

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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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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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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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Muscutt as part of BC’s CJPTA presumptions?

Posted by Seva on July 8, 2008

It’s a good thing I wasn’t deceived by the headnotes to Stanway v. Wyeth Canada Inc., 2008 BCSC 847; this case is much more than a run-of-the-mill application of s. 10 of the CJPTA. If accepted as an accurate statement of law, this decision may stand for two important propositions. First, “harmonization” and “co-ordination”, such as co-ordination of labelling and safety requirements, between an international parent company and a local, but substantially independent subsidiary may be sufficient to establish RaSC. Second, and I think more important and contentious, the eight Muscutt factors (or at least those that the court chooses to consider) may be used to prove a s. 10 presumption.

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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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