Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Posts Tagged ‘jurisdiction simpliciter’

A Cornucopia of Conflicts Goodies

Posted by Seva on November 18, 2008

The decision of Mr. Justice Grauer in Lailey v. International Student Volunteers, Inc., 2008 BCSC 1344 provides a cornucopia of interesting conflict of laws points dealing with rebuttal of CJaPTA real and substantial connection presumptions, a general prohibition against bootstrapping actions over which the court does not have jurisdiction simpliciter to actions where the court does have jurisdiction, and consequences of such bootstrapping on otherwise valid ex juris service. It is always amazing how much useful law can come out of a relatively run-of-the-mill student volunteer trip to Ecuador.

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Financial Burden Does Not Equate to Unfairness (in Not Assuming Jurisdiction)

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:

[55] 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.

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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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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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Contract-Specific RaSC Factors (in addition to Muscutt)

Posted by Seva on July 11, 2008

I am quite far behind the 8-ball on this one, but since I only read about it today in another case I thought I’d share. In December 2007, Cullity J., of the Ontario Superior Court of Justice, dismissed the action brought by Mr. Schreiber against the former Canadian prime minister Mr. Mulroney. The reason for the dismissal was that the plaintiff was not able to establish an RaSC between Ontario and the claim. What is notable about this case, at least from the conflict of laws perspective, is that Cullity J. concluded that the eight Muscutt factors may not be sufficient to test for RaSC, and added his own, contract-specific factors:

[38] Most of the Muscutt features do not weigh significantly in favour of one side or the other in this case and the connections counsel relied upon most strongly can, I think, be squeezed only into the first and the second most general categories that examine the connection between the forum and the plaintiff’s claim, and that between the forum and the defendant. Three of these factors are provided by rule 17.02(f) and (h) – the place where a contract was made; the place where it was allegedly breached; and the place where damage resulting from the breach was sustained. Other factors that may have special relevance to actions for breach of contract are the place where the contract was to be performed and, at least, in a contract for personal services, the place of the defendant’s residence during the term of the contract, as well as at its inception. I will consider these possible – specifically contractual – connections before looking at the other factors identified in Muscutt.

Nothing is particularly unusual about these factors except, of course, the authority given to them by this decision.

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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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