Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Posts Tagged ‘muscutt’

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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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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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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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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