Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Posts Tagged ‘real and substantial connection’

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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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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