General Considerations 8

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1 General Considerations 8 Most General! 8! Characterization 8 Tolofson v Jensen [1994] (SCC)! 8! International Assn. of Science and Technology for Development v Hamza [1995] (ACA)! 9! Success International Inc v Environmental Export International of Canada Inc. [1995] (OPC)! 9! Exclusionary Rules 10 General Considerations! 10! Huntington v Attrill [1893] (PC)! 10! Society of lloyd s v Meinzer [2001] (OCA)! 11! Kuwait Airways Corp. v Iraqi Airways Co. [2002] (HL)! 11! US v Ivey [1995] (OPC)! 12! Domicile and Residence 12 General Considerations! 12! Agulian v Cyganik [2006] (EWCA)! 13! Re Urquhart Estate [1990] (OCA)! 13! Adderson v Adderson [1987] (ACA)! 14! Note on Habitual Residence! 14! National Trust Company Ltd. v Ebro [1954] (OCA)! 14! Jurisdiction In Personam 15 Jurisdiction: Jurisdiction Simpliciter and Territorial Competence 15 The Constitutional Standard! 15! General Considerations! 15!

2 2 Morguard Investments Ltd v De Savoye [1990] (SCC)! 16! Parties within the Jurisdiction! 16! Maharanee of Baroda v Wildenstein [1972] (ECA)! 16! Parties Outside of the Jurisdiction! 16! Moran v Pyle National Ltd [1973] (SCC)! 16! Muscutt v Courcelles [2002] (Ont CA)! 17! Spar Aerospace Ltd v Mobile Satellite Corp [2002] (SCC)! 17! Coutu v Gauthier [2006] (NBCA)! 18! Stanway v Wyeth Pharmaceuticals Inc [2009] (BCCA)! 18! Club Resorts v Van Breda [2012] (SCC)! 19! Jurisdictional and Material Facts and Evidence! 20! General Considerations! 20! AG Armeno Mines and Minerals v Newmont Gold [2000] (BCCA)! 20! MTU Maintenance Canada Ltd. v Kuehne & Nagel Intl. Ltd [2007] (BCCA)! 21! Discretion: Stays and Anti-Suit Injunctions 21 General Considerations! 21! The English Principals! 21! Spiliada Maritime Corp v Cansulex Ltd. [1987] (HL)! 21! Societe Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] (PC)! 22! Airbus Industrie GIE v Patel et al [1999] (HL)! 22! Canadian Principles! 23! Anchem Products Inc v BC [1993] (SCC)! 23! Lloyd s Underwriters v Cominco Ltd. [2007] (BCCA)! 24! Young v Tyco Intl of Canada Ltd [2008] (ONCA)! 25!

3 3 Teck Cominco Metals Ltd. v Lloyds Underwriters [2009] (SCC)! 25! Club Resorts v Van Breda [2012] (SCC) [ROUND 2 FNC]! 26! Jurisdiction Selecting Clauses! 26! General Considerations! 26! ECU Line NV v ZI Pompey Industrie [2003] (SCC)! 26! Momentus.ca Corp v Canadian American Association of Processional Baseball Ltd [2012] (SCC)! 27! Preyman Technology (BCCA)! 28! Class Actions 28 General Considerations! 28! Harrington v Dow Corning Corp [2000] (BCCA)! 28! Ward v Canada [2007] (MBCA)! 29! Recognition and Enforcement of In Personam - Pecuniary and Non-Pecuniary Judgements 29 Pecuniary Judgements: Common Law 29 Finality and Conclusiveness! 29! General Considerations! 29! Nouvion v Freeman [1889] (HL)! 30! Jurisdiction in the International Sense! 30! Presence! 30! Forbes v Simmons [1914] (ASC)! 30! Submission! 31! First National Bank of Houston v Houston E&C Inc [1990] (BCCA)! 31! Clinton v Ford [1982] (OCA)! 31! Mid-Ohio Imported Car Co. v Tri-K Investments Ltd [1995] (BCCA)! 32!

4 4 A Real and Substantial Connection! 32! Morguard Investments Ltd v De Savoye (1990) (SCC) (ROUND 2 R+S in RECOGNITION)! 32! Beals v Saldanha (2003) (SCC)! 33! Braintech v Kostiuk (1991) (BCCA)! 33! Non-Pecuniary Judgements: Common Law 33 General Considerations! 33! Pro Swing Inc v Elta Golf Inc [2006] (SCC)! 33! Defences: The Exclusionary Rules, Fraud, and Breach of Natural Justice 34 Beals v Saldhana [2003] (SCC) [ROUND 2 DEFENCES TO RECOGNITION]! 34! Class Actions 34 Currie v McDonald s Restaurants [2005] (OCA)! 34! Statutory Regimes 35 Judgements and Orders! 35! General Considerations! 35! Enforcement of Canadian Judgements and Decrees Act! 35! Court Order and Enforcement Act Pt 2! 35! Central Guaranty Trust v De Luca [1995] (NWTSC)! 36! Re Carrick Estates and Young [1987] (SCA)! 36! Owen v Rocketinfo Inc [2008] (BCCA)! 36! Arbitral Awards! 36! General Considerations! 36! Shreter v Gasmac Inc [1992] (OPC)! 36! Jurisdiction and Recognition and Enforcement: In Rem

5 5 Actions 37 General Considerations! 37! Hogg v Provincial Tax Commissioner [1941] (SCA)! 37! British South Africa Co v Companhia de Mocambique [1893] (HL)! 37! Hesperides Hotels Ltd v Muftizade [1979] (HL)! 37! Note - Exception to the Mocambique Rule! 38! Godley v Coles [1988] (OPC)! 38! Ward v Coffin [1972] (NBSC)! 38! Duke v Andler [1932] (SCC)! 38! Lucasfilm [2011] (UKSC)! 39! Choice of Law! 39! General Considerations! 39! Renvoi and the Incidental Question 40 Explanation! 40! Schwebel v Ungar [1965] (SCC)! 40! Neilson v Overseas Projects Corporation of Victoria Ltd. [2005] (HCA)!40! Marriage 41 General Considerations! 41! Taskanowska v Taskanowski [1957] (UKCA)! 41! Brook v Brook [1891] (HL)! 41! Canada v Narwal [1990] (FCA)! 41! Sangha v Mander [1985] (BCSC)! 42! Verraeke v Smith [1982] (HL)! 42! Note on Polygamist Marriages! 42!

6 6 Torts 42 General Considerations! 42! Tolofson v Jensen [1994] (SCC) [ROUND 2 TORTS ISSUE]! 43! Somers v Fournier [2000] (OCA)! 43! Editions Ecosociete v Banro [2012] (SCC)! 44! Contracts 44 The Proper Law! 44! General Considerations! 44! Vita Foods v Unus Shipping [1939] (PC)! 45! Richardson International Ltd v Mys Chikhacheva [2002] (FCA)! 46! Imperial Life Assurance Co of Canada v Colmenares [1967] (SCC)! 46! Amin Rasheed Shipping Corp. v Kuwait Insurance [1984] (HL)! 46! Formation! 46! General Considerations! 46! Mackender v Feldia AG [1967] (ECA)! 47! Formalities! 48! General Considerations! 48! GreenShields Inc v Johnson [1981] (AQB)! 48! Illegality: Rules of Mandatory Application! 48! General Considerations! 48! Avenue Properties Ltd v First City Development Corp. [1986] (BCCA)! 49! Hague Convention! 50! Pearson v Boliden [2002] (BCCA)! 50! Gillespie Management Corp v Terrace Properties [1989] (BCCA)! 50!

7 7 Unjust Enrichment 51 General Considerations! 51! Christopher v Zimmerman [2000] (BCCA)! 51! Minera Aguiline Argentina SA v IMA Exploration Inc [2007] (BCCA)! 52

8 General Considerations Most General -3 stages of a conflicts case: 1) Jurisdiction - where do I want to sue/ be sued 2)Choice of law - Decision on the merits - trial 3)Recognition and enforcement - Where can I enforce my judgement -When thinking through this process, you have to think of the relevant laws -Choice of law stage - council must decide whether to go with the forum law or whether to argue that the merits should be governed by some other jurisdiction *Default position is that the law of the forum applies -In order to get another law chosen, council must persuade the judge that a choice of law rule dictates that the foreign law should be used *if the choice of law rule of the forum, selects the law of another jurisdiction to judge the case - this law is known as the lex causae Characterization Characterization- is a process that can arise at any point in a case General Rule - Characterization is governed by the law of the forum -Tolofson and Hamza demonstrate only one type of the cause of action *focus on the dichotomy between characterization of rules as substantive or procedural -The issue of characterizing rules as substance or procedure arises because each jurisdiction uses it s own procedural rules *Forum never applies procedural rules of the lex causae -this comes into the choice of forum for litigation, because procedural rules are always of the lex fori -So you have a forum rule and a lex causae rule, and they deal with the same subject *could be 4 possible rule combinations pro-pro, sub-sub, sub-pro, pro-sub -pro-pro = lex fori -sub-sub = lex causae... because we have decided that the merits of the case dictate that the lex causae fits the merits of the case -sub-pro = neither can apply.. because we have decided that the merits of the case dictate that the lex causae fits the merits of the case, but the foreign rule is procedural so it cannot apply -pro-sub = both apply which is a problem *bottom two pairs will not work, so you have to think it through prior to decisions of forum and lex causae -thus argue for one of the first two that benefit your clients Tolofson v Jensen [1994] (SCC) Issue -Did the BC rule apply, or did Saskatchewan Exclusionary Rule Apply -SCC Ruled: 1) That the law of the place of the tort governs the law in tort 8

9 *consequently, the substantive law of Saskatchewan governed the plaintiffs claim (lex situs) = in this case lex causae is Sask law 2)that the Saskatchewan limitation rule was properly characterized as substantive rather than procedural, and therefore applied to bar the plaintiff s claim -Laforet - Basically says that procedural/substantive decisions should be made on the basis of relevant policy considerations what makes the court overseeing the action run best vs laws that are determinative on the rights of both parties *ex rules of procedure that requiring pleading of statute of limitation if the litigant wishes to rely upon it **In the case of limitation periods, they are arbitrary, and they should apply from the lex causae International Assn. of Science and Technology for Development v Hamza [1995] (ACA) Facts -Plaintiffs are registered in Switzerland as societies and recognized in Swiss law, but not incorporated or registered as any form of society or trade union under prov or fed law Issue -Can a foreign, unincorporated entity sue in the Courts of AB -Can extend foreign procedural rules into the forum in certain cases, especially in the area of right to sue or be sued - in this case court looks at lex causae to see whether the foreign law gives the entity the same rights/status that AB law does *while this is a rule for Alberta, can argue that it is an option for BC -NB: Non-incorporated foreign entities were dealt with in Funds v Richardson Greenshields Canada Ltd.- which established that if a foreign entity is entitled to sue in it s name in the home jurisdiction, then it may occupy the same place as a corporation Success International Inc v Environmental Export International of Canada Inc. [1995] (OPC) Issue -Can corporations with questionable status sue extra jurisdictionally? What does Carrying on business in mean? -Then moves to define carrying on business out of the Extra-Provincial corporations act as being: 1) if it has a resident agent, rep, warehouse, office, or place of business 2) if it holds an interest in real property situate in ontario; or otherwise carries on its business in Ontario -Statute and contract should be interpreted to promote a sensible commercial result, which in this case necessitate a labelling as carrying on business within ontario as defined by the act Overall: -Application of forum procedural rule deciding on the capacity of a corporation to be sued in a given jurisdiction -Carries on business depends on the level of engagements with the jurisdiction, and will not be found in cases where business only takes orders for or buys or sells goods or wares, or 9

10 offers or sells services of any type by use of travellers through advertising or correspondence *but the statute and contract should be interpreted to promote a sensible commercial result Exclusionary Rules General Considerations -Relevant in both choice of law actions and also to recognition and enforcement of foreign judgements -Application of exclusionary rules requires characterization of the foreign rule -Rules we are working from: 1) [3 in Dicey] English courts have no jurisdiction to entertain an action where the enforcement either directly or indirectly involves the application of a penal, revenue, or other public law of a foreign state 2) [2 in Dicey] English courts will not enforce or recognize a right arising out of a foreign country, if the recognition or enforcement of such would be fundamentally inconsistent with the application of English public policy -practically- Party is trying to apply the lex causae, or trying to get a judgement recognized, it is open to the party who does not want that rule to apply to say that is a penal, revenue, or public law, or is against the public policy of the forum Huntington v Attrill [1893] (PC) Facts -NY statute provided that any false certificate or report made by the officers of a corporation resulted in all the officers who signed it being held jointly and severally liable for all the debts of the corporation contracted while they were officers Issue -Whether or not the NY statue/judgement was penal -No proceeding, even a civil suit, thats object is the enforcement by the punishing state for breaches of the lex fori should be admitted in the courts of another country -Basically penal means any law that is in favour of the state managing it s citizens and regulating their behaviour -Then says that in this case, the law cannot be seen as penal in the sense that it stands for the public, as it only allows a civil suit on behalf of the person injured and not the public *thus it is not penal and the Ontario court can hear it -Penal Law = any law that is in favour of the state managing it s citizens and regulating their behaviour** Stringham v Dubois [1992] (ACA) -Court says that it is Canadian law that the courts will not entertain an action brought by an individual which will indirectly have the effect of directly or indirectly enforcing the revenue laws of a foreign country (Harden Rule) 10

11 -So the question (given the second reason for the policy of rule) is whether the enforcement of the rule is contrary to Canadian tax policy -Would have to point to an Alberta law that mandates the payment of the taxes, and in fact the law is that AB courts must refuse to enforce the taxes of another country Overall: In regards to indirect application of revenue laws of another country, Harden Rule Applies: Revenue laws of another country can have no enforcement in another country unless you can find a parallel rule in the country Society of lloyd s v Meinzer [2001] (OCA) Facts -Appellants argued that enforcement should be denied on the basis that recognition of English judgements would indirectly violate Ontario public policy (expressed in the Securities Act) that mandated minimum disclosure requirements in respect of investments solicited in Ontario Capital Markets -Reciprocal Enforcement Act provides that registration of a judgement shall be refused or set aside if enforcement of the judgement would be contrary to public policy in the territory of the registering court -Appellants argument says that had the judgement been heard in Onterrible it would have been refused because didn t comply with Onterrible security laws = against PP to enforce UK judj -Public policy has to be more that simply local policy on internal affairs *foreign law must violate fundamental principle of justice, prevalent conception of good morals, or some deep rooted tradition in the forum *there is also an element of the harm that enforcing the foreign law poses to the public in the forum -Judge says, given the place of Securities Legislation in Ontario in protecting the public, to allow a breach of those obligations would be contrary to the public policy of Ontario **law of mandatory application (EE thinks this is lowering the bar for public policy) -Question becomes; are the courts willing to entertain a judgement that, had it been brought before them within their own jurisdiction, would not have been entertained *judge answers this question by saying the court should not entertain this, as it would otherwise be unenforceable and it would be against public policy -Overall: Public Policy is construed extremely narrowly dues to the respect for judicial comity **EE says this lowers the bar a bit, as in the end they seem to decide only because they feel estopped from not enforcing judgement given they sent parties to british courts, and then to not recognize their judgement would be whack** Kuwait Airways Corp. v Iraqi Airways Co. [2002] (HL) -First,court rules that breach of international law by a state should not be grounds for refusing to recognize a foreign decree 11

12 *this would offend the principle that foreign courts have no jurisdiction to judge the actions of sovereign states other than their own -Acceptability of a foreign law must be judged by contemporary standards (public policy) *says that in an international era, with a case that has a gross violation of international law, the court can use this gross violation to justify not enforcing certain foreign laws -this will apply in cases where the breach in law goes against the public policy of the forum -Thus, in this case, Britain will not recognize the Iraqi declaration **international law can inform public policy in questions of the exclusionary rule - foreign policy can be applied to this defence *in order to apply defence, you must point to the value that have been contravened by action** US v Ivey [1995] (OPC) Facts -US sought to enforce two money judgements that ordered Ontario defendants to pay the cost of remedial measures undertaken by the EPA in relation to waste disposal -Obtained under a statute that authorizes the recovery of environmental cleanup costs through civil proceedings in US district courts -When the judgement was attempted to be enforced in Ontario used Public Policy and Penal Law Defences 1) Penal Laws- Ct says that it doesn't create punishment, creates a reimbursement obligation on any person judicially determined responsible for costs of remedying hazards *seems to get away with this categorization is out of the fact that the funds were being used for cleanup costs only, and not for state revenues for punishment of polluting 2)Other Public Law - Lord Denning offered an explanation of this: courts will not enforce any of its laws which purport to exercise sovereignty beyond the limits of its authority *involves claims to enforce the interests of a foreign sovereign which arise from the exercise of certain powers peculiar to government *also involves a certain political nature -Court rejects this argument: basically says that this is not serious enough, and Onterrible has the same laws **Most important part of this case is that the court says other public policy exists, but is not interested in applying it** Domicile and Residence General Considerations Domicile -3 kinds of domicile: 1) Domicile of Origin 2) Domicile dependancy 3)Domicile of choice -Court says that everyone has a domicile at all time, but can only have 1 domicile at a time -Domicile of origin- domicile you acquire at the moment of your birth (permanent at CL) 12

13 *domicile of your father at the time of your birth -Domicile of dependancy- domicile of your father while you are an infant *When children get to age of majority, they become capable of acquiring a domicile of choice -Domicile of choice- if you don t get one, then your domicile of origin *if you abandon a domicile of choice (never going back), domicile of origin revives -To establish a domicile = physical + intent (intent to stay indefinitely) -What is the state of mind? * intention to remain indefinitely, but it is more precisely defined as an absence of a positive intention to leave based on a foreseeable event or reasonable contingency *If you have a reasonable expectation of going home, you cannot be domiciled -How do you establish intent? *examine every circumstance of the person s life -Standard of proof? *Requirement is the civil standard of proof *BOP is always on the party asserting a change in domicile -State of mind necessary to establish abandonment of a DoC = hard to abandon a DoC *probably have to leave a place with an intention never to return, where never return means never return to live Agulian v Cyganik [2006] (EWCA) -Domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time -intention must be formed independently of external pressures -If there is a vague possibility of returning, than this satisfies the intention to stay in the domicile of choice *no clear line can be drawn, it is a decision of fact -If there is lacking evidence, then the domicile of origin continues to apply *necessary intention must be clearly and unequivocally proved by the person asserting the change in domicile *Proof of domicile of choice is demonstrated by physical presence + intention Intention must be shown almost conclusively, and has to take into account all the factors in the applicants life - to be demonstrated by the applicant If not proven, or not shown to a great enough extent, then domicile of origin persists -EE: Sheer longitude of domicile is not determinative unless you can establish intention to stay* Re Urquhart Estate [1990] (OCA) -Domicile of choice is not lost, once established, until another domicile of choice is established or the domicile of choice is resigned by both intention and residence** -Shows that holding a residence somewhere can be influential 13

14 Adderson v Adderson [1987] (ACA) Issue -What is the proper interpretation of the words last joint habitual residence -Difference between domicile and habitual residence is HR involves only a present intention of residence, not a future intention to remain in the jurisdiction *takes into account the duration of residence, and the relevant intention where the residency has been intermittent periods *intention to presently reside can be inferred from continuous residence -Seems as though the court is indicating that it is signalled by physical presence, and some intention or purpose for residing in the jurisdiction (some connection to the domicile) **Habitual residence refers to the quality of residence *duration may be a factor depending on the circumstances, but takes into account many factors** Note on Habitual Residence -Uniform Law Conference of Canada in defining the use of the term in the family law act: Place where the spouses most recently lived together as man and wife, and participated in everyday family life BCCA Chan v Chow - Most authoritative for the purposes of determining the habitual residence of the child *1) Question of Habitual Residence is a question of fact to be determined by all the facts of the case 2) Habitual residence is established by residing in a place for an appreciable period of time with a settled purpose (intent element) 3)Child s habitual residence is tied to the habitual residence of his or her custodian -What is required for settled purpose? *can be one purpose or several purposes, specific or general *does not have to intend to stay indefinitely, purpose while settled may be for a limited period *sufficient degree of continuity to be considered as settled -Mark v Mark - HL - Habitual Residence and Ordinary residence will be used interchangeably *habitual and ordinary residence are statutory concepts and thus can have different definitions depending on the legislation *a person may be habitually resident in more than one place at the same time, or can be habitually resident nowhere National Trust Company Ltd. v Ebro [1954] (OCA) -Domicile of a corporation is in the country in which it was incorporated 14

15 Jurisdiction In Personam Jurisdiction: Jurisdiction Simpliciter and Territorial Competence The Constitutional Standard General Considerations -Jurisdictional decision = 2 components: 1) jurisdiction simpliciter 2)FNC -What to do if you re a plaintiff and you figure out the person you want to sue is not in BC and you want to sue them out of province: 1) Look to CJPTA s. 3 - court has territorial competence in a proceeding only if: a) that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim (this is a submission rule); b) during the course of the proceeding that person submits to the court s jurisdiction (submission); c) there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction (submission to forum selecting clause); d) person is ordinarily resident in BC at the time of the commencement of the proceeding (modified presence); e) Real and substantial connection between BC and the facts on which the proceeding against that person is based (Morguard) 2) Look to CJPTA s10 - Without limiting right of P to prove other circumstances that constitute real and substantial connection between BC and the facts on which a proceeding is based, R+S connection is presumed to exist if: a) brought to enforce or declare property rights over proper in BC; b) concerns the administration of estate in relation to immovable property in BC or movable property anywhere of the deceased person if at the time of death he or she was originally resident in BC; c) to interpret rectify, or interpret a deed, will, contract, or other instrument in relation to property in BC or movable property anywhere of a deceased person ordinarily resident in BC; d) brought against a trustee in relation to carrying out of a trust where trust assets include property in bc, trustee is ordinarily resident in BC, administration of the trust is principally carried on in BC, or by express terms of trust, trust is governed by law of BC; e) concerns contractual obligations and the contractual obligations to a substantial extent were to be performed in BC, by its express terms contract was governed by law of BC, or the contract is for the purchase of property/services/both or use other than in the courts of the purchaser s trade or profession and resulted from a solicitation of business in BC by or on behalf of the seller f) concerns restitutionary obligations that to a substantial extent arose in BC; g) concerns a tort committed in BC; h) concerns business carried on in BC; i) is claim for an injunction ordering a party to do or regain from doing anything in BC or in relation to property in BC that is immovable or movable property; j) is for a determination of the personal status or capacity of a person who is ordinary resident in BC; k) is for enforcement of a judgement of a court made in or outside BC or an arbitration awards in or outside BC; l) is for the recovery of taxes or other indebtedness and is brought by the gov of BC or by a local authority in BC 3) Follow appropriate procedure and get your process served 4) Ball is now in defendant s court -NB: CJPTA s. 6: Residual Discretion - A court that under section 3 lacks territorial competence in a proceeding may hear the proceeding despite that section if it considers that 15

16 (a) there is no court outside the enacting province or territory in which the plaintiff can commence the proceeding, or (b) the commencement of the providing in a court outside the enacting province or territory cannot reasonably be required Morguard Investments Ltd v De Savoye [1990] (SCC) **3 Ways for court to take jurisdiction over in personam matters: 1) Presence in Jurisdiction 2)Voluntary Submission to Judgement 3)Reasonable and Substantial connection test -constitutional obligation to recognize a judgement originating in another province as long as the real and substantial connection between the action and the provinces court that originally heard the judgement (full faith and credit is constitutional) -Ambiguous what real and substantial is** Parties within the Jurisdiction Maharanee of Baroda v Wildenstein [1972] (ECA) -MB commences action in England- waits until W comes to England and then serves him process -W argues that England doesn t have jurisdiction. but England says that his transient presence is enough for jurisdiction by right Parties Outside of the Jurisdiction Moran v Pyle National Ltd [1973] (SCC) Facts -Worker in SK electrocuted to death while unscrewing light-bulb manufactured carelessly by a company exclusively located and registered in ON. -Company had no assets in SK, did not carry on business there and had no agents/salesmen in SK. Sold bulbs to distributors and not consumers. -Wife of deceased began an action in SK using the relevant SK act, and had to serve the writ to the corporation ex juris in ON. Issue -Can Moran bring an action in negligence in Sask for a tort that was committed in Onterrible -Notes that traditionally the determination of jurisdiction relied on physical presence, or consent *one exception to this is torts committed within the territorial limits of the court, regardless of the residence of the defendant -So thus the question becomes whether the tort was committed when the bulb was manufactured in Ontario (in which case no jurisdiction for sask courts) or when the deceased died in sask (jurisdiction for the courts) -Dickson seems to favour an approach that sees the place of injury as being the place where the tort occurred, as it is this injury which the plaintiffs are suing on Overall- Where person manufactures a good that is distributed through the normal channels, then personal should be liable in the jurisdictions where that product is 16

17 consumed because it is reasonable to expect that if you fuckup on the manufacture, people are gonna get mucked **EE: Moran has been used in Canada for just about any Tort Muscutt v Courcelles [2002] (Ont CA) -P brings action in Ontario, statement of claim was served on the D s in Alberta without leave *D s move to set aside service out of the jurisdiction and to stay the action -argue that the action be stayed for want jurisdiction since the plaintiff s expenses, loss of income and pain and suffering in Ontario did not amount to a real and substantial connection with Ontario -Court in this case suggests that 8 factors should be weighed in determining service ex juris: 1) Connection btw forum and P s claim (mere residence does not constitute a sufficient basis for assuming jurisdiction) 2) Connection between the forum and the D 3) Unfairness to D in assuming jurisdiction 4) Unfairness to P s in not assuming jurisdiction - principle of order and fairness 5) Involvement of other parties to the suit 6) Courts willingness to recognize and enforce an extra-provincial judgement rendered on the same jurisdictional basis 7) Whether case is interprovincial or international - assumption of jurisdiction is more easily justified in interprovincial cases due to federalism 8) Comity and standard of jurisdiction, recognition and enforcement prevailing elsewhere -If the plaintiff lacks a significant connection with the forum, the case for assuming jurisdiction on the basis of damage sustained within the jurisdiction is weaker **Court took the factors we usually consider under forum non conveniens (discretion) and transplanted those into the jurisdiction simpliciter stage ( front-end loading approach). So Courts began to solve the whole issue at the jurisdiction stage which spread to other provinces too. ** EE-this is not the correct approach and has not been adopted in BC Spar Aerospace Ltd v Mobile Satellite Corp [2002] (SCC) -Seems to suggest constitutional standard for assuming jurisdiction is not terribly demanding *Provinces are given a lot of leeway in legislating the definition of real and substantial connection - EE thinks we can apply this in CL Canada because we have the CJPTA **LeBel seemingly says that suffering damages alone can satisfy Morguard test - narrowing the rules - international case **There is also some dicta here that says that perhaps the R+S connection test should only be used in interprovincial conflicts - could maybe use this, or suggest that this seems to concrete the belief that there should at least be a different standard for international cases 17

18 Coutu v Gauthier [2006] (NBCA) Facts -Gauthier died in car accident, but he ordinarily resided in Quebec -Both Coutu and Gauthier were in Ontario on a temporary basis related to work *Coutu is from NB Issue -What is the applicable test for judicial jurisdiction and the factors that go into the determination of forum conveniens in the context of a tort action with connections of varying importance to several provinces -Says that the 8 point Muscutt test used to determine jurisdiction simpliciter, that the TJ used has no application in circumstances like the case at bar *uses Moran framework to suggest that it was foreseeable that if there was injuries arising from a car accident the person would suffer in their home jurisdiction -Even if this is not considered to be reasonably foreseeable, the occurrence of the loss in NB constitutes a real and substantial connection to NB -Then turns to the forum conveniens question *considerations include: parties residence, residences of witnesses/experts, location of material evidence, place where the contract was negotiated and executed, existence of proceedings pending between he parties in another jurisdiction, location of defendant s assets, applicable law, juridical advantages, interest of justice, interest of the parties, need to have the judgement recognized in another jurisdiction Discussion of the process for treating jurisdiction simpliciter and forum conveniencs -To be treated as different inquiries *jurisdiction simpliciter must be established prior to the judge being able to use discretion to comment on FNC -FNC deals with deciding which of the jurisdictions the case should be decided in, given the substantial connection of the case to both of the jurisdictions -In establishing jurisdiction simpliciter, you are looking for the link between the subject matter of the action and the forum province *says that it does not have to be the most substantial connection, but just a substantial connection *thus if there is a ground for jurisdiction, a court probably shouldn t deny someone jurisdiction **Real+subst connection test focuses on the significance of the link, if any, between the subject matter of the action and the forum province** Stanway v Wyeth Pharmaceuticals Inc [2009] (BCCA) Facts -Brought action on her own behalf and on behalf of the class of similarly situated persons resident in BC and across Canada -Corporate defendants included both US and Canadian corporations -US corporations asserted that they had no presence in BC 18

19 -Judge says that the presumption of a real and substantial connection in s. 10 of the CJPTA is a mandatory presumption with basic facts *basic facts are those listed in the section, which are taken to be proven if they are pleaded *as the plaintiff pleaded this under s 10(h) of the CJPTA, a presumption of territorial competence was raised -Also discusses s.3 of the CJPTA - sets bar higher than Morguard as it requires submission, for the D to be ordinarily resident in BC at the time (not mere transient presence), or R+S connection -TJ basically said that the US company s admitted engagement in activities in relation to the Canadian companies and to consumers in Canada is sufficient to establish a real and substantial connection *US company doesn t challenge this, they contend that these connections are tenuous or relatively insignificant and that the chambers judge erred in concluding they established a real and substantial connection -Says that the TJ just had to stop here and throw out the US defendants action - but went on to use Muscott, which has been criticized for extending the analysis more into the forum non conveniens range and not the jurisdiction simpliciter range *Muscott is not legit in BC -As they were not able to displace the presumption of territoriality that accompanied the pleadings for negligent manufacture, the appeal is dismissed *Death of Muscott* Club Resorts v Van Breda [2012] (SCC) -Clear distinction must be maintained between the factors or factual situations that link the subject mater of the litigation and the defendant to the forum (substantial connection test) v the principles and analytical tools (FNC) Real and Substantial Connection -To meet the CL real and substantial connection test, the party arguing that the court should assume jurisdiction has the burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum *jurisdiction must be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation with the forum *list is not exhaustive (CJPTA s 10), when a court gives consideration to whether a new connecting factor should be given presumptive effect, the values of order, fairness and comity can serve as useful analytical tools for assessing the strength of the relationship with a forum to which the factor in question points -make considerations such as : 1) similarity of the connecting factor with the recognized presumptive connecting factors 2) treatment of the connecting factor in the case law 3) Treatment of the connecting factor in statute law 4) Treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity -Presumption of jurisdiction is not irrebuttable 19

20 *burden of rebutting the presumption of jurisdiction rests on the party challenging the assumption of jurisdiction *must show the court that the proposed assumption of jurisdiction would be inappropriate FNC -If jurisdiction is established, the claim may proceed subject to the court s discretion to stay the proceedings on the basis of FNC -Court cannot decline to exercise its jurisdiction unless the D invokes FNC *burden is on D to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff -that it would be fairer and more efficient to choose and alternative forum = to deny the plaintiff the benefits of his or her decision to select a forum -can be done by establishing facts which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them Jurisdictional and Material Facts and Evidence General Considerations -How you establish how your case fits into the rules *Difficulty is, that jurisdiction is going to be decided before the trial when there is no evidence *In BC you have to establish territorial competence using your note of claim and civil proceedings Process:1) whether the jurisdiction claim will fit within the CJPTA 2) Have to show that the plaintiff has a good, arguable case 3) Finally, there is the issue of the courts discretion -First 2 steps are jurisdiction simpliciter, last is discretion AG Armeno Mines and Minerals v Newmont Gold [2000] (BCCA) -Pre-CJPTA -There is jurisdiction simpliciter, but it is alleged that Armino has brought a tenuous claim *tenuous claims is one where evidence introduced by the foreign defendant contradicts material facts pleaded by the plaintiff or otherwise proves facts fatal to the plaintiff s claim -Court says that if you can prove facts that the plaintiffs action is bound to fail because the plaintiff does not have a good arguable case, then jurisdiction should be refused irrespective of whether the failure rests on narrowly jurisdictional facts or other material facts *says that the BOP at this early stage shouldn t have to be high because there has not been a discovery -Court must decide whether the plaintiff has a good arguable case = serious question to be tried, or a genuine issue, chance of success *basically defendant must raise the issue, and the plaintiff must defend there case -Judge says that Newmont raised the issue, and since Armeno did not try and discredit this issue or raise evidence to the contrary, then Newmont successfully showed the Armeno did not have a good and arguable case -Defines good arguable case as a triable issue on the facts a serious question 20

21 MTU Maintenance Canada Ltd. v Kuehne & Nagel Intl. Ltd [2007] (BCCA) -Plaintiff is using s. 10 to sue the plaintiffs *contract preformed in BC, tort in BC, carrying on business in BC -BCCA says there is no territorial competence, because there is no basis for a finding of territorial competence *neither the statement of claim nor the affidavit, contained any facts upon which territorial competence could be said to exist under the CJPTA -says that the evidence on the record should be all that is examined, because this is what will reflect well on the decision were it attempted to be enforced in another jurisdiction *thus the court should not rely on statements made by council **MORAL OF THE CASE - pay attention to drafting your pleadings and notes of claim - because this is where you will put your facts to allow you to use the CJPTA** Discretion: Stays and Anti-Suit Injunctions General Considerations -In every case, the procedure to be followed to object to jurisdiction is in the rules of court *in BC this is separate issues: 1) Proper formulation governing the principles of discretion 2) Factors for deciding discretion 3) Where is the burden of proof -Most common form of Discretion is by issuing an order to stay the courts own proceedings *more controversial, is an injunction prohibiting a party from commencing or continuing proceedings somewhere else (anti-suit injunctions) The English Principals Spiliada Maritime Corp v Cansulex Ltd. [1987] (HL) -Case is recognized to be authoritative and binding in Canada -HL - deals with discretion, and the question of discretion after the ex juris issue is decided *Defendant must satisfy the court that there is another forum to whose jurisdiction he is amenable in which justice can be done between the parties at substantially less inconvenience or expense *burden of proof rests on the party making the application to have the forum declared non conveniens -if the applicant party establishes that there is a more appropriate forum prima facie, then the burden will shift to the other party to show that it isn t -if the person can establish a clearly superior forum - then the court will order a stay unless there are circumstances which indicate that justice requires that a stay not be issued *Interesting to note that justice says that if there is a clearly more convenient forum, but the action is time-barred there, the forum court should hear the case even though they might not otherwise, because of the need for practical justice **Says the BOP is different: 1) If D is served in England, BoP is on D to show that there is a better forum 21

22 2) If writ is issued in England for another jurisdiction then P must satisfy the courts that England is the right forum *if D objects, then the burden remains on P to show that England is proper forum -If England uses discretion to say no = stay of proceedings *Outlines factors to be considered when considering FNC** Societe Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] (PC) Issue -What are the principles upon which extra judicial proceedings injunctions can be issued? -Injunctions barring foreign action relies on being exercised when the ends of justice require it *failure to comply with such an order marks contempt of court in the jurisdiction issuing the injunction -Court in this case says that a court should only restrain the plaintiff if the pursuit of foreign proceedings is regarded as vexatious or oppressive (Atlantic Star) *the definition of these terms will vary with case to case *not just based on the bringing of suits in multiple countries but is based on the attempt to use multiple proceedings to gain some kind of advantage -Court can also exercise this power where the English court considers the English jurisdiction to be the natural forum, and that pursuit of another jurisdiction is oppressive -Thus the modern formulation requires: 1) Applicant must show that the English court is the natural forum for the trial of the action whose jurisdiction the parties are amenable 2) Consider whether continuation of foreign proceeding would be oppressive and vexatious **Establishes basis for Anti-Suit Injunctions** Airbus Industrie GIE v Patel et al [1999] (HL) Facts -Indian court granted an anti-suit for Texas action - this was ignored -Action was commenced in England seeking recognition and enforcement of the Indian injunction, or an English anti-suit injunction Issue -Would the HL grant an anti-suit where there was no relevant connection between the English jurisdiction and the proceedings in question other than that the appellants, who were resident in England, were subject to the jurisdiction and could effectively be restrained by an injunction granted by an English court -English court must have sufficient connection to the suit - which calls on the English court to consider whether it is the natural forum for the resolution of the dispute *this is basically an extension of the FNC test - where no forum is clearly more appropriate, the domestic forum wins out -ie if no forum is clearly the best - court considering the injunction should accede to the choice of forum in the foreign court.if it seems as though the foreign court misapplied 22

23 the FNC analysis, then the injunction court should move on to consider the second stage of the test (whether the ends of justice require intervention) -English court says no - says that this would be an indirect interference with the jurisdiction of another court, that is not warranted given the separation of the case from England and the English courts *said they might be able to recognize a judgement from India in Britain, but that hadn t been brought forth, so it was a non-issue *Cannot apply to court to use the court to enforce an anti-suit unless that jurisdiction has significant connection to the action that it can be considered the forum for the purpose of issuing an anti-suit* *Jurisdiction was over the cause of action, not just physical jurisdiction of the parties* Canadian Principles Anchem Products Inc v BC [1993] (SCC) Facts -Texas court granted jurisdiction - could not appeal this because under Texas law, such a ruling on jurisdiction cannot be appealed until after the trial of action -Defendants filed FNC application - Texas judge dismissed this application without reasons -Asbestos companies then brought applications to BCSC seeking anti-suit injunction against texas action -Sopinka says that in considering whether to issue an anti-suit, the court must first consider whether the foreign court has departed from the rules of forum non conveniens when accepting the case *this requires a consideration of whether there is a more appropriate forum for the suit to take place in based upon a number of factors -Says that in general, the Canadian courts should import the test from SNIA -Comments first on procedure: 1) Says that the suit cannot be launched until the proceedings are undertaken in the other jurisdiction 2) Says that if the foreign court stays or dismisses the action, the problem is solved 3)Plaintiff may then bring suit for the injunction by alleging that the court hearing the injunction is the most appropriate forum, or that forum is clearly more appropriate -Court must then determine whether the domestic forum is the natural forum for commencing the actions -If this is satisfied then the court moves on to consider whether by granting the injunction, it will deprive the plaintiff of advantages in the foreign forum of which it would be unjust to deprive him *Process for Anti-Suits* *EE - Fucks up BoP from Spilliada - says it should always be on the defendant -Also thinks waiting for the other court to issue their judgement first essentially means that we are engaging in judicial review of other courts -What about civil law jurisdictions where there is no FNC? 23

24 *would examine circumstances as we normally examine, and then we would decide what we would have done as the foreign court and then go from there -look at what whether if it was CL court the court would have accepted jurisdiction, then if not they would look if the continuation of the action in the foreign court would be unjust** Lloyd s Underwriters v Cominco Ltd. [2007] (BCCA) Issue -What is the relative significance to be given by a Canadian court in deciding whether to decline jurisdiction when jurisdiction simpliciter is already established, to the fact that concurrent proceedings are underway in another jurisdiction -Appellant asserts that Washington s decision to accept jurisdiction is a factor of overwhelming significance in the determination of FNC, and that since the court has positively asserted jurisdiction, the BCSC was effectively bound to stay the action in the province -Respondents submit that BC is the natural forum for this insurance coverage dispute, and that the analysis contemplated by the CJPTA requires a more nuanced approach under which comity is a significant factor, but not a conclusive one -CJPTA dictates through s. 11 that when deciding upon FNC, and whether to stay proceedings, the court must consider: a) comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum b) the law to be applied to issuers in the proceeding c) the desirability of avoiding multiplicity of legal proceedings d) the desirability of avoiding conflicting decisions in different courts e) the enforcement of an eventual judgment f) the fair and efficient working of the Canadian legal system as a while -So court must look at the real and substantial connection between the parties and the forum, and use the CJPTA factors to determine whether the Canadian jurisdiction is the most appropriate forum for the action -CA says s. 11 should be used in conjunction with CL -Says that Teck is HQ d in BC, site of smelter is in BC, Insurers have significant connection to BC *says that these factors could lead to the TJ s conclusion that BC was a much stronger forum for the litigation as opposed to Washington -Teck says that the BC court should recognize the jurisdiction asserted by the Washington Court, consider whether that jurisdiction was made on principles that generally conform to Canada s rules of FNC, and if so Comity demands the decision be respected -CA says that the Anchem approach required the court to determine the natural, or most appropriate forum for the case on the basis of the connections *if there is no natural forum, or if there is a genuine disagreement, court must go on to determine whether the foreign court assumed jurisdiction on basis inconsistent with FNC principles 24