Friday 27 April 2012

The Main Thrust of the SCC Decision in Van Breda

The best and most important thing about this decision is that the law on how a court is to decide whether it has jurisdiction over an non-resident defendant has been made less subjective and more predictable.   The ruling is for tort cases, but may in time be applied to other types of cases too.

For the past ten years, under the Muscutt v Courcelles approach, a court had to consider eight different factors to determine whether there was a real and substantial connection between the forum and the subject matter of the case, i.e. whether the court has jurisdiction.   These factors included subjective ones such as  fairness to the plaintiff, fairness to the defendant, and comity.  This blurred the distinction between the decision whether the court has jurisdiction and the discretionary decision whether it should exercise that jurisdiction (a.k.a. the forum non conveniens analysis) or let the case be litigated elsewhere.    

Now, a plaintiff who wants to sue a non-resident defendant must show a link between the subject matter of the case and the province where the court is (the forum). More specifically, if the defendant carries on business there, or the tort was committed there, or if a contract connected to the dispute was made there, the court will presume that it has jurisdiction.  (The Court said additional types of links with such presumptive effect may later be identified).  It will be up to the defendant to rebut that presumption by showing that there is no real connection between the case and the forum.    If the presumption holds, the court has jurisdiction. Then, and only then, the court may consider submissions from the defendant as to why the court ought to decline to exercise that jurisdiction.   
The defendant has to show a similar link to another forum, and also has to show that forum is clearly more appropriate, having regard for certain specific factors mainly about fairness to the parties and the efficient resolution of the dispute. 

One factor traditionally considered in the forum non conveniens analysis is "juridical advantage", i.e. whether the law of the forum or of the suggested alternative forum poses an advantage or disadvantage to one side or the other (e.g.  a shorter or longer limitation period).  The Supreme Court rightly pointed out that courts  sometimes mistakenly assume that the law to be applied will be the law of the forum where the case is tried, despite the fact that the properly applicable law may be a foreign law. 

I aim to provide critical commentary in an upcoming post.

Thursday 19 April 2012

SCC Releases Two Key Decisions on Jurisdiction

Yesterday the Supreme Court of Canada released two key decisions.  Its decision in Van Breda v. Club Resorts 2012 SCC 17a tort action arising from injuries a Canadian sustained in Cuba, by and large agrees with the Ontario Court of Appeal's revisions to the law governing when a court has jurisdiction over non-resident defendants, and how a court decides whether to exercise that jurisdiction or to stay proceedings in favour of a foreign proceeding.   The Court upheld the OCA's decision that the action be litigated in Ontario.

The SCC's decision in Black v. Breeden 2012 SCC 19, a libel action arising from the publication in Canada of defamatory statements made in the United States, also upholds the lower courts' decisions dismissing the defendants' motions to stay the Ontario action.

I will provide commentary in a future post.  Your comments are welcome.

Tuesday 17 April 2012

New Supreme Court of Canada Decision on Attornment


The Supreme Court of Canada issued a ruling on attornment last month. 

It has long been the law that a defendant who serves and files a statement of defence addressing the merits of the action risks being deemed to have attorned to  (i.e. implicitly consented to)  the jurisdiction of the Court.  Also, forum selection clauses are enforced unless there is strong cause not to.

In Momentus.ca Corp v Canadian American Association of Professional Baseball Ltd. [2012] S.C.J. No. 9  the defendant served a statement of defence on the merits but which also expressly objected to the Ontario court’s jurisdiction on the grounds of a forum selection clause in favour of North Carolina and an arbitration clause.   The defendant then brought a motion under Ontario Rule 21.01(3) for an order staying the action on that basis.  The issue before the Supreme Court was whether the statement of defence constituted consent to jurisdiction such that the defendant was precluded from relying on the forum selection clause and such that its motion was too late.  In an eminently common sense judgment, the Court held that the Ontario rule did not require that the motion be brought before the statement of defence, so long as the motion is brought promptly afterward. A statement of defence that specifically pleads a forum selection clause “does not amount to consent that Ontario assume jurisdiction”.

Monday 16 April 2012

Hello everyone, and thanks for viewing this blog's inaugural post.

I am a civil litigator practising in Ontario, Canada, I am the author of Cross Border Litigation: Interjurisdictional Practice and Procedure, and I love international law. 

This blog will provide updates on international law from a Canadian perspective, in particular (but not only) cross border litigation matters, such as the much anticipated Supreme Court of Canada decisions expected soon on when Canadian courts may take jurisdiction over non-resident defendants, and other topics such as enforcement of foreign judgments.

I will provide a synopsis and commentary, and I welcome your comments too!

Ken MacDonald

Monday 9 April 2012

Welcome to the newest blog on international law

Hello everyone, and thanks for viewing this blog's inaugural post.

I am a civil litigator practising in Ontario, Canada, the author of Cross Border Litigation: Interjurisdictional Practice and Procedure (see www.Carswell.com), and I love international law.

The blog will provide updates on international law from a Canadian perspective, in particular (but not only) cross-border litigation matters.  Watch for updates about the latest case law on when a Canadian court will take jurisdiction over non-resident defendants (two Supreme Court of Canada decisions will be coming out soon), and about other topics such as cases on the enforcement of foreign judgments.    I will provide a synopsis and commentary, and I welcome your comments too!

Ken MacDonald