Jurisdiction In Personam

Jurisdiction In Personam -A jurisdiction decision has 2 components: - (1) Jurisdiction simpliciter/ ‘territorial competence’—does the forum have jurisdiction to hear the action? • BC, CJPTA can apply to determine whether court has jurisdiction • Constitutional standard—without statute can decide jurisdiction + R&E based on “real and substantial connection” between the forum and the action (Morguard) - (2) Discretion—Even if the forum has jurisdiction, should the forum exercise discretion and refuse to hear? • Declining to exercise jurisdiction Jurisdiction Simpliciter and Territorial Competence Asking if the forum is able to assume jurisdiction over the action - The standard for jurisdiction simpliciter is whether there is a “real and substantial connection” between the forum and the action (Morguard), constitutional standard • Real and substantialà cannot be weak or hypothetical (Club Resorts v Van Breda) • Any jurisdictional rules can be challenged on grounds that they breach constitutional standard - Consider whether defendant is inside vs outside the jurisdiction (below) Court deciding to assume jurisdiction— - CJPTA s. 10—statutory presumptions of a real and substantial connection • s. 3(d) court has TC that a person is ordinarily resident in BC, modifies CL which requires just presence - If you can’t satisfy these what do you do? Argue s. 3(e) • Residual discretion— “even though I can’t fit the circumstances, there is still a real and substantial connection as required by s. 3(e) and therefore this court has territorial competence” • Then argue Van Breda - CJPTA, BC’s effort to codify + incorporate Morguard real and substantial connection standard into BC Constitutional Standard -Applies to jurisdiction + recognition & enforcement -Emphasis on federalism, problem of provinces not recognizing and enforcing judgement between them - Federalism requires a higher degree of comity b/w provinces -Jurisdiction: For a court to assume jurisdiction, the court should also determine if it has a “real and substantial connection” to the action (Morguard) - To find connection as real and substantial, cannot be weak or hypothetical (Van Breda) • Creation of contract in jurisdiction is real and substantial (Van Breda) - Look to CJPTA in BC for guidance -Recognition: - To get recognition/full faith and credit need to establish a real and substantial connection between the facts/issues in the action + the forum that presided (Morguard) - BUT big exception** à when assuming jurisdiction for R&E of a foreign judgment, don’t need to show that Canada has a real and substantial connection to the case à service of defendant is enough (Van Breda) Morguard Investments v De Savoye Real and substantial connection standard, use when deciding assumption of jurisdiction + recognition & enforcement -F: Recognition of judgment, action in AB at time when D did live in BC - Before—R&E determined by asking (1) if D was present in jurisdiction or (2) if they submitted to jurisdiction of the forum • Here, D was not present and did not submit -I: Whether personal judgment validly given in AB with an absent defendant may be enforced in BC -A: SCC (La Forest)—Canada needs fuller recognition & enforcement - Federal system requires greater comity between the provinces, all about order + fairness (full faith and credit) • Requires greater recognition of judgments between provinces - - But doesn’t mean everything should be acceptedà get “full faith and credit” (recognition) if foreign jurisdiction followed due process • Need a real and substantial connection between the action and the forum in question to give credit to another judgment • This case—yes, real and substantial connection between the facts and issues and AB as the forum No clear definition of “real and substantial” Club Resorts v Van Breda (SCC) A real and substantial connection means that it cannot be “weak or hypothetical” -F: Jurisdiction, Canadians at resort in Cuba, has signed contract in Ont for V to provide tennis lessons for say at resort - Wife injured in Cuba seeking to bring an action in Ont -I: Can Ont assume jurisdiction over an accident that occurred in Cuba -A: application of the constitutional standard - Determining a real and substantial connection? Cannot be weak or hypothetical - Purpose of the standard is to prevent improper assumptions of jurisdiction + recognize judgments where the court has properly assumed jurisdiction - This case—just residence of one party is not enough, but fact that contract signed in Ont establishes Court Jurisdiction and Proceedings Transfer Act (CJPTA BC) -Sets bar higher than common law for assumption of jurisdiction -s. 3(e)—Court has territorial competence only if (e) there is a real and substantial connection between BC and the facts on which the proceeding is based -s. 10—statutory presumptions of a real and substantial connection - If you can’t satisfy these what do you do? • Argue s. 3(e), “even though I can’t fit the circumstances, there is still a R&S cxn as required by s. 3(e) and therefore this court has territorial competence” (Residual discretion) - After that may go to Van Breda • Uses existence of a K made in Ont to make R&S cxn (s. 10 would not do his) Parties within Jurisdiction -Assuming jurisdiction over parties inside jurisdiction (BC) - CL—Jurisdiction established via defendant’s presence within the jurisdiction, don’t need to consider real and substantial connection • Mere presence of defendant can be sufficient for that court to take jurisdiction (Maharanee of Baroda) § **careful, CJPTA may alter • Presence + carrying on business is enough, for natural persons and corporations (Chevron v Yaiguage) - CJPTA has modified the CL position— requires that D be ordinarily resident in BC • • s. 3(d) the person (defendant) is ordinarily resident in BC at the time of the commencement of the proceeding Look to s. 3(e) and s. 10 to ground jurisdiction of the court over a given defendant Maharanee of Baroda v Wildenstein Presence within a jurisdiction is enough for a court to take jurisdiction at common law -F: D sold a fake painting to P, P brings action against D in England - Waits for D to come to England from France and serves once in the jurisdiction -I: Was this service valid? -A: Yes, service is valid, at common law all that is required for good service is presence - Court able to take jurisdiction over the defendant based on service within the jurisdiction Chevron Corp v Yaiguage Presence + carrying on of business within jurisdiction can establish territorial competence -F: Texaco in joint venture with Ecuador, environmental damage left by venture - Ecuadorian Ps brought action against Texaco in NY, T get action stayed in favour of Ecuador - Chevron buys T, action recommenced in EcuadoràP gets judgment - C is Delaware corporation, P apply for recognition and enforcement of judgment in Canada • Chevron has subsidiary in Canada -I: Can plaintiffs serve Chevron Canada? -A: Yes, can serve Chevron in Canada - Corporation is physically present + carrying on business, therefore Canada has jurisdiction CJPTA - s. 3 sets out general principles governing territorial competence (higher bar than the common law) - S. 3(d) Defendant is ordinarily resident in BC at commencement of proceedings • Despite Maharanee case, in BC presence is not enough, BC requires ordinary residence - S. 3(e), can take jurisdiction over a person if there is a real and substantial connection between BC and the facts of the action - S. 10—presumed R&S connection, list of allowances to serve defendant Parties Outside the Jurisdiction -Want to litigate in BC but defendant is outside of BC, service ex-juris - Base application in rule that allows service ex-juris, s. 10 CJPTA - Pre-1970, Common lawàapplication by P to Court to serve writ ex-juris • Must establish 3 things: § (1) Cause of action fits in a sub rule (CJPTA, s. 3(e) or s. 10) § (2) P has a good arguable case § (3) The court is the most appropriate forum for the action (discretion) -Nowà Morguard & Van Breda, courts can assume jurisdiction of ex juris defendant only if there is a real and substantial connection between action and the province - CJPTA s. 3, court has territorial competence in proceeding only if: • A, B, C à forms of submission to courts in BC • D) that person is ordinarily resident in BC at the time of commencement of the proceedings • E) real & substantial connection with BC and the facts upon which the action is based. (section 3(e)(i) & (ii) are frequently relied upon) - S. 10—(a) proprietary interest, (b) estate of deceased resident in BC, (c) Deed/will/K related to BC property (d) trustee in relation to trust in BC, (e) contractual obligations, (f) restitutionary obligations, (g) tort, (h) business carried on in BC, (i) injunction, (j) capacity of a person in BC, (k) enforcement Locating a tort—s. 10(g) CJPTA, flexible approach, foreseeability + forum where the effects were felt (Moran v Pyle) - Non-exhaustive presumptive factors: (Club Resorts v Van Breda) • (1) D is domicile/resident in the province, (2) D carries on business in the province, (3) tort committed in the province (4) contract that is connected with the dispute was made in the province - Identifying new connecting factors—look for connections that give rise to a relationship between the forum and the - action (Van Breda), consider similarity to a presumptive factor, treatment in case law etc. Yes, can take jurisdiction— • - Defamation—place where tort felt (publication), can serve a defendant outside the jurisdiction (Court v Debaie) No, can’t take jurisdiction— • Accident there, but insurance K covering an accident made in anotheràinsurance K not enough (Tamminga) Contractual obligations à s. 10(e) CJPTA, look at entirety of contract (JTG Management) - Where were contractual obligations substantially performed? Can have more than one place Common law (not CJPTA), where contract was made is sufficient (Van Breda), (Lapointe v Cassels Brock) Jurisdiction for R&E? Only requirement is that a defendant is served (Chevron v Yaiguage) - R&E only concerned with allowing a pre-existing obligation to be fulfilled Could still argue that foreign court didn’t have jurisdiction and therefore shouldn’t enforce, but not that this court doesn’t have jurisdiction Jurisdiction in Tort Actions Moran v Pyle National Locating a tort for the purposes of taking jurisdiction, ask where the effects were felt/forum where P suffered damage -F: Electrician died while removing light bulb in Sask, widow sued manufacturer (Ont & USA) for negligence - Bringing action in Sask under Sask Fatal Accidents Act, which requires tort to have occurred there -I: Uncertainty about location of a tort, ex-juris service -A: It is not enough that M died in Sask à the wrongful act must’ve occurred there - Locating a tort—flexible approach, ask whether the jurisdiction is substantially connected to parties/ where the effect felt • If it is foreseeable for D that product would travel outside D’s jurisdiction, then the forum where P suffered damage is entitled to exercise jurisdiction Club Resorts v Van Breda Presumptive factors for assuming jurisdiction in a tort action -F: Couple injured at resort in Cuba, action in Ont against Club Resorts (Cayman) -I: Jurisdiction over Club Resort? -A: Relied on real and substantial connection test established Morguard - Clarifying principles—need consistency, confidently predict whether a court will assume jurisdiction - Ontario Rules of Court—Presumptive connecting factors, not exhaustive or determinative • (1) Domicile/residence of D in the province • (2) Carrying on business in the province • (3) Tort committed in the province • (4) Contract connected with dispute made in the province **used in this case - Presence of plaintiff alone is not sufficient to establish connection - Identifying new factors—look for connections that give rise to relationship b/w forum and action • Relevant considerations: similarity to recognized presumptive factor, treatment of factor in case law, treatment of factor by statutes, treatment by other legal systems - Rebutting presumption—Burden rests on the party challenging jurisdiction Court v Debaie Defamation, serving defendant outside jurisdiction à material published in AB so could take jurisdiction -F: Action in Alberta for defamation, P from Nova Scotia suing Ds in Ont for posting on Facebook -I: AB jurisdiction? Real and substantial connection -A: Facebook setting set to “open access” on post, could be seen by anyone - Tort committed in AB (effects felt there), therefore AB presumed jurisdiction over tort • Tort of defamation crystallized upon publication of libelous material, when read by a 3rd party - Question of whether posting enough to prove that it was actually read in AB • Was seen by sister in AB, P’s evidence is admissible hearsay Tamminga v Tamminga Insurance K made in the jurisdiction not enough of a R&S connection -F: T visiting family farm in AB, accident, returns to Ont to recover and commences action in Ont - Serving D ex-juris in AB -I: Jurisdiction over a tort that occurred in AB? -A: Insurance was in Ont, but not enough of a connection à does not have jurisdiction - Distinguish from Van Breda, K in that case directly related to accident, here just insurance JTG Management Services v Bank of Nanjing Contract dispute, look at entirety of contract to determine where obligations were substantially performed -F: JTG exporting lumber via bank in Shanghai, Bank won’t pay P commences action in BC -I: Jurisdiction over contractual dispute -A: s. 10(e) CJPTA, “K obligation to substantial extent to be performed in BC” - Examine K in its entirety à JTG had obligations under contract in BC, performed substantially in BC - Yes, jurisdiction • Not uncommon for more than one jurisdiction to be able to hear an action Lapointe v Cassels Brock Contractual obligations, contracts that firms were dealing with (main concern) were made in Ont -F: bailout of GM, term of bailout required dealerships to wind down // now dealerships in class action against CB for negligence - Cassels Brock added other firms as defendants àFirms outside Ont challenge jurisdiction of Ont -I: Did Ont have jurisdiction over Quebec law firms? -A: yes, real and substantial connection à wind down contracts made in Ont - Relying on Van Breda, all contracts had to be returned to GM in Ont Chevron Corp v Yaiguage Jurisdiction of home court for R&E, only need service on the defendant -F: Texaco in joint venture with Ecuador, Chevron buys T, action recommenced in Ecuadorà P gets judgment - C is Delaware corporation, P apply for recognition and enforcement of judgment in Canada (Chevron subsidiary) -I: Does Ontario have jurisdiction over Chevron in order to recognize and enforce the judgment? -A: In order to take jurisdiction for R&E f foreign judgment, only requirement is that defendant is served (service ex-juris) - Different than question of jurisdiction at beginning of action - Action for R&E à only purpose of action is to allow a pre-existing obligation to be fulfilled Exception to the constitutional standard Discretion—Stays and Anti-Suit Injunctions -2 steps in a jurisdiction finding – (1) jurisdiction simpliciter/territorial competence (2) Discretion/forum non conveniens The English Principle -History development of English law -Pre-1974,Test à abuse of process test, burden on D, Very difficult burden to discharge - (1) Continuance of action in England would be unjust to D (ex: vexatious, oppressive) + (2) A stay of the action would not be unjust to P - In 1974, new test – Atlantic Star, more respect to other jurisdictions, interpret vexatious + oppressive more broadly Stays—Exercise discretion + stay an action, Court must be satisfied that there is some other tribunal… (Spilliada) - (1) has competent jurisdiction and (2) which is the appropriate forum for the action • “Is there a forum more suitable for the interests of all parties + the ends of justice? -Burden based on jurisdiction + quantum of proof = “clearly more appropriate” (Anchem Products) - In Canadaà burden always on D to ask court to exercise discretion (no app for service ex-juris) (Anchem Products) - In Englandà Jurisdiction ex juris, P has onus, argues that this court is forum conveniens -Factors when determining exercise of discretion/forum non conveniens— - Which is the ‘natural forum’? Which forum has the most real and substantial connection with the action (Spilliada) - s. 11 CJPTA, court may exercise discretion if “after considering the interests of the parties to a proceeding and the ends of justice” and another court is more appropriate (Van Breda) • s. 11(2) relevant circumstances à Convenience + expense for parties, law to be applied, avoiding multiple proceedings, conflicting decisions, enforcement of eventual judgment • Benefit of security for damages obtained, time bars, learning curve of judges/lawyers (Spilliada) • Avoidance of multiplicity of judgments (Teck Cominco) • Parallel foreign action (BUT is not overriding and determinative) (Teck Cominco) Anti-suit injunctions—order to not commence/continue an action in another jurisdiction - - - More cautious, party is asking them to indirectly interfere with a proceeding in another jurisdiction (comity) When deciding keep in mind… (Societe Aeropostale) • Jurisdiction is to be exercised when “the ends of justice” require it • If granted, it an injunction against the party not against the court • Only issued to restrain a party where this jurisdiction is also open to the action **General rules in Canada— (Anchem Products) • (1) There must have foreign proceedings pending • (2) Foreign court should be asked to exercise discretion • (3) Ask if the domestic forum is “natural forum”? § Closest connection with action and parties + isn't another court which is clearly more appropriate § If foreign court could reasonably conclude that is was the “natural forum”, respect decision • (4) If foreign court wasn’t reasonableà is continuation of action unjust? 3 principle steps (Societe Aeropostale) • (1) Court must consider whether is it the natural forum for the action § Consider if there is a real and substantial connection (Airbus Industrie), if not can’t interfere • (2) Is litigation in other jurisdiction an abuse of process, is it oppressive and vexatious • (3) Will it be unjust to deprive P of foreign action Spiliada Maritime v Cansulex Stay, discretion asks if there is another forum in which the case can be tried suitably for the interests of all parties -F: Shipping boat owned by Liberians, filled in Canada w/ wet sulfur, eroded boat - Application by Canadian D à set aside ex juris service + exercise discretion and not take jurisdiction -I: How to approach grants of stay in jurisdiction cases? When to exercise discretion -A: Sets out fundamental principle for exercising discretion - To grant, Court must be satisfied that there is some other tribunal… - - - • (1) has competent jurisdiction and (2) which is the appropriate forum for the action • “Is there a forum in which the case may be tried more suitably for the interests of all parties + the ends of justice” Types of jurisdiction: • Jurisdiction as of right àD has onus, asks for stay proceedings, ground of forum non conveniens • Jurisdiction ex juris à P has onus, argues that this court is the appropriate forum Factors when determining discretion— • Which is the ‘natural forum’? Which forum has the most real and substantial connection with the action • Examples of factors à benefit of security for damages obtained, whether action will be time barred in another jurisdiction, learning curve of judges/lawyers (have they tried similar cases) This case—Doesn’t exercise discretion and grant stay in this case, court had experience with this type of litigation Societe Nationale Industrielle Aeropostale v Lee Kui Jak Anti-suit injunction, principles to consider + steps to determine -F: helicopter crash, widow started proceedings in three jurisdictions (Brunei, FR + Tex)//application for anti-suit injunction for proceedings in Texas -A: Launched Texas action because of more favourable law on product liability + higher damages - Granting anti-stay injunctions, keep in mind… • Jurisdiction is to be exercised when “the ends of justice” require it • If granted, not an injunction against the court, but injunction against the party • Only issued to restrain a party where this jurisdiction is also open to the action • Should be exercised with caution—because of comity - 3 principle steps • (1) Court must consider whether is it the natural forum for the action • (2) IS litigation in other jurisdiction an abuse of process, is it oppressive and vexatious • (3) Will it be unjust to deprive P of foreign action -This case—one party will not submit to Tex, could get inconsistent judgments à issues anti-suit injunction Airbus industrie GIE v Patel Anti-suit injunction, cannot grant were the forum has no connection with the action/not a possible forum -F: Plane crash in India, Ps suing in India and Tex, D successfully got an anti-suit injunction in India - D application to (1) recognize Indian anti-suit injunction or if not, (2) for England to issue injunction too - Denied, and then appealed -A: Comity requires that Court have sufficient interest in connection with the matter in question to justify indirect interference with another court à England does not have interest in case - England is not a natural forum for the action, no real and substantial connection - Normal process would be for England to R&E judgement of Indian court, instead asking for interference from English courts Canadian Principles-Discretion -Difference from English lawà allocation of burden of proof + procedure for obtaining anti-suit injunction - Abolition of ex parte application for service ex juris Amchem Products v BC (WCB) -F: Asbestos case, respondent companies involved in sale of asbestos sued by Ps in BC - Ds seeking declaration that BC forum conveniens + anti-suit injunction for proceeding in Tex -A: Forum conveniens, adopts Scottish principle, we need to weigh factors - Burden of proof à in Canada burden always on D to persuade Canadian court not to take jurisdiction - Granting anti-suit injunction, existence of more appropriate forum must be clearly established • Only consider anti-suit injunction where there may be serious injustice as a result of a foreign court’s failure to decline jurisdiction - General rules— • (1) There must have foreign proceedings pending • (2) Foreign court should be asked to exercise discretion • (3) Ask if the domestic forum is “natural forum”? § Closest connection with action and parties + isn't another court which is clearly more appropriate § If foreign court could reasonably conclude that is was the “natural forum”, respect decision • (4) If foreign court wasn’t reasonableà is continuation of action unjust? Teck Cominco Metals v Lloyds Underwriters Stay, existence of a parallel foreign action is not overriding when considering if you should stay an action here -F: liability for environmental damage flowed down from Teck’s BC smelter, 2 actions (BC + Washington) - Teck wants insurers to defend and indemnify it—action in Wash seeking declaratory judgment - Insurer commenced action in BC, both parties filed motions to dismiss -I: How does CJPTA affect whether BC should take jurisdiction in case of a parallel proceeding w/ assertion of jurisdiction? -A: s. 11, CJPTA— still applies, even if another court has asserted jurisdiction (codifies forum non conveniens test) - Prior assertion of jurisdiction by foreign court + parallel action is does not oust CJPTA - Parallel action is not an overriding and determinative factor in s. 11 analysis, consider— • Avoidance of multiplicity of legal proceedings • If it were determinative would encourage a “first-to-file” system - This case—sees no errors in TJ’s assessment, decided against stay and that BC was most closely connected Club Resorts v Van Breda Forum non conveniens, defendant must raise and show that other jurisdiction is clearly more appropriate -F: Couples injured as resorts in Cuba -I: forum non conveniens, conflicting actions Ontario/Cuba -A: Distinction between existence and exercise of jurisdiction (i.e. TC vs discretion) - If D raise forum non conveniens, burden on them to establish that forum is not convenient - s. 11 CJPTA, court may exercise discretion if “after considering the interests of the parties to a proceeding and the ends of justice” and another court is more appropriate • s. 11(2) sets out circumstances relevant to the proceeding à Convenience + expense for parties, law to be applied, avoiding multiple proceedings, conflicting decisions, enforcement of eventual judgment - Show that another forum is clearly more appropriate (though does not appear in CJPTA) Jurisdiction Selecting Clauses -common law position à Policy favours these clauses, great but not absolute deference -3 issues that can arise regarding jurisdiction selecting clauses - (1) What does the clause cover? Interpretation issue – does the clause extend to this particular action? - (2) Is the clause valid? - (3) What is the effect that CL gives such clauses in contracts? (this is our focus) - Forum selection is a matter of discretion (not jurisdiction), need to show strong cause to not follow FSC (Huyde) -Asked to ignore jurisdiction selection clause? - Strong cause test à court must grant stay unless P can show sufficiently strong reasons to disregard (Pompey) • Burden on P • Forum non conveniens not enough need to show strong cause - If litigation started in breach of forum selection clause à instead of CJPTA, revert back to common law (Douez), Strong cause, can consider… § Consumer K (adhesion) vs commercial because of unequal bargaining power § Issue at stake (e.g. Privacy Act quasi-constitutional) Douez -CJPTA s. 11 does not address jurisdiction selecting clauses à problem resolved by Douez - Problem because s. 11 codifies FNC - Huyde Farm, Sask court read in consideration of jurisdiction selection clauses into their CJPTA ECU Line NV v ZI Pompey Industrie SCC Jurisdiction selection clauses, need strong cause to disregard and not stay action in favour of FSC -F: K for photo processor, term “governed by the law of Belgium + claim shall be determined by courts of Antwerp” -I: Should agreement be enforced? -A: Common law, exercise of judicial discretion governed by “strong cause” test - “Discretion should be exercised to grant a stay unless there is strong cause for not doing so” - Test—Burden on P to establish strong cause to disregard FSC • Should apply separate approach, not just adding it as factor on forum non conveniens + flipping burden • Big enough breach? Look at convenience of parties + fairness and justice + not actual merits of the case before that is decided - This case—If K binds parties, court must grant stay unless P can show sufficiently strong reasons to disregard FSC • • Reasonable connections with Belgium, but proceeding would be in Flemish, no witnesses, more delay There are factors in favour of denying stay, but did not find strong cause Momentous.ca Corp v Canadian American Association of Professional Baseball Strong cause test -F: Withdrawal of a baseball team, forum selection clause in contract between league + team à North Carolina -I: Should clause operate? -A: Ontario rules of court do not require that an application for a stay due to FSC be brought before statement of defence - Proper test is “strong cause test” à order and fairness achieved when parties are held to their bargains Huyde Farms v Canadian Wheat jurisdiction selection clause can still be considered in jurisdiction where there is a CJPTA -F: Contract between parties, FSC giving Manitoba courts exclusive jurisdiction, Huyde brought action in Sask -I: How does “strong cause” test relate to CJPTA? -A: Forum selection is a matter of discretion (not jurisdiction), need to show strong cause to not follow FSC - Read in forum selection clauses into their CJPTA Douez v Facebook -F: BC resident, action against Facebook for using name + picture in advertisement à FSC in California - Argued Privacy Act invalidates jurisdiction selecting clause (stated that all PA actions must be heard in BCSC) -A: PA court provision meant to separate BCSC from Prov court, not BC vs world - Applies common law test, litigation breach of forum selection clause à instead of CJPTA, revert back to common law - SCC—exercising discretion under Pompey, considers… • This is consumer K (adhesion), can’t treat it the same as commercial because of unequal bargaining power § But, doesn’t mean that jurisdiction selecting clause is never OK • PA is quasi-constitutional - This case—don’t give effect to FS clause - Minority—not enough evidence to find “strong cause”