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Residual Discretion: The Concept Of Forum Of Necessity Under The Court Jurisdiction And Proceedings Transfer Act, Michael Sobkin
Residual Discretion: The Concept Of Forum Of Necessity Under The Court Jurisdiction And Proceedings Transfer Act, Michael Sobkin
Osgoode Hall Law Journal
Under section 6 of the CJPTA, a court may hear a case for which it lacks territorial competence under the statute if it is satisfied that: (1) there is no other court outside the province in which the plaintiff can commence the proceeding; or (2) the commencement of the proceeding outside the province cannot reasonably be required. Courts in provinces that have not enacted the CJPTA have grafted a similar discretion on to the common law rules of jurisdiction. This article seeks to determine the intentions of the drafters of the CJPTA in providing for this power and to discuss …
Cross-Border Transfers Of Court Proceedings, Vaughan Black
Cross-Border Transfers Of Court Proceedings, Vaughan Black
Osgoode Hall Law Journal
The Court Jurisdiction and Proceedings Transfer Act might easily have been two statutes rather than one. There could have been a pair of uniform acts, one delineating the territorial competence of the provinces’ superior courts and the other implementing a regime for the cross-border transfer of court proceedings. After all, these two matters are neither logically interdependent nor especially tightly linked. Part 3 of the CJPTA, dealing with transfers of proceedings, is not confined to lawsuits where the initial court takes jurisdiction under Part 2. It applies regardless of whether the initial court bases its jurisdiction on the CJPTA or …
The Court Jurisdiction And Proceedings Transfer Act And The Hague Conference’S Judgments And Jurisdiction Projects, Joost Blom
Osgoode Hall Law Journal
The Court Jurisdiction and Proceedings Transfer Act (CJPTA) codifies the substantive law of jurisdiction in British Columbia, Nova Scotia, and Saskatchewan. One of the questions that may be posed by the future of the CJPTA is how the jurisdictional system that it enacts would function in relation to two potential international conventions that are contemplated by the Hague Conference on Private International Law. One, a convention on the enforcement of judgments, is in an advanced stage of negotiation and may well be adopted by the Hague Conference. It deals with jurisdiction indirectly, by defining jurisdictional standards or “filters” that must …
Judicial Jurisdiction In Canada: The Cjpta—A Decade Of Progress, Janet Walker
Judicial Jurisdiction In Canada: The Cjpta—A Decade Of Progress, Janet Walker
Osgoode Hall Law Journal
In 2016, the Court Jurisdiction and Proceedings Transfer Act (“CJPTA”) marked its tenth year in force. Promulgated by the Uniform Law Conference of Canada, and adopted in British Columbia, Saskatchewan and Nova Scotia, the CJPTA was developed to clarify and advance the law of judicial jurisdiction. In a symposium hosted by Osgoode Hall Law School, ten leading scholars were invited to present papers on specific questions in order to assess the promise of the CJPTA to meet the needs of Canadians in the years ahead and to provide leadership for the law in other parts of Canada. This article provides …
Six Of One, Half A Dozen Of The Other? Jurisdiction In Common Law Canada, Stephen G.A. Pitel
Six Of One, Half A Dozen Of The Other? Jurisdiction In Common Law Canada, Stephen G.A. Pitel
Osgoode Hall Law Journal
This short article considers the central differences in the law on taking jurisdiction in civil and commercial disputes between those common law provinces that have implemented a statute on jurisdiction (British Columbia, Nova Scotia, and Saskatchewan) and those common law provinces that rely on the common law (Alberta, Ontario, and others). It focuses on the distinction between presence and ordinary residence, the role and analysis of presumptive connecting factors for taking jurisdiction, and issues related to immovable property.
Jurisdiction Motions And Access To Justice: An Ontario Tale, Gerard J. Kennedy
Jurisdiction Motions And Access To Justice: An Ontario Tale, Gerard J. Kennedy
Osgoode Hall Law Journal
This article investigates the access to justice concerns surrounding jurisdiction motions in Ontario, having analyzed one hundred and forty-seven jurisdiction motions decided in Ontario between 2010 and 2015. The author challenges the previously expressed view that jurisdiction motions are presently being “abused” by defendants and their counsel. He also suggests that trends in jurisdiction motions this decade point to some improvement from an access to justice perspective. Nonetheless, jurisdiction motions are frequently presenting an impediment to access to justice, with uncertainty in the law likely being the primary reason for this. The author considers potential proposals to address the access …
General Jurisdiction Over Corporate Defendants Under The Cjpta: Consistent With International Standards?, Catherine Walsh
General Jurisdiction Over Corporate Defendants Under The Cjpta: Consistent With International Standards?, Catherine Walsh
Osgoode Hall Law Journal
“General jurisdiction” refers to a court’s competence to adjudicate disputes arising out of a defendant’s activities anywhere in the world. Absent consent or submission, international instruments reserve general jurisdiction over corporations to the states in which the corporation has its registered office, centre of administration, or principal place of business. The bases of general jurisdiction under the Court Jurisdiction and Proceedings Transfer Act (CJPTA) are far broader and include simply having a place of business in the forum or even registering to carry on business there. This article locates the conceptual roots of the CJPTA approach in the traditional common …
Has The Cjpta Readied Canada For The Hague Choice Of Court Convention?, Geneviève Saumier
Has The Cjpta Readied Canada For The Hague Choice Of Court Convention?, Geneviève Saumier
Osgoode Hall Law Journal
This paper examines whether the Court Jurisdiction and Proceedings Transfer Act has readied Canada to adopt the 2005 Hague Choice of Court Convention. Reviewing the Hague Convention as well as previous and current law and cases on forum selection clauses in common law Canada, including the very recent Supreme Court of Canada decision in Douez v Facebook, yields two conclusions. First, there are existing interpretive challenges flowing from gaps in the CJPTA with respect to jurisdictional clauses that need to be addressed. Second, the principles governing forum selection clauses in Canada are largely consistent with those put forward in the …
Three Objections To Forum Of Necessity: Global Access To Justice, International Criminal Law, And Proper Party, Sagi Peari
Osgoode Hall Law Journal
In civil procedure, the plaintiff is the one who initiates the litigation process. In which forum can he or she initiate this process? In very general terms, the Canadian rules of judicial jurisdiction provide the plaintiff with three options for jurisdiction acquisition. First, the jurisdiction can be acquired based on explicit agreement between the plaintiff and the defendant as to the identity of the forum to adjudicate the case. Second, the plaintiff can initiate the litigation in the forum that has the so-called “real and substantial connection” between it and the parties’ specific interaction under the given ground of liability …
Interprovincial Sovereign Immunity Revisited, Janet Walker
Interprovincial Sovereign Immunity Revisited, Janet Walker
Osgoode Hall Law Journal
The conventional wisdom has been that the Canadian provincial Crowns are immune from the jurisdiction of the courts of other Canadian provinces just as they are immune from the jurisdiction of foreign courts. This reflects the old views that the provinces are like foreign countries for the purposes of the conflict of laws and that court jurisdiction over the Crown is purely a creature of statute. Recent recognition of the constitutional bases for court jurisdiction and the need to reassess conflict of laws rules in light of the principles of Canadian federalism invites us to revisit interprovincial sovereign immunity, especially …
The Mareva Injunction In Aid Of Foreign Proceedings, Paul Michell
The Mareva Injunction In Aid Of Foreign Proceedings, Paul Michell
Osgoode Hall Law Journal
Courts have long awarded Mareva injunctions to prevent defendants from frustrating the domestic litigation process. An emerging question is whether Canadian courts can order Mareva injunctions in aid of foreign proceedings. Traditional English authority, recently confirmed by the Privy Council, says no. Yet Canadian courts take a different view, and are in the process of developing principles to guide the awarding of Mareva relief in aid of foreign proceedings. After a critical analysis of the debate, this article evaluates several recent decisions, argues in favour of such a power, and proposes a framework by which it should be exercised.