Stephen G. A. Pitel

The Canadian Codification of Forum Non Conveniens

The Court Jurisdiction and Proceedings Transfer Act, a model statute on the taking and transferring of jurisdiction in civil matters, is currently in force in British Columbia, Saskatchewan and Nova Scotia and is likely to come into force in other Canadian provinces in the future. Section 11 of the CJPTA deals with the staying of proceedings. At common law, such stays were ordered under the doctrine of forum non conveniens. Recently the Supreme Court of Canada has held that section 11 codifies, rather than alters, the common law approach. However, section 11 uses language that is in several respects different from the leading jurisprudential explanations of forum non conveniens. As a result, different approaches have emerged. In some cases, judges have focused primarily on the common law jurisprudence and paid only minimal attention to the wording of section 11. In other cases, judges have attempted to integrate, in different ways, the analysis called for by the statutory provision with the earlier common law approach. Section 11 illustrates many of the challenges in codifying well-understood common law doctrines.

Enforcement of Foreign Non-Monetary Judgments in Canada (And Beyond)

In Pro Swing Inc v Elta Golf Inc the Supreme Court of Canada has continued its development of the common law rules for the enforcement of foreign judgments. It has abandoned the longstanding orthodoxy that to be enforceable a foreign judgment must be for the payment of money. Under the court’s new approach, non-monetary judgments such as injunctions and mandatory orders from other jurisdictions are now enforceable. This article analyses the reasoning behind the court’s liberalization of this aspect of the law on judgment enforcement. It argues that the decision is a positive step forward, one that offers important guidance on how the law might develop in other common law jurisdictions and on how other elements of the rules for enforcement might be revised.

Assumed jurisdiction in Canada: identifying and interpreting presumptive connecting factors

The common law of assumed jurisdiction in Canada now consists of judges interpreting and applying the presumptive connecting factors established for tort claims in Club Resorts Ltd. v Van Breda and identifying and fleshing out the contours of presumptive connecting factors for claims other than tort. There is a pressing need for detailed analysis. While the presumptive connecting factor of a tort committed in the forum has been easy to apply in some cases, such as motor vehicle collisions, it has been much harder to apply in cases of defamation, misrepresentation, deceit and conspiracy. Beyond tort, presumptive connecting factors for certain causes of action such as breach of fiduciary duty, breach of confidence, or reversal of an unjust enrichment remain under-analysed. Little consensus exists on what aspects, if any, of these claims would constitute a sufficient connection for assumed jurisdiction. There are also important questions about how the presumptive connecting factor approach operates for several federal and provincial statutory causes of action, which differ in important ways from common law claims, and for assumed jurisdiction with respect to concurrent claims.

Forum-Selection Clauses: Beyond the Contracting Parties

Canadian courts have started to consider whether and in what circumstances a non-contracting party will be treated as bound by a forum selection clause. This article examines several possible reasons for holding non-parties bound by such clauses and considers how the analysis would unfold in three different contexts: taking jurisdiction, staying proceedings based on forum non conveniens, and obtaining an anti-suit injunction. It draws on recent American decisions which have used both a closely related test and a global-transaction test to hold non-parties bound, considering the extent to which these tests might be adopted by Canadian courts.

Choice of Law for Tort in Canada: Reasons for Change

In 1994 the Supreme Court of Canada in Tolofson v Jensen adopted a new and controversial choice of law rule for tort claims. Under that rule, the law of the place of the tort applies absolutely in interprovincial cases and applies subject only to a narrow exception in international cases. The approaching twentieth anniversary of this important decision is an appropriate time to consider how the rule is operating. In particular, the rule needs to be assessed in light of (a) calls for legislative reform from the Manitoba Law Reform Commission, (b) the European Union’s adoption of the Rome II Regulation for choice of law in non-contractual obligations, (c) the ongoing operation of a competing rule under Quebec’s civil law and (d) the application of the rule by Canadian courts since 1994. This article will assess Canada’s tort choice of law rule and analyse the desirability of reform, looking in particular at the rigidity of the rule, the scope of its exception and possible alternative rules.

CHARTING NEW COURSES: LEADERSHIP IN CURRICULUM REFORM

Law school curriculum reform raises the notion of leadership in two distinct ways. First, curriculum reform is an administrative process and so is well suited to ideas of leadership. Second, legal academics should strive, in the many facets of their career, both to behave as professionals and to model professionalism to others, and leadership is an element of that professionalism. Curriculum reform therefore presents an important, if underappreciated, opportunity for legal academics to take up a leadership role. Leading a process of curriculum reform can be difficult, but there are several ways in which legal academics can improve the chances of a successful outcome.

The Evolution of the Extraterritorial Mareva Injunction in Canada: Three Issues

This article addresses three issues related to the expansion of the jurisdiction to grant Mareva injunctions in Canada. The first issue is the approach taken to Mareva injunctions sought in the absence of substantive proceedings. We argue that Canadian courts have adopted a position that unduly limits their ability to grant stand-alone Mareva relief, subjecting themselves to an illogical limitation. The second issue is the court’s jurisdiction to restrain the conduct of third parties holding a defendant’s assets. We argue that, contrary to recent developments in England, a better balance can be struck between binding third parties and respecting jurisdictional boundaries. The third issue is the territorial scope of freezing orders. We argue that for courts to issue Mareva orders restraining asset removal from Canada but otherwise permitting the free movement of assets within the country would better accord with the jurisprudence and the realities of Canadian federalism.