Vaughan Black

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.

Simplifying Court Jurisdiction in Canada

The articulation of private international law in Canada continues to be largely a judge-led enterprise. Outside Quebec, where since 1994 there has been comprehensive codification of this domain, and putting aside some specialised areas, notably family law, where there have been significant statutory inroads, Canadian conflict of laws remains for the moment a mainly common law field. Areas which in England are now largely controlled by statute or EU regulation - such as choice of law in contract and tort, and, for the most part, adjudicatory jurisdiction and enforcement of foreign judgments - are in Canada still mostly governed by the common law.

Canada and the US Contemplate Changes to Foreign-Judgment Enforcement

In both Canada and the United States, enforcement of foreign-country judgments has to date been left either to the common law or to statutes which replicate those judge-made standards. In common-law Canada the relevant rules are those set out by the Supreme Court in its well-known and much-dissected 1990 judgment in Morguard Investments Ltd v De Savoye,1 its 2003 update in Beals v Saldanha2 and, most recently, its 2006 decision in Pro Swing Inc v Elta Golf Inc3 dealing with enforcement of foreign non-money judgments. In the USA, 32 states have enacted legislation based on the 1962 Uniform Foreign Money-Judgments Recognition Act.4 However, that model statute is a codification of April 2007 Journal of Private International Law 1