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Category Archives: Conflict of Laws

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Die Another Day: SCC Adjourns Appeal of National Class Actions Decision Sine Die

Posted in Case Comments, Class Actions, Conflict of Laws, Constitutional

Followers of Canadian class actions law will have longer to wait for a decision in the much anticipated appeal from the Manitoba Court of Appeal’s decision in Meeking v. Cash Store Inc. et al., 2013 MBCA 81. The appeal, which was scheduled to be heard on January 12, 2015 and expected to bring clarity on the issue of “national” class actions in Canada, was recently adjourned sine die.… Continue Reading

A Costly Choice (of law): Determining the damages available for an extra-territorial tort

Posted in Case Comments, Conflict of Laws

The recent UK Supreme Court decision in Cox v Ergo Versicherung AG, [2014] UKSC 22, provides helpful commentary and a potentially persuasive precedent for Canadian courts on issues of choice of law, the distinction between substance and procedure in the conflict of laws, and legislative extraterritoriality in circumstances where a cause of action is governed by a foreign law.

Consistent with Canadian law, the UK Supreme Court held in Cox that issues of substance are governed by the law of the place where the injury was sustained, but issues of procedure must be determined by the law of the … Continue Reading

The Importance of Borders in a Borderless World: Ontario Court Stays Action for U.S. Transportation Taxes

Posted in Case Comments, Class Actions, Conflict of Laws, Tax

In Prince v. ACE Aviation Holdings Inc., the Ontario Court of Appeal stayed a class action based on allegations that Air Canada had improperly collected transportation taxes levied under the U.S. Internal Revenue Code (the “Code”). The Court’s decision highlights the difficulty in predicting the outcome of jurisdictional disputes involving e-commerce transactions. In addition, it illustrates the reluctance of our courts to permit class actions based on claims that engage the territorial sovereignty of other nations.

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Federal Court of Appeal affirms that the Federal Court has limited jurisdiction over the province of Alberta

Posted in Administrative, Case Comments, Conflict of Laws, Constitutional, Procedure

Generally speaking, the Federal Court does not have jurisdiction over the provincial Crown. Confusion arises when the subject matter of a claim is within the realm of the Federal Court and the claim is an in personam. The recent Federal Court of Appeal decision of Canada v. Toney, 2013 FCA 217 affirms that there remain limited instances where the Federal Court has jurisdiction over a province, even if other factors suggest that a claim would be properly put before the Federal Court.

Background

The Toney family experienced a boating malfunction when sailing in Alberta. The rescue vehicle, which

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Court of Appeal Accepts Ontario Jurisdiction Despite Forum Selection Clause for Germany

Posted in Case Comments, Conflict of Laws, Contracts, Torts

During the spring of 2012, the Canadian Appeals Monitor posted a five-part series on the Supreme Court’s judgments in Van BredaBlack, and Éditions Écosociété (the “Van Breda Trilogy”). The Van Breda Trilogy was the Supreme Court’s long anticipated reformulation of the common law principles of private international law.

Since the release of the Van Breda Trilogy, courts of first instance have applied the controlling test in Van Breda without much interference from appeal courts. However, on May 31, 2013 the Ontario Court of Appeal released its judgment in 2249659 Ontario Ltd. v. Sparkasse Siegen, overturning … Continue Reading

The Second Opinion: The UK Supreme Court Addresses a Host of Conflict of Laws Issues

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Conflict of Laws, The Second Opinion

What law should a Court apply when determining whether to pierce the corporate veil of a foreign corporation?  How much deference should an appellate Court give to a lower Court’s findings regarding the appropriate jurisdiction to adjudicate a case?  What law applies to transnational tortious misrepresentations?  These are among the many conflict of laws issues addressed by the UK Supreme Court recently in VTB Capital plc v. Nutritek International Corp.  The decision in VTB is relevant to the evolving conflict of laws jurisprudence in Canada.

Although very nuanced, the salient jurisdictional facts of the VTB case are, briefly stated, as … Continue Reading

This Week at the SCC (14/12/2012)

Posted in Aboriginal, Communications, Conflict of Laws, Health, Intellectual Property, Labour and Employment, Media, Professions, Regulatory, This Week at the SCC

Cases Decided

The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions.

In Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, Rothstein J. for the majority of the Court held that the Canadian Radio-television and Telecommunications Commission (“CRTC”) lacked the jurisdiction to create a market-based ”value for signal” regime.  The proposed regime would have enabled private local television stations (“broadcasters”) to negotiate direct compensation for the retransmission of their signals by broadcast distribution undertakings (“BDUs”), such as cable and satellite companies, and to prohibit

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Order in the Court? The Van Breda Trilogy – Part V – Constitutional Issues

Posted in Conflict of Laws, Constitutional, Features, Media, Procedure, Torts, Van Breda Trilogy

The constitutionalization of private international law has been one of the major projects of the Supreme Court of Canada since the decision in Morguard. However, the precise relationship between the Constitution, and the “real and substantial connection” test, has yet to be fully defined. In the Van Breda Trilogy, the Supreme Court returned to this issue, and sought to provide private international law with a clearer constitutional foundation. Paradoxically, the result is a new approach to the role of superior courts and provincial legislatures in the Canadian federation, which raises more questions than it answers.

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UK Supreme Court to Pierce the Issue of the Corporate Veil

Posted in Case Previews, Conflict of Laws, Contracts, Corporate Law

The UK Supreme Court has granted permission to appeal in a case that raises important issues regarding the legal doctrine of “piercing the corporate veil”.  The decision in VTB Capital Inc. v. Nutritek International Corp. will give the Court an opportunity to clarify when the veil should be pierced, and whether the legal effect of doing so is to constitute the company’s controlling minds as actual parties to its agreements in derogation from the privity of contract doctrine.  Given the many contexts in which veil-piercing is relevant, and the lack of definitive guidance about it from the Canadian Supreme Court, … Continue Reading

Order in the Court? The Van Breda Trilogy – Part IV – Choice of Law

Posted in Conflict of Laws, Features, Media, Procedure, Torts, Van Breda Trilogy

At the Supreme Court of Canada, choice of law has always been the poor cousin of private international law. While the Court has shown fascination with jurisdiction simpliciter, forum non conveniens and the recognition and enforcement of foreign judgments – cases such as Morguard, Amchem, Hunt, Beals, Pro Swing and Teck Cominco come to mind – it has issued but a single judgment, Tolofson, that addresses choice of law in the modern era. The comments of American scholar Laurence Tribe, cited by the Supreme Court of Canada in Unifund, describe the traditional situation

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Order in the Court? The Van Breda Trilogy – Part III – Forum Non Conveniens

Posted in Conflict of Laws, Features, Media, Procedure, Torts, Van Breda Trilogy

Among the significant changes introduced by the Van Breda Trilogy is guidance from the Supreme Court of Canada on the forum non conveniens test. Although in many respects the judgments in Van Breda, Black and Éditions Écosociété would appear to simply reaffirm the existing forum law, LeBel J.’s judgments are notable for three reasons. First, the language in the Trilogy suggests that motion courts will continue to be given considerable discretion in decisions on forum non conveniens and that reviewing courts will not have a clear framework with which to assess the propriety of decisions at first instance. The

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Order in the Court? The Van Breda Trilogy – Part II – A New Test for Jurisdiction Simpliciter

Posted in Conflict of Laws, Features, Media, Procedure, Torts, Van Breda Trilogy

The Supreme Court of Canada’s Van Breda Trilogy – and its judgment in Van Breda in particular – endorses a new approach to jurisdiction simpliciter focused on categories of prima facie jurisdiction. Building on the Ontario Court of Appeal’s judgment, which revised the old Muscutt test, the Court has attempted to introduce greater clarity and predictability to disputes about assumed jurisdiction. Whether this will come to pass remains to be seen; it may be that Van Breda will simply change the language of assumed jurisdiction, but that actual outcomes will remain as unpredictable as ever. The list of presumptive

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Order in the Court? The Van Breda Trilogy – Part I – An Overview

Posted in Conflict of Laws, Constitutional, Features, Procedure, Torts, Van Breda Trilogy

Order in the Court? The Van Breda Trilogy – Part I – An Overview

In three cases released on April 18, 2012, the Supreme Court of Canada substantially reformulated the common law principles of private international law. In the coming weeks, Canadian Appeals Monitor will provide in-depth coverage of the Court’s judgments in Van Breda, Black, and Éditions Écosociété (the “Van Breda Trilogy”), addressing the implications of these judgments for jurisdiction simpliciter, forum non conveniens, choice of law and constitutional principles regarding the territorial jurisdiction of the superior courts and provincial legislatures. In this post

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Set the Controls for the Heart of the Sun: ONCA Allows Securities Act Claims Against Foreign-Listed Issuers in Canadian Solar

Posted in Case Comments, Class Actions, Conflict of Laws, Constitutional, Securities

In a recent judgment that is sure to become a landmark in the growing field of Canadian securities class actions, the Ontario Court of Appeal has confirmed that the statutory cause of action for secondary market misrepresentations can be asserted against issuers whose shares are listed solely on a foreign exchange.  The ruling in Abdula v. Canadian Solar opens a deep gap between the Canadian and American approaches to the extraterritorial limits of such claims, and is likely to solidify Ontario’s reputation as the new ”hot spot” for securities class actions.

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How Momentous is This? New SCC Ruling on Forum Selection and Arbitration Clauses

Posted in Alternative Dispute Resolution, Case Comments, Conflict of Laws, Contracts, Procedure

In twelve short paragraphs, the Supreme Court of Canada’s new judgment in Momentous provides helpful guidance on the question of whether a motion to dismiss on jurisdictional grounds may be brought after the delivery of a Statement of Defence. The Court also reaffirms the centrality and uniqueness of the “strong cause” test where a jurisdictional challenge is based on the existence of a forum selection or arbitration clause.

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