Court Jurisdiction – the Supremes Weigh in (Again)
The Supreme Court today released its decisions in the van Breda, Banro and Black cases. It dismissed all three appeals.
I want to look in particular at van Breda, which deals at length with jurisdiction simpliciter and with forum non conveniens, with a discussion of real and substantial connection and a sideways glace at enforcement of foreign judgments (not yet at issue in this case, of course.) The Court, per Justice Lebel, sets out the principles of private international law.
In particular the Court upholds the Ontario Court of Appeal’s refinement of the factors that indicate a real and substantial connection between a court and a case. There remain four factors that, if any are present, create a presumption of jurisdiction that the defendant has the onus to rebut. If not, the plaintiff has the onus to demonstrate the appropriate connection despite their absence.
Once jurisdiction has been established, the court has to decide whether to decline to hear the case anyway because another court is clearly better suited to hear it. The factors that a court may consider to decide if its forum is not ‘conveniens‘ are many, and probably cannot be exhaustively described, according to Lebel J.
Interestingly, Lebel J also says that the rules for jurisdiction and forum non conveniens do not have to be identical across the country, though the basic principles are similar (and constitutional in nature within Canada). There may be room for differing legislation. However, he does review the Uniform Court Jurisdiction and Proceedings Transfer Act, as the Court of Appeal had done in great detail.
Question: is there any point, in the light of this decision, for a province or territory that has not legislated on court jurisdiction – enacted the Uniform Act, probably – to do so? Would it help litigants and their counsel to have a legislative statement of the connecting factors to read along with the SCC’s reasons, perhaps to give some safe harbours or clear cases? Or should the area remain one of common law in those places? (The rules of civil procedure in some jurisdictions set out the grounds for service ex juris, which are themselves a checklist of connecting factors. Is that the right place for the list? Is legislation ‘stronger’ than rules?)
Is your answer the same for questions of jurisdiction simpliciter and of forum non conveniens?
Should the three provinces that have enacted the Uniform Act dispense with it?
The Uniform Act was adopted by the ULCC as a complement to the Uniform Enforcement of Canadian Judgments and Decrees Acct. That Act provides a simple administrative means of enforcing Canadian civil judgments across the country. Its main, if not only, controversial feature is that it does not allow the enforcing court to review the jurisdiction of the court giving the judgment. All Canadian courts are deemed at the enforcement stage to have taken judgment properly. If the defendant wishes to challenge jurisdiction, this must be done in the original court and not later when the decision is brought for enforcement.
This principle was based in part on the SCC decisions of the early 1990s like Morguard and Hunt, but also on the assumption that jurisdictions that enacted the Enforcement Act would also enact the Jurisdiction Act – so everyone would know that everyone else was playing fair. Seven or eight provinces have enacted the Enforcement Act. (A chart showing enactment of recent uniform statutes is here.)
Does that scenario change your view of the usefulness of legislation on jurisdiction?
P.S. The Uniform Act on jurisdiction contains two parts, the other – as its title indicates – providing a method to transfer a proceeding from one Canadian jurisdiction to another. Is this ever used among the provinces that have enacted the Uniform Act? Does it sound useful? (The Conference has been working separately on a method to resolve conflicting claims to jurisdiction over class proceedings. My question really applies to other civil litigation.)
I have never seen the need to enact the Court Jurisdiction and Proceedings Transfer Act and, after Van Breda — or indeed before it — there is clearly no need. At least LeBel J. left open the possibility of development in the judicial grounds that he discussed; a development that legislation may prevent.
In any case, in typical Canadian fashion, notwithstanding the role of the Uniform Law Conference of Canada, the discussion paper prepared for the Law Commission of Ontario did not propose the adoption of the uniform act, just a similar act.
The Uniform Enforcement of Canadian Judgments Act is another matter altogether. First, in light of Morguard Investments Ltd. v. De Savoye, it’s hard to see what its point is. In Morguard, Hunt v. T. & N. plc and now Van Breda the constitutional dimension of conflicts is recognized. The consequence of this recognition would be, in effect, the (constitutionality required) uniform enforcement across Canada of judgments of Canadian courts. Second, the UECJA is a nasty piece of work. As I read it — and as I have always read it — it purports to deny a defendant the right to raise in the enforcing jurisdiction the fact that, under the conflicts rules for taking jurisdiction, now, of course, the rules stated in Van Breda, the original court did not have jurisdiction. This nasty feature of the legislation effectively forces every plaintiff, sued anywhere in Canada, to go to that jurisdiction to protest its court’s assertion of jurisdiction, notwithstanding that the plaintiff could not come within the Van Breda tests. This fact confers on plaintiffs a power that, even with the expanded rules based on Morguard (and Beals v. Saldanha), it should not have. It has to be implicit in Van Breda that the judgment of a court that asserts jurisdiction that is not supported by the analysis the Supreme Court has now laid down, should be unenforceable elsewhere. Of course, there’s a risk in not appearing in a foreign jurisdiction because, particularly after Beals v. Saldanha, the foreign court may be held to have had jurisdiction: it seems quite unnecessary, however, to deny every defendant the right, when proceedings for enforcement are brought, to protest that the foreign court had no jurisdiction under the rules made by the Supreme Court.
In defence of the Uniform Enforcement Act, it was intended to provide a quicker and simpler method of enforcing Canadian judgments across the country than does the Reciprocal Enforcement of Judgments Act. Besides administrative simplicity, an advantage was to give some legislative force to the principles of Morguard, though the ULCC project pre-dated the SCC’s decision in that case. (Some of its thinking was inspired by the trial decision in Morguard.)
It was thought that it was contrary to this spirit of ‘full faith and credit’ (in Morguard’s words, sort of) and administrative simplicity to allow defendants to wait in the bushes while the original court held a trial – even in default of appearance – and then attack jurisdiction only when the judgment came to be enforced in a place where the defendant had assets.
This line of thinking was especially persuasive once Morguard and Hunt had made the grounds of connection matters of constitutional law. If by the constitution, every Canadian civil court must hear only cases that present a real and substantial connection with the court, then it should be safe to recognize the judgments of that court elsewhere in the country. After the SCC decisions, it was no longer permissible for some provinces to have ‘longer-arm’ statutes than others, and to take exorbitant jurisdiction.
A couple of provinces – NB and BC, if I recall correctly – have excluded from the deemed acceptance of jurisdiction certain kinds of judgments affecting people in the province thought to be less likely to be able to contest the jurisdiction in the court of origin – such as consumers or, in NB, employees of NB businesses in employment-related claims. (Check against the text!) Whether that kind of exception is more properly a matter for a jurisdiction statute than for an enforcement statute, I do not at present speculate.
The Uniform Jurisdiction Act was begun before all the SCC cases had been decided – but there could still be an argument in support of a legislative safe harbour, rather than having to work through all the factors of ‘real and substantial connection’ every time one wants to launch a action.
The correlative of full faith and credit is due process (and vice versa): you can’t have one without the other. It would seem to me to be possble to argue that the section of the UECJA that I object to is unconstitutional as denying the defendant the benefits of either the Morguard or, now, the Van Breda restrictions on the taking of jurisdiction. The current rules do not seem to enable defendants to place significant obstacles in the path of plaintiffs seeking to enforce foreign judgments.
The UECJA does not deny the defendant the right to dispute the jurisdiction of the originating court. It merely insists that the challenge to the court’s jurisdiction be brought in that court and not raised for the first time at the enforcement stage. If the defendant did not have proper notice of the original action, then the UECJA will not automatically enforce a judgment from that action.