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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...

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.

Since 1994 the Canadian common law choice-of-law rule for tort claims has been that such claims are, in virtually all cases, governed by the law of the place of the tort. That choice-of-law rule was controversial when it was established and it remains so to this day. Controversial rules demand periodic reconsideration. Furthermore, as we approach the twentieth anniversary of the adoption of this rule, more recent developments should prompt us to question whether a change is now warranted. The current rule was formulated by the Supreme Court of Canada in Tolofson v Jensen. In that case the court had the opportunity to revisit the then-current Canadian rule for choice of law for tort: the double actionability rule adopted by McLean v Pettigrew, which required a plaintiff to show that the defendant's conduct was actionable under both the law of the place of the tort and the law of the forum. The court rightly held that the double actionability rule was unsustainable, in particular as concerned its mandatory application of the law of the forum. It replaced that rule with one applying the lex loci delicti, the law of the place of the tort.

Historically the important topic of the jurisdiction of Canadian provincial courts in civil and commercial cases has been left to the common law, supplemented by local rules of procedure. For example, in Ontario the Courts of Justice Act simply provides that the Superior Court of Justice 'has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario' and that it 'may stay any proceeding in the court on such terms as are considered just'. Many Europeans, whose law of court jurisdiction has long been enshrined in civil codes, may well find it surprising that such a key aspect of any legal system could exist partly in an uncodified collection of court decisions and partly in procedural rules which typically have the status of mere regulations.

(2007). Enforcement of Foreign Non-Monetary Judgments in Canada (And Beyond) Journal of Private International Law: Vol. 3, No. 2, pp. 241-260.