Search

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.

This short article considers the central differences in the law on taking jurisdiction in civil and commercial disputes between those common law provinces that have implemented a statute on jurisdiction (British Columbia, Nova Scotia and Saskatchewan) and those common law provinces that rely on the common law (Alberta, Ontario and others). It focuses on the distinction between presence and ordinary residence, the role and analysis of presumptive connecting factors for taking jurisdiction, and issues related to immovable property.

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.

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.

Mary Cooper was one of thousands of investors who advanced funds to Eron Mortgage Corporation, a licensed British Columbia mortgage broker specialising in large syndicated loans. When Eron went out of business it owed the investors over $180 million more than it was able to pay. Unable to recover from Eron, the investors turned their attention to Robert Hobart, the statutory official in charge of regulating mortgage brokers. The investors alleged that Eron had used their money for unauthorised purposes such as funding interest payments on non-performing mortgages. They further alleged that Hobart had been aware of these problems, all serious violations of statute, but that he had delayed in suspending Eron’s licence and had failed to notify investors that he was investigating Eron. Cooper therefore sought to bring a class action on behalf of the investors against Hobart and the provincial government.

The rules in Rome II have been formulated using a particular choice of law method. Choices of law methods explain the way in which courts determine when to apply foreign law. Rome IIs Article 10 on unjust enrichment is a modern example of the traditional method. Each of the first three paragraphs uses a connecting factor: a closely connected relationship, joint habitual residence, and the place of enrichment. Rome IIs choice of law rule for unjust enrichment is organized into three hierarchical rigid sub-rules and then allows a flexible exception for each of those rules. If the unjust enrichment claims both (i) arises in the context of a pre-existing relationship between the parties and (ii) is closely connected to that relationship, then the applicable law is that of the relationship. Keywords: conflicts of law; joint habitual residence; Rome; unjust enrichment

Choice of law for unjust enrichment is impossible without a clear understanding of the law of unjust enrichment and the boundaries between it and other areas of law. This article is divided into three main sections. The first briefly outlines the current law on characterization, the process through which choice of law rules are selected and applied. The second proposes a definition of the law of unjust enrichment to be used in the characterization process. The third analyses the parameters of unjust enrichment, looking at the boundaries between it and contract, wrongs and property. Throughout the article, the focus is on English law, though some Canadian and Australian law is considered for comparative purposes. Choice of law rules must be formulated for the cause of action to reverse unjust enrichment. Those choice of law rules should focus on the three elements of the cause of action: the enrichment of the defendant, the expense of the claimant and the unjust factor justifying the reversal. The characterization process, by which the correct choice of law rule is selected, has to differentiate between unjust enrichment claims and other types of claim. It will do so according to the law of the forum. The scope of the law of unjust enrichment therefore must be as clear as possible, allowing claims to be characterized with a minimum of difficulty.

The extent to which judges should be involved in fundraising for civic and charitable causes is an important issue of judicial ethics. The default principle adopted by judicial councils in Canada precludes judges from fundraising subject to only minor exceptions. Yet anecdotal evidence indicates that some Canadian judges do engage in fundraising. This raises the question of whether there should be a change to the principle so as to allow judges greater scope for fundraising activities. The aim of this article is to review the ethical principles for judicial fundraising and evaluate whether they require modifications for the modern Canadian judiciary. The authors consider several hypothetical fundraising scenarios and propose recommendations to the Canadian Judicial Council’s Ethical Principles for Judges.

This chapter introduces the articles contained in Litigating Conspiracy: An Analysis of Competition Class Actions. The articles focus on the intersection of competition law and class actions. They consider the role that class actions can play in achieving an optimally competitive market for goods and services and in providing compensation for those who have suffered as a result of anticompetitive conduct. They examine key issues such as the appropriate test for class action certification and acceptable methodologies for calculating damages, and in doing so they bring to bear the views of legal academics, economists and experienced practicing lawyers. The first three articles examine the dominant rationale for allowing competition class actions and explain the appropriate relationship between public and private proceedings aimed at stopping anticompetitive conduct. They consider deterrence and ways to achieve an optimal level of enforcement of competition law. Six articles consider the test for certification of competition class actions, from both the American and Canadian perspective. One article addresses conflict of laws issues and another tackles conflict of interest concerns for counsel relating to fee arrangements. The final group of articles focuses on damages.