Recap

1
Recap

• Please write down
• One thing you know about the Morguard decision.
• One thing you would like to know about the
  Morguard decision.

2
Jurisdiction Concepts to Grapple with Today

• jurisdiction simpliciter
• jurisdictional facts
• discretion
• forum non conveniens
• relationship between rules of BC Supreme Court
  and SCC rulings
• role of Court Jurisdiction and Proceedings
  Transfer Act

3
UniNet Technologies Inc. v Communication Services
Inc. 2005 BCCA

• The circumstances of this case are a reflection
  of the globalization of the Internet-based
  economy and the ability of modern business
  entities to move assets and information across
  borders at their interests may dictate. It is
  not surprising that these circumstances are
  difficult to fit into traditional legal concepts
  of jurisdiction and even into their modern
  touchstone, real and substantial connection.
• facts?
• area of law?

4

• no tort within BC, but jurisdiction simpliciter
  is established on the basis of real and
  substantial connection to leave granted
  retroactively (interesting Latin to note)
• How to determine if jurisdiction simpliciter
  exists?
• look to pleadings, look for jurisdictional facts
• unpleaded jurisdictional facts
• any challenge by the defendant

5

• the only test is real and substantial
  connection. no hard and fast rules.
• may lower the bar in some circumstances
• fleeting or relatively unimportant connection
  not enough
• degree of connection may vary with subject matter
• mustnt be mechanical or inflexible
• traditional rules (power over D, situs of the
  tort, place of perfc of k) and rules of court
  just a starting point
• Morguard comity, order and fairness

6
Cresbury v CIBC 2006 BCCA

• facts?
• area of law?
• attempting to bring suit in BC against CIBC
• jurisdiction simpliciter is conceded, CIBC has
  agreed to attorn to Swiss jurisdiction
  question is discretion to decline
• key case to follow Amchem Products v BC
  (Workers Comp Board) 1993 SCC

7

• actions should be tried in the jurisdiction to
  which they have the closest connection, unless
  the requirements of justice determine otherwise
• forum conveniens analysis each partys residence
  and place of business, locus of cause of action,
  locus of damage or loss, juridical
  advantages/disadvantages, convenience/inconvenienc
  e to witnesses, cost, applicable law
• must accord with the principles of comity
• forum shopping is not to be encouraged

8

• most important facts?
• bond for suit
• no discovery
• Swiss banking secrecy
• unjust enrichment
• criminal claims
• parallel proceedings
• law not argued
• scope of appellate review

9
Ingenium Technologies Corp v McGraw-Hill
Companies Inc BCCA 2005

• facts?
• area of law?
• a forum conveniens question with direct parallel
  proceedings (i.e. subset of the problem in
  Cresbury)
• jurisdiction simpliciter not in issue
• NY court has positively asserted jurisdiction
• express provision that contract subject to BC and
  Canadian law

10

• existence of parallel proceedings does not trump
  all other factors
• the principle of comity governs no determinative
  factors
• anti-suit injunctions / stay proceedings
• parallel actions to be avoided unless clear
  juridical advantage, rt to sue in court of choice
  not a significant factor, aim is to avoid
  conflicting decisions
• choice of law in agreement not determinative
• declining jurisdiction does not limit argument
  and it saves time and cost.
• note dissent!!