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 • mustn’t 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 party’s residence and place of business, locus of cause of action, locus of damage or loss, juridical advantages/disadvantages, convenience/inconvenience 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!!