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DOMICILE

A person’s domicile is determined by the lexfori. Because nobody shall be without a domicile, the law attributes to each individual a domicile of origin at birth. This domicile remains with the individual unless and until he/she acquires a domicile of choice.

An infant’s domicile of origin is governed by that province’s relevant legislation. In BC, the infant’s domicile is the same as that of the parent with whom he/she “usually resides”, as stipulated by the Infants Act.Therefore, minors also have a domicile of dependency as their personal domicile is dependent on that of another (typically a parent). The exception to this will be discussed below.

Upon reaching the age of majority, one may apply to change his/her domicile by acquiring a domicile of choice. However, as seen in Agulian,displacing one’s domicile of origin can be quite difficult. In order to do so, the individual must firstly, have the intention to remain in the particular country indefinitely, and secondly, be resident there. Direct testimony as well as objective evidence used to infer intention, such as the purchase of property, time spent in the proposed domicile and obtaining citizenship will all be considered when assessing intention.[1] Residence is actual geographical occupation of the location not limited to any length of time.

The real and substantial connection (RSC) test for determining where a person is domiciled should replace the current test. Section 28(d) of the Infants Act makes reference to this concept, but it is only applied where the infant’s domicile cannot be determined by the other aforementioned domicile of origin provisions. If, for example, a Canadian-born child is usually resident with his/her mother who is domiciled in Guatemala, it seems illogical to impose a domicile of Guatemala on the child unless that is the jurisdiction with which the child is most closely connected. The RSC test for determining domicile of origin has been adopted in a number of other countries’ legislation. (For example: South Africa Domicile Act 1992 ss.1 and 2; Namibia Children’s Status Act 2006 s 18; Lesotho Legal Capacity of Married Persons Act 2006 s 14.)

Further, the common law rule whereby a person’s domicile of origin revives upon the abandonment of a domicile of choice can lead to an individual being domiciled in a country with which he/she has no connections. Like Manitoba, BC should abolish this rule in favour of the more flexible RSC test. As seen in Re Urquhart, the RSC test allows the court to account for issues such as fairness, and unlike the subjective “intention to remain permanently”, it is measurable.

JURISDICTION SIMPLICITER

The assumption of jurisdiction, or jurisdictionsimpliciter, deals with whether the court is competent to hear a case. This concept is separate and distinct from the subsequent exercise of jurisdiction whereby the court has the discretion to exercise its jurisdiction or to stay the proceedings. A court must have both subject matter jurisdiction and personal jurisdiction over a case. There are certain subjects, such as foreign lands and intellectual property, for which the court does not have jurisdiction. However, problems arising over the subject matter of the action are rare. Personal jurisdiction, or jurisdiction over the parties to the action, most likely the defendant, is a more common problem.

The common law rules on jurisdictionsimpliciter are mainly procedural in nature rather than substantive, and founded on service.There are four common law bases of jurisdiction for actions in personam.

The first traditional basis of jurisdiction ispresence and residence. Historically, jurisdiction could be exercised on the basis of presence within the forum, not matter how temporary. The only exception to this was where the defendant’s presence in the forum was involuntary through duress or fraud.

-This concept is based on the importance of territorial power.

-Presence-based jurisdiction was at issue in the old English case of Mahranee of Baroda v Wildenstein.

  • The Parisian defendant was transiently present in England to watch the horse races during which time he was served with a writ by the plaintiff. This fleeting presence was sufficient to found jurisdiction.

-While mere presence is a common law basis of jurisdiction, it has not been codified into the Court Jurisdiction Proceedings and Transfer Act.

  • Although there is no provision expressly excluding it, section 3 states: “a court has territorial competence in a proceeding that is brought against a person only if” and goes on to list a number of ways in which a court can assume jurisdiction, presence not being one of them.

-Today, it is argued that the exercise of jurisdiction on the basis of mere presence alone, of the sort seen in Maharnee, would not be in accordance with the constitutional requirements of “order and fairness”, as mandated by Morguard.

Additionally, if the defendant is“ordinarily resident”within the jurisdiction, the courts have jurisdiction over him. Residence within a jurisdiction is a question of fact which must be determined at the time of the commencement of the proceedings. Once jurisdiction is established, it doesn’t matter if the defendant subsequently leaves; the courts have a continuance of jurisdiction.

-The question of what “ordinarily resident” means was explored in Thomson v. Minister of National Revenuewhere Mr. Justice Estey stated that one is "ordinarily resident" in the place where, in the settled routine of his life, he regularly, normally or customarily lives. There is an element of permanence to residence that distinguishes it from where one merely vacations.

-In 2009, in Blazek v. Blazek the BC Supreme Court held that "ordinarily resident" within the meaning of the CJPTA’s sections 7-9 should be given a broad and liberal interpretation. "Ordinarily resident" does not require a counting of days in which a party may spend in this jurisdiction. One can be ordinarily resident in more than one jurisdiction.

-How to determine the “ordinary residence” of companies named as defendants is outlined in sections 7-9 of the CJPTA.

  • Corporations, partnerships and unincorporated associations are ordinary residents of BC only if they have a registered office in BC, a place of business in BC, or central mgmt. in BC. Companies need not be incorporated in BC in order to establish ordinary residence.

The second traditional basis of jurisdiction for actions in personam is by submission. If the defendant submits to the jurisdiction of the court, jurisdiction over the matter is thereby conferred to that court.

-Submission can be through conduct such as acknowledging service, filing a counterclaim etc. However, if the defendant simply to protested the jurisdiction of the claim without attacking the case on its merits, this does not constitute submission.

-Submission can also bethrough a jurisdiction agreement in a contract. Courts will almost always give effect to such an agreement. However, the jurisdiction agreement is treated as a contract of its own, separate from the main contract. Thus, the mere fact that the contract is void does not void the jurisdiction agreement.

Thirdly, even without presence and submission, jurisdiction can be assumed where there is a real and substantial connection between the action and the forum. This “real and substantial connection” test was developed in the SCC case of Morguard Investments v De Savoyeand further elaborated upon in Muscutt v Courcellesand most recently in Club Resorts v Van Breda.

-Van Breda held that in order to establish a real and substantial connection between the forum and the cause of action, the plaintiff must raise one of four presumptive connecting factors.

  • This non-exhaustive list includes: the defendant being domiciled or resident in the province, the defendant carrying on business in the province, the tort being committed in the province, or the contract connected with the dispute being made in the province.
  • Upon demonstrating one of these connections, the presumption is raised that a real and substantial connection exists. The defendant can rebut this presumption by pointing to other connecting factors that are equally significant.
  • Carrying on business within the province is said to mean more than simply advertising within the province (Van Breda).

-The real and substantial connection test is outlined in the CJPTA and therefore codified in the provinces of BC, SK and NS.

  • Section 10 of the CJPTA lists a number of additional presumptive connecting factors which deal which cover all actions in personam rather than simply torts as Van Breda did.
  • This list is again non-exhaustive, though new factors will be added very reluctantly. In developing a new presumptive factor the courts should take into acct what exists in other countries, what exists other in statutes etc.

Therefore, when deciding whether a court which is governed by the CJPTA has jurisdiction simpliciter, s.10 is turned to first.The common law can then supplement that statute. Therefore, although not listed in the CJPTA, if the contract connected with the dispute was made in the province of the forum or the defendant was domiciled in the province, a common law presumption of a real and substantial connection would be raised.

Section 12 of the CJPTA maintains that if there is a conflict between the Act and another statute conferring or denying jurisdiction, the other statute is to prevail.

The final and residual basis of jurisdiction is the forum of necessity. Founded on the concern for access to justice, certain courts have a residual discretion to assume jurisdiction as a "forum of last resort" where there is no other forum in which the plaintiff could reasonably seek relief.

-The forum of necessity concept is relatively new in Canada. The idea was initially drawn from article 3 of the Swiss Private International Law and subsequently adopted by Quebec into its Civil Code of Québec.

-Thereafter, British Columbia and Nova Scotia expressly provided for the use of the court as a forum of necessity in section 6 of their respective Court Jurisdiction Proceedings Transfer Act (CJPTA). Although the CJPTA was recently adopted by Saskatchewan, they declined to adopt this specific provision.

-Section 6 states that a court lacking territorial competence may hear the proceeding if it considers that: (a) there is no court outside British Columbia in which the plaintiff can commence the proceeding, or (b) the commencement of the proceeding in a court outside British Columbia cannot reasonably be required.

-Section 6 was used to establishjudicial jurisdiction in the recent BC case of Josephson (Litigation Guardian of) v. Balfour Recreation Commission. This basis is different from other bases of jurisdiction because it does not require a connection to the forum of the province. It will therefore be applied only in exceptional circumstances in order to avoid a denial of justice to the plaintiff.

Moreover, although Ontario has not adopted the CJPTA, the forum of necessity was accepted as part of their common law in the recent Ontario Court of Appeal decision in Van Breda. In sum, only BC, NS and Ontario have adopted the forum of necessity – either by statute or through the common law – as a basis of assuming jurisdiction.

Limitations on subject matter

Regardless of whether it has established personal jurisdiction, a court may be unable to hear a particular case due to a lack of subject matter jurisdiction.

Generally, a Canadian court has no jurisdiction to hear a claim involving foreign land or the possession of foreign immovables. This principle was articulated in the 1893 English decision of Moçambique, holding that a local court has no jurisdiction over actions for trespass to foreign lands. Similarly, in Duke v Andler, a foreign judgment regarding title and ownership of real property situated in BC could not be recognized as final and enforced by the courts of BC. This is because, practically speaking, title to land within your jurisdiction should not be decided by a foreign court.

This rule cannot be overcome by consent of the parties. However, where instead of seeking a right in rem, a plaintiff seeks a remedy in personam such as the enforcement of personal contractual or equitable obligations, the court may hear the claimif the following conditions are satisfied. Firstly, the court must have personal jurisdiction over the defendant. Secondly, and most importantly, there must be a common personal obligation between the parties. Thirdly, the local court must be able to supervise the judgment’s execution. Lastly, the order must be given effect in the situs, or where the property is located. These conditions were satisfied in the case of Ward v Coffin where the plaintiff claimed specific performance of a contract for the sale of land entered into with the defendant. The judgment therefore operates only in personam, enforcing the contract relating to foreign land. However, as noted in Hesperides Hotels, actions of that sort incidentally “affect the foreign land itself hardly less than actions for damages for trespass to the land.”

In regards to jurisdiction over foreign intellectual property rights, Canada’s position is unclear. The topic was indirectly addressed with conflicting results in two recent lower level cases. However, it appears that the English law on the matter is that the court will hear the claim if there is a basis for in personamjurisdiction over the defendant. (Lucasfilm Limited v Ainsworth) Further, the Brussels I Regulation, which regulates conflict of laws in the EU, states that the court of the Member State in which the patent was registered will have exclusive jurisdiction over the matter. In order to overcome this jurisdictional limitation, contracting parties could enter into a binding arbitration agreement, as the arbitral tribunals’ jurisdiction is governed by the parties.

Sovereign Immunity

The jurisdiction of the court may be further limited by the doctrine of sovereign immunity. This doctrine has been codified in Canada’s State Immunity Act. Upholding the general principle of restrictive immunity, section 3 provides that subject to listed exceptions, “a foreign state is immune from the jurisdiction of any court in Canada”. A “foreign state” is defined in section 2 as encompassing the sovereign, the head of state, government departments and agencies of the foreign state, and any political subdivision of the foreign state.

Sections 5 and 6 stipulate that a foreign state loses its immunity protection for commercial activities and judicial proceedings in relation to death or bodily injury occurring in Canada respectively. Regarding death or bodily injury occurring in Canada, many scholars assert that the injury must be physical rather than mental in order to come within the scope of the exception. This view was supported in the Kazemi Estate v Iran case where Mr. Hashemi’s psychological trauma caused by the torture and death of his mother was insufficient to displace state immunity conferred on Iran. In section 6.1, an additional exception to state immunity for terrorism was introduced in 2012 through Bill C-10.

DISCRETION TO EXERCISE JURISDICTION

Upon establishing that a court has jurisdiction simpliciter, the court now has the discretion to exercise this jurisdiction or stay the proceedings. From a technical perspective, this means that the court is regulating its own jurisdiction. In practice, it means that the defendant is often forced to litigate abroad. The power to stay proceedings is derived from the inherent jurisdiction of the courts. This inherent jurisdiction is also preserved by statute in: section 11 of the CJPTA, section 15 of the Commercial Arbitration Act and section 8 of the International Commercial Arbitration Act. The power to stay proceedings is exercised in three situations:

1)Where the doctrine of forum non conveniensapplies

Historically, this discretion did not exist in English law. The basic idea was that once the P served the D with the writ of summons, the P had the right to sue. The proceedings would only be stayed if the plaintiff was acting “vexatiously or oppressively”.

-The UK’sSpiliada case then decided that the court will exercise discretion to grant a stay of proceedings on the ground of forum non conveniens where it is satisfied that there is a clearly more appropriate forum in which the case may be tried more suitably for the interests of all the parties and the ends of justice.

-This test was picked up in Canada’s Amchem Products v BC case.

-The court cannot invoke forum non conveniens on its own. Rather, it must be invoked by an application by the defendant to stay the proceedings.

-The defendant need not prove that a different forum is the most appropriate, rather that it is “clearly more appropriate” than the one in which the action was commenced.

In deciding whether there is another forum that is clearly more appropriate, the Canadian courts will consider a range of factors. Overall, it is said that a plaintiff’s choice of forum should rarely be disturbed, thus the principles on forum non conveniens arguably favour the plaintiff. At common law, the factors to be considered were outlined in the decision of Muscutt v Courcelles. However, the doctrine of forum non convenienshas been codified in the Quebec Civil Code and section 11 of the CJPTA. Thus, in Quebec, BC, NS and Saskatchewan, one must turn to the statute.

-Unlike the “clearly more appropriate” language from the common law, in the CJPTA the defendant must prove that there is a “more appropriate forum” in which to hear the proceeding.