B. Exceptions and Specific Jurisdiction

Reasoning Lebel J.

• 
  Principles of comity, order and fairness guide the determination of PrIL issues: jurisdiction simpliciter, forum non conveniens, choice of law and recognition of foreign judgments. In Qc these are codified in CCQ.
  
• 
  When Qc court deals w/ issue of PrIL, it must 1^st interpret rule by looking at wording of CCQ provisions and then matching their interpretation w/ PrIL principles that underlie these rules.
  
• 
  PrIL principles are not binding rules, but inspire interpretation of PrIL rules and reinforce their inter-connectedness.
  
• 
  CCQ 3148(3) shows where Qc courts can assume jurisdiction and Spar showed that it suffered damage in Qc based on fact that facilities are in Qc and damages in reputation were not suffered by HQ in Ont, but by Qc plant. This damage meets the “damage” requirement of 3148(3) and need not be direct.
  
• 
  There is no need for the application of an additional “real and substantial connection” test to validate Qc jurisdiction since the grounds of actions in 3148 (fault, injurious act, damage, contract) all provide for a “real and substantial connection” bt Qc and the action.
  
• 
  Forum non conveniens doctrine in art 3135 is the counterweight to and the justification for allowing the breadth of 3148. It is where juridical advantage, directness, size of the claim, and other questions of forum will be dealt with.
  
• 
  FNC doctrine depends generally on order and fairness. Order takes into account certainty and efficiency. Fairness takes into account the context of the individual parties and the appropriateness of any given forum.
  
• 
  More specifically, in Amchem, the SCC set out FNC criteria, “none of which are individually determinant”:
  

     1) The parties' residence, that of witnesses and experts;

     2) the location of the material evidence;

     3) the place where the contract was negotiated and executed;

     4) the existence of proceedings pending between the parties in another jurisdiction;

     5) the location of Defendant's assets;

     6) the applicable law;

     7) advantages conferred upon Plaintiff by its choice of forum, if any;

     8) the interest of justice;

     9) the interest of the parties;

• 
  FNC requires that the defendant show that the desired forum to be deferred to is “clearly better suited to decide the case” by these and other relevant criteria. (Note: The word “clearly” does not appear in art 3135. It seems to be imported from the broader doctrine and the CML.)
  
• 
  Here the discretionary decision of the motions judge does not need to be disturbed and the appellants did not establish conditions to do so.
  

Ratio

1. 
   If damage is linked to Qc, then Qc courts have jurisdiction. This includes damages to reputation. Onus on Pl.
   
2. 
   Damage requirement is enough to prove ‘real and substantial connection’
   
3. 
   CCQ 3135 is counterweight to broad jurisdiction basis set out in 3148 – but it must be used exceptionally, with discretion and there is high onus of proof.
   

• 
  Case hinges on meaning of “damages suffered in Qc” since this is what gave Qc jurisdiction. (ie define 3148(3))
  
• 
  Plant in Ste-Anne-de-Bellevue had been shut down, so proving future loses here (and ^^ damages in Qc) is a stretch and is what makes this case controversial.
  
• 
  Damages sought for loss of future profit (and the link to Qc) was only $50K – a minimal fraction of the total claim.
  

• 
  Strong legal argument put fwd that this minimalist connection interpretation is no longer permissible given recent SCC decisions – such as Morguard v De Savoye and Hunt v T7N plc. (and Beals v Saldhana) – where LaForest (and Major) stated that in order for Can court to have jurisdiction there must be ‘real and substantial connection’ btwn the subject matter of the dispute and the forum of adjudication.
  
• 
  Decision questions LaForest’s idea that there must be a ‘real and direct connection’ requirement. Sometimes the connections are not tangible, like here where the satellite is in space and the losses are pecuniary.
  
• 
  Lebel says that “real and substantial connection” is already incorporated in the scheme of jurisdiction that appears in Book Ten of the CCQ and while it is a constraint and criterion of jurisdiction, it is not additional to those of CCQ. To do this he focuses on 3135 as threshold to 3148 (makes distinction w/ European approach)
  
• 
  Unlike Europe we have discretion at forum non conveniens level to decline to hear the case and decline jur’n.
  

• 
  What is the reason for Qc court to exercise more self restraint? Bc otherwise it would increase likelihood that each province would assume jurisdiction, render judgments and the other prov would be forced to give effect to those judgments.
  
• 
  Irony is that internationally you are sovereign, but interprovincially you have to be careful w/ overlap.
  
• 
  Jurisdiction simpliciter is lowest threshhold (art 3148) and in order to retain that jurisdiction the court must be prepared to find that under doctrine of FNC it is also the appropriate court to hear the case.
  
• 
  Thus there is 2 step approach (1) do you have jurisdiction simpliciter? (2) court looks at FNC and determine whether Qc is an appropriate forum for the case.
  
• 
  Hard to disagree w/ Lebel at this stage of the reasoning. There is no place that jumps out as the clear place of jurisdiction. In the absence of this, then Df has not met burden of proof and Qc can hear the case.
  
• 
  As application of forum non conveniens this is ok. The problem is at first part of Lebel’s arg that jurisdiction simpliciter rules were met.
  

• 
  SCC reflects policy perspective so we must identify what policy considerations were put forth. Normally this means looking at implications of contrary ruling. These could be:
  

(2) Contrary ruling would also have to focus on the fact that Qc damages were the smaller part of the claim, but this would also cause many pbms (think of lawyers putting in larger $$$ amounts suffered elsewhere just to change the jurisdiction)

• 
  So, SCC may have thought of alternative and gotten scared.
  
• 
  FNC is adaptation from Eng CML but note that the case law Lebel cites (incl Amchem) comes from CML and from maritime law. This choice shows that court is intending to have a unitary theory of FNC and not to let doctrine develop differently under CCQ than in CML provinces.
  

Facts

• 
  Both parties were condemned by NY Court to pay hefty indemnity to the succession of Mr. Ronsini
  
• 
  W paid entirety of it, even though Atlas should have paid 52% as per NY judgment
  
• 
  W now wants the enforcement of that judgment in Qc since Atlas had its assets there.
  
• 
  Superior Court refused to recognize the NY court’s judgment on basis of PrIL of Qc which gives Qc exclusive jur’n over civil liability from Qc raw materials (CCQ 3129, 3151).
  
• 
  Atlas argues that Qc should continue to refuse to recognize NY decision based on 3129 and 3151, but also on the violation of the rules of natural justice (procedure)
  
• 
  W argues that NY judgment was properly given (in accordance with natural justice) and that 3129 and 3151 are inapplicable, either because Atlas attorned or because 3129 and 3151 are unconstitutional.
  

Issue (1) Do Qc courts have jurisdicition? (2) Are articles 3129 and 3151 unconstitutional?

Holding (1) NO. (2) NO (Atlas wins)

Reasoning

• 
  The NY could be found to violate the rule of natural justice (in procedure), however, this point is subsidiary to the deciding factor of whether or not 3129 and 3151 apply.
  
• 
  In principle, Qc will recognize decisions rendered with proper jurisdiction (as according to the CCQ). This is stated explicitly in 3155 and 3164.
  
• 
  Articles 3129 and 3151 give exclusive jur’n to Qc for civil liability resulting from its raw materials.
  
• 
  But exclusivity of jur’n could be set aside in favour of theory of reciprocal recognition if judgment is not contrary to the rules of public intl order. Reciprocity in art 3164 is to be given priority application and read alongside art. 3134-3140 re: FNC and forum of necessity. This would suggest that exclusive jur’n may be taken by Qc courts when case is firstly tried in Qc, but it can’t be used to take away jur’n from another competent court.
  
• 
  However, this theory can lead to unreasonable and unpredictable results and is therefore rejected as against principles of the Qc legal system and public order as understood in international relations.
  
• 
  The intention of the legislator is clear. Exclusive jurisdiction was clearly meant to displace foreign law and jurisdiction. Thus, 3129 and 3151 necessarily apply when Quebec courts are being appealed to.
  
• 
  Although Beals speaks to “real and substantial connection” being sufficient to give enforcement to foreign decisions, this case is not a constitutional question but a true conflict of laws in the private international sense.
  
• 
  Reconciling this case with Beals requires taking the approach described by Lebel J in Spar. One must read the CCQ for its wording and then see if the interpretation given accords with the dual principles or order and fairness.
  
• 
  Order speaks to comity which operates to seek recognition of foreign judgments, but comity is not binding upon any sovereign state. The law is also not against fairness given that it does not preclude a proceeding from being successfully pursued in Quebec.
  
• 
  Furthermore, this legislation deals specifically with PrIL which as a subject-matter is precisely concerned with domestic protection from and the effect to be given to foreign rights and claims. Thus, it would be paradoxical to question the validity of PrIL for its extra-territorial effects, since those speak to its very purpose.
  
• 
  In enacting the law, Qc is thus acting w/in its constitutional jurisdiction and this law can validly take exclusive jurisdiction for these matters as far Quebec and the Quebec courts are engaged.
  

Ratio

(1) Foreign judgments recognized in Qc if rendered by competent tribunal that followed Quebec PrIL dispositions in CCQ.

(2) Criteria of real and substantial connection is applicable to the recognition and execution of foreign judgments. But, in Quebec, real and substantial connection is established by interpreting the provisions of the CCQ in accordance with the double principles of order and fairness.

(3) Given that comity is not binding and fairness is respected, any sovereign state is within its rights to legislate in the area of PrIL to establish exclusive jurisdiction with regards to a given subject matter.

Comments

• 
  Leave to appeal was refused by the SCC.
  
• 
  Can also belong in part 2 of course “effects of foreign judgments”
  

Class Comments

• 
  Ronsini died of cancer caused by asbestos that came from Qc but exposure occurred in NY.
  
• 
  Bc provenance of asbestos was Qc, that brought into play exclusive jurisdiction (art. 3129 + 3151)
  
• 
  But court finds there’s stronger connection w/ NY. Plus, that’s where the 1^st action was taken.
  
• 
  W relies on 3164 and theory of necessity (where there’s R&S connection to place and Pl cant take actions anywhere else, then court will take jurisdiction). This means that we should recognize NY courts had jur’n on something that would otherwise be exclusive jur’n of Qc bc Ronsini couldn’t go to Qc, forcing jur’n on NY.
  
• 
  This is an ingenious arg on emergency jurisdiction, but court rejects it since parties went ahead w/ NY as jur’n.
  
• 
  Arg w/ potential was that Qc couldn’t enact articles 3129 and 3151 constitutionally. Arg was that Qc legislature shouldnt have authority to say that Qc courts are the only ones w/ jur’n on asbestos (and other natural resources) that originate in Qc.
  
• 
  Seems like a will to legislate things beyond Qc, when in fact laws are actually dealing w/ jurisdiction of Qc courts.
  
• 
  They are not denying effects of NY court’s judgment, but that the impact of that judgment on property in Qc will not be recognized since Qc is the one with exclusive jurisdiction on that.
  
• 
  Test has been focused on whether legislation has extra-territorial effect and does it purport to have effects on property beyond its own territories. That was not the case here, so court upholds the constitutionality of the articles.
  
• 
  Distinction w/ Morguard and Hunt is that those dealt w/ interprovincial matters, here it is intl one.
  

Insurance Corp of British Columbia v. Unifund Insurance Company [2003] 2 S.C.R. 63

Facts

• 
  The Bs, Ontario residents, were injured when their rental car was struck by tractor-trailer in BC
  
• 
  They received substantial statutory accident benefits (SABs) under their Ontario policy (with Unifund).
  
• 
  They also received substantial damages in lawsuit in BC against truck driver, paid for by ICBC.
  
• 
  Following BC Statute, ICBC deducted the no-fault benefits paid to the Bs from award damages in BC.
  
• 
  Under s.275 of Ontario Insurance Act, Unifund, as payor of SABs, is entitled to seek indemnification from insurer of heavy commercial vehicle involved in accident.
  
• 
  Unifund asked for arbitrator to determine q’n of indemnification. ICBC cross-appealed for stay of proceedings on basis that Ontario insurance regulation could not apply to them.
  

Issue (1) Can s.275 of Ontario Insurance Act apply to ICBC? (2) Does arbitrator have a place in this?

Holding (1) NO. (2) NO (ICBC wins)

Reasoning Binnie (4-3 majority)

• 
  s.275 cannot constitutionally apply to ICBC bc its application would not respec territorial limits on prov jur’n.
  
• 
  Territorial jur’n is a fundamental part of federalism in which each prov is obliged to respect other’s sovereignty: “Ordinarily people expect their activities to be governed by the law of the place where they happen to be and expect that concomitant legal benefits and responsibilities will be defined accordingly. The government of that place is the only one with power to deal with these activities. The same expectation is ordinarily shared by other states and by people outside the place where an activity occurs. If other states routinely applied their laws to activities taking place elsewhere, confusion would be the result. In our modern world of easy travel and with the emergence of a global economic order, chaotic situations would often result if the principle of territorial jurisdiction were not, at least generally, respected.” (LaForest in Tolofson) s. 92 of the Constitution Act, 1867: "In each Province the Legislature may exclusively make Laws in relation to" s. 92(13): "Property and Civil Rights in the Province"
  
• 
  Here, even if there is a real and substantial connection that allows Ont to take jur’n, there is not a sufficient connection to make Ontario law applicable. This is consistent with the ideas of choice of law that can allow a court having taken proper jurisdiction to apply laws that are more closely connected to the dispute than those of the forum.
  
• 
  What constitutes “sufficient” connection depends on the relationships among the enacting jurisdiction, the subject matter of the legislation and the individual or entity sought to be regulated by it.
  
• 
  The applicability of an otherwise competent provincial regulatory scheme to an out-of-province Df is conditioned by req’s of order and fairness that underlie Can federalism.
  
• 
  Here, ICBC cannot sell insurance in Ont, accidents occurred in BC w/ BC cars and ICBC benefited from deduction of SABs by BC legislation, not Ont act.
  
• 
  If Unifund were correct, Ont could attach whatever benefits it liked to out-of-prov accident and require ICBC to come to Ont to reimburse Ont insurer regardless of what BC law permitted.
  
• 
  This would violate BC’s sovereignty.
  
• 
  Since Ont statute doesnt apply to ICBC, Unifund no longer has a cause of action and issue of FNC is moot.
  

Bastarache (dissent)

• 
  A link w/ subject matter of claim is sufficient to establish jurisdiction simpliciter of forum and allow court to appoint arbitrator
  
• 
  By signing insurer’s convention on power of attorney (w. majority saw as irrelevant), the parties have recognized interrelationship of insurance regimes across Can and accepted that insurers in one prov can be sued in another.
  
• 
  Bc of this, ICBC is notionally an insurer in Ont and ^^ subject to Ont regulatory scheme.
  
• 
  It’s unreasonable, when deciding jurisdiction simpliciter, to enter piecemeal interpretation of regime providing for integration of insurance protection across Can and to establish distinctions bt benefits payable to insured and indemnification of their insurers.
  
• 
  FNC decided early on by asking whether there’s more appropriate forum than one chosen by Pl. Where no, the domestic forum wins by default.
  
• 
  Given R&S connection to Ont, Unifund has legitimate claim to take adv of interinsurer scheme of Ont legislation
  
• 
  ICBC did not provide evidence that BC was clearly the more appropriate forum.
  
• 
  Valid prov laws can affect matters w. are sufficiently connected to prov. Unifund proved it here, so Ont has valid jur’n and Ontario act applies.
  

Ratio

(1) The territorial limits on the scope of provincial legislative authority prevent the application of the law of a province to matters not sufficiently connected to it;

(2) What constitutes a "sufficient" connection depends on the relationship among the enacting jurisdiction, the subject matter of the legislation and the individual or entity sought to be regulated by it;

(3) The applicability of an otherwise competent provincial legislation to out-of-province defendants is conditioned by the requirements of order and fairness that underlie our federal arrangements;

(4) The principles of order and fairness, being purposive, are applied flexibly according to the subject matter of the legislation.
Comments

• 
  “There is much to be said for the view that the current state of the [U.S.] Supreme Court's personal jurisdiction and choice-of-law doctrines is precisely backwards. It is easy for a state to apply its law (which is by definition outcome-determinative) to a case, but relatively difficult for it to obtain jurisdiction over a dispute, even though jurisdiction is never directly outcome-determinative. Jurisdictional issues are unpredictable and endlessly litigated; choice-of-law matters are largely unregulated.” (L. H. Tribe, American Constitutional Law (3rd ed. 2000), vol. 1, at p. 1292). This is an interesting comment quoted in para 74 that could also be applied to Canadian law prior to Unifund.
  

• 
  Unifund is Ont company, ICBC is prov corporation.
  

Class Comments

• 
  Case based on statutory provisions not conflict of laws. It’s not priv law, tort, K or some restitutionary measure.
  
• 
  In underlying tort action, in BC, the truck driver (insured under ICBC) was found negligent and made to pay. His insurance paid damage award and under BC act they were entitled to deduct the benefits that victims had claimed from their own insurance company. This statute existed to prevent double recovery. Normally the rule is that tortfeasor should not benefit from victim having insurance, but insurance company can subrogate or work it out w/ victim.
  
• 
  Here the approach is for it all to be resolved at tort case level.
  
• 
  This scheme is actually in place in both BC and Ont but w/ exception for commercial drivers, such as truck drivers.
  
• 
  Here Ont insurer takes right given by Ont statute to go after BC insurer for accident and award occurring in BC
  
• 
  ICBC argues that statute is overreaching. SCC accepts this argument and says legislation is ultra vires in its effects.
  
• 
  Ont legislation was attempting to give a cause of action to an Ont resident against a BC resident w/ respect to a tort having occurred in BC – this is extraterritorial (not incidental) effect
  

• 
  Dissent draws line bt idea of jur’n simpliciter and FNC. Says the first is legal basis for legislation and the second is merely a discretion and the two are distinct aspects of jur’nal inquiry.
  
• 
  Says real and substantial connection test is related to juri’al simplicter part of case and not at FNC level.
  
• 
  Spar interpreted (not q’d) by dissent as requiring jur’n simplicter test to be passed for there to be R+S connection.
  
• 
  Dissent also creates debate: in Morguard, court said that for jur’n to exist in CML there must be a R+S connection bt subject matter and the forum. It looked at whether there was connection bt Df and forum.
  
• 
  Subsequent cases in CML provinces say that there must be both connection bt Df and Forum and R+S. Here court says that either of the two connection suffices. It is reasonable to think that whole court thinks this.
  

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