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So you convinced the court it has jurisdiction. What then?

So you convinced the court it has jurisdiction. What then?

In the decision of the Atlantic Star[1] in 1972, Lord Denning said:

“This right to come here is not confined to Englishman. It extends to any friendly foreigner, he can seek the aid of our Court if he desires to do so. You may call this forum shopping if you please but if a forum is England it is a good place to shop in, for both equality of the goods and the speed of service.”

That’s fine as far as it goes, but what about the eventual execution of a judgment that purports to be effective against a foreign defendant, or applicable to foreign territory? Two recent decisions of the Supreme Court of Canada illustrate the potential problems with Canadian courts assuming jurisdiction and rendering orders that may not be enforceable in the jurisdiction where they are said to operate.

In my view, they call into question whether Canadian courts are exercising the proper degree of restraint in articulating the standards on which they will accept jurisdiction or rendering orders that may never be enforceable.

Underlying this question is the issue of what has been described as “reciprocal comity”, set out by the Supreme Court in Amchem Products Inc. v British Columbia (Workers’ Compensation Board) [1993] 1 S.C.R. 897, which was described by Justice Sopinka as:

The result of the application of these principles is that when a foreign court assumes jurisdiction on a basis that generally conforms to our rule of private international law relating to the forum non conveniens, that decision will be respected and a Canadian court will not purport to make the decision for the foreign court. The policy of our courts with respect to comity demands no less. If, however, a foreign court assumes jurisdiction on a basis that is inconsistent with our rules of private international law and an injustice results to a litigant or “would-be” litigant in our courts, then the assumption of jurisdiction is inequitable and the party invoking the foreign jurisdiction can be restrained. The foreign court, not having, itself, observed the rules of comity, cannot expect its decision to be respected on the basis of comity.

This issue arose in 2017, following the decision of Google Inc. v. Equustek Solutions Inc., 2017 SCC 34[2] where the Supreme Court of Canada rendered a worldwide interlocutory injunction against Google on the basis that “where it is necessary to ensure the injunction’s effectiveness, a court can grant an injunction enjoining conduct anywhere in the world”.

Within days, however, Google had applied to a Court in California seeking a declaration that the Canadian order was unenforceable and an injunction against the enforcement of the order in the United States, which was granted on a preliminary basis by the court, stating that the Canadian order “undermines the policy goals of Section 230 [of the Communications Decency Act] and threatens free speech on the global internet.”

So there!

The issue of potential enforceability of a judgment in which a Canadian court asserted jurisdiction over a matter that it arguably did not have, came up again in the decision of the Supreme Court of February 21, 2020 in Newfoundland and Labrador v. Uashaunnuat, 2020 SCC 4.

In that case, the Uashaunnuat were seeking damages taken in action against Iron Ore Company of Canada (“IOC”) for damages for the company’s activities and building of open pit mines on what the Uashaunnuat claimed to be their historic lands. They also sought an injunction and a declaration that IOC had violated their aboriginal rights.

The problem was that the territory over which they sought the injunction and the declaration was located in the Province of Newfoundland and Labrador (presumably of no significance to the Uashaunnuat who do not recognize provincial borders).

IOC moved to strike the portions of the claim that sought declaratory relief and injunctive relief with regard to the territory located in the Province of Newfoundland and Labrador. Both the Quebec Superior Court and the Quebec Court of Appeal declined to dismiss the Motion to Strike. The Plaintiffs recognized that the judgment would have no value against the Crown in right of Newfoundland and Labrador.

The Supreme Court of Canada, in a 5 to 4 judgment, concluded that Quebec courts did have jurisdiction on the basis that aboriginal rights were sui generis rights, and that IOC was domiciled in Quebec. The minority, however, in a lengthy dissent, concluded that the claims were related to aboriginal title in land located in Newfoundland. In the circumstances, given that Courts of one jurisdiction cannot affect the real property rights of another jurisdiction, they found that Quebec courts did not have jurisdiction over the claim covering the declaration and injunction regarding the territory situated in Newfoundland and Labrador.

Of interest is their conclusion about the enforceability of any judgment that would result in the courts of Newfoundland and Labrador. They concluded at paragraphs 189 and 190 that:

“[189]  To be clear, we are of the view that if Quebec authorities were to rule directly on the title that the Innu believe they hold to the parts of Nitassinan that are situated outside Quebec, the declarations would be binding on no one, not even on the defendants, IOC and QNS&L, precisely because Quebec authorities lack jurisdiction in this regard: Medicine Hat (City) v. Wilson, 2000 ABCA 247, 271 A.R. 96, at para. 96, citing G. Spencer Bower, A. Kingcome Turner and K. R. Handley, The Doctrine of Res Judicata (3rd ed. 1996), at para. 235.

[190]  In principle, “findings [that are] essentially of a factual nature . . . are not binding on the courts of other provinces”: Hunt, at p. 310; on this point, see transcript, at p. 9. A fortiori, the findings of law or of mixed fact and law that would hypothetically be made by the Quebec Superior Court — which lacks jurisdiction to do so — concerning the existence of Aboriginal title or other Aboriginal or treaty rights in land situated outside Quebec would not be binding on the courts of other provinces, regardless of whether such declarations were set out in the reasons or in the formal judgment: see also, in this regard, transcript, at pp. 10‑11 and 46.”

While the majority does not address this issue in its decision, they do state at paragraph 15 that:

“There are several aspects of the content of the dissent with which we disagree, but it is not the general practice in this Court for the majority to engage in a point by point refutation of dissenting reasons. Consequently, the fact that we do not mention any particular point raised in the dissent should not be taken as our agreeing with it.”

À suivre…


[1] [1972] 3 All E.R. 705 at 709
[2] See my partner Janet Michelin’s blog on this case


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