Chapter 4: Where and When to Sue

• Pages: 94-110
• Author: Janet Walker,Lorne Sossin,Erik S. Knutsen,Gerard J. Kennedy

CHA PTER 4

WHERE AND WHEN

TO SUE

A. INTRODUCTION

Two critical considerations in commencing litigation are the choice of

the court in which to sue and the time within which the claim must be

commenced. This chapter considers the civ il jurisdiction of the provin-

cial superior courts i n Canada in cases involving persons and events in

other provinces and terr itories and whether the time allowed for com-

mencing the claim ha s passed.

B. CIVIL JUR ISDICTION IN CROSS-BORDER

MATTER S

1) Jurisdiction over the Parties

In Chapter 1, the structure of the Canadian court system was ex plained

with the jurisdiction of the various courts in relation to one another.

However, in a world in which civil disputes often involve persons and

events in other provinces and countr ies the cross-border dimension is a

further dimen sion to court jurisd iction that can no longer be overlooked.

One aspect of planning for cross -border litigation relates to choos-

ing the place or “forum” (i.e., the province or country) for the litigation.

As a practical matter, that w ill be the forum that is most convenient and

most likely to produce an enforceable judgment. In making t his choice,

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Where and When to Sue 95

it is important to know the li mits of the jurisdiction of the court you

might choose.

This part of the chapter provides a brief summary of the options

and considerations. As was outlined in Chapter 1, the system of su-

perior courts in Can ada consists of the provincial super ior courts, each

with their own jur isdiction and the Federal Courts. Since the superior

courts of the provinces have plenary and inherent jurisdiction, the

question of subject matter jurisdiction ar ises only in those situations

in which jurisdict ion has been allocated to another decision-mak ing

body by statute, such to an administrative tribunal or to another court

such as a Small Claims court or the Federal Courts. Further more, in

most of the situations that could give ri se to conicts of jurisdiction

between the provincial a nd the Federal Courts, their jurisdiction is

concurrent. The few remaining questions of subject matter jurisdic-

tion tend to be limited to those in wh ich the dispute relates to title

to real property or to some other right in a public register, such as a

trademark or a corporate str ucture, and where that public register is i n

another provi nce or country.

One further preliminary consideration in deciding where to com-

mence an in personam action is whether the dispute is a family law

matter. The rules for court jurisdiction in fam ily law are fundamentally

different from those for civil and commerci al matters, and they are gen-

erally set out in statutes.

The starting point for the question of whe re to commence the ac-

tion is to examine t he legal framework for this analysis. In Canada,

there are three: in the provinces that have adopted it, the Court Juris-

diction and Proceedings Transfer Act (CJPTA) applies; in the common

law provinces that h ave not adopted the CJPTA, the common law

applies; and in Quebec, the Civil Code and the Code of Civil Procedure

apply. While there are differences between these legal f rameworks,

the fundamental g rounds for the exercise of jurisd iction by the prov-

incial superior courts i n Canada are simil ar. There are three main

bases of jurisdiction.

2) Consent

The rst basis on which courts h ave jurisdiction to hear disputes is the

parties’ consent. The plaint iff’s consent is demonstrated by choosing to

commence the matter in the court in quest ion. and, since the plaintiff ’s

consent is clear in every case, the focus of the jurisdictional inquiry is

always on the defendant or the dispute. For this ba sis of jurisdiction, the

focus is on whether the defendant has consented to t he court’s jurisdiction.