CHAPTER 5 Jurisdiction

• Date: 07 April 2025

59

CHA PTER 5

JURISDICTION

A. INTRODUCTION

The f‌irst major issue in the conf‌lict of laws is jurisdiction. Jurisdiction

refers to the power of the court to hear a dispute.1 This can be divided

into two aspects. First, the court needs jurisdiction over the parties to

the dispute so that its decision is binding on them. This aspect is called

jurisdiction in personam, Second, the subject matter of the dispute has to

fall within the ambit of disputes that the particular court is able to hear.

This aspect is called subject matter jurisdiction.

This chapter deals only with the f‌irst aspect of jurisdiction. Subject

matter jurisdiction rarely raises issues in the conf‌lict of laws.2 One major

exception relates to the traditional rule that Canadian courts have no

jurisdiction to determine title to foreign immovable property. The intri-

cacies of that topic are considered in Chapter 17. Beyond that issue, most

questions of subject matter jurisdiction are not conf‌lict of laws ques-

tions. They relate to domestic civil procedure. For example, some courts,

such as those reserved for “small claims,” have limits on the monetary

amounts and types of other remedies that can be awarded.3 Some courts

1 See, for example, Pellerin v Dingwall, 2018 BCCA 110 at para 28.

2 For a discussion of subject matter jurisdiction in the context of British Columbia’s

Court Jurisdiction and Proceedings Transfer Act, SBC 2003, c 28, see Scott v Hale,

[2009] BCJ No 327 (SC).

3 See, for example, Courts of Justice Act, RSO 1990, c C.43, ss 23(1), 96(3) and 97.

CONFLICT OF LAWS

60

can only hear disputes in certain areas of the law and may not be able to

hear many civil or private law claims.4

For jurisdiction in personam, while the court needs to have jurisdic-

tion over both the plainti and the defendant, jurisdiction over the plain-

ti is a simple matter. Having chosen to sue in the forum, the plainti

voluntarily submits to the court’s jurisdiction. Accordingly, the analysis

concentrates on jurisdiction over the defendant.

At common law, there were two bases for jurisdiction in personam:

presence and submission. First, since jurisdiction was grounded trad-

itionally in territorial power, the local courts were regarded as having

jurisdiction over defendants who could be served with an originating

process within the territory of the forum. The court had jurisdiction

based on the defendant’s presence in the forum at the time the litigation

was commenced. Second, a court could take jurisdiction over defendants

because of their consent or voluntary submission to the proceedings

against them. Such submission could be shown by defending in the pro-

ceeding on its merits or, in advance of proceeding, by agreeing to submit

the dispute to the jurisdiction of the courts of a particular territory. Both

of these bases are considered below.

Beginning in England in the nineteenth century with the passage of

the Common Law Procedure Act, 1852,5 courts were authorized to assume

jurisdiction over defendants who resided outside the forum by provi-

sions allowing for service of the originating process ex juris. In turn,

each Canadian province adopted rules governing service ex juris. The

various Canadian regimes for service ex juris are not uniform. Under the

typical approach, the provisions set out enumerated situations in which

the plainti is allowed to serve an originating process ex juris without the

leave of the court. However, the plainti can apply to the court for leave

to serve ex juris in any other case.6 This basis for taking jurisdiction is

called “assumed jurisdiction.”7 It is considered at length below.

This approach meant, for many years, that the rules about service ex

juris were more than just procedural rules dealing with the mechanics

4 See, for example, ibid, s 38. For discussion of the subject matter jurisdiction of

the Federal Court see ITO - International Terminal Operators v Miida Electronics

Inc, [1986] 1 SCR 752; Pasqua First Nation v Canada (Attorney General), 2016

FCA 133.

5 (UK), 15 & 16 Vict, c 76.

6 See, for example, Rules of Civil Procedure, RRO 1990, Reg 194, r 17 [Ontario

Rules].

7 See, for example, Chevron Corp v Yaiguaje, 2015 SCC 42 at para 82 [Chevron]. It

has also been called “exorbitant jurisdiction,” though it is important not to see

in this phrasing something negative about the basis for jurisdiction: see Abela v

Baadarani, [2013] UKSC 44 at paras 45 and 53.

Jurisdict ion 61

of how litigation was commenced. They were rules about the court’s

jurisdiction in personam, since the court assumed jurisdiction in any

dispute in which the defendant could be validly served under the rules.

As is explained below, this is no longer true. Canada has now developed

rules about assumed jurisdiction. These rules are independent of the

procedural rules about service of the originating process. The latter are

still important, since the defendant must be served, but service itself is

no longer the basis for jurisdiction.8

This chapter considers jurisdiction in personam for most civil and

commercial disputes. There are special jurisdictional rules that apply in

certain contexts, for example the administration of estates and family

law disputes. These are covered in later chapters. Jurisdiction in actions

in rem, which are most frequently admiralty actions relating to vessels, in

which the judgment is enforced against the thing itself and is binding on

anyone who has an interest in the thing, is not considered in this book.9

Also not covered are certain immunities from being sued, most notably

the sovereign or state immunity of foreign countries and governments.

There is a highly specialized jurisprudence on this issue.10

1) Constitutional Considerations

The language of the Constitution Act, 1867 makes it clear that provincial

legislative power is restrained territorially.11 Section 92(13), for example,

assigns exclusive legislative authority to the provincial legislatures in

respect of “Property and Civil Rights in the Province.” Similar wording is

evident in the other provisions allocating power to the provincial legisla-

tures. Over the years, the courts have developed a substantial body of law

for determining the meaning and scope of the constitutional prohibition

against extraterritorial provincial legislation.12

Conf‌lict of laws principles are designed to resolve disputes containing

some “foreign” or extraterritorial element. Traditionally, the courts

elaborated those principles with little or no regard for any constraints

8 This has, in turn, led to some provinces modifying their rules on service ex juris

so that they mirror the rules on jurisdiction. See, for example, Supreme Court

Civil Rules, BC Reg 168/2009, r 4–5.

9 For a detailed treatment, see Janet Walker, Canadian Conf‌lict of Laws, 7th ed

(Markham, ON: LexisNexis Canada Inc, 2023) (loose-leaf) ch 7. For a discussion

of the distinction between actions in personam and actions in rem, see Ali v Pattni,

2006 UKPC 51 at paras 19–23.

10 For a detailed treatment, see Walker, above note 9 at para 8.02.

11 (UK), 30 & 31 Vict, c 3.

12 See Peter W Hogg, Constitutional Law of Canada, 5th ed (Toronto: Thomson Car-

swell, 2007) (loose-leaf) ch 13.3.