Jurisdiction In Personam
| Author | Stephen G.A. Pitel; Nicholas S. Rafferty |
| Pages | 53-113 |
CHAPTER
5
JURISDICTION
IN
PERSONAM
A.
INTRODUCTION
The
first
major
issue
in
the
conflict
of
laws
is
that
of
jurisdiction.
Juris
diction
refers
to
the
power
of
the
court
to
hear
a
dispute.
A
court
must
have
jurisdiction
over
the
parties
to
the
dispute
and
over
the
subject
matter
of
the
dispute.
Subject
matter
jurisdiction,
however,
rarely
rais
es
issues
in
the
conflict
of
laws.
1
One
major
exception
relates
to
the
traditional
rule
that
Canadian
courts
have
no
jurisdiction
to
determine
title
to
foreign
immovable
property.
The
intricacies
of
that
topic
are
considered
in
Chapter
17.
While
the
court
needs
to
have
jurisdiction
over
both
parties,
juris
diction
over
the
plaintiff
is
a
simple
matter.
Having
chosen
to
sue
in
the
forum,
the
plaintiff
voluntarily
submits
to
the
court
’
s
jurisdiction.
Accordingly,
this
chapter
concentrates
on
jurisdiction
over
the
defend
ant.
In
addition,
its
focus
is
jurisdiction
in
actions
in
personam.
The
purpose
of
such
an
action
is
to
impose
a
personal
obligation
on
the
defendant
owed
to
the
plaintiff.
For
example,
the
obligation
might
be
to
pay
damages
for
a
breach
of
contract
or
tort
committed
or
to
comply
with
an
order
of
specific
performance.
This
chapter
considers
jurisdic
tion
in
personam
generally.
The
special
jurisdictional
rules
that
apply
1
For
a
discussion
of
subject
matter
jurisdiction
in
the
context
of
British
Colum
bia
’
s
Court
Jurisdiction
and
Proceedings
Transfer
Act,
SBC
2003,
c
28,
see
Scott
v
Hale,
[2009]
BCJ
No
327
(SC).
53
54
CONFLICT
OF
LAWS
in
the
context
of,
for
example,
the
administration
of
estates
and
matri
monial
causes
are
covered
in
later
chapters.
Jurisdiction
in
actions
in
rem,
which
are
most
frequently
admiralty
actions
relating
to
vessels,
where
the
resultant
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.
2
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
litiga
tion
was
commenced.
Second,
defendants
could
vest
jurisdiction
in
a
court
in
an
action
in
personam
by
their
consent
or
voluntary
submis
sion
to
the
proceedings
against
them.
Such
submission
could
be
shown
by
defending
in
the
proceeding
on
its
merits
or,
in
advance
of
proceed
ing,
by
agreeing
to
submit
the
dispute
to
the
jurisdiction
of
the
courts
of
a
particular
territory.
Beginning
in
England
in
the
nineteenth
century
with
the
passage
of
the
Common
Law
Procedure
Act,
1852,
3
courts
were
authorized
to
assume
jurisdiction
over
defendants
who
resided
outside
the
forum
by
provisions
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
situa
tions
in
which
the
plaintiff
is
allowed
to
serve
an
originating
process
ex
juris
without
the
leave
of
the
court.
However,
the
plaintiff
can
apply
to
the
court
for
leave
to
serve
ex
juris
in
any
other
case.
4
5
This
basis
for
taking
jurisdiction
is
called
“
assumed
jurisdiction.
”
3
This
approach
meant,
for
many
years,
that
the
rules
about
service
ex
juris
were
more
than
just
procedural
rules
dealing
with
how
litigation
was
commenced.
They
were
rules
about
the
court
’
s
jurisdiction,
since
the
court
assumed
jurisdiction
in
any
dispute
in
which
the
defendant
2
For
a
detailed
treatment
of
this
topic,
see
Janet
Walker,
Castel
&
Walker:
Cana
dian
Conflict
of
Laws,
6th
ed
(Markham,
ON:
Butterworths,
2005)
(loose-leaf)
ch
12.
For
a
discussion
of
the
distinction
between
actions
in
personam
and
actions
in
rem,
see
Pattni
v
Ali,
2006
UKPC
51
at
paras
19-23.
3
(UK),
15
&
16
Viet,
c
76.
4
See,
for
example,
Rules
of
Civil
Procedure,
RRO
1990,
Reg
194,
r
17
[Ontario
Rules],
5
See,
for
example,
Chevron
Corp
v
Yaiguaje,
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.
Jurisdiction
In
Personam
55
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.
6
1)
Constitutional
Considerations
The
language
of
the
Constitution
Act,
1867
makes
it
clear
that
provin
cial
legislative
power
is
restrained
territorially.
7
Thus,
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
legislatures.
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.
8
Conflict
of
laws
principles
are
designed
to
resolve
disputes
containing
some
“
foreign
”
or
extraterritorial
element.
Traditionally,
the
courts
have
elaborated
those
principles
with
little
or
no
regard
for
any
constraints
imposed
by
the
Canadian
Constitution.
It
has
been
argued,
however,
that
constitutional
doctrine
restricts
the
extraterritorial
reach
of
provin
cial
law
generally
and
that
the
entire
body
of
conflict
of
laws
principles
—
such
as
those
dealing
with
the
jurisdiction
of
the
courts,
the
recognition
of
extraprovincial
judgments,
and
choice
of
law
—
must
be
evaluated
ac
cording
to
a
constitutional
standard.
9
That
suggestion
bore
fruit
in
the
important
decision
of
the
Supreme
Court
of
Canada
in
Morguard
Invest
ments
Ltd
v
De
Savoye,
10
with
its
confirmation
as
a
principle
of
Canadian
constitutional
law
in
Hunt
v
T
&>
N
pic.
11
As
a
result
of
Morguard,
it
has
become
clear
that,
in
the
context
of
taking
jurisdiction,
the
courts
are
constitutionally
restrained
so
that
they
can
assume
jurisdiction
only
where
a
real
and
substantial
connection
exists
between
the
province
in
question
and
the
dispute.
The
application
of
the
Morguard
principle
6
This
has,
in
turn,
led
to
some
provinces
modifying
their
rules
on
service
ex
ju
ris
so
that
they
mirror
the
rules
on
jurisdiction.
See,
for
example,
Supreme
Court
Civil
Rules,
BC
Reg
168/2009,
r
4-5
[British
Columbia
Rules].
7
(UK),
30
&
31
Viet,
c
3.
8
See
Peter
W
Hogg,
Constitutional
Law
of
Canada,
5th
ed
(Toronto:
Thomson
Carswell,
2007)
(loose-leaf)
ch
13.3.
9
See,
for
example,
John
Swan,
“
The
Canadian
Constitution,
Federalism
and
the
Conflict
of
Laws
”
(1985)
63
Canadian
Bar
Review
271.
10
[Morguard],
11
[Hunt].
Both
Morguard
and
Hunt
are
considered
in
depth
in
Chapter
8.
See
Hogg,
above
note
8,
ch
13.5.
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