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,

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.

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

[1990]

3

SCR

1077

[Morguard],

11

[1993]

4

SCR

289

[Hunt].

Both

Morguard

and

Hunt

are

considered

in

depth

in

Chapter

8.

See

Hogg,

above

note

8,

ch

13.5.