Jurisdiction In Personam
| Author | Stephen G.A. Pitel/Nicholas S. Rafferty |
| Profession | Faculty of Law, University of Western Ontario/Faculty of Law, University of Calgary |
| Pages | 52-114 |
52
CHAP TER 5
JURISDICTION
IN
PERSONAM
A. INTRODUCTION
Jurisdiction refers to the power of the courts to hear and determine a
particular d ispute. The first major question to be addressed by pr inci-
ples of the conflict of laws concern s jurisd iction. When do local courts
have jurisdiction to entert ain a case th at contains some foreign ele-
ment? A court must have jurisdiction over the subject matter of a dis-
pute as well as the part ies to that dispute. Subject matter jurisdiction,
however, rarely raises issues in the conflict of laws.1 One major excep-
tion relates to the traditional rule that Canadian courts have no juris-
diction to determine title to foreign land. The intricacies of that topic
are considered in a later chapter in thi s book.2
This ch apter concentrates on p ersonal juri sdiction over a defend ant
and thus its focus is jurisdiction in act ions in pe rsonam. The purpose of
such an action is to impose a person al obligation on a defendant, such
as one to pay damages for a breach of contract or tort committed or to
comply with an order of specific performa nce. The special jur isdiction-
al rules th at apply in the context of, for example, the administ ration
of estates and matrimonial causes are covered in later chapters. Juris-
1 For a discuss ion of subject matter jurisdict ion in the context of British C olum-
bia’s Court Jurisdiction an d Proceedings Transfer Act, S.B.C. 20 03, c. 28 [CJPTA
(B.C.)], see Scott v. Hale, [2009] B.C.J. No. 327 (S.C.). This case is disc ussed
below, Section G.
2 See Chapter 17, Section A.
Juris diction In Personam 53
diction in actions in rem, which a re most frequently admir alty actions
relating to vessels, where t he 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.3
At common law, there were two bases for jurisdiction in personam.
First, since jurisd iction was grounded traditionally in territori al power,
the local courts were regarded as having jurisdiction over defendants
where they could be found and served with orig inating process i n the
territory of the forum. S econdly, defendants could vest jurisdiction in a
court in an action in perso nam by their consent or voluntary submission
to the proceedings launched against them. Such submission could be
constituted, for example, by defending a case on its mer its or, even in
advance of proceedings, by an agreement to submit a particul ar dispute
to the jurisdiction of the court s of a particular territory.
Beginning in Engl and in the nineteenth century with the passage
of the Common Law Procedure Act, 1852,4 courts were authorized to as-
sume juris diction over defendants who resided outside the forum by
provisions allowing for ser vice of the originat ing process ex juris. In
turn, each Can adian province adopted rules governing service ex juris.
The various Canadian reg imes for service ex juris are, however, by no
means uniform. For example, the present Alberta rules closely mirror
the original Engl ish model for service out of the jurisdiction by copying
the grounds for service ex juris, by restr icting the plaintiff’s ability to
serve ex juris to an enumerated ground, and by requiring t he plaintiff to
secure the leave of the court before such ser vice may be accomplished.5
In other provinces, such as Ont ario6 and Br itish Columbia,7 the plain-
tiff is allowed to serve an originating process ex juris without the leave
of the court when the case fits one of the itemi zed grounds, but is free
to apply to the court for leave to serve ex juris in any other case.
3 For a detailed tre atment of this topic, see, generall y, Janet Walker, Castel &
Walker: Canadian Conflict of L aws, 6th ed., looseleaf (Markham , ON: Butter-
worths, 2005 –) c. 12. For a recent discussion of the d istinction between action s
in personam and act ions in rem, see Pattni v. Ali, 2006 UKPC 51 at paras. 19–23.
4 (U.K.), 15 & 16 Vict., c. 76.
5Alberta Rules of Court , Alta. Reg. 390/68, r. 30 [Alberta Rules]. Under the pro-
posed Alberta Rules of Court rec ommended by the Alberta L aw Reform Institute,
Rules of Court Project (Edmonton, Alb erta Law Reform Instit ute, 2008), service
outside Albert a will no longer have to fit a speci fied ground and leave will not
be required where t he defendant is served in Ca nada (r. 11.24).
6Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 17 [Ontar io Rules].
7Supreme Court Rules, B.C. Reg. 221/90, r. 13 [Briti sh Columbia Rules].
CONFLICT OF LAWS
54
1) Constitutional Considerations
The lang uage of t he Constitution Act, 18678 makes it clear t hat provin-
cial legislative power is restrained ter ritorially. Thus, section 92(13), for
example, assigns e xclusive legislative authority to the provi ncial legis-
latures in resp ect of “Property and Civil R ights in the Provi nce.” Simi-
lar wording is evident in the other provi sions allocating power to the
provincial legisl atures. Over the years, the court s have developed a sub-
stantial body of law for determining the meani ng and scope of the con-
stitutional prohibition against extraterritoria l provincial legislation.9
Conflict of laws principles are desig ned to resolve disputes con-
taining some “foreign” or extraterritori al 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 provincial law generally and t hat the entire body of conflict of laws
principles— such as those dealing with the jurisdiction of the courts,
the recognition of extraprov incial judgments, and choice of law— must
be evaluated according to a constitutional standard.10 That suggestion
bore fruit in the important decision of the Supreme Court of Canada in
Morguard Investments Ltd. v. De Savoye,11 with it s confirmation as a prin-
ciple of Canadian constitutional law in Hunt v. T & N plc.12 As a result
of Morguard, it h as become clear that, in the context of judicial jur isdic-
tion, the courts are constitutionally restrained so that they can assume
jurisd iction, at least over Canad ian defenda nts,13 only where a real and
substantial connection exists between the province in question and the
action. The application of the Morguard test arises t ypically in ca ses of
service ex juris. There are still questions, however, as to whether it is
also applicable to cases falling within one of the traditional common
law bases for juri sdiction in personam, such as where the defendant is
served with process while on a temporary visit to t he forum.
8 (U.K.), 30 & 31 Vict., c. 3.
9 See, generally, Peter W. Hogg, Constitution al Law of Canada, 5th ed. (Toronto:
Thomson Carswe ll, 2007) c. 13.3.
10 See, for example, John Swan, “The Ca nadian Constitution, Fede ralism and the
Conflict of Laws” (1985) 63 Can. Bar Re v. 271.
Chapter 8. See, genera lly, Hogg, above note 9, c. 13.5.
[Spar], where LeBel J. indicated t hat the Morguard test did not h ave to be satis-
fied in the cas e of defendants served outside Ca nada. Later decisions, howeve r,
have ignored Spar on this point : see below, Section E(2).
To continue reading
Request your trial