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

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CHAPTER 5

JURISDICTION

IN

PERSONAM

A. INTRODUCTION

Jurisdiction refers to the power of the courts to hear and determine a

particular dispute. The f‌irst major question to be addressed by princi-

ples of the conf‌lict of laws concerns jurisdiction. When do local courts

have jurisdiction to entertain a case that contains some foreign ele-

ment? A court must have jurisdiction over the subject matter of a dis-

pute as well as the parties 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 this 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 personal 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 that apply in the context of, for example, the administration

of estates and matrimonial causes are covered in later chapters. Juris-

1For 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.

2See Chapter 17, Section A.

Juris diction In Personam53

diction in actions in rem, which are most frequently admiralty 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 originating process in 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 merits or, even in

advance of proceedings, by an agreement to submit a particul ar 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, 1852,4 courts were authorized to as-

sume 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, 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 restricting 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 service may be accomplished.5

In other provinces, such as Ontario6 and British 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 itemized grounds, but is free

to apply to the court for leave to serve ex juris in any other case.

3For 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

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1) Constitutional Considerations

The language of the Constitution Act, 18678 makes it clear that provin-

cial legislative power is restrained territorially. Thus, section 92(13), for

example, assigns exclusive legislative authority to the provincial legis-

latures in respect of “Property and Civil Rights in the Province.” Simi-

lar wording is evident in the other provisions allocating power to the

provincial legisl atures. Over the years, the court s have developed a sub-

stantial body of law for determining the meaning and scope of the con-

stitutional prohibition against extraterritorial provincial legislation.9

Conf‌lict of laws principles are designed to resolve disputes con-

taining 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 provincial 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 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

jurisdiction, at least over Canadian defendants,13 only where a real and

substantial connection exists between the province in question and the

action. The application of the Morguard test arises typically in cases 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 jurisdiction in personam, such as where the defendant is

served with process while on a temporary visit to the forum.

8(U.K.), 30 & 31 Vict., c. 3.

9See, generally, Peter W. Hogg, Constitution al Law of Canada, 5th ed. (Toronto:

Thomson Carswe ll, 2007) c. 13.3.

10See, for example, John Swan, “The Ca nadian Constitution, Fede ralism and the

Conf‌lict of Laws” (1985) 63 Can. Bar Re v. 271.

11[1990] 3 S.C.R. 1077 [Morguard].

12[1993] 4 S.C.R. 289 [Hunt]. B oth Morguard and Hunt are cons idered in depth in

Chapter 8. See, genera lly, Hogg, above note 9, c. 13.5.

13See Spar Aerospace Ltd. v. Amer ican Mobile Satellite Corp., [2002] 4 S.C.R. 205

[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).