Since 1989 Canada has been a member of Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, (the Hague Service Convention). The Hague Service Convention requires its member States to designate a “Central Authority” to accept incoming requests for service. The Central Authority in Canada, on the federal level, is the Attorney General for Canada, and the Central Authority on the provincial level, in Ontario is the Attorney General, the Ministry of the Attorney General or the Minister of Justice. In Ontario, service of foreign proceeding under the Hague Service Convention requires that a completed Request for Service Abroad of Judicial or Extrajudicial Documents Form together with the prescribed number of originating process documents and prescribed fee to the Ministry of the Attorney General for Ontario. There are alternatives to the Hague Service Convention service of foreign process in Ontario. If you are seeking advice or … Read More
International Sale of Goods Convention – New Members in 2014 and 2015
The United Nations Convention on Contracts for the International Sale of Goods (“CISG”) establishes a comprehensive code of legal rules governing the formation of contracts for the international sale of goods, the obligations of the buyer and seller in contracts for the international sale of goods, and the remedies for breach of contracts for the international sale of goods. Canada on accession to the CISG declared that, in accordance with article 93 of the Convention, the Convention would extend to Ontario (and other provinces named in the declaration). The Canadian International Sale of Goods Contracts Convention Act, S.C. 1991, c. 13, has been in effect in Ontario since 1992 because of the International Sale of Goods Act, R.S.O. 1990, c. I.10. These two acts brought into effect in Canada the United Nations Convention on Contracts for the International Sale of Goods. The Ontario International Sale of Goods Act provides that the contracting parties “may … Read More
German Arbitral Award Recognized and Enforced by Ontario Court
The Ontario Court of Appeal recently released its endorsement in Alfred Wegener Institute v. ALCI Aviation Ltd., 2014 ONCA 398, upholding an order from the application judge that a German arbitral award be recognized and enforced in Ontario as if it were a judgment or order of the Ontario Superior Court of Justice. After the appellants failed to appear at the German arbitration and the Ontario application to enforce the German arbitral award, the appellants finally responded by bringing this appeal based on a technical argument under Article 35(2) of the International Commercial Arbitration Act, R.S.O. 1990, c. I.9, which required the party relying on the foreign arbitral award to supply a certified copy of the original award to the application judge. The appellants argued that the translation of the arbitral award before the application judge was not a duly certified copy. The Court of Appeal rejected the appellant’s argument and held that the application judge could properly find that the arbitral award met … Read More
Court Dismisses Motion For Forum Non Conveniens
In Central Sun Mining Inc. v. Vector Engineering Inc., 2014 ONSC 1849, the Ontario Superior Court of Justice addressed the moving defendants’ motion to dismiss or stay the action on the basis that Ontario was not the convenient forum to hear this action for damages arising from a landslide in Costa Rica. The moving defendants argued that the claims were based on acts or omissions that occurred in Costa Rica and in the United States, most of the parties and witnesses lived outside Ontario and the evidence was located outside Ontario. Following on the Supreme Court of Canada decision in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, the burden of proof is on the party raising the forum non conveniens issue to show that another forum is in a better position to dispose fairly and efficiently of the litigation, and that another forum is clearly more appropriate than Ontario. The following factors may be considered in … Read More
Court Finds Foreign Hotel Operator Properly Served in Ontario
In Klein v. Occidental Hotels & Resorts, 2014 ONSC 2221, the Ontario Superior Court of Justice addressed the issue of whether a foreign hotel operator was properly served with a claim made in Ontario with respect to an accident that occurred at its hotel in the Dominican Republic. In this case, the Plaintiff purportedly served the claim on the receptionist at the address of the hotel operator’s office in Toronto. The hotel operator argued that it does not have any offices in Ontario nor does it carry on business in Ontario, and the location where the claim was purportedly served was the address of the marketing company it uses in Ontario. The hotel operator maintained that the marketing company was not its agent. In considering whether the hotel operator was properly served, Justice Healey considered the three-part test to determine whether a corporation is carrying on business in Ontario: (i) has the corporation carried on business in the jurisdiction for a sufficiently substantial period of time; (ii) … Read More
Dubai’s DIFC Announces Amendment of Arbitration Law to Accord with New York Convention
Canada and UAE – New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards In 2006, United Arab Emirates joined 137 other nations in acceding to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the so-called 1958 New York Convention). Canada acceded to the New York Convention in 1986 declaring that it would apply the Convention only to differences arising out of legal relationships, whether contractual or not, that were considered commercial under the laws of Canada, except in the case of the Province of Quebec where the law did not provide for such limitation. In Ontario, it found its way into the International Commercial Arbitration Act, RSO 1990, c I.9 to the extent it is contained in the UNCITRAL Model Law, a schedule thereto. Respect of Arbitration Agreements under the New York Convention By Article II (3) of the New York Convention “The court of a Contracting State, when seized of … Read More
Court of Appeal Refuses to Exercise Long-Arm Jurisdiction
In West Van Inc. v. Daisley, the Motion Judge found that the claim did not have a “real and substantial connection” to Ontario to give the Ontario Courts jurisdiction. The Plaintiff, a Canadian company, was suing an American lawyer for work he had done for the Plaintiff company in the U.S. The Court of Appeal considered whether the Court should exercise jurisdiction under the “forum of necessity” exception; the Ontario Courts may assume jurisdiction over a case which it otherwise would not if there is no other forum where the Plaintiff can “reasonably” sue. The Plaintiff argued that it could not reasonably sue the American lawyer in North Carolina because it could not find a lawyer to represent it there. The Plaintiff had called lawyers in two of North Carolina’s largest cities, but none would agree to take the case. The Court of Appeal was not satisfied that the difficulty in … Read More