"After the Storm: The Impact of the Financial Crisis on Private International Law": Jurisdiction (Canada‪)‬

In her 2010 Rand Lecture, Catherine Walsh drew attention to the impact of the world financial crisis on individual autonomy and choice of law in contract, particularly in relation to contracts of adhesion in the contexts of consumer and insurance law. (1) Choice of law is one of the three principal concerns of private international law or conflict of laws; the other two are jurisdiction simpliciter (2) and recognition and enforcement of foreign judgments. (3) In times of financial instability and a global economic downturn, greater certainty in jurisdictional matters promotes efficiencies in the legal system and significant cost-savings for litigants, particularly if enhanced by confidence that the eventual judgment will be recognized and enforced, if need be, elsewhere. Differently expressed, transaction costs for litigants are reduced by greater certainty on issues of jurisdiction. Litigation on issues of jurisdiction are essentially wasted judicial and litigant resources on the path to eventual adjudication on the substantive merits of the legal dispute, though litigation of jurisdictional issues may lead to settlement. This modest contribution to the collection of opinion pieces on private international law focuses on the jurisdictional questions that have so occupied Canadian jurists since the Supreme Court of Canada's decision in Morguard Investments' Ltd. v. De Savoye. (4) Along the way, the Court of Appeal for Ontario took what it now acknowledges as a misstep in Muscutt v. Courcelles, (5) a widely referenced and influential decision in some Canadian courts but resisted by others. In 2010, the Court of Appeal for Ontario in Van Breda v. Village Resorts" Ltd. revisited its approach to jurisdiction simpliciter in Muscutt but has it achieved a satisfactory result? (6)