Staking Claims Against Foreign Defendants in Canada: Choice of Law and Jurisdiction Issues Arising from the in Personam Exception to the Mocambique Rule for Foreign Immovables
Bibliographic record
Abstract
Canadian courts have struggled in distinguishing between in personam jurisdiction and subject-matter jurisdiction (and specifically the Mocambique rule). In particular, they appear to overlook the two-fold jurisdictional requirement that in order to proceed in a given case they must have both types of jurisdiction - in personam and subject-matter - and that when jurisdictional challenges arise due to the fact that the dispute deals with foreign immovables Canadian courts, influenced by the post-Morguard focus on in personam jurisdiction, are dealing with the foreign land question under the rubric of in personam jurisdiction, not under the traditional heading of subject-matter jurisdiction. Part of the problem stems from a judicial preference to apply the Mocambique rule as exclusively a legal rule, while allowing for the in personam exception as a corollary to the and substantial test and the Muscutt factors. Professor McLeod's four pre-requisites for the in personam exception from his seminal text Conflict of Laws remain a relevant doctrinal basis for establishing jurisdiction simpliciter over foreign defendants in claims involving foreign immovables. While Professor McLeod was writing about the four pre-requisites for the in personam exception in 1983, his doctrinal approach remains relevant for determining subject-matter jurisdiction over claims involving foreign immovables. However, since Professor McLeod's first pre-requisite only addresses presence-based and consent-based jurisdiction, the court's have sometimes resorted to the Muscutt factors to assume jurisdiction over property-based claims, which offend the Mocambique rule. The Muscutt factors for assuming jurisdiction should be limited to traditional non-property claims in lieu of service-based or consent-based jurisdiction. The process of characterization is ultimately discretionary. However, the determination of jurisdiction simpliciter is not. Part I introduces the key components of judicial jurisdiction in the context of Canadian private international law. Part II provides an overview of the nature and scope of the in personam exception. Part III considers the utility of the real and substantial connection test by analyzing the in personam exception through the prism of recent Canadian case law where jurisdictional challenges raised relating to claims involving foreign real property led to divergent results. In Part IV, I conclude by proposing a three-factored test for jurisdiction simpliciter, which integrates the in personam exception in respect of foreign immovables
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.004 | 0.018 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.003 | 0.004 |
| Science and technology studies | 0.029 | 0.009 |
| Scholarly communication | 0.011 | 0.002 |
| Open science | 0.003 | 0.004 |
| Research integrity | 0.006 | 0.007 |
| Insufficient payload (model declined to judge) | 0.004 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".