Monday, 27 February 2017

French Court can order changes to foreign websites

             Recently the European Court of Justice (“ECJ”) issued a ruling that apparently allows a French court to order content to be removed from websites in other European Union countries.   A dealer of Samsung products had complained that other Samsung dealers were selling products online in France, Spain, Italy and elsewhere, in violation of a contract.   The dealer sued Amazon in France, relying on a French law that imposes liability on parties that directly or indirectly assist dealers to sell outside of a selective distribution network, despite prohibitions, and seeking an order requiring Amazon to remove those dealers’ products from Amazon in each of those countries.   The trial court and appeal court dismissed the claim on grounds that they lacked jurisdiction over foreign websites not directed at the French public.     The French Court of Cassation (the country's highest court for civil matters) referred the issue to the ECJ. 
            Article 5(3) of the Brussels I Regulation provides that, in tort cases, a person residing in a European Union member state may be sued in another E.U. member state, “in the courts of the place where the harmful event occurred or may occur”.*   This provision had previously been interpreted to include also where damage occurred (provided that such jurisdiction has laws that protect the right that was allegedly infringed).  A plaintiff could sue in either the place where the harmful event occurred or where the damage occurred.  

The ECJ held it was irrelevant that the websites outside France are not directed toward the French public.  It was enough that what was happening in those countries (i.e. the sale of Samsung products on Amazon) did or could cause damage in France, and that is for the French court to determine.    

The result was that the ECJ held that Article 5(3) confers jurisdiction on the courts of member states whose laws protect prohibitions against sales outside of a selective distribution network, provided that the plaintiff suffered damage in that member state.  See Case C 618/15 Concurrence SARL v. Samsung Electronics France and Amazon Services Europe SARL.

This case will remind readers of this blog of Equustek Solutions v. Datalink Technologies Gateways et al 2015 BCCA 265 , in which  the B.C. Court of Appeal ruled that the B.C. courts have power to order Google to remove content from results of searches done anywhere in the world.    That case is under appeal to the S.C.C.  (See my posts of July 9, 2015, Feb. 18, 2016 and March 28, 2016).

The ECJ’s ruling that damage occurring in the forum is itself a basis for jurisdiction over a foreign defendant stands in contrast to the Supreme Court of Canada’s 2012 decision in Van Breda,  that damage occurring or sustained in the forum is not a sufficient connection to that forum to justify the assumption of jurisdiction. 

*This regulation has been repealed but the corresponding provision in the regulation replacing it, Reg.1215/2012 (the Brussels Ibis Regulation), has identical language.

Friday, 23 December 2016

Hague Child Abduction Convention Picks up more Contracting States: Pakistan and Philippines

On Dec 22, 2016, Pakistan deposited its instrument of accession and became a contracting party to the Hague Convention of 25 October 1980 on Civil Aspects of International Child Abduction, effective March 1, 2017.  The Philippines did the same earlier in 2016.

This Convention creates a procedure to expedite the return of children who have been abducted back to the state where they had been habitually living and where the law conferred custody.  

In recent years, many populous countries have become contracting states under this Convention, thereby substantially expanding the availability of the benefits it provides.   In addition to Pakistan (population:  182 million) and the Philippines (98.4 million), other fairly recent accessions include the Russian Federation (143.5 million) in 2011, South Korea (50.2 million) in 2013 and Japan (127.3 million) in 2014.  There are now 96 contracting states, which include the U.S.A., most European countries, Mexico, Argentina and Brazil.  Sadly, India and the People’s Republic of China are not among them (except for the Hong Kong and Macau Special Administrative Regions).

Thursday, 6 October 2016

Long-time but Illegal Resident Found not to be “Ordinarily Resident”

Last month the Ontario Court of Appeal ruled, in Silva v. John Doe and the Superintendent of Financial Services 2016 ONCA 700, that a man who resided in Ontario continuously for nine years, without proper legal status, with few ties to anywhere else, is not considered to “ordinarily reside in Ontario”.   
The issue arose after Mr. Silva was struck and injured by an unidentified motorist and sued for compensation under the Motor Vehicle Accident Claims Fund (“Fund”), which was created and funded by the Province of Ontario.   The Motor Vehicle Accident Claims Act R.S.O. 1990 c M-41 (the “Act”) prohibits payments from the Fund to “a person who ordinarily resides in a jurisdiction outside Ontario…” After the Superintendent refused to pay Silva on the ground that he does not ordinarily reside in Ontario, Silva sued and brought a motion for summary judgment.    The motion court found that Silva does not ordinarily reside on Ontario, and dismissed the motion.  Silva appealed, not on the issue whether he is ordinarily resident, but on whether the Court had properly applied the test under the Act. 
The Court of Appeal, endorsing the motion court’s ruling, stated that de facto presence, even if continuous, does not automatically establish ordinary residency for the purpose of access to the Fund.   The substantial length of that presence did not either.   The Court noted that Silva was plainly aware that his presence in Ontario was unlawful, that he had been deported, returned illegally, and he had never even tried to obtain legal status. He did not pay taxes. The Court said that Silva’s lack of status weighs heavily in the determination as to whether he is ordinarily resident (para. 24). The motion court (2016 ONSC 307) said the lack of status is not itself a bar to a finding of ordinary residence (para. 43); the Court of Appeal did not comment on that point.
Although the ruling does not address the meaning of “ordinarily resident” in the context of jurisdiction, it may nonetheless have a bearing on jurisdiction cases.  Silva’s long and continuous presence in Ontario made him plainly and clearly de facto ordinarily resident in Ontario, and yet he was nonetheless found to be not ordinarily resident.  
One distinguishing factor is that the motion court held the taxpayer-supported Fund is not intended for people who live in Ontario illegally and clandestinely, and interpreted the Act accordingly.  Another factor is that “ordinarily resident” is a basis for jurisdiction because a claim against someone ordinarily resident is a claim with a substantial link to Ontario, and because someone ordinarily residing in Ontario would expect to be subject to the jurisdiction of its courts.   If Silva was sued in Ontario, there would be that substantial link to Ontario, and he could not credibly say he does not expect to be subject to the jurisdiction of the Ontario courts.