Court Jurisdiction and Proceedings Transfer Act
http://www.ulcc.ca/en/us/index.cfm?sec=1&sub=1c4
A court has territorial competence in a proceeding that is brought against a person ONLY IF: ?
(a) that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim,
(b) during the course of the proceeding that person SUBMITS to the court's jurisdiction,
(c) there is an AGREEMENT between the plaintiff and that person to the effect that the COURT HAS JURISDICTION IN THE PROCEEDINGS
(d) that person is ordinarily resident in [enacting province or territory] at the time of the commencement of the proceeding, or
(e) there is a real and substantial connection between [enacting province or territory] and the facts on which the proceeding against that person is based.
To achieve the first three purposes, this Act would, for the first time in COMMON LAW CANADA, give the substantive rules of jurisdiction an express statutory form instead of leaving them implicit in each province's rules for service of process. In the vast majority of cases this Act would give the same result as existing law, but the principles are expressed in different terms.
Jurisdiction is not established by the availability of SERVICE OF PROCESS, but by the existence of defined connections between the territory or legal system of the enacting jurisdiction, and a party to the proceeding or the facts on which the proceeding is based.
The term "territorial competence" has been chosen to refer to this aspect of jurisdiction (section 1, "territorial competence") and distinguish it from other jurisdictional rules relating to subject-matter or other factors (section 1, "subject matter competence").
Section 3 defines the five grounds on which a court has territorial competence in a proceeding in personam. Paragraphs (a), (b) and (c) include the three ways in which the defendant may consent to the court's jurisdiction: by:
1) invoking the court's jurisdiction as plaintiff
2) SUBMITTING to the court's jurisdiction during the proceedings
3) having AGREED that the court shall have jurisdiction.
These reflect long-standing law. Paragraphs (d) and (e) CHANGE CURRENT LAW, by replacing the criterion of service of process with the criterion of substantive connection with the enacting jurisdiction.
Paragraph (d) is effectively the replacement for the existing rule that a court has jurisdiction over any person that is served with process in the forum province or territory. Replacing service in the territory of the forum court with ordinary residence in that territory means that a person who is only temporarily in the jurisdiction will not automatically be subject to the court's jurisdiction. For a court to take jurisdiction over a person who is not ordinarily resident in its territory and does not consent to the court's jurisdiction, a real and substantial connection must exist within paragraph (e).
The current rule, which (subject to arguments of forum non conveniens) permits a court to take jurisdiction on the basis of the defendant's presence alone, without any other connection between the forum and the litigation, will therefore no longer apply. This change in the existing rule is proposed not only on the ground of fairness, but also because the existing rule is of doubtful constitutional validity, since a defendant's mere presence in a province is probably not enough to support the constitutional authority of a province to assert judicial jurisdiction over the defendant.
Paragraph (e) replaces the existing rules, in the common law provinces, relating to service ex juris. Territorial competence will depend, not on whether a defendant can be served ex juris under rules of court, but on whether there is, substantively, a real and substantial connection between the enacting jurisdiction and the facts on which the proceeding in question is based. This provision would bring the law on jurisdiction into line with the concept of "properly restrained jurisdiction" that the Supreme Court of Canada, in Morguard Investments Ltd. v. De Savoye (1990), held was a precondition for the recognition and enforcement of a default judgment throughout Canada. The "real and substantial connection" criterion is therefore an essential complement to the uniform Enforcement of Canadian Judgments Act, which requires all Canadian judgments to be enforced without recourse to any jurisdictional test. The present Act, if adopted, will ensure that all judgments will satisfy the Supreme Court's criterion of "properly restrained" jurisdiction, which the court laid down as the indispensable requirement for a judgment to be entitled to recognition at common law throughout Canada.