The important concept of "jurisdiction" relates to a decision maker's authority or power to interpret and apply the law. Jurisdiction is based on the nature of the specific matter as well as on the geographic region or territory to which it relates. The first consideration, the subject matter involved, may determine what judicial or quasi-judicial body should address the matter. Depending on the matter, this could include provincial small claims courts, one of the federal courts, or any of the various quasi-judicial bodies that address different types of conflict. The second consideration, geographic territory, may determine if the matter is heard by a court or tribunal in Saskatchewan or in another province or country. Any person or entity interacting with the legal system may find themselves entwined in jurisdictional issues.
Saskatchewan residents engaged in civil litigation can face the issue of geographic jurisdiction. If the people involved and/or the matters they are dealing with have different geographic origins, then the court hearing the matter could be in question. Specifically, if the transactions, instruments, property or people involved in a matter cross one or more political or geographic boundary then a decision maker's jurisdictional authority could be in doubt. In order to deal with this potential situation, Saskatchewan has enacted The Court Proceedings and Transfer Act, SS 1997, c C-41.1 ("CJPTA") which became effective in March of 2004. The CJPTA exists primarily to deal with two issues specific to territorial jurisdiction. The first is to determine what is called "territorial competence". At its essence, this term refers to the connection between a specific territory's court and the people and facts involved. The second main purpose of the CJPTA is to set out the general provisions for the transfer of a proceeding to or from the courts in Saskatchewan. Note that the CJPTA deals only with territorial jurisdiction issues and not subject matter jurisdiction considerations. Note as well that the term "person" in the act is a generic term that refers to individuals, corporate entities, and government agencies.
The first step in determining whether a court has geographic jurisdiction is to determine whether or not the court has territorial competence. If the court has territorial competence, the second step is to determine whether it ought to exercise its territorial competence.
Does a Court have Territorial Competence
Section 4 of the CJPTA provides that a court only has territorial competence in a proceeding that is brought against a person if it meets one of the five criteria listed below:
- That person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim;
- During the course of the proceeding, that person submits to the court’s jurisdiction;
- There is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding;
- That person is ordinarily resident in Saskatchewan at the time of the commencement of the proceeding; or,
- There is a real and substantial
connection between Saskatchewan and the facts on which the
proceeding against a person is based.
The first three criteria above are fairly straightforward but the last two require further expansion. Sections 6, 7, 8 and 9 provide additional clarification. Sections 6, 7 and 8 focus on the term "ordinary residence" and define that term as it relates to corporations, partnerships, and unincorporated associations. Section 9, discussed below, outlines situations in which a "real and substantial connection" may be found. It is the details in section 9 that often provide real guidance for proceedings whose jurisdiction may be in question.
Section 9 of the CJPTA addresses the more thorny issue of what a "real and substantial connection" is when determining jurisdiction. This section highlights the following non-exhaustive connections as they would relate to the courts in Saskatchewan:
- Actions involving rights or security interest in property in Saskatchewan;
- Actions dealing with the estate of a deceased person if the property was in Saskatchewan or the person was a resident in Saskatchewan;
- Actions involving deeds, contracts, wills or other instruments dealing with property in Saskatchewan or residents of Saskatchewan;
- Actions brought against a trustee in the carrying out of a trust dealing with property, residency, the administration of the trust and the terms of the trust in relationship to the province of Saskatchewan;
- Actions involving contractual relationships when the contract was made in Saskatchewan, the obligations were to be performed primarily in Saskatchewan, the contract is governed by the law of Saskatchewan, or results in the purchase of property, services or both for use other than in the course of the purchaser's trade or profession and said business resulted from the solicitation of business in Saskatchewan by or on behalf of the seller;
- Actions concerning restitutionary obligations that, to a substantial extent, arose in Saskatchewan;
- Actions brought for a tort committed in Saskatchewan;
- Actions concerning a business carried on in Saskatchewan;
- Actions for a claim in injunction ordering a party to do or refrain from doing anything in Saskatchewan;
- Actions for the determination of personal status or capacity of a person who is ordinarily resident in Saskatchewan;
- Actions for the enforcement of a judgment of a court made in or outside Saskatchewan; and
- Actions for the recovery of taxes or other indebtedness that are brought by the Crown in right of Saskatchewan or by a local authority of Saskatchewan.
Should the Court Exercise its Territorial Competence
Section 10 of the CJPTA addresses the court's ability to decline territorial competence. Simply stated, if the Saskatchewan court, in making a jurisdictional determination, feels that there is another more appropriate jurisdiction in which to hear a proceeding, it may decline to hear the remainder of the proceedings. The court, in making this decision, considers a variety of criteria including the convenience and expense for participants and their witnesses, the law to be applied to issues in the proceedings, the desire to avoid multiplicity of proceedings or conflicting decisions, and the ability to enforce a decision.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.