General Jurisdiction over Corporate Defendants under the CJPTA: Consistent with International Standards?

Abstract

This article addresses the bases for the assertion of “general jurisdiction” over a corporate defendant under the Court Jurisdiction and Proceedings Transfer Act. Unlike the bases for “specific jurisdiction,” general jurisdiction does not require a connection between the forum and the specific subject matter of a claim. International instruments reserve general jurisdiction to the State in which the defendant corporation’s registered office, centre of administration or principal activities are located (where these are distributed among several jurisdictions). The mere establishment of a place of business in the forum is sufficient only in relation to disputes specifically related to the defendant’s forum activities. This is in contrast to the traditional common law concept of presence-based jurisdiction under which the establishment of a place of business and the sustained carrying on of business in the forum when served in juris vests general jurisdiction over a corporate defendant even in unrelated disputes. While the United States Supreme Court has narrowed the availability of general presence-based jurisdiction over corporate defendants to bring it closer in line with the international standard, the Supreme Court of Canada has declined to follow that lead. And while the CJPTA uses the concept of “ordinary residence” for general jurisdiction, it defines “ordinary residence” for corporations and other business entities in a manner that preserves and even exceeds the common law approach. This article reviews these developments and concludes by suggesting that access to justice considerations best explain the remarkable persistence in common law Canada and under the CJPTA of the traditional common law concept of presence-based jurisdiction for corporate defendants.