LITIGATION BOUNDARIES
A JUDICIAL
APPROACH TO
THE BLURRING
GEOGRAPHIC
BOUNDARIES
OF LITIGATION
Judicial innovations seen in recent judgments
signal courts' willingness and creativity
to deal with jurisdictional issues
that challenge the traditional approach
By Eliot N. Kolers and Maria Konyukhova; Stikeman Elliott LLP
THE CONTINUING GLOBALIZATION of commerce and
litigation is challenging the traditional notion of judicial geographic jurisdiction. Former
Supreme Court of Canada Justice Ian Binnie, commenting on the issue in the Globe and
Mail newspaper in 2012, stated that courts are in danger of being marginalized by arbitration.
The better result for the continued public development of the law and the accessibility of the
justice system is to counteract marginalization by adaptation.
Three Ontario court decisions in 2013 have demonstrated the ability of the court system
to respond to the unique circumstances of cross-border or multijurisdictional cases. They
include an interprovincial class action in which judges from different provinces sat together
in one courtroom to hear submissions on common issues affecting their parallel cases, a crossborder class action with a global class, and a truly cross-border insolvency proceeding with an
upcoming simultaneous Ontario-Delaware trial. The three cases are, respectively, Parsons v.
The Canadian Red Cross Society, 2013 ONSC 3053 (CanLII), Silver v. IMAX, 2009 CanLII
72334 (ONSC) and Nortel Networks (Re), 2013 ONSC 1757; 2013 ONCA 427.
Set out below is a description of these three decisions. Their long-term impact cannot be
known but the common thread among them is their display of judicial flexibility to deal with
the geographical and jurisdictional problems at issue in each case, and their aim to get to the
end result as efficiently as possible.
44 | LEXPERT • December 2013 | www.lexpert.ca
