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The proposed statutes provide for the transfer by superior-level courts of the proceeding where some other jurisdiction is a more appropriate forum for the matter at issue.

Similarly, the superior-level courts are authorized to receive proceedings on the basis of a requested transfer from a court in another jurisdiction.

The Act gives procedural guidelines on the steps to be followed to complete such a transfer and authorizes Rules of Court to be established governing these issues.

Some of the meat and potatoes of the uniform statute:

"§3. 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 proceeding; (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...."

world map"§6. A court that ... lacks territorial competence in a proceeding may hear the proceeding despite that section if it considers that: (a) there is no court outside [enacting province or territory] in which the plaintiff can commence the proceeding; or (b) the commencement of the proceeding in a court outside [the enacting province or territory] cannot reasonably be required.

"§11.  After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding. A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum, the law to be applied to issues in the proceeding, the desirability of avoiding multiplicity of legal proceedings, the desirability of avoiding conflicting decisions in different courts, the enforcement of an eventual judgment, and the fair and efficient working of the Canadian legal system as a whole.

"§12. If there is a conflict or inconsistency between this Part and another Act of [enacting province or territory] or of Canada that expressly: (a) confers jurisdiction or territorial competence on a court; or (b) denies jurisdiction or territorial competence to a court, that other Act prevails."

The uniform laws are not intended to codify process for international family law issues. Note this comment #10.4 in the uniform Canadian statute:

"It was felt better to leave the matter of territorial competence for the special family law statutes. If the question of territorial competence in a particular family matter was not dealt with in a special statute, the general rules in (the uniform act), including ordinary residence and real and substantial connection, would govern."

Unfortunately, the uniform statutes have not been adopted by all Canadian jurisdictions. The ULCC reports, as of February 2012:

"The Enforcement of Canadian Judgments Act and the Court Jurisdiction and Proceedings Transfer Act have been passed in Saskatchewan and the Yukon, but are awaiting implementation by several other provinces.

"The Enforcement of Canadian Judgments Act has also been passed by British Columbia, Prince Edward Island, and Newfoundland, and a variant by New Brunswick."

That statement is dated since the statute books, as of February 2012, include BC:

The venerable Supreme Court of Canada has had occasion to comment on the uniform statute in a case which began in British Columbia, Teck Cominco Metals Ltd. v. Lloyd's Underwriters. Madam Justice Beverly McLachlin wrote the opinion of the Court

"The Court Jurisdiction and Proceedings Transfer Act (CJPTA) creates a comprehensive regime that applies to all cases where a stay of proceedings is sought on the ground that the action should be pursued in a different jurisdiction (forum non conveniens). It requires that in every case, including cases where a foreign judge has asserted jurisdiction in parallel proceedings, all the relevant factors listed in §11 be considered in order to determine if a stay of proceedings is warranted. This includes the desirability of avoiding multiplicity of legal proceedings.

"(T)he prior assertion of jurisdiction by a foreign court does not oust the §11 inquiry.... Policy considerations do not support making a foreign court's prior assertion of jurisdiction an overriding and determinative factor in the forum non conveniens analysis. To adopt this approach would be to encourage a first-to-file system, where each party would rush to commence proceedings in the jurisdiction which it thinks will be most favourable to it and try to delay the proceedings in the other jurisdiction in order to secure a prior assertion in their preferred jurisdiction. Technicalities, such as how long it takes a particular judge to assert jurisdiction, might be determinative of the outcome. In short, considerations that have little or nothing to do with where an action is most conveniently or appropriately heard, would carry the day.

"§11 of the CJPTA was intended to codify the forum non conveniens test, not to supplement it. The CJPTA is the product of the Uniform Law Conference of Canada... The drafters of the model Act confirmed that §11 of the CJPTA was intended to codify the common law forum non conveniens principles.... §11 is meant to codify the doctrine of forum non conveniens.... It admits of no exceptions.

"Blind acceptance of a foreign court's prior assertion of jurisdiction carries with it the risk of declining jurisdiction in favour of a jurisdiction that is not more appropriate.  A holistic approach, in which the avoidance of a multiplicity of proceedings is one factor among others to be considered, better serves the purpose of fair resolution of the forum non conveniens issue with due comity to foreign courts."2

Status, Circa 2012

And there matters stand circa 2012, the Cadillac of conflict of laws statutes left at the door of each Canadian province and territory, conceived by and supported by unequivocal pronouncements by the Supreme Court of Canada.

But most are not takers, preferring to abandon their citizens to the labyrinth of common law conflict of laws rules and maxims, a state of affairs fine for lawyers (because they make money on complicated laws) and judges (who do not like interference with the Court rules) ... but unfair to the citizenry.

A start, but not an auspicious one.

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